DWI: Refused to test, need help for reporting

[Larry Vrooman]

My roadside BAC was high enough though that FAA wise i doubt the refusal would matter. I'm likely in for a one hell of a legal haul.

Probably.

A single/first DUI conviction by itself won't normally cost you a 2nd or 3rd class medical. However, both a refusal or a BAC above .15 will require an alcohol eval (and possibly treatment, and 2 years of sobriety if you don't do well in the eval) before you can be issued a medical.

 

[Half Fast]

The times that I have driven intoxicated since then were because the choices were limited. (ie. my DD getting so drunk he couldn’t stand, so I stop drinking to get me and friends home)

You see, the problem here is that you don't consider "Don't drink to start with" to be one of the valid choices. A choice which, by the way, would have avoided this whole mess.


You also wrote,

Since I have started my training I can count on one of my hands how many times I have driven when I know i shouldn't have and that was one, just got busted this time.

Now the way I read that, re-worded a bit, is "Since I began flying, knowing that an alcohol offense could end my pilot privileges, I nevertheless chose to drive drunk several times until I finally got busted."

That tells me

1) You're a repeat offender, despite having personal knowledge of the damage DWI can cause.
2) You are an habitual abuser of alcohol.
3) You have extremely poor judgement.
4) If you'll drive drunk today, someday you'll fly drunk.​

You can fix this. But it's going to take a lot of money, a lot of time, and a change in your lifestyle and attitude. Change number one will be to give up alcohol. Totally. Not one more drop for the rest of your flying days. Get some professional help.

If you can't give up booze, for the love of heaven give up flying.

Your decision.

 

[bbchien]

Since I have started my training I can count on one of my hands how many times I have driven when I know i shouldn't have and that was one, just got busted this time. I've lost two very good friends of mine to drunk drivers, this obviously doesn't mean i get a pass or anything, it just means when i woke up the next day the "WTF was i doing" factor was way higher. My lawyer meant no harm, he's a friend of mine and is doing the best he can to help me out. He told me to refuse the chemical test in the station, which got my license revoked. My roadside BAC was high enough though that FAA wise i doubt the refusal would matter. I'm likely in for a one hell of a legal haul.

Look for a new career or go to rehab.

After a devastating life event you continue to drink (and Drive). That is one of the five (if you've got it you're dependent" FAA criteria for alcohol dependency.

Sigh.

 

[cowtowner]

Yeah, no sympathies.
A drunk driver killed my SIL and my granddaughter and put my daughter into ICU for two months

they were leaving my house when it happens so my daughter blames me, even 10 years later.
Straighten your life out. Give up flying.

don’t be a stupid idiot

 

[PPC1052]

Look for a new career or go to rehab.

After a devastating life event you continue to drink (and Drive). That is one of the five (if you've got it you're dependent" FAA criteria for alcohol dependency.

Sigh.

For the OP, BBChien is an AME that has a special level of expertise in getting pilots medical certificates under difficult circumstances, and helping pilots that have a past history of alcohol abuse through the system. He has literally participated in a number of rule making decisions for medical certificate issuance. Listen to what he says because literally no one knows more about the hoops that are required than he does. Understand that he has very limited patience for pilots that don't learn their lesson and genuinely do what is necessary to become a safe applicant. So, when he says, "look for a new career or go to rehab," he may sound flippant, but he literally means that. If you want to continue towards a career in flying, you will need alcohol rehab.

 

[Kenny Phillips]

Yeah, no sympathies.
A drunk driver killed my SIL and my granddaughter and put my daughter into ICU for two months

they were leaving my house when it happens so my daughter blames me, even 10 years later.
Straighten your life out. Give up flying.

don’t be a stupid idiot

Unless it was the drunk driver that was leaving your house, your daughter has other issues.

 

[bluerooster]

In this state, a refusal to submit to BAC test results in automatic suspension of driving priveleges, which will be immediately overturned upon contest due to violation of constitution amendment 5. (the part where you don't have to bear witness against yourself)

 

[mcmanigle]

In this state, a refusal to submit to BAC test results in automatic suspension of driving priveleges, which will be immediately overturned upon contest due to violation of constitution amendment 5. (the part where you don't have to bear witness against yourself)

Interesting! I thought most places considered that kind of evidence not testimonial and therefore not bearing witness against yourself, kind of like you can't refuse to give fingerprints when you get arrested.

