False DUI
- Thread starter Pilot2024
- Start date
First off, just because you weren't ultimately convicted or even prosecuted doesn't make it a false arrest. A false arrest means that there was some fundamental flaw in the probable cause for the arrest and the threshold there is low.
But the guidance is clear. ALL arrests with regard to DUI must be reported on the medical application. If you have subsequent proof that you were not intoxicated, it's largely a yawner at the examination.
But the guidance is clear. ALL arrests with regard to DUI must be reported on the medical application. If you have subsequent proof that you were not intoxicated, it's largely a yawner at the examination.
Yes you do.
But exactly who says it was a false arrest?
But exactly who says it was a false arrest?
dbahn
Pattern Altitude
Could this in any way be related to your earlier post about answering "no" when the correct answer was "yes"?
It's hard to make DUI things just go away . . .
Brad Z
Final Approach
You have to report it. You can also explain to the FAA why it was a false arrest.
I'd be real careful of making that kind of explanation unless it was a court saying it was a false arrest in writing. Maybe a pretrial motion to dismiss granted because there was no probable cause. Without that, I can see it coming back and taking a big bite.
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Brad Z
Final Approach
So you're saying an 10 page ranting manifesto about how the officer made an unlawful arrest "because I'm a sovereign citizen" and "I only had eight beers when it takes 10 beers to make me intoxicated so the traffic stop was scam" might come back to bite me? Either way, it may help the FAA make the appropriate disposition.
MauleSkinner
Touchdown! Greaser!
We’ll never know until you try. Will you have internet service in prison so you can post here and let us know?
I wasn't even thinking that extreme. I'm sure you've seen some version of "the AME told me to say no to that," and how well it went over.
Unfortunately, they don't care.
I had a DUI arrest from 13 years ago. The BAC had two different readings. It was fully dismissed by the district attorney. I went on to even have the arrest records fully expunged by the state judge. It is no where on my driver's records, arrest record, or the national driver's registry. I even sent them the NC statue that states I never have to report this to anyone and I will never be accused of perjury. But since my licesne was suspended for 30 days, they don't care. I am still not sure how this is legal. But again, they don't care.
I had a DUI arrest from 13 years ago. The BAC had two different readings. It was fully dismissed by the district attorney. I went on to even have the arrest records fully expunged by the state judge. It is no where on my driver's records, arrest record, or the national driver's registry. I even sent them the NC statue that states I never have to report this to anyone and I will never be accused of perjury. But since my licesne was suspended for 30 days, they don't care. I am still not sure how this is legal. But again, they don't care.
MauleSkinner
Touchdown! Greaser!
Does the NC statute preempt federal regulation?
Ok, that explains it. Thanks
Even lawyers argue that issue among themselves. Sometimes pretty heatedly. I'm pretty well versed on both sides. Also, I was doing expunction work, so I got extra interested and did some research on this some years ago. This is a cut and paste from my personal write-up - general information; not legal advice for anyone's specific situation:
Here's the problem. The effect of state law expungement of a criminal conviction on a federal issue is an incredibly complex one, with zero in reliable guidance from the federal courts (this is not just an FAA issue). Add to the mix that, practically speaking, expungement affects records, not reality. Expungement doesn't mean it didn't happen. If the local paper reported it, or friend who knew talked about it on Facebook, or appears in some pre-expungement database, the information is out there and can be found.
The FAA's current viewpoint is pretty clearly reflected in the MedXpress User Guide, https://medxpress.faa.gov/medxpress/Content/Docs/MedXPressUsersGuide.pdf
If the record of a conviction has been expunged, state the date that the record was expunged and the court that ordered the expunction.
Pretty direct.After several years of talking around the issue (in many of the cases there wasn't actually an expunction, the NTSB settled the issue (at least from their standpoint) in FAA v Tushin (2021), https://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5902.pdf.
failure to disclose an expunged arrest under Question 18.v. when a respondent failed to read instructions amounted to intentional falsification because it exhibited willful disregard for truth or falsity of the answer.367 Our holding applies here because both questions, 18.v. and 18.w. seek disclosure of past criminal record, even if subsequently expunged or vacated.
The NTSB did leave one door open a crack. It might still be a defense to a claim of intentional falsification if it was on advice of counsel. A further twist is state expunction law itself. Expunction in some is not an absolute. IOW, an expunged record in some states is still available for specific purposes. examples are certain types of state employment; later offenses; perhaps ironically, to later requests for another expunction. The answer to the federal question could turn out to be different for different states.
@Al1606, that last point applies to North Carolina. If you look at NC's expunction law, there are exceptions where the state can retrieve and use your expunged record. A big one is, it you are charged with an offense at a later date, the DA can retrieve the record in order to show you had - ready for this? - a previous conviction! If you want to read the statute, here it is. That record can be used, for example, to increase offense levels due to a prior conviction, increase penalties due to a prior conviction, even to form the basis for charging someone as a habitual offender. because they have...multiple prior convictions.
So, how "expunged" is "expunged"? If the state can use it, why can't the Feds?
Daleandee
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Dale Andee
What is their side of the story?
I doubt that, but I also was not arrested by a federal Marshall. The case was 100% dismissed and furthermore the arrest was expunged. Regardless, I got dragged into the HIMS nightmare.
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3G
The arresting agency has nothing to do with whether state law preempts federal law.
bbchien
Touchdown! Greaser!
FAA medically ADMINISTRATIVELY, what matters are what the methods were for the two discrepant BACs.
