Secondly, it is common knowledge that dehydration can result in an inability to urinate. 7/12/2017 Received letter from JPDA advising that the DWI charges were refused 6/1/2017 and would not be prosecuted. I kind of look at it this waywhen you drive with a BAC of .15, there's a good chance something bad will happen. He went to get his medical and told them he had taken ADHD medication in the past. Refusal to submit to a drug test means an employee, including, but not limited to that described in 49 C.F.R. (a) No person may act or attempt to act as a crewmember of a civil aircraft. Being drunk and operating things which can kill you is a bad idea. Might be a stretch but you could see if the dad could ask some reps from his union about it. This notification letter must be submitted within 60 days of the date of conviction. More importantly, Tullos testified that if he had been told by the Sample Collector that his leaving the facility would be considered a refusal to test, he would have remembered that instruction. There is nothing in the regulation that calls upon the MRO to refer the airman to a urologist, that is, someone who has the requisite training and expertise to evaluate why an airman could not urinate or could not provide a 45mL sample of urine. The only gave verbal instructions rather than written instructions. Driving with an Unlawful Blood Alcohol Level. However, the science may militate against the weight of hair testing as opposed to urine testing to the extent that a single instance of using illegal drugs may not appear on a hair sample test. However, he provided an insufficient quantity of urine. The case law does not support that. If the individual requests to be considered under the policy, the FAA will determine the individuals eligibility for the policy. I therefore find that the complaint, the Emergency Order of Revocation herein, must be set aside and vacated on the finding that the Complainant has no sustained his burden of proof herein. The language in 40.193(b)(1) requiring the Sample Collector to discard a specimen of insufficient quantity unless it is incriminating is essentially the same language that appears in 40.65(a)(2). Going the abstinence route is a small price to pay to keep your ticket. I would disagree, from my own observations of dealing with/or arresting 1000's of drunks. Collector is required to tell you that you (1) must provide a 45mL sample of urine, (2) not to flush the toilet, and (3) to return the specimen to the Collector as soon as the voiding process has been completed. While hair testing samples may be admissible in evidence, because hair testing may not reveal a single instance of illicit drug use, the judge may give more weight to the urine test than the hair sample test. (See 40.193(d)(2)).. Aid - D&A Initial) Exam and interview uncovers no current or historical evidence of abuse or dependence Document in Item 60, and send in all additional documents FAA DUI Procedures AME may consider issuing when (see DUI/DWI/Alcohol Incidents in AME Guide) Single Examples of Reportable Administrative Actions (Not a comprehensive list): The denial after November 29, 1990, of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug. It was not, as respondent claims, incumbent on the FAA to produce scientific evidence showing that hydraulic fluid cannot adulterate urine to make it appear to obtain cocaine. To the contrary, a respondent has the burden of proving an affirmative defense. 9/29/2017 3rd Class Medical Applied-for and Exam. Administrator Todd S. Peterson, Applicant,12 is a case that demonstrates the failure of the drug Sample Collector to follow proper protocols and procedures can result in an adverse finding against the Administrator. During the course of the day, Petersen had been handling aircraft parts that had been inspected. Washington, DC 20591 The Administrators position at the hearing was that the training Tullos received at Net Jets did not matter, since Tullos was supposed to know the regulations.116 The Administrative Law Judge, in considering the evidence before him, noted that the training materials prepared by Net Jets did not define or discuss specifically the issues of leaving the testing site and did not mention that leaving a testing facility would be considered prohibited conduct.117 In fact, Ms.Snyder, the Net Jets Anti-Drug and Alcohol Program Manager admitted that her PowerPoint Presentation did not state that leaving the collection site or failure to remain at the collection site constitutes a refusal to test.118 Furthermore, the Net Jets PowerPoint Presentation said nothing about the shy bladder procedure.119 The Court also noted there was no definition about what constitutes leaving the facility and no indication that leaving a facility constitutes a refusal to test. One may wish to ponder how the NTSB would decide a case if the airman remained at the facility for three hours and could not provide a 45mL sample of urine. The Sample Collector is instructed by the regulation to discard any sample that is less than 45mL, In other words, a sample that could prove the airman is not under the influence of drugs must be destroyed in order that the FAA can bring charges claiming that he refused to submit to a drug test because he could not urinate on command. Any applicant tentatively selected for this position will be subject to pre-employment or pre-appointment drug screening. The intent of the regulation is clear, to deprive airmen of the ability to defend themselves in shy bladder cases if they cannot provide a 45mL specimen of urine within three hours. Her work as founder and director of operations at Rainbow Helicopters is a case study in success. The MRO is not required to refer the airman to an urologist. You have 60 days from the effective date of the administrative action (driver license suspension, revocation, or cancellation) or conviction. Alcohol Event I talked to the physiatrist that he took the testing from 8 years ago and she said she would write a letter stating he was never diagnosed with actual ADHD maybe that will help! Especially if they are thinking about aviation as a career field. The Sample Collector is instructed by the regulation to discard any sample that is less than 45mL unless the specimen is out of the temperature range or evidences signs of tampering.59 In other words, a sample that could prove the airman is not under the influence of drugs must be destroyed in order that the FAA can bring charges claiming that he refused to submit to a drug test because he could not urinate on command. As one can imagine, proving "accidental" ingestion is an arduous and lengthy process. As we conclude our discussion on drug testing, the reader may wish to consider the following drug testing cliff notes: alan@alanarmstronglaw.com | 770-451-0313. is a case that demonstrates the failure of the drug Sample Collector to follow proper protocols and procedures can result in an adverse finding against the Administrator. He has been off his med's for about 6 months. Alcohol concentration means grams of alcohol per deciliter of blood or grams of alcohol per 210 liters of breath. In order to overcome the FAAsorder of revocation, Dr. Pasternak had to expend considerable resources including two appeals to the United States Court of Appeals for the District of Columbia. That's demonstration of at least two FAA hazardous attitudes. involved the question of whether the Sample Collector had told the airman that if he left the facility, it would be considered a refusal to test. 90-day total abstinence tested by twice/day breath test (automobile ignition interlock device w/automatic uploaded communication to JPDAs Office). You may not give this information by telephone. There is sufficient doubt raised by the evidence in front of me that the manner in which the samples were collected on that particular day left the collection process open to the reasonable inference that a soap adulterant could be introduced into the bottles in a manner other than a knowing placing there by respondent. It is also common knowledge that some people may feel social pressure or uncomfortable in situations where they have to urinate quickly in response to the command of a Sample Collector. Although the Sample Collector told Ms. Snyder the Anti-Drug and Alcohol Program Manager at Net Jets that she did tell Tullos if he left the facility it would be a refusal to test, she contradicted herself and admitