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We get nervous when we encounter an obviously-impaired driver on the road. On a few occasions, we’ve even called the police to report impaired driving. But we never considered the possibility of impaired flying until we read this Tenth Circuit Court of Appeals opinion.
If you’re already scared of air travel, you might be better off skipping this one.
Aaron Jason Cope was convicted of one count of operating a common carrier -- a commercial airplane -- under the influence of alcohol. He appealed the conviction, claiming improper venue, insufficiency of the evidence, and improper reliance on federal regulations. The Tenth Circuit Court of Appeals affirmed his conviction.
First, let's talk about the good news involved with drinking while flying: it carries a much stiffer penalty than driving under the influence. Federal law provides that operating or directing the operation of a common carrier, (like a plane, bus, boat, or train transporting passengers in interstate travel), while under the influence of alcohol is punishable by up to 15 years in prison.
A person who operates a common carrier with a blood alcohol content of .10 percent or more is presumed to be under the influence.
On December 8, 2009, Robert Obodzinski, (the captain), and Cope (the copilot and first officer) were piloting a commercial flight from Austin, Texas to Denver, Colorado. Obodzinski noticed that Cope's face was puffy and his eyes were a little red, but assumed that Cope was getting sick because he had mentioned the night before that he wasn't feeling well. Obodzinski even initially dismissed the smell of alcohol in the cockpit as a spilled drink in first class.
Upon landing, however, Obodzinski realized that the smell was coming from Cope.
Obodzinski reported the matter to dispatch, and Cope was ordered to a breath testing facility in the Denver airport for two tests. The result of the first test was .094 and the second was .084. After a two-day bench trial, the district court convicted Cope and sentenced him to a below-guidelines sentence of six months in prison and two years of supervised release.
You've probably noticed that neither of Cope's alcohol levels met the .10 presumption mark. He was nonetheless convicted based on expert testimony regarding the average alcohol elimination rate.
The district court found that Cope was in the elimination phase of his alcohol consumption upon landing in Denver, meaning that his BAC was well above .094 percent during the flight. Even without meeting the .10 mark, a court can still find a defendant was under the influence.
The Tenth Circuit Court of Appeals affirmed Cope's conviction because there was sufficient evidence against Cope. While Cope tried to argue that he wasn't under the influence because his skills weren't impaired, the appellate court pointed to a Ninth Circuit holding that one can be under the influence of alcohol without outward signs of impairment.
Do you agree that being "under the influence" is more important than exhibiting signs of impairment?