Understanding the Medical and Legal Consequences Beyond the DUI

Introduction

You spent the evening with family and friends celebrating a close friend’s long-awaited business success. It had been years in the making, and the occasion called for a toast. Over the course of the six-hour evening, you had three glasses of wine.

On the drive home, you roll through a stop sign leaving the neighborhood. Almost immediately, flashing lights appear in your rearview mirror. You pull over, fully expecting a citation for failing to stop.

Instead, the officer asks a different question: “Have you been drinking?”

A common phrase is, “Never blow.” Ask where that advice comes from and the answer is often the same: “That’s what every lawyer says.”

For a pilot, however, that advice may be incomplete.

Refusing to submit to a breath or blood test following a DUI stop can have significant consequences that extend far beyond the criminal case. The legal implications are only one part of the equation. Your decision may also have substantial consequences for your FAA medical certification, your pilot certificates, and your future employability.

Pilots are trained to make informed, risk-based decisions. Making a decision of this magnitude based solely on anecdotes or generalized advice means you may not be considering all of the consequences.

In this article, we examine the legal and practical implications of refusing to submit to alcohol testing during a DUI stop as they relate to the FAA and your status as a pilot. Our goal is not to tell you whether you should or should not refuse testing. Rather, it is to explain the multiple legal and regulatory systems that come into play once that decision is made so you can better understand the consequences before you ever find yourself in that situation.

This article generally references state and local laws concerning alcohol misuse as they relate to FAA requirements for medical certification. Details of state and local laws are beyond the scope of this article. 

14 CFR § 91.17: Operating Rules Every Pilot Should Know

The operational rules concerning alcohol use are separate from the medical qualification/certification regulations in part 67. The operational rules are contained in 14 CFR § 91.17(a). They prohibit a person from acting or attempting to act as a crewmember of a civil aircraft: “(1) within 8 hours after the consumption of any alcoholic beverage; (2) while under the influence of alcohol; (3) While using any drug that affects the person’s faculties in any way contrary to safety; or (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen.” 

In addition, § 91.17 requires the pilot to submit to an alcohol test on request of a law enforcement officer authorized under State or local law to conduct the test when that officer is investigating a “suspected violation of State or local law governing the same or substantially similar conduct” prohibited by (1), (2), and (4) in the paragraph above. Furthermore, upon FAA request, the pilot must furnish the results of alcohol testing conducted within 4 hours of the pilot acting or attempting to act as a crewmember.  

A pilot who operates, or attempts to operate, an aircraft under any of the four criteria above will likely be in noncompliance with § 91.17(a). The likely result will be revocation of the person’s pilot certificate. In addition, as specified in § 91.17(e), the Flight Standards District Office (FSDO) handling the operational case will almost certainly refer the matter to FAA Aerospace Medicine (AAM) to determine whether the airman is qualified to continue holding a medical certificate. Under § 91.17(e), that assessment would include a review of the results of an alcohol test administered by a law enforcement officer under state or local law. 

What 14 CFR § 67.107 Actually Says

Part 67 “Substance Abuse”: What it means . . . and doesn’t mean

A pilot who has had “substance abuse within the preceding 2 years” is unqualified to hold an unrestricted medical certificate under three independent definitions of “substance abuse” in part 67. It’s important for pilots to understand what those definitions mean and what they don’t mean. 

• Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous

A pilot has part 67 “substance abuse” when they have used a substance in a situation in which that use was physically hazardous within the preceding two years and in another such situation at any other time. For example, two DUIs in the preceding two years, or one DUI in the preceding two years and another that occurred more than 2 years ago both count as “substance abuse.” 

Substance abuse under this definition is not a single lifetime DUI, whether or not it happened within the preceding 2 years. Likewise, substance abuse is not two or more DUIs that happened outside of the preceding 2 years.   

• Verified positive drug test result, alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation

A pilot has part 67 “substance abuse” if he or she tested positive on a test required by the U.S. DOT, the FAA, or another agency of the DOT within the preceding two years, or if the pilot refuses to submit to such a test within that time. Substance abuse is not a positive result or refusal on a DOT test that occurred outside of the preceding two years. 

Substance abuse also is not a pilot’s positive test or refusal to submit to a non-U.S. DOT test. For example, a pilot who receives a DUI while operating a motor vehicle and refuses to submit to a roadside breathalyzer test conducted by a state does not meet the definition of substance abuse under this section.

• Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds—(i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges. 

There is yet a third definition of substance abuse, and it generally relates to 14 C.F.R. § 91.17(a). Assume that within the preceding 2 years, a pilot attempted to act as a crewmember and received a 0.09 BAC on an alcohol test lawfully conducted under State law. This is the pilot’s only DUI. In this instance, the first two definitions of substance abuse do not apply, because this was a single DUI involving a positive alcohol test result on a state, not federal, alcohol test. 

In this instance, the third definition would apply if the Federal Air Surgeon determined that the pilot’s prohibited conduct under § 91.17(a) was also “misuse” of a substance that made the pilot unable to safely exercise the privileges of the certificate. Note that under NTSB case law, this third definition should apply to a single DUI in connection with acting or attempting to act as a crewmember and not in connection with a single DUI while operating a motor vehicle.

FAA Medical Certification Is Different

Unlike the criminal justice system, the FAA’s medical certification process is not concerned with determining whether you committed a crime or whether you should be punished. Its primary purpose is to protect aviation safety by determining whether an airman currently meets the medical standards necessary to safely exercise the privileges of their certificate.

From an aerospace medicine perspective, the FAA is primarily concerned with conditions that could result in a sudden or insidious impairment of a pilot’s ability to safely operate an aircraft. That impairment may arise from an underlying medical condition, a mental health disorder, the effects of medications, or the use of alcohol or other substances.

A DUI arrest is not viewed solely as a legal event. Instead, it is considered a potential indicator of an underlying issue involving alcohol use that could have implications for aviation safety. As a result, the FAA requests records related to DUI arrests not simply because an arrest occurred, but to determine whether the event represents an isolated lapse in judgment or evidence of a more significant substance abuse or substance dependence issue as defined under the Federal Aviation Regulations.

DUI conviction is irrelevant to FAA medical certification. In fact, a BAC between 0.08 and 0.15 may support a DUI conviction, but exonerate a pilot from medical certificate action. 

Medical certification is just one layer of the FAA’s comprehensive approach to aviation safety. The goal is not to punish pilots for poor decisions, but to identify medical conditions or behaviors that may increase the risk of impairment in the aviation environment.

Understanding FAA “Substance Abuse”

When it comes to alcohol and drugs, the FAA is obligated to apply the standards established in the Federal Aviation Regulations (14 C.F.R. part 67). The definitions contained within those regulations were originally based on concepts from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Since that time, the psychiatric community adopted the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) in 2013, but the Federal Aviation Regulations have not been updated to reflect those changes.

DSM-5 no longer distinguishes between “substance abuse” and “substance dependence.” Instead, it combines both into a single diagnosis of Substance Use Disorder, which is classified according to severity.

It is important to understand that an individual may not meet the DSM-5 criteria for a Substance Use Disorder yet still meet the FAA’s regulatory definition of substance abuse under 14 C.F.R. part 67. Likewise, a treating physician or mental health professional may use DSM-5 terminology that differs significantly from the language used by the FAA during the medical certification process.

This distinction is one of the most common sources of confusion for pilots. Many assume that because they do not have a current diagnosis of a Substance Use Disorder, the FAA will reach the same conclusion. However, the FAA is required to apply the regulatory definitions contained in the Federal Aviation Regulations, not the diagnostic criteria of DSM-5. Failing to recognize this difference can leave pilots unprepared for the medical certification consequences that may follow a DUI arrest or refusal to submit to alcohol testing.

The Questions Pilots Actually Ask

The following are questions that pilots commonly ask along with general answers. However, FAA outcomes depend on the specific facts, regulations, and evidence for each case and not simply the criminal disposition. 

• If I refuse, am I automatically grounded?

If you refuse to submit to a drug or alcohol test required by the U.S. DOT or the FAA or other agency of the U.S. Department of Transportation within the preceding two years, think twice before you operate an aircraft. You are not “automatically grounded.” However, FAA regulations prohibit the holder of a part 67 medical certificate from acting as PIC while that person “knows or has reason to know of any medical condition that would make the person unable to meet the requirements for the medical certificate necessary for the pilot operation[.]” 14 C.F.R. § 61.53(a)(1). Although the refusal itself is not a “medical condition,” it could nonetheless result in the FAA finding the airman unable to meet the part 67 requirement for no substance abuse within the preceding two years.