 

[flyingron]

The fifth amendment only requires "due process." I can't vouch for what ever unnamed state, but Missouri provides the due process that is required by the state and federal Constitutions. Being forced to provide blood, DNA, etc... isn't testifying against yourself. It's been widely held that the informed consent laws do constitutionally allow the states to take action against you for not complying. What (fairly) recent supreme court decisions point out that they can't force you to give up a sample without a warrant (barring exigent circumstances, this is a "search" issue not "self discrimination"), but that doesn't mean that you can't be sanctioned for violating the informed consent law.

 

[bluerooster]

When you give evidence, whether testimonial, or physical, is bearing witness. And under the 5th amendment you are not required to bear witness against yourself. And as a matter of fact you are protected from being coerced into doing so, whether by law, or threat. Therefore the suspension of license for refusal is unconstitutional, for two reasons, #1 refusal to bear witness against yourself (protected under the bill of rights) and #2 punishment for an alleged crime, for which you have not been tried, much less convicted. (also protected under the bill of rights) That is why, in GA the immediate suspension for refusal is reversed upon contest. (if the presiding judge wants to stay on the bench)

 

[midlifeflyer]

When you give evidence, whether testimonial, or physical, is bearing witness. And under the 5th amendment you are not required to bear witness against yourself. And as a matter of fact you are protected from being coerced into doing so, whether by law, or threat. Therefore the suspension of license for refusal is unconstitutional, for two reasons, #1 refusal to bear witness against yourself (protected under the bill of rights) and #2 punishment for an alleged crime, for which you have not been tried, much less convicted. (also protected under the bill of rights) That is why, in GA the immediate suspension for refusal is reversed upon contest. (if the presiding judge wants to stay on the bench)

So, what are the cases which agree with you? I know, for example, that in 2016, SCOTUS upheld warrantless breath tests as a reasonable 4th Amendment search incident to arrest, but rejected warrantless blood tests as be in too intrusive in Birchfield v. North Dakota. Just last year, SCOTUS held that if the suspect was unconscious, it was an exugent circumstance which allowed the blood to be drawn without a warrant. Mitchell v. Wisconsin

I know there are states which have rejected implied consent under their state constitutions. But I'm not aware of any which based it on 5th Amendment self-incrimination rather than 4th Amendment search and seizure. And I don't know of any which have removed the civil sanction as opposed to criminal prosecution, OTOH, I haven't handled a DUI or other criminal case in more than 25 years, so I'm interested in your update.

Edit. I got curious. Last year the Georgia Supreme Court used it's state constitution right against self-incrimination to rule that the refusal could not be used as evidence in the DUI trial, but left standing the license suspension effect. If I recall correctly, that was true in Massachusetts decades ago.

 

[6t6]

If you want to continue to train and fly(some day) you will need to do the following under the direction of an AME. However a DWI for an Airline applicant is poison.

1. Contact a AME with HIMS oversight.
2. Plan to attend an in patient treatment facility.
3. Plan to see a FAA certified Psychologist for a cognitive evaluation.
4. Plan to see a FAA certified Psychiatrist for chemical dependency evaluation.

then wait., and wait and wait.

 

[flyingron]

When you give evidence, whether testimonial, or physical, is bearing witness. And under the 5th amendment you are not required to bear witness against yourself. And as a matter of fact you are protected from being coerced into doing so, whether by law, or threat.

Sorry, the above is nonsense. The fifth amendment doesn't say that and I've never seen a court hold to what you are saying (Georgia or anywhere else). You can very much be forced to produce evidence against yourself (be it documents, or objects in your possession, or your fingerprints, or DNA, or blood tests). The fifth says you can be forced to be a witness against yourself... that is give statements. As I (and midlife) have pointed out, drug tests are usually challenged on FOURTH amendment (search and seizure) principles.

 

[flyingron]

If you want to continue to train and fly(some day)
then wait., and wait and wait.

