Reckless flying charge for pilot who ditched ultra-light plane in Bass Strait
 

If one takes news reports on face value and believes them then this article Reckless flying charge for pilot who ditched ultra-light plane in Bass Strait - ABC News (Australian Broadcasting Corporation) contains a previously unheard of 'offence' that will virtually close every flying club in the country.

This luckless pilot has amongst other things been charged with If that is the actual wording of the charge then whoever drafted that charge hasn't a clue about what they are doing and demonstrates the standard of "model litigant" that is CAsA.

Be warned folks as it would appear as though it is now an offence (and naturally, strict liability to avoid a messy factual defence) to have a beer after finishing flying for the day.

Who writes this stuff

CC

8 hours bottle-to-throttle and or less than .02 BAC :ok:

Personally I've never heard of a conviction on the 8 hour rule, but that doesn't mean that it hasn't happened before or can't happen, even if you were 0.0 BAC.

Once we know the background for the "reckless flying" charge, we would better be able to comment on the whole package.


Well it is and always has been if you are starting work less than 8 hours after your last beer.

Presumably the drinking charge is for drinking within 8 hours prior to flying. Media may have missed that aspect, I highly doubt that your quoted text is the way the actual charge is written!
Who writes this stuff you ask? Journalists.

You also didn't mention the charge for flying without a license.

Sounds fairly serious, if true.

Going out on a limb here, I'd be thinking that the

would be consuming alcohol (BEFORE) flight and not after.

DIVOSH

(Oh. Ramrod beat me to it)

Well technically for this aircraft, the pilot would need a "pilot certificate" versus a Licence.

...and a large pair of nuts attempting to cross Bass Strait in that thing. Braver man than me..!

So my questions are:

1. Is having an engine failure reckless?
2. If the engine hadn't failed and the pilot had made it home, would it still be reckless?

No.

Yes, because of the 8 hour rule plus he didn't have a licence.


Generally you are only reckless when something goes wrong / bad and everyone finds out and you get caught out.

Every practice exam you do has a different answer as to whether it's bottle to throttle or before departure. Even calling up casa didn't yield an answer

Depends on the circumstances.

If, hypothetically, you took off without checking the oil and, had you done so, you would have found the sump empty because the drain was not fitted .... If, hypothetically, you took off without checking the fuel and, had you done so, you would have found mostly air in the tanks ... If, hypothetically, you took off on an over-water flight in a single engine recreationally-registered aircraft with no life jackets or life rafts ... If someone fires a shot from a rifle down the middle of a busy shopping mall, and no one is killed or injured, would it still be reckless? I think yes.

The wording of is suitably ambiguous.

We all know the 8hr between bottle and throttle means BEFORE you go flying.
The wording does not say that, it does not differentiate between before or after flight. It just says within 8 hours of flying.

On the given wording one could have the charge levelled at one for having a drink after flight.

As I said originally, it is either a poorly thought out/worded charge by CAsA or the ABC writer has mucked up the reporting.

Both scenarios are equally plausible.

CC

sadly its true, you can get done for drinking 8 hrs after a flight, if there is an incident..

https://www.comlaw.gov.au/Details/F2...#_Toc429650292

:}

CIVIL AVIATION REGULATIONS 1988 - REG 256
Intoxicated persons not to act as pilots etc or be carried on aircraft
(1) A person shall not, while in a state of intoxication, enter any aircraft.

Penalty: 5 penalty units.

(2) A person acting as a member of the operating crew of an aircraft, or carried in the aircraft to act as a member of the operating crew, shall not, while so acting or carried, be in a state in which, by reason of his or her having consumed, used, or absorbed any alcoholic liquor, drug, pharmaceutical or medicinal preparation or other substance, his or her capacity so to act is impaired.

Penalty: 50 penalty units.

(3) A person shall not act as, or perform any duties or functions preparatory to acting as, a member of the operating crew of an aircraft if the person has, during the period of 8 hours immediately preceding the departure of the aircraft consumed any alcoholic liquor.

Penalty: 50 penalty units.

(4) A person who is on board an aircraft as a member of the operating crew, or as a person carried in the aircraft for the purpose of acting as a member of the operating crew, shall not consume any alcoholic liquor.

Penalty: 50 penalty units.