• Is refusing worse than blowing over the limit? 

Generally, yes. An unknown BAC, e.g., because the pilot refused, results in more onerous FAA requirements for assessing a pilot’s qualifications to hold an unrestricted or special issuance medical certificate. Unless a pilot address the situation proactively and providing robust data – most often involving a period of voluntary monitored abstinence from alcohol and forensic-level psychiatric assessment – the FAA will most like consider the arrest as evidence of regulatory abuse.

• Does dismissal of criminal charges end the FAA issue?

No. From the FAA’s perspective, the fact that a pilot’s criminal charge for DUI/DWI, or the refusal to submit to alcohol testing, was dismissed does not erase the fact that the pilot was arrested for DUI/DWI, triggering the reporting requirement under Question 18.v. 

• What if I was never convicted or plead to a lesser charge?

Pay close attention to Question 18.v. on the medical certificate application. It asks, in part, about the pilot’s history of any arrest(s) and/or conviction(s) involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug. Therefore, arrests, even if they do not result in a conviction, must be reported. The MedXPress application instructions for Form 8500-8 define “arrest” as “being detained or taken into custody by any law enforcement or military authority for any reason related to a driving stop for suspected driving while intoxicated by, while impaired by, or under the influence of drugs or alcohol.” The FAA wants to know about the arrest, even in the absence of a conviction, so that it can assess the pilot’s medical qualifications.  

• What if the refusal happened years ago?

Question 18.v. asks about arrests and convictions during the pilot’s lifetime. Therefore, all arrests and convictions “involving” DUI/DWI must be reported. However, note that the refusal to submit to a U.S. DOT or FAA drug or alcohol test outside of the preceding two years is not substance abuse under the plain meaning of 14 C.F.R. § 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2), and therefore should not support a pilot’s disqualification for substance abuse under those sections. Also, recall that a refusal to submit to a non-U.S. DOT or FAA drug or alcohol test is beyond the scope of these regulatory sections, regardless of when that refusal occurred.

Airman Reporting Requirements

There are two reporting requirements related to a DUI arrest. One is on Form 8500-8, reportable to FAA Office of Aerospace Medicine (AAM). The other is to FAA Security under 14 C.F.R. § 61.15.

Form 8500-8 does not require reporting the refusal itself, but it requires reporting the overarching arrest or conviction “involving” DUI/DWI under Question 18.v. Also, when the pilot signs the application through MedXPress, the pilot authorizes the National Driver Register (NDR) to furnish to the FAA information pertaining to the pilot’s driving record. Therefore, even if the pilot checks “no” to Question 18.v., the FAA is likely to learn about it. A “no” response to Question 18.v with a NDR DUI/DWI arrest could result in revocation of all the pilot’s certificates should the FAA determine that the pilot’s answer constituted intentional falsification of Form 8500-8.

As a separate requirement, pilots must provide a written report of each “motor vehicle action” to the FAA, Civil Aviation Security Division within 60 days of the event under 14 C.F.R. § 61.15. Section 61.15 defines a “motor vehicle action” as (1) a DUI/DWI conviction, but not arrest, or (2) cancellation, suspension, or revocation of driving privileges, or denial of an application for a license to operate a motor vehicle, for a cause related to DUI/DWI. In general, a refusal to submit to DUI testing results in an immediate suspension of driving privileges and triggers the security notification requirement. 

Medical Certification Consequences

AAM treats a breath or blood test refusal after a DUI as meeting criteria for abuse per 14 C.F.R. § 67.107, even when the refusal was on a test conducted by a State. While a substance abuse finding based on a refusal under a State test does not align with the plain language of § 67.107, it remains how FAA medical treats it.

Once the AAM learns of a DUI with a refusal to provide a test result you can expect to receive a letter from the FAA. This letter will inform you that they cannot establish your eligibility to maintain your medical certificate. The letter will demand that you be evaluated by a HIMS qualified psychiatrist. This evaluation is specifically looking for concerns of substance dependence or other mental health issues. In our experience HIMS trained Psychiatrists generally diagnose substance abuse citing 14 C.F.R. § 67.107 criteria based solely on the refusal to submit to testing.