And as pointed out, you're going to have to stop drinking. PERIOD. When the FAA says they want sobriety, they mean 100% complete abstinence.

 

[mcmanigle]

Sorry, the above is nonsense. The fifth amendment doesn't say that and I've never seen a court hold to what you are saying (Georgia or anywhere else). You can very much be forced to produce evidence against yourself (be it documents, or objects in your possession, or your fingerprints, or DNA, or blood tests). The fifth says you can be forced to be a witness against yourself... that is give statements. As I (and midlife) have pointed out, drug tests are usually challenged on FOURTH amendment (search and seizure) principles.

That's also why savvy criminals don't use TouchID or FaceID on their phones. Using fingerprints and faces to unlock phones doesn't require testimony / can generally be done with less administrative burden, but you can't be forced to give up a password that's only in your head.

 

[bflynn]

OP, you are in it deep.

short form, your options are: sobriety forever so you can fly OR no flying and don’t drink when you’re out.

You have a drinking problem. Whether you choose permanent abstinence so you can fly or not, fix it.

 

[midlifeflyer]

Sorry, the above is nonsense. The fifth amendment doesn't say that and I've never seen a court hold to what you are saying (Georgia or anywhere else). You can very much be forced to produce evidence against yourself (be it documents, or objects in your possession, or your fingerprints, or DNA, or blood tests). The fifth says you can be forced to be a witness against yourself... that is give statements. As I (and midlife) have pointed out, drug tests are usually challenged on FOURTH amendment (search and seizure) principles.

The challenges are different, even in the Georgia example. Whether they can require the test and use the results is a 4th Amendment issue. Whether the can use your refusal to The test as evidence of criminal guilt is a Fifth Amendment one.

 

[flyingron]

Whether the can use your refusal to The test as evidence of criminal guilt is a Fifth Amendment one.

That one is the only correct statement said about Georgia so far. The Georgia supreme court did hold that the fact that you refused can't be used against you in your DUI trial. That's different than the state not being able to suspend your license administratively for refusing to blow. You can be suspended in Georgia for that. What they can't do (based on the self-incrimination principle) is mention that in your subsequent criminal trial.

Note, HOWEVER, that that's only been held to be the case in GEORGIA. In other states like North Carolina (where I am) the courts have held the exact opposite. And to try to keep this somewhat on track for the original post IT CAN BE USED AS EVIDENCE AGAINST HIM in the original poster's state of Missouri.

 

[Half Fast]

That one is the only correct statement said about Georgia so far. The Georgia supreme court did hold that the fact that you refused can't be used against you in your DUI trial. That's different than the state not being able to suspend your license administratively for refusing to blow. You can be suspended in Georgia for that. What they can't do (based on the self-incrimination principle) is mention that in your subsequent criminal trial.

Note, HOWEVER, that that's only been held to be the case in GEORGIA. In other states like North Carolina (where I am) the courts have held the exact opposite. And to try to keep this somewhat on track for the original post IT CAN BE USED AS EVIDENCE AGAINST HIM in the original poster's state of Missouri.

And the FAA doesn't give a rip anyway and will interpret the situation in the worst possible light and ground you.

 

[flyingron]

Yep, I believe I said that early on (and Dr. C confirmed). This got derailed when someone suggested the lawyer acted improperly by telling him not to blow (which may have not have been bad advice as far as the CRIMINAL charges are concerned and possibly didn't matter for his FAA issues if he was .15 or more anyway).

 

[midlifeflyer]

That one is the only correct statement said about Georgia so far. The Georgia supreme court did hold that the fact that you refused can't be used against you in your DUI trial. That's different than the state not being able to suspend your license administratively for refusing to blow. You can be suspended in Georgia for that. What they can't do (based on the self-incrimination principle) is mention that in your subsequent criminal trial.

Note, HOWEVER, that that's only been held to be the case in GEORGIA. In other states like North Carolina (where I am) the courts have held the exact opposite. And to try to keep this somewhat on track for the original post IT CAN BE USED AS EVIDENCE AGAINST HIM in the original poster's state of Missouri.

So far we have said the exact same thing.

