Elements of DUI/DWI Offenses Involving Operation of Aircraft

Elements of DUI/DWI Offenses Involving Operation of Aircraft

It is unlawful for any person who is under the influence of intoxicating liquor or drugs to drive, operate, or take actual physical control of a motor vehicle in a public place. This is commonly referred to as driving under the influence (DUI) and operating under the influence (OUI). This offense also applies to operating aircraft, and many states specifically list an aircraft as a type of "vehicle" included in the applicable vehicle code. Other states cover the operation of an aircraft in a separate section within its code.

Generally, under state law, if a person's blood alcohol concentration (BAC) is 0.08 or more, it is presumed in a trial that the person was under the influence of intoxicating liquor. A person also commits a DUI or OUI if he or she has a BAC of 0.08 or more within several hours of operating or being in actual physical control of the aircraft. This is a strict liability offense that does not require unlawful or criminal intent. The pilot does not have to be in the air to commit the offense. By engaging in preflight procedures before takeoff, a pilot is considered to be "operating" or "in control of" the aircraft.

The Federal Aviation Administration (FAA) also regulates this matter. Under Federal Aviation Regulations (FARs), intoxication is determined by the amount of alcohol in the bloodstream. This is usually measured as a percentage by weight in the blood. The FARs require that blood alcohol level be less than 0.04 percent and that eight hours pass between drinking alcohol and piloting an airplane. A pilot with a blood alcohol level of 0.04 percent or greater after eight hours cannot fly until the blood alcohol falls below that amount. Even if blood alcohol is well below 0.04 percent, a pilot cannot fly sooner than eight hours after drinking alcohol.

The FAA regulations allow individual states to investigate violations of the FAA regulations when the state law prohibits conduct that is the same or is substantially similar to the conduct that is prohibited by the FARs. Thus, state laws criminalizing the operation of an aircraft while intoxicated are not preempted by FARs and may be enforced.