(5) A person shall not, while acting in any capacity in either air traffic control or Flight Service, be in a state in which, by reason of his or her having consumed, used, or absorbed any alcoholic liquor, drug, pharmaceutical or medicinal preparation or other substance, his or her capacity so to act is impaired.

Penalty: 50 penalty units.

(6) A person shall not act in any capacity in either air traffic control or Flight Service if the person has, during the period of 8 hours immediately preceding the commencement of the period of duty in which he or she so acts, consumed any alcoholic liquor.

Penalty: 50 penalty units.

(7) A person who is on duty in either air traffic control or Flight Service shall not consume any alcoholic liquor.

Penalty for a contravention of this subregulation: 50 penalty units.

(8) An offence against subregulation (1), (2), (3), (4), (5), (6) or (7) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

Interesting (and odd).

So the reg doesn't prohibit you from doing e.g. a pre-flight inspection e.g. 6 hours after the bottle, provided the aircraft doesn't depart until at least 2 hours after the inspection (and you're not impaired during the inspection).

Am I reading that correctly?

(Not that I think doing so would be a good idea. I also anticipate that there'll be some other rule e.g. compliance with ops manual that prohibits it.)

No. Read sub (3) again as it excludes performing any function preparatory to flight.

Kaz

No, on my reading of what has been presented here, you can be tested for the presence of alcohol up to 8 hours after an accident and the result of that test could be used as evidence that you flew with a BAC above the limit (the average male's BAC drops by one standard drink per hour).

However, if you are caught in a roadside PBT in Victoria and then required to attend a testing station which gives a reading over the limit you will be charged with both driving while exceeding PCA and with having a PCA above the limit within 3 hours of driving. The first will be withdrawn and they will proceed on the second.

If you have an accident and go home without being tested, they can come to your home and test and charge you with charge 2 up to 3 hours after the accident.

Kaz

Ah Taillie - there you go spoiling a perfectly good beat up with facts and stuff! I hadn't even gotten the popcorn out of the pot yet!

My guess is the alcohol charge is based solely on the pilots own admission.

My guess is that the charge of reckless flying is only because there is no charge for being stupid.

My guess is the good judge will chuck most of it out and the fine will be nominal.

I guess we wait until judgement day to find out if my guesses are correct :O

But kaz, if my departure is 8 hours and 1 minute after the bottle, what prohibits me from doing unimpaired preparatory work as crew e.g. 1 hour before that departure?

If my departure is more than 8 hours after the bottle, the criterion on which operation of the entire prohibition in (3) depends is not satisfied.

But I may be misreading it.

or being obtuse (and perhaps on purpose)

Lead Ballon

If the cut and paste by Tail Wheel is an accurate representation of the regs, (and I would assume it would be), I agree with your interpretation.

In fact his bolding and underlining indicates that you have interpreted the requirements correctly, IMHO.

But anything to do with alcohol and aviation should also include that outlined in the DAMP regs.

Being respectful is not being obtuse, Eddie.

Leadie you're putting the correct construction on sub para 3. The time frame is referenced to aircraft departure, not even scheduled but actual. Another example of sloppy drafting which make lawyers a good living.

Were these the pair that were told they weren't certified to conduct a flight of this duration, decided the rules didn't apply and so an air mattress would do as a life raft, ran out of fuel, phoned mum on the way down and cost a sihtload in S&R resources?:confused:

Nothing if ... More than 8 hours, unimpaired and <0.02%

Remember sub (1) will get you if you are still stinky even after the 8 hours are up.

Almost. The air mattresses were taken along under the advice of an instructor whom told them to inflate them and put them into the wings of their Thruster ultralight in case of ditching. They didn't get around to fitting and inflating them, so when they ditched they were trying to inflate them whilst having to tread water. Ther'es more commentary here:

http://www.pprune.org/pacific-genera...-tasmania.html

Thanks Leadie.

My reading is that the "prohibited" time frame is 8 hours before departure; and

The prohibition of activities undertaken includes any Preparatory work performed by a person who will be crew.

I'm not commenting on the news article or the defendants in the matter because charges have been laid but it does seem to me that, in general terms, a charge under the Reg can only apply to alcohol consumed before flight and it should be couched in the terms of the Regulation so that each of the points of proof are covered.

Kaz. :)

A little birdie said something about the PIC consuming alcohol on the commercial flight into Tassie earlier in the day...........

Oops busted....

We all know you can still be hammered after 8 hours.

What about 'fit for duty'?

I think the intent in Sub 3 is clear, you don't go near an aeroplane inside the 8 hours, but it is so poorly written.

I guess it could be argued that putting on your uniform is preparatory work, or even taking an early look at the forecast.

...preceding departure...needs a simple rewrite to something along the lines of commencing flight related tasks.

But we can guarantee that one line that needs a lil modification to be clear, will be re-written into a harry potter sized novel.

Admittedly it has gotten a little off topic, but relevant (and interesting) all the same.

Anyway, I would think that the points of proof would be along the lines of:

1. Identity

2. Did act as a member of the operating crew, (or performed duties and functions prepatory to acting as a member of the operating crew),

3.Of an aircraft

3. And did during the period of 8 hours immediately preceeding the departure of the aircraft

4. Consume alcoholic liquor.

The Oxford Dictionary defines "Departure" as the act of leaving, especially to start a journey.

Perhaps this is why the saying is "bottle to throttle" , not "bottle to sign on" or "bottle to walk around".

BTW, I am not advocating in the least that this should be done, just pointing out ANOTHER interpretation of the regulation.

Maybe this reg. is the thing that is obtuse, ... or perhaps it is just simply badly written..:(

I think your are correct, SB.

Let's assume a rule says: A person must not do X, if Y.

It follows that if Y does not exist, the rule does not prohibit the person from doing X.

Now:

- substitute for X: "act as, or perform any duties or functions preparatory to acting as, a member of the operating crew of an aircraft", and

- substitute for Y: "if the person has, during the period of 8 hours immediately preceding the departure of the aircraft consumed any alcoholic liquor".

It follows that if a person has not, during the period of 8 hours immediately preceding the departure of the aircraft consumed any alcoholic liquor, the person is not prohibited by (3) from acting as, or performing any duties or functions preparatory to acting as, a member of the operating crew of that aircraft, even if, for example, the preparatory act is 1 hour before departure and only 7 hours and 1 minute after the bottle.

Examples:

Bob consumes 1 beer at 2200 local. Bob departs in his aircraft at 0601 local the next day. (3) did not prohibit Bob from doing anything preparatory to the flight or otherwise at any time.

Bob consumes 1 beer at 2200 local. Bob depart in his aircraft at 0559 local the next day. (3) prohibited him from performing all duties and functions preparatory to and and departing on that flight.

Bob consumes 27 beers, the last of which was downed at 2200 local. Bob departs in his aircraft at 0601 local the next day. (3) did not prohibit Bob from doing anything preparatory to the flight or otherwise at any time. (However, Bob would be in breach of the general impairment rule.)

The wording "bottle to throttle" shouldn't be used in a legal context.

The term is just an easy to remember saying to help people remember.

File a flight plan on NAIPS while quaffing a glass of red at 2100 and not intending to fly till 0500? By definition filing the flight plan is an aviation activity. You are therefore guilty of a felony.

..so don't do any preplanning for a flight within 8 hours of consumption.

Better still file the flight plan, then get stupidly drunk but meet the 8 hour limit and 0.02 the next morning and you are OK!

And CASA will use your metadata to convict you if they can!

Gees. I'd better tape over the camera lens on me laptop, then.
You can't be too careful these days, y'know.

Folks,
All the concentration has been on matters of booze rules?
What is not obvious to me is the grounds for a charge of negligence, does anybody actually know?
And, does anybody know whether the pilot had an RAOz pilot certificate? Or had he just neglected to do a AFR?
Tootle pip!!

The ABC would have us believe the charge was reckless operation.

"Reckless" is a particular category of negligence and generally requires an indifference as to whether or not injuries/damage occurs, rather than it actually occurring.

Another site has alleged the pilot had a PC from RA and has already been dealt with by that organisation via a suspension of privileges.

Will all come out in the wash I guess.

Kaz

Casa with metadata notices you leaving the pub at 12am.. then again arriving and checking your weather app from the airport at 7:30 am....

They then have to prove you were drinking alcohol at the pub.

I had no idea that Australia is such a nanny state.

They can do that already without bothering with meta data. Just need to have EFTPOS and credit card details released to the courts detailing expenditure at the pub over the time in question. Simples.
Some say the law is an Ass.
I say Asses have great hearing and a nasty bite.