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Alcohol and Flying: The New Law

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Alcohol and Flying: The New Law

Old 23rd Dec 2003, 07:18
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Alcohol and Flying: The New Law

Present Position: Air Navigation Order
The ANO provides that no member of an aircraft’s crew, LAME or ATC officer shall be under the influence of drink or drugs to such an extent as to impair his/her capacity to so act.
The current law does not set a blood alcohol limit, and does not require a person suspected of a drink or drugs offence to submit to a breath-test.


New Law: RAILWAYS and TRANSPORT SAFETY ACT 2003

Summary:

* The Police will have testing and enforcement powers broadly in line with those currently applied to motorists.

* A police officer will have power to require a breath-test if he has a reasonable suspicion that an offence either has been, or is in the process of being, committed.

* Enforcement is the responsibility of the Police and the Crown Prosecution Service.

* There is no provision for random testing.

* Crew members should not commence a flight duty period with a blood/alcohol level in excess of 20mg of alcohol per 100ml of blood. (ie One-quarter of that allowed to motorists.) If they do, they risk prosecution.
Note: Courts will not have power to disqualify / suspend licences. Any licensing action remains the responsibility of the CAA.



Is the new Act in force?
Not yet.
It will come into force in early 2004.


To whom does the Act apply?
Flight Crew, CC, ATC and LAMEs in the UK
and
to the crew of British registered aircraft anywhere in the world.


What are the new Offences?

Being Unfit for Duty (Section 92)

Performing an "aviation function", or carrying out an activity that is "ancillary to an aviation function", at a time when your ability to perform the function is impaired because of drink or drugs. (“Drug” includes any intoxicant other than alcohol.)


Alcohol Exceeding the Prescribed Limit (Section 93)
Performing 'an aviation function', or carrying out an activity that is 'ancillary to an aviation function', at a time when the proportion of alcohol in your breath, blood or urine exceeds the 'prescribed limit.'


What are the Prescribed Limits?
Pilot
FE
CC
Navigator
In-flight R/T operator
persons on the flight deck during flight to give or supervise training, administer a test, observe a period of practice or to monitor or record the gaining of experience
and
ATC officers :
Breath: 9 microgrammes of alcohol in 100 millilitres.
Blood: 20 milligrammes of alcohol in 100 millilitres.
Urine: 27 milligrammes of alcohol in 100 millilitres.

(LAMEs - Breath: 35/100, blood: 80/100, urine: 107/100.)


What are 'Aviation Functions'?
Under Section 94, 'aviation functions' are -
pilot,
navigator,
flight engineer,
flight R/T operator,
Cabin Crew,
attending the flight deck of an aircraft during flight to give or supervise training, to administer a test, to observe a period of practice or to monitor or record the gaining of experience,
licensed ATC, and
LAMEs.


What are 'Ancillary Functions'?
An activity will be treated as 'ancillary to an aviation function' if it is undertaken by a person who has reported for duty in respect of the function and -
as a requirement of,
or for the purpose of,
or in connection with,
the performance of the aviation function during the period of duty.

Note: If, under the terms of your employment, you are holding yourself ready to perform an aviation function if called upon, you will be treated as carrying out an ancillary function. So, if you're on standby under the terms of your employment, the law will apply.


Who has Power to Conduct a Preliminary Test?

Section 96 gives the police power to require a person to co-operate with a preliminary test (i.e. a breathalyser test) where:
(a) a constable reasonably suspects that the person is over the prescribed limit, or his/her ability to perform his/her aviation function is impaired through either drink or drugs,

(b) a constable reasonably suspects that the person has been over the prescribed limit or impaired through drink or drugs, and still has alcohol or a drug in his/her body or is still under the influence of a drug,

(c) an aircraft is involved in an accident and a constable reasonably suspects that the person was
undertaking an aviation function, or an activity ancillary to an aviation function, in relation to the aircraft at the time of the accident, or

(d) an aircraft is involved in an accident and a constable reasonably suspects that the person has
undertaken an aviation function, or an activity ancillary to an aviation function, in relation to the aircraft.
Note: The Police will determine when to test based on reasonable suspicion that either someone is over the prescribed limit, under the influence of alcohol and drugs, or following an accident.


What constitutes Reasonable Grounds for Suspicion?
Facts, and even information/intelligence relevant to the likelihood of an offence.


What constitutes an 'accident'?
For the purpose of this Act, an accident is defined as an unintended event with adverse physical effect.


Do the Police have a Right of Entry ?
Yes.
Under Section 98, a police constable in uniform may board an aircraft, or enter any place, if he reasonably suspects that he may wish to exercise a power by virtue of Section 96 (power to administer tests, etc.) or under Section 97 (arrest without a warrant) in respect of a person who is or may be on the aircraft or may be in that place.


What Test Equipment will be used?
A breathalyser will be used to obtain an indication of the level of alcohol present in your body. It's a 'screening test' or 'field test' only.
You will not be prosecuted on the result of the field test, even if it shows your alcohol level is over the prescribed limit.


What happens if my Breathalyser Test is Positive?
You will be arrested, taken to a Police station and asked to provide a further specimen of breath, blood or urine for laboratory analysis. In practice, you are most likely to be asked to provide a sample of blood.

Once a blood sample has been taken you will be released from the Police station on condition to return at a later date, by which time the Police part of the sample will have been analysed.

The Police may detain you at the Police station until it appears to the Custody Officer that there is no likelihood of you carrying out, or attempting to carry out, an aviation function whilst still over the prescribed limit or otherwise impaired through alcohol or drugs.

If (when you return to the police station to learn the results of the analysis) the sample shows you were over the limit, you will be charged and given a date to attend court.


May I refuse to provide a Specimen?
Not unless you have a 'reasonable excuse.'
In 99.9% of cases, the short answer is that you may not refuse.
NB: Failing to provide a specimen without reasonable excuse is itself an offence.


Will the Information be Disclosed?
If the Police acquire information giving cause for serious concern that a person performing a safety aviation function is unsuited to hold that position of trust, such information may be passed to that person’s employer or licensing Authority on grounds of public safety or for the prevention or detection of crime.
This may occur even before a sample of blood or urine has been analysed or the person has been charged.


What are the Penalties?
The penalties (set out in section 95) are the same as those currently applying to aircrew and air traffic controllers under Article 122 of the ANO:
On conviction in a magistrates court: Fine
On conviction on indictment in a Crown Court: Fine or imprisonment for a term not exceeding two years, or both.


General:
The reason for the 20mg level is that we can all create small amounts of our own alcohol. This may appear in our blood as an alcohol level, but it will not reach 20mg per 100ml, and anyone who is breath or blood tested to that level is likely to have ingested alcohol in the recent past.

It is impossible to construct any meaningful chart that an individual can use to predict a future alcohol level after a period of drinking.
We absorb and excrete alcohol at very different rates. These depend on factors such as sex, body weight, tolerance to alcohol, and the presence of food.


Warning:

Flight crew and cabin crew should not commence duty for at least eight hours after taking small amounts of alcohol, and proportionally longer if larger amounts have been consumed.

Although it's likely that if a person consumes a maximum of five units of alcohol dispersed over some hours before the eight hour ban, his or her blood alcohol level will be zero at the end of the ban, it cannot be guaranteed.

Rough Guide: Half a pint of ordinary strength beer (3-3.5%) contains one unit of alcohol.





Please don't blame me for the language. Believe it or not, this is more readable than the original.

Tudor Owen



.

Last edited by Flying Lawyer; 21st Jan 2005 at 23:38.
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Old 23rd Dec 2003, 08:36
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I may have missed something here - it is 0135hrs!

But it all seems to apply to commercial operations. How does it relate to private pilots and non - commercial ops?

PW
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Old 23rd Dec 2003, 12:43
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Attitudes toward drinking among crewmembers are starting to change in the UK as they did years ago in the U.S. after the Northwest Airlines Fargo incident. Random testing doesn't solve all the problems but it sure gives you a little conscience when deciding to have another.

______________________________________


Boozing is 'part of the cabin crew culture'

By Terry Kirby, Chief Reporter
23 December 2003


Four years ago, an embarrassed British Airways was forced to sack two of its pilots after they were filmed by Channel 4 Television indulging in heavy drinking bouts only hours before flying.

As public confidence in its pilots wavered, the airline launched an inquiry and vowed to crack down on alcohol abuse among its flight crews. Yet, just a few weeks ago, a BA pilot and a first officer both resigned after allegedly consuming alcohol before take-off from Oslo. And yesterday, after a Virgin captain was arrested in Washington over the weekend when alcohol was allegedly smelt on his breath, The Independent revealed that the airline pilots' union is refusing to allow its members to be subjected to random breath tests.

The rules are straightforward and strict: pilots are not allowed to drink for eight hours before flying and must keep alcohol consumption at moderate levels in the 24 hours before duty.

Although both airlines and the British Airline Pilots' Association reject suggestions of a drinking culture, anecdotal stories continue to emerge of pilots and cabin crews boozing late into the night before early morning flights, of mouthwashes kept close at hand to disguise alcohol on the breath and of crews being taken to airports straight from clubs.

After the Oslo incident, Richard Faulkner, a former cabin crew member sacked for drinking, said: "If the public had any idea of how much they knocked back, they'd never get on a flight. Drinking is a way of life at BA; it's part of the culture.''

About 12 to 15 pilots each year are investigated for alcohol abuse, because they have been convicted of drink-driving or their employers have registered concern. Only about two or three lose their licences, out of about 10,000 British pilots. In the past six years, only four BA pilots have been dismissed, as well as the two in Oslo who resigned. Virgin said the weekend incident was the only one of its kind in 20 years of flying.

Jamie Bowden, who worked for BA for 20 years, latterly as a manager at various airports, said he believed the "bottle to throttle'' rules were largely observed.

On the shorter European routes, with a late-night arrival followed by an early morning departure, he said the timing did not allow for drinking. And he believed that pilots would eventually accept random testing, rather than have it foisted upon them.

http://news.independent.co.uk/uk/tra...p?story=475694
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Old 23rd Dec 2003, 15:38
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"Crew members of commercial aircraft should not commence a flight duty period with a blood/alcohol level in excess of 20mg of alcohol per 100ml of blood. ie One-quarter of that allowed to motorists and reflects JAR-OPS adopted by the JAA."

FL - does it really say 'should' rather than 'shall' not? Because 'should' is defined under JARs as being a recommendation only, whereas 'shall' refers to a mandatory requirement.

Thus this would seem merely to 'recommend' a limit, not mandate one.


Incidentally, 20 years ago it was common for the temporary cabin staff on at least one charter airline to add a little taste to the flight crew's fruit salad from a miniature bottle of Drambuie or something similar from the bar.... Or so one told me. But not if there was a checker on board!

Personally I'm totally against the idea of random testing from some constable wandering about the flight despatch or airside areas. 'Peer reporting' seems to work OK - I think BALPA has got it right. Do we really want to live in the police state that some seem to advocate?

Last edited by BEagle; 23rd Dec 2003 at 15:49.
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Old 23rd Dec 2003, 17:05
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Todays Guardian has yet more on BALPA refusal to accept random testing.

British Airways has been trying to introduce random tests since a television documentary exposed lurid tales of drinking on overnight stop-overs three years ago.

Balpa has fought the proposals, insisting it favours a regime of "peer intervention", whereby colleagues who suspect that a pilot has a drink problem intervene to help.

Jim McAuslan, Balpa's general secretary, pointed out that random testing in the US had produced just 38 positive results out of 38,000 tests.

However, the aviation industry is out of line with other transport. Many rail operators, including Midland Mainline and freight firm EWS, impose random tests on train drivers with union cooperation.

Mick Blackburn, assistant general secretary of the rail union Aslef, said most drivers were supportive of the practice. "We recognise that the public need to trust that the driver of a train hasn't been drinking before coming on duty," he said.