In a case where the uncal’d portable ALCOmeter stored in a dashbox registered a positive, and on a hospital whole blood ethanol was negative, the FAA will judge it in your favor, (unless the described behavior was ridiculous). Details matter.
But if you don’t report it then it’s not a matter of Agency medical determination, it’s a matter if if you lied.
Obtain GOOD Counsel!
Longtime HIMS AME
One of the 4 original petitioners for an SSRI program and Petitioner for HIMS AME stepdown authority, (approved fall 2023).
B
In a case where the uncal’d portable ALCOmeter stored in a dashbox registered a positive, and on a hospital whole blood ethanol was negative, the FAA will judge it in your favor, (unless the described behavior was ridiculous). Details matter.
But if you don’t report it then it’s not a matter of Agency medical determination, it’s a matter if if you lied.
Obtain GOOD Counsel!
Longtime HIMS AME
One of the 4 original petitioners for an SSRI program and Petitioner for HIMS AME stepdown authority, (approved fall 2023).
B
bbchien
Touchdown! Greaser!
How much time elapsed (road stop to blood draw), and was it done at a hospital?
This is not about “who sez false”, but “WHAT sez false”.
You got the suspension so you ARE going to report it…the question is are you going to win, or are you going to have be evaluated…
This is not about “who sez false”, but “WHAT sez false”.
You got the suspension so you ARE going to report it…the question is are you going to win, or are you going to have be evaluated…
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MauleSkinner
Touchdown! Greaser!
See, there’s your problem. You should’ve stopped before “but”, much like the regs stop before saying, “that you think we’ll find out about.”
Thanks for the explanation. It would appear that even if the state totally screws up (kicks in the wrong door and busts the wrong guy), you still end up branded for life. Does the state bear any responsibility for ongoing and future damages?
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3G
Not really. Wait until you have to drop 5 AMUs to fix a court clerk erroneously recording a felony bench warrant for an $80 unpaid traffic ticket, then failing to recall the warrant, despite the record including the order to recall and proof of payment.
Even though FDLE corrected the error, my wife has letters from the agency, the court, and FDLE that she submits every 5 years when her clearance renews, every 5 years for TSA’s Global Entry renewal, and any job application that asks about criminal history.
The letters explain exactly what happened, how it got to FDLE’s criminal history records, and NICS, that the entry is erroneous, and that she has no valid criminal history record in the state of Florida.
So being a Moorish-American National who was not operating in commerce, has not contracted with the government, and was traveling, not driving doesn't make a difference?
(OK, I admit it, I have been watching too many window-smash videos on YouTube!)
bbchien
Touchdown! Greaser!
We'll, that's a pretty good case. The urine metabolites are stable over weeks. I would report it with all the evidentiary details but most importantly the (document) report of the negative pee at the law enforcement station.
It should be a yawn. But you GOTTA have the document. And it's gotta be your "one-and-only".
It should be a yawn. But you GOTTA have the document. And it's gotta be your "one-and-only".
EdFred
Taxi to Parking
So how does one go about avoiding false arrests and being forced into HIMS when they aren't doing anything wrong to begin with?
Like the guy (who is a pilot) that got hit twice in CO and blew 0.00 both times. What's his process going to be like? Or anyone that drives through Cobb Co, GA?
Overturning Chevron might help with this. Courts are no longer obligated to defer to the agency. They can now consider a reasonable opposing opinion.
bbchien
Touchdown! Greaser!
Ed, it depends on whether or not, a panel 5 or/and a panel 10 were done.
Psychiatry eval. and toxicology at that visit or before. The constables, if they aren't abusing thier police authroity, might be picking up on SOMETHING behavior-wise.
Remember Cobb county has the vaunted "superpolice drug whisperer constables" who testify "I have taken a course in this and this man's behavior was off, doesn t matter if we can't detect it".
It might not be possible to stand living in GA, I think.
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Pilot2024
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AirbusA320
I never got suspended
bbchien
Touchdown! Greaser!
it's about the arrest, not about if action was taken, Pilot2024. Nonreport and dance, at your own peril. These ALWAYS 100% come back to swat you down, in mid career. if you got the negative test, you should prevail. But nonreporting is not a medical problem. It's a problem of law. Unwise to take that chance if you can win with what you have.
dbahn
Pattern Altitude
Did you drive away from the false arrest?
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Untrue, but you seem set to do what you want instead of just putting this to bed now.
Your certificate, your call.
I'm retired now but I've been a lawyer for over 40 years. I spent the first 17-18 years heavily involved in criminal defense. I can probably count on one hand with fingers missing) the number of criminally-charged clients I had who actually understood the procedural details of the process they went through. That includes career and federal white collar defendants as well as basic street crime, drugs, and driving charges.
Easy example - you referred earlier to a "false arrest." Now you talk about a nolle prosequi (prosecutorial decision to abandon a case) because they didn't have the evidence to support it. A nolle prosequi due to insufficient trial evidence does not equal false arrest, even though you think so. And, unfortunately even if it was a truly false arrest, there's still an arrest, although one that may be easily explainable from the resulting paperwork (as opposed to flapping gums).
Even better - aviation - example. Before the NTSB case I mentioned saying an expunction still needs to be answered "yes," the NTSB cases on expunction were all over the place. Some noises that it might be reportable; other noises that it might not. Why all those "might"s? Simple, in every one, the pilot claiming expunction didn't actually have an expunction! They only thought they did. So the NTSB never actually had to make a decision about expunction.
But heck, if you want to see if you can game or outsmart the system or throw in the towel instead of getting professional help from someone who knows the system, that's your choice. Not my problem.
Peace.