Houston DWI Lawyer


How Pilots Charged With DWI Can Get Back To Flying

By J. Gary Trichter & Arthur T. Hadley, III, MD, AME

The job of the AME in the aviator fitness for flight medical examination process is to coordinate the flow of information to the FAA so it may make an informed and safe decision regarding the aviator’s flying status. 

When an aviator has their flight physical, and there is a DWI noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. 

Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to the FAA.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? 

First, he can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI and/or license suspension event, as the aviator has 60 days after the event to notify SHMSO. 

Should that 60-day window be missed, it is still better to then not at all. Second, the AME will remind the aviator to request their driving record from the Texas Department of Public Safety. The AME will further tell the aviator to obtain from his DWI lawyer all records from the DWI and Administrative License Revocation cases so that they, too, can be given to the AME for review. 

By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along. 

Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a HIMS qualified AME (These AME’s have additional training and certification and the acronym stands for Human Interventional Motivational Study– a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol — will not let the matter rest with the mere submission of the flight physical exam). 

Those AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and also, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. 

Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. 

Note, this process is fluid, and there are no guarantees that it will be successful, and accordingly, it is often the case that the aviator will become frustrated with the process. Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, the light at the end of the tunnel can most often be seen.

Focusing on whether or not there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from an Intoxilyzer or blood test, a deferment is the default FAA position. 

Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem. 

Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol. 

In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. 

Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive. If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring a licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. 

From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions. Also, in almost all cases, the FAA will require that the aviator participates in an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings. 

Here, it is important that the aviator has a log that can be signed by the individual running each meeting to prove their attendance. Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation. 

It is here, by gathering, organizing, and assembling your sobriety and a low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is an applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved, such as the Southwest Airlines program which is available to view on the web). 

Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision. 

That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator applies only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay- about a year or more. 

Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command. The pilot can still fly with a certified flight instructor.

So, what advice do Senior AME’s give to their pilot applicants? 

To be blunt, never drink and drive. 

Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career and your future. 

While it is legal in Texas to drink and drive while not intoxicated, it is far safer to use a designated driver, Uber or taxi, and if none are available, to show good judgment, and simply not drive if you are drinking or don’t drink if you must drive.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. 

The first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI. It took five years of sobriety proof for that aviator to be returned to flying status. 

The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. 

These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason. Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

Our final advice to the aviator charged with DWI, wishing to continue in aviation, is that they should wisely choose their AME and aviation lawyer. 

Again, the aviator should be very comfortable in the choices because they will be working with that AME and lawyer for an extended period of time. 

Moreover, when thinking about drinking before driving, to first think about the cost of a bond to get out of jail, the cost of getting your vehicle from the tow truck yard, the cost of a good DWI and license suspension lawyer, a good lawyer experienced in FAA matters. 

You should also be thinking about the cost of a licensed professional counselor, a psychiatrist, and an addiction medicine specialist. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. 

To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Accordingly, from an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA. Having this knowledge, allows the AME to guide you and your sobriety team on the best path to have your flying privileges reinstated. 

In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive. 

However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and also, a lawyer experienced in FAA matters!

*Arthur T. Hadley, III, MD, is an Aviation Medical Examiner (AME) and a pilot. He has been a practicing physician since 1972 and is a 1978 graduate of the United States Airforce School of Aeromedicine. His primary practice is Preventive Medicine, but Aerospace Medicine is a favorite sub-specialty. He has been honored to have been elected as a Fellow to Aerospace Medical Association and was an astronaut candidate and a NASA flight surgeon. Dr. Hadley has been practicing medicine from 2008 to the present at the Arthur Hadley Medicine Clinic www.fitslim.com. Dr. Hadley can be contacted by telephone at (281) 597-1010 and by e-mail at arthurhadley@hadleymd.com

** J. Gary Trichter is the senior lawyer with the Houston & Bandera, Texas Law Firm of Trichter & LeGrand, P.C.  Known as “The Cowboy Pilot Lawyer”, he has been in practice for approximately 40 years and represents clients throughout Texas.  Gary is the former co-author of the two-volume treatise entitled Texas Drunk Driving Law (1s through 4th Editions) and is author of over forty journal articles ranging from DWI, grand jury, drug couriers, aviation, to the Star-Spangled Banner.

Gary is “AV” rated by Martindale-Hubbell and has been voted by his peers the past 14 years as a Texas Monthly Magazine “Super Lawyer”.  He is also “Board Certified” as a DWI Specialist.  This rating comes from the National College for DUI Defense whose rating has been approved by the American Bar Association and accepted by the Texas Board of Legal Specialization. Gary is Founder and Past-President of Texas DWI Lawyers (formerly Texas DWI Defense Lawyers Association), past President of the Texas Criminal Defense Lawyers Association and past Dean and Regent for the National College for DUI Defense.  He is a former Director and former DWI co-chair for the DWI Committee for the Texas Criminal Defense Lawyers Association and past chairman of NACDL’s Drunk Driving Committee.

From an aviation experience perception, Gary has multiple Certified Flight Instructor ratings, he is a CFI, CFII (Instrument), and MEI (Multi-Engine). Mr. Trichter can be contacted by telephone at (713) 524-1010 or by e-mail at gary@texasdwilaw.com


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