The TGWU said it had no problem with random tests imposed by haulage companies on drivers. A spokes-woman said the union was "fully supportive" in making sure drivers "are capable of driving safely".
Can anyone in the hierarchy at BALPA give any idea as to why they are so adamantly against random testing? - as Random testing is used in the US is BALPA not out of step with the industry standard?

Also its very bad publicity when Train drivers accept the need for random testing and flight crew don't - perhaps BALPA needs someone with a bit more nous for publicity, Max Clifford anyone?
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Old 23rd Dec 2003, 17:34
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pilotwolf

Enforcement
The Act extends to Flight Crew ........... in the UK
and
to the crew of a British registered aircraft anywhere in the world.

ie Flight Crew= Flight Crew whether General Aviation or commercial ops.

==============


BEagle

I suggested they "should not" because, if they do, they will be committing an offence and risk being prosecuted.

See ~

Offences - Being Unfit for Duty (Section 92)
and
Offences – Prescribed Limit (Section 93)


Tudor

Last edited by Flying Lawyer; 23rd Dec 2003 at 17:48.
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Old 23rd Dec 2003, 17:52
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Random Testing

Strongly agree there should be random testing of all pilots.

But why all the fuss about booze and drugs when the real killer is a moment of inattention caused by fatigue?

It is unsafe for UK airline pilots to work 60 hours a week and 7 days in a row before a single day off.

Wakey wake UK CAA!

The working time directive should apply to transport workers.
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Old 23rd Dec 2003, 18:09
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CAA FODCOM here
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Old 23rd Dec 2003, 20:18
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Moonraker One;

Good point, simple answer;

It's about politics, not performance!
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Old 23rd Dec 2003, 20:24
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I doubt if Police would want to go wandering airside areas in the hope of catching a pilot out.
Would it not be better for airlines to install a hand held machine in the loo of where ever pilots check in? That way, if someone thinks they may have had too much the night before they can do a sneeky check before they check in? Doing it before checking in should get round the ancilary fuction bit, and possibly save thier licence.

FL..

Does the fact that the offence can be commited 'anywher in the world' mean that an aledged offence in say the US could be dropped in favour of a UK court taking juristiction more promptly?
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Old 23rd Dec 2003, 20:55
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bjcc

That would be for the prosecuting authority in the country where you are charged to decide.
I suspect it's unlikely a prosecution would be dropped for 'territorial' reasons once proceedings have commenced.



[Edit]

Re "I doubt if Police would want to go wandering airside areas in the hope of catching a pilot out."

Perhaps not.
But if some security screener (or anyone else) decides to report his/her suspicions, either because he regards it as his 'duty' or because a pilot has upset him, the police would undoubtedly go into action.

Last edited by Flying Lawyer; 24th Dec 2003 at 03:25.
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Old 23rd Dec 2003, 21:56
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When will people realise that alcoholism is a disease and a mild form of insanity? A pilot suffering from this terrible affliction may know well before he drinks that he/she should not be drinking so soon before a flight, but nevertheless he/she is compelled to do so by the very nature of the illness and reason goes out of the window, because he/she fears the consequencies of being found out. Treatment (but no cure other than total abstinance) is available.
The only real way to avoid crew members operating while under the influence, or even heavily overhung, is alcohol testing for all when coming on duty. Those found "guilty" should be offered help and given the opportunity to recover -- but only once.
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Old 23rd Dec 2003, 22:38
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"... alcoholism is a disease ..."

Yes it is, but we're talking about 20 mg / 100 millilitres here.

Hardly the same thing . . .
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Old 23rd Dec 2003, 22:46
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The answer surely is to buy a breathaliser and keep it beside your bed. Wake up in the morning have a blow, if it registers phone up crewing report "unfit" and the go back to sleep.

Seriously though the problem that we have is that without a breathaliser you have no way of knowing how fast alchohol has been removed from your bloodstream. There is an article in today's Daily Telegraph; they cost £25. Cheap "loss of licence" insurance
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Old 23rd Dec 2003, 22:48
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wasdale

Let's keep some sense of perspective here.

