Larry...This is abuse, and tolerance. (.16 and .177). FAA is about, have you ever in your life (exception, see “abstinence”, below). Your answer is generally correct if there is just ONE offense >10 years ago.
The key here, is if one can substantiate a claim of abstinence (>10 years of) since those distant two....two anytime in a lifetime is automatic abuse, a special issuance and requires two years of monitoring while flying. But if you have ANY after- consumption at all, and cannot substantiate abstinence, that is going to be “dependency”. After TWO blows if you didn’t stop, it will be judged to “have a hold on you”. That requires rehab....which is really just intense education.
Part 135 randoming is NOT adequate to determine abstinence. It merely is an “on the job“ condition monitor. 4 tests a year, max...in not adequate proof of abstinence.....
...now if he can substantiate abstinence and even has some alcohol recovery activities, knows the steps....he has INSIGHT, which alcoholics not in remission never have...and he has a chance.
I agree that BACs of .16 and .177 are alcohol abuse, but let's put that in context:
- At .15 you will have much less control over your balance and voluntary muscles and walking and talking will be noticeably impaired.
- At .20 to .29 stupor, confusion and disorientation are common. Standing and walking may require assistance motor control and equilibrium will have deteriorated significantly. Blackouts will start to occur as the BAC approaches .30.
- At .30 to 0.39 people you're into toxic territory where the person may become unconscious and the potential for death increases. Along with a loss of cognitive function there are physiological effects such as a severe increase in heart rate, irregular breathing and loss of bladder control.
- At .4 life threatening symptoms such as coma, cardiac and respiratory arrest can occur.
The above all assume a normal functioning person. To put that in further context and to address the "tolerance" issue consider that either coming on or going off shift, I used to read the statewide BAC printouts for all the DUI arrests in the preceding 24 hours. BACs of .2 and .3 were not uncommon and there was usually at least one BAC over .4 and once a week or so I'd see one at or slightly above .5. Keep in mind these were BACs of people actually driving motor vehicles (albeit badly), not people passed out or in a coma. That is "tolerance". In fact those drivers were serious alcoholics who would probably be experiencing DTs at anything close to the legal limit since they need alcohol as an inhibitor in their synapses to function normally.
My intent here is not to condone alcohol abuse but rather to illustrate that you cannot presume "tolerance" from two BACs of .16 and .177. A 150 pound high school kid can hit .16 with 6 shots on his first ever drinking experience and get all six down before he feels the effects of the first. He'll probably be a bit unstable when he walks and he might slur his speech, and it counts as alcohol abuse - but it would not in that circumstance indicate tolerance.
My intent here is also to point out that the FAA's criteria, as you describe it - "two anytime in a lifetime is automatic abuse" - is not consistent with the DSM-V diagnostic criteria and is not a good fit for the OP's situation, as described with 12 years of no alcohol related issues.
More to the point, look at the symptoms of a .15 BAC, then consider how many pilots could still honestly claim not to have had at least two instances where they were impaired to this level. The distinction then between fairly common young adult excessive drinking and "alcohol related events" by the FAA standard is whether an arrest and conviction occurred.
In the OP's case the issue isn't substance dependence or tolerance, the issue was poor judgement under the influence of alcohol to the point that he drove on one occasion, and had minor consumption charge in the other. If the FAA goes down the path you are suggesting, it'll be asking him to prove a negative - to prove that he has not been drinking at all, when the more critical issue is that there is no evidence in the past 12 years that he has made the same errors in judgement or abused alcohol in the manner that resulted in the previous "alcohol related events".
Once again, from a professional career counselor standpoint the proper way forward would be to either accept the alcohol event status report as is, accepting the evidence that the applicant has maintained sobriety for at least 2 years, or move the application forward after an alcohol evaluation or assessment by a HIMS AME.
The regs found at 14 CFR section 67.307(4)(i-ii) define substance abuse for the FAA:
(4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section—
(i) “Substance” includes: alcohol; other sedatives and hypnotics; anxiolytics; opioids; central nervous system stimulants such as cocaine, amphetamines, and similarly acting sympathomimetics; hallucinogens; phencyclidine or similarly acting arylcyclohexylamines; cannabis; inhalants; and other psychoactive drugs and chemicals; and
(ii) “Substance dependence” means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by—
(A) Increased tolerance;
(B) Manifestation of withdrawal symptoms;
(C) Impaired control of use; or
(D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
Furthermore, the regs at section 67.307(b) address and define substance abuse in the last 2 years:
(b) No substance abuse within the preceding 2 years defined as:
(1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
(2) A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
(3) Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds—
(i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
(ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
There is no evidence that the OP demonstrates (1) for the last 12 years;
There is no positive test results under (2) - what you call "merely an 'on the job' condition monitor", even though such testing has a specific mention in the regs, specifically related to exactly the question at hand - and in fact it's exactly the opposite he has successfully passed random tests under part 135 for the last 12 years; and
The AME who originally issued the cert found nothing of concern under (3)(i-ii).
The only questions then are:
- What if anything will the FAA decide is necessary to further support the AME's decision under (3) - HIMS AME or alcohol evaluation; and /or
- How far the FAA wants to over step the intent clearly indicated in the above regs in the course of applying criteria on worksheets and sub regulatory guidance in a situation where the applicant has demonstrated safe and responsible behavior as well as no evidence of addiction in the last 12 years?
Sure, the FAA could do it your way with a special issuance and 2 years of follow up, but as tax payer and counselor, that strikes me as a massive waste of staff time and taxpayer resources in this case, where the applicant meets neither the FAA or DSM-V criteria for dependence and is instead just hanging up on two line in the FAA status report, which in this instance in the OPs situation is at odds with the requirements in the reg.
I really don't think the OP has much to worry about unless the FAA's cheese has totally slid off it's cracker and it's looking for excuses to deny medical certificates to qualified applicants.
