That's going to be up to the judges but they have audio/video proof of the conversations where the person in the front seat admits to having had a few drinks and that he's feeling a bit tipsy. The pilot even acknowledges it with a joke in response.
https://dms.ntsb.gov/pubdms/search/d...786&mkey=96850
And I am sure it happens all the time in the corporate flying world but as long as no one gets hurt it's like it never happened. It's cases like this where we'll see what the courts decide on since the breaking of the rule could've caused this kind of outcome. It may or may not be used against the pilot/operator.