The new law is not being introduced to combat a serious problem.
The Railways and Transport Safety Act 2003 merely provides a convenient opportunity to bring aviation into line with other transport modes by introducing a statutory testing regime.

It also reflects Joint Aviation Requirements Commercial Air Transportation (JAR-OPS) adopted by the JAA in 1996 which requires that crew members of commercial aircraft should not commence a flight duty period with a blood/alcohol level in excess of 20mg of alcohol per 100ml of blood.

The ANO does not set a blood alcohol limit, nor does it require a person who is suspected of a drink or drugs offence to be subjected to a test. Under the new provisions, there is now a set limit and a requirement to submit to a test. It is part of a harmonisation of standards across most of Europe.



Re your other point ..........

The CAA has a well-defined protocol when it is informed that a medical certificate holder (flight crew or air traffic controller) may be misusing alcohol or drugs.
This would be activated if a pilot had failed a breathalyser test whilst performing an aviation function. The person is medically assessed, including blood testing, and a decision made whether there is alcohol or drug dependency that could be a risk to
flight safety.
If that is so, the pilot’s medical certificate will be temporarily suspended. He/she will then be invited to take part in a treatment and rehabilitation schedule. If that is successful, the pilot will be returned to flying with the requirement to provide regular reports and to attend for follow-up assessments. Abstinence is required.

Approximately 85% of professional pilots with such problems have been returned to flying under this regime.

Tudor Owen

Last edited by Flying Lawyer; 23rd Dec 2003 at 22:59.
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Old 23rd Dec 2003, 23:07
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20mg/100milliwhatnots means nothing to the alcoholic pilot. You can't even test yourself. He/She just wants to get on the flight, with a hangover, get over the suffering of not having a drink until the next rest period and so it goes on. At last you get home and - BLISS. Two days off with no worries because they have been obliderated. But they always come back eventually. That's the tragedy of the disease.
How many times have you heard of crew-room parties when a room has been trashed, not just through high spirits but because the crew were smashed and groped their way home?
I've been there, seen it, done it (but not the trashing) and got T-Shirts to prove it.
Alcoholism is viscious and totally baffling to those who have never suffered from it. And that includes your AME.
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Old 23rd Dec 2003, 23:23
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I would find it easier to accept random testing if it were also applied to the legislators who created the law. I don't know about the US legislators but, in the UK, generous quantities of alcohol are consumed in the Palace of Westminster during working hours by MPs, who then file into the division lobbies to vote on laws like this.

Please excuse the rant.
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Old 23rd Dec 2003, 23:45
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What would the 20 milligrammes / 100 millilitres be as a %ge?

I've tried doing the sums but I don't the specific gravity of either alcohol or blood.
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Old 23rd Dec 2003, 23:48
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FL - thanks for your clarification to the word 'should' in your summary - I thought that it was actually from the original.

But JAR-OPS 1.085 (e) actually states:

A crew member shall not :

(1) Consume alcohol less than 8 hours prior to the specified reporting time for flight duty or the commencement of standby;

(2) Commence a flight duty period with a blood alcohol level in excess of 0·2 promille;

(3) Consume alcohol during the flight duty period or whilst on standby.


There's no 'should not' anywhere in those regulations - clear and unequivocally it is a 'shall not'! I note also that it isn't just '8 hours bottle-to-throttle' - it's 8 hours prior to reporting!
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Old 24th Dec 2003, 00:01
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What would the 20 milligrammes / 100 millilitres be as a %ge?

paulo: Assuming that the density of blood is not too different to that of water (1 gram per millilitre) - approximately 0.02% (20 milligrams in 100 grams of liquid).

wasdale 20mg/100ml does not make anyone an alcoholic. It is barely higher than the body's natural content whether you have had anything to drink or not.

Alcoholism is not the issue here.

This limit will affect anyone who is not a complete teetotaller.
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