 

[flyingron]

I wasn't arguing with you, I was correcting patently incorrect and absurd posts by bluerooster.

 

[GrummanBear]

Sorry kids, I have nothing to add here... except OP is more than a Big Old Idiot.. well, I can say it here.

Having lost someone to a Drunk Driver, I have NO sympathy what so ever.

Same here. My dad was cut in half by a drunk driver while riding home from work on his motorcycle. The careless killer died, too. Can’t count how many bodies we cleaned up from drunks when I became a cop, and my wife sees countless more in the ER.

You don’t need a better lawyer, you need to make better choices.

 

[flyingron]

I spent many years as a paramedic and got to see the havoc drunk drivers caused. But that's irrelevant.

The poster has the textbook definition of a substance abuse problem. Regardless of his FAA trials, he needs to get help. Again, as far as the FAA is concerned, if he wants to fly, he has to stop drinking, period, entirely.

 

[GrummanBear]

When you give evidence, whether testimonial, or physical, is bearing witness. And under the 5th amendment you are not required to bear witness against yourself. And as a matter of fact you are protected from being coerced into doing so, whether by law, or threat. Therefore the suspension of license for refusal is unconstitutional, for two reasons, #1 refusal to bear witness against yourself (protected under the bill of rights) and #2 punishment

When you give evidence, whether testimonial, or physical, is bearing witness. And under the 5th amendment you are not required to bear witness against yourself. And as a matter of fact you are protected from being coerced into doing so, whether by law, or threat. Therefore the suspension of license for refusal is unconstitutional, for two reasons, #1 refusal to bear witness against yourself (protected under the bill of rights) and #2 punishment for an alleged crime, for which you have not been tried, much less convicted. (also protected under the bill of rights) That is why, in GA the immediate suspension for refusal is reversed upon contest. (if the presiding judge wants to stay on the bench)

Okey Dokes, Facebook lawyer.

We had a guy with a warrant once on traffic stop who was a similar self-trained Constitutional law expert. Interesting stuff. Then we smashed the glass and pulled him out of the car. Have no idea if he is still in jail though.

 

[flyingron]

We had a guy with a warrant once on traffic stop who was a similar self-trained Constitutional law expert. Interesting stuff. Then we smashed the glass and pulled him out of the car. Have no idea if he is still in jail though.

Reminds me of am accident I rolled up on. I'm sitting out front of the fire house on a warm evening and hear a crash. We jump in the ambulance and head to the scene right at the corner of the block. There's a motorcycle jammed upright in the front grill of a car. In the time it took us to get over there, the motorcyclist, who landed on the hood of the car, had gotten down, walked around to the driver's window, smashed it, and dragged the guy out by the hair.

Since it's standard procedure for us to wear fire gear to MVAs I had my coat on. I had a big ol' maglight it the pocket of my coat that I thought I might have to use. Fortunately, I convinced the biker to come sit on the back of the ambulance so I could check him out, leaving my partner to deal with the drunk driver.

 

[Half Fast]

Reminds me of am accident I rolled up on. I'm sitting out front of the fire house on a warm evening and hear a crash. We jump in the ambulance and head to the scene right at the corner of the block. There's a motorcycle jammed upright in the front grill of a car. In the time it took us to get over there, the motorcyclist, who landed on the hood of the car, had gotten down, walked around to the driver's window, smashed it, and dragged the guy out by the hair.

Since it's standard procedure for us to wear fire gear to MVAs I had my coat on. I had a big ol' maglight it the pocket of my coat that I thought I might have to use. Fortunately, I convinced the biker to come sit on the back of the ambulance so I could check him out, leaving my partner to deal with the drunk driver.

Too bad you didn't drive to the scene a little more slowly....

 

[bluerooster]

Outstanding warrents are a whole 'nother ball of wax.

 

[GrummanBear]

Outstanding warrents are a whole 'nother ball of wax.

Maybe so. I was always happy to think of the lives I saved taking drunks off the road and on to jail, but absolutely loathed being required by law to arrest motorists with warrants on unpaid petty traffic offenses. More often than not, it made someone too poor to fix a headlight have to pay a fine they also couldn’t afford, leading to jail and bail they couldn’t afford.
Most of us had a distinctly libertarian bent and wouldn’t write up anything if there wasn’t DUI, DUID, or a warrant involved.
In Colorado, we worked off of express consent for drunks. It was a simple and efficient legal concept.

