What about 'conspiracy before the fact.' There are numerous events, and certainly those of terrorist bombing nature, where they would shoot you to stop the act. That would be a bit drastic here. It is similar to drunk driving. There are grey areas, in that 'being in charge' of the vehicle can also be an offence. Once there was a driver who slept in his car as he was over the limit to drive. having the keys on his person deemed him to be 'in charge' of the vehicle. I assume he was not done for driving. Here the pilot might have to prove he did not intend to fly, but that does not seem to have been necessary. He got done for drunk on duty.