The FAA may also mandate that you engage with a HIMS AME and begin drug and alcohol monitoring per the HIMS program. You will need to provide the following items to the HIMS AME:

• Complete airman medical file release
• Personal statement
• Police reports
• Court documents
• Driving record
• Substance use evaluation from HIMS psychiatrist

If the psychiatric evaluation does not show additional concerns for substance dependence, AAM will most likely consider it substance abuse as described above and you can continue or begin the monitoring with a HIMS AME.

After two months of monitoring showing no positive drug or alcohol testing the FAA will consider your case for a special issuance medical certificate. Monitoring can be expected to last two years.

There are costs associated with this process: 

• Loss of income
• HIMS AME – $2000-4000 per year
• HIMS Psychiatric evaluation – $3000-4000
• Drug & Alcohol testing – $50-250 per month

Note that under the part 67 process, before AAM issues a special issuance medical certificate to the pilot, it must deny or disqualify the airman from holding an unrestricted medical certificate based on a specific finding of substance abuse, and it must provide the pilot an opportunity to challenge that decision before an NTSB law judge. 

Practical Considerations Immediately After an Arrest

If you are a pilot arrested for DUI/DWI or for refusing to submit to an alcohol test, the following  are practical steps you can take to protect yourself: 

• Preserve all paperwork
• Obtain police reports
• Obtain court records
• Obtain chemical testing records if performed
• Do not assume reduced charges eliminate FAA concerns
• Speak with an attorney familiar with aviation implications
• Speak with an experienced aviation medical consultant before you report the DUI to the FAA

Where Medical and Legal Strategy Should Work Together

When faced with a DUI arrest or a refusal to submit to alcohol testing, it is important to engage both an experienced aviation attorney and an aviation medical consultant. The legal and medical certification consequences are closely related, yet each requires a different area of expertise.

An aviation attorney can advise you regarding the criminal proceedings, state driver’s license consequences, FAA reporting obligations, and any regulatory or enforcement issues that may arise. If necessary, they can also represent you before the FAA or the National Transportation Safety Board (NTSB) should an appeal become necessary.

An aviation medical consultant, ideally an experienced Senior HIMS AME in this situation, serves a different but equally important role. Rather than focusing on the legal case, they help you understand how AAM is likely to evaluate your medical certification. They can identify the records and evaluations the FAA is likely to require, explain the certification pathway, and, when appropriate, begin coordinating items such as a HIMS psychiatric evaluation and drug and alcohol monitoring before you report the event on a medical application or receive correspondence from the Aerospace Medical Certification Division. With the right evidence early engagement can dramatically reduce the time and complexity required to obtain a medical certificate.

Neither professional replaces the other. One is focused on protecting your legal interests, while the other is focused on preserving your ability to obtain or regain FAA medical certification. When your flying career is on the line, the best outcomes often result from working with both professionals and understanding how decisions made in one arena may affect the other.

Bottom Line

For pilots, refusing a breath or blood test is far more than a criminal law-related decision. It can dramatically influence how the FAA evaluates you from a medical certification standpoint and may have significant employment consequences in an industry where medical qualification is essential.

Understanding the consequences of refusing alcohol testing during a DUI investigation is essential if you ever find yourself faced with that decision. While 14 C.F.R. part 67 specifically identifies refusal of a drug or alcohol test required by the U.S. Department of Transportation or one of its agencies as meeting the regulatory definition of substance abuse, a chemical test requested by a local law enforcement officer during a routine DUI investigation is not considered a DOT-required test. Despite that distinction, pilots should understand that the FAA’s Aerospace Medical Certification Division has historically treated these cases as significant substance abuse certification concerns requiring an extensive medical certification process.

A pilot certainly has the right to decline the FAA’s requests for additional medical evaluation and documentation. However, doing so will generally result in the denial or suspension of medical certification. While that decision may ultimately be challenged through the NTSB and the federal courts, the process can take a year or longer, often at a direct legal cost measured in tens of thousands of dollars, in addition to the potential loss of income while unable to exercise pilot privileges.

By contrast, pilots who proactively engage experienced aviation legal counsel and a Senior HIMS AME, begin the required evaluations early, and work through the FAA’s medical certification process are often able to return to flying substantially sooner and at significantly lower overall cost than pursuing prolonged litigation.

Ultimately, this article is not intended to tell you whether you should submit to or refuse alcohol testing. It is intended to ensure that, if you are ever faced with that decision, you understand that the consequences extend far beyond the roadside traffic stop. An informed decision is almost always better than one made based on anecdotes or incomplete advice.