 

[Lindberg]

I totally disagree. I worked in the legal profession for years. A good DUI attorney will tell you to refuse everything, FST's, conversation, etc EXCEPT to blow. That way they can try and beat the charge on other legal grounds such as the stop, etc.

And a great DUI attorney will know when and which counties have judges on call, so you know whether to refuse altogether or agree to the less scientific breath test that he can beat it court in lieu of them getting a warrant for a blood draw that he can't.

I've also been told, "If you're guilty, blow. If you're innocent, insist on blood."

 

[Clip4]

If his license was revoked, it was the mandatory chemical test. You're free to refuse the PBTs and FSTs.

Where are you getting his license was revoked. I realize this is how they do it in NC, but failure to blow results in an automatic suspension lasting 12 months in most states.

 

[flyingron]

Where are you getting his license was revoked. I realize this is how they do it in NC, but failure to blow results in an automatic suspension lasting 12 months in most states.

Where I'm getting it is he said it in the first post:> My license was suspended but we have gotten a continuation on it until the State hearing for my refusal to test.

In MISSOURI, you get the CHEMICAL REVOCATION as soon as you fail to blow, but you can request an administrative hearing that puts that on hold pending its outcome.

In NORTH CAROLINA, since you bring it up, we get a 30 DAY suspension for refusal, but I didn't say that you don't get sanctions. If you actually read what I said, I said in most states you can refuse the FST (that's the FIELD SOBRIETY TEST, e.g., walking a line, horizontal gaze tests, etc...) and the PBT (portable breathatlizer test) without consequence. These tests are NOT required by law and pretty much are just legal requests by the police for you to incriminate yourself.

 

[3393RP]

The OP called his attorney, who told him not to blow. By the responses here, that was the WORST POSSIBLE advice. If so, could he have grounds for legal malpractice?

Well, that'll make everything go away, won't it? Shame on that attorney for not knowing how the FAA reacts to refusal of a FST.

 

[3393RP]

Seems like with the industry downturn and me being a big ol idiot im screwed at this point. Or should i wait for the FAA to get back to me and see what happens with my case? Theres a good chance I could get the charges completely wiped clean since i was pulled over for "failing to keep right" in an area with no centerline. My lawyer has had some good luck lately with getting charges overturned on "unjustified traffic stops".

You will shortly discover that this will not be "wiped clean". You'd have done something that will not go away, even if the DUI is dismissed, overturned, expunged, or any other such action.

Your lawyer friend is of no help to you. He has no idea how navigate the minefield you have entered. You need to consult an aviation attorney. Any other action will just make things worse

 

[flyingron]

Well, that'll make everything go away, won't it? Shame on that attorney for not knowing how the FAA reacts to refusal of a FST.

The FAA doesn't give a hoot about FSTs. They do care about refusing legally mandated chemical tests.

 

[OneCharlieTango]

Well, that'll make everything go away, won't it? Shame on that attorney for not knowing how the FAA reacts to refusal of a FST.

Shame on that attorney for opining outside his expertise, to the detriment of his client.

 

[Matthew]

Did the atty even know his client is/was a pilot?

 

[OneCharlieTango]

If not, that's a valid point.

 

[flyingron]

Shame on that attorney for opining outside his expertise, to the detriment of his client.

That's a conclusion not supported by the evidence at this point. If the guy was really toasted, it wouldn't have made any difference to the FAA if he blew or not, it could be rather sound advice to avoid garnering a criminal record which has far more reaching impact than worrying about the FAA.

 

[Kenny Phillips]

That's a conclusion not supported by the evidence at this point. If the guy was really toasted, it wouldn't have made any difference to the FAA if he blew or not, it could be rather sound advice to avoid garnering a criminal record which has far more reaching impact than worrying about the FAA.

Oh, I'm gonna say that for many of us here, we'd rather have a DUI and a pilot's license than a clean record but no flying.