Collin County Criminal Lawyers Blog

bo@kalabuslaw.com
(972) 562-7549

Well, it appears that the head of the Federal Aviation Administration himself might have to experience his administration's DWI reporting process that I blogged about a few days ago if he is convicted the offense, or if administrative action is taken against his driver's license.

It's true, FAA Administrator Jerome Randolph "Randy" Babbitt, 65, was arrested after being spotted driving on the wrong side of Old Lee Highway on December 3, 2011, according to Fairfax City Police.

Babbitt requested to be placed on administrative leave and Department of Transportation officials are in discussions with legal counsel about Babbitt's employment status, according to an agency statement.

Police pulled Babbitt over in the 3900 block of Old Lee Highway, about nine miles from his home in Reston at about 10:30 p.m. He was driving alone and cooperated with police, authorities said. Babbitt, 65, was taken to the adult detention center, where he was charged before being released on his own recognizance.

Deputy FAA Administrator Michael Huerta will take command of the federal agency, according to a statement from the Department of Transportation early Monday afternoon. The statement said the department had learned of the arrest just an hour earlier. Fairfax City police issued a press release on the arrest Monday morning.

Babbitt was sworn in as the FAA's 16th administrator in June 2009. He is a veteran pilot and flew for 25 years for Eastern Airlines, according to his official biography.

Babbitt's arrest information was made public in accordance with a Fairfax City police general order that says the arrest of public officials, including federal officials, for "any criminal charge or serious traffic charge (e.g. driving under the influence, reckless driving)" will be released.

Hopefully, Mr. Babbitt will retain legal counsel to help navigate the criminal arena he now finds himself in and to ensure that he complies with all the FAA reporting requirements to keep his airman's certificate.

bo@Kalabuslaw.com
(972)-562-7549

A person charged with a crime must understand that if he or she is convicted of the crime, that conviction will be on that person's record forever. Yes, that's right, forever! A conviction can go down a couple of different ways:

1) By pleading guilty to an agreed plea bargain deal (no deferred adjudication); or
2) By taking the case to trial and losing.

There is only one way to get a criminal charge completely off a person's record and that is through the expunction process. An expunction is where a judge signs an expunction order for the person charged with the crime. The expunction order requires that any agency that has records pertaining to subject person's arrest must destroy said records. A person is eligible for an expunction when the charge against them is dismissed and the statute of limitations has run, or if they go to trial and win with a not guilty verdict. Dismissals are rare and trials can be very risky-even if a person has a very good case, there is certainly no guarantee the case can be won at trial. As you can see the road to a clean record can be very dicey at best.

What happens if the person charged with a crime has stayed out of trouble their whole life, but happened to have a bad day? Do all the years of clean living mean anything? Up until a year ago, the answer was no. But these days in Collin County, the answer is increasing becoming YES.

We have seen in this, the first year of Greg Willis' term of Collin County District Attorney, that his office has been willing to dust off the once dormant Pre-Trial Diversion Program and put it back to use. The Pre-trial Diversion Program is a deferred prosecution program available in certain misdemeanor cases (DWIs are not eligible for pre-trial diversion) where the individual charged with an offense has no prior criminal history. What deferred prosecution means is that the case will be removed from the normal court process and the individual placed into a non-court-ordered probation program without pleading guilty to the Court.

Because the program is still fairly new and quickly becoming inundated at a high rate, many of the finer details are still in flux. The most important detail; however, is very clear: successful completion of the program makes the person eligible for a complete and immediate expunction of the arrest, the prosecution, and the entire court case.

The road to the program begins when the charged person meets with his or her lawyer to discuss the person's criminal history and review the case. Yes, you must obtain a lawyer. The District Attorney's Office will refuse to submit an individual into Pre-trial Diversion without the person being represented by a lawyer. Even more importantly, the District Attorney's Office does not make Pre-trial Diversion part of their standard offer in any case--thus far attorneys have been required to request it. What this means to the individual charged with a misdemeanor is that hiring just any attorney may not be enough to reap the benefits of the program.

If the person qualifies for the program, their lawyer will contact the prosecutor to request the person be considered for the program. If the District Attorney's Office approves an individual for the Pre-trial Diversion Program an interview with the Probation Office will be scheduled. This interview accomplishes several things: (1) screening out habitual offenders and individuals with serious drug use, and (2) securing an affidavit which admits guilt of the alleged offense--yes, a confession to be used as insurance in case the individual washes out of the program. Once accepted, the individual will agree to a supervised probation term with standard terms and conditions.

If a person successfully completes the program, the charge will be expunged from their records, clearing the crime from the person's record. However, if the person fails to comply with the terms and conditions of the program, including attending monthly meetings, they will be released from the program and back before the Court--only this time with a sworn admission of guilt to the offense.

Although the regulations have not changed, the FAA has substantially changed its procedures for evaluation of pilots with alcohol issues over the course of the last three years. As you can imagine, the FAA taking a much harder look at alcohol related contacts and pilots should be aware of the various pitfalls that could stem from a DWI/DUI arrest or conviction.

In the case of DWI/DUI the FAA has begun scrutinizing each alcohol related event that occurs in a pilot's life. There is no longer a free pass for a first or second event. First, a brief review what has been the law since 1990 regarding the FAA reporting requirements:

If a pilot is convicted of operating a motor vehicle (which includes a boat) while i intoxicated the pilot must report the incident to the FAA Security and Investigations Division (AMC-700) within 60 days. The 60 day reporting clock can also be triggered prior to a final conviction if administrative action is taken against the pilot stemming from the same incident, i.e. a driver's license suspension. Required disclosure on the 8500 form at the pilot's medical examiner, even within the 60-day window, does not meet the reporting requirement.

What has changed is how the FAA handles what is reported. In all cases the FAA will require full documentation of the incident. This includes not only court and police records, but a letter of explanation from the pilot. The FAA then digests the information to see if there is a pattern of alcohol or substance abuse, especially if this is not the first incident for the pilot.

BAC 1.5 or Above

If the pilot's blood alcohol level (BAC) is a .15 or above, it will trigger the FAA to request a formal substance abuse evaluation. The evaluation required by the FAA is much more detailed than those required by courts or probation offices. The pilot must obtain the substance abuse evaluation on his or her own--typically through a HIMS (Human Intervention and Motivation Study) AME. The HIMS AME will review the data and make his or her own evaluation. At this point, there is a good chance the pilot's certificate will remain valid, unless the evaluation raises further substance abuse concerns.

BAC .20 or Above

If the pilot's BAC is .20 or above (regardless of whether it is a first offense or not), the FAA will most likely conclude the pilot has a substance abuse problem and may take action against the pilot's certificate to suspend flying privileges. In this type of case, following the substance abuse evaluation, which at this point would most likely include psychiatric evaluation, the pilot will have to apply for a special issuance or authorization and participate in the HIMS process to begin flying again.

Refusal of Breath Test

If the pilot refuses a breath test at a vehicle stop, this will raise a red flag for FAA as it will assume the pilot has a substance abuse problem. As you can imagine, this will trigger the substance abuse evaluation for the pilot and participation in the HIMS process.

What is the HIMS Process?

HIMS is a program that began in 1973 as a cooperative effort between the FAA and the Air Line Pilots Association for airline pilots that were recovering from substance abuse addictions. The HIMS program is a process that is both lengthy and time consuming. The FAA requires at least 28 days of residential drug and/or alcohol rehabilitation--outpatient programs are generally not acceptable regardless of how intensive the program is. Once the 28 day residential program is complete, the pilot must complete 90 sessions with AA (or equivalent) in the first 90 days after discharge. After the 90 day period sessions, may drop to roughly three times a week.

Following the discharge from the residential facility, the pilot is required to see a HIMS AME and that AME will follow the pilot with periodic evaluations which will include random drug testing. The key to the HIMS process is staying sober--period. A pilot must demonstrate good recovery to be considered for a special issuance to begin flying again. As you can imagine, the road is hard and long to get a special issuance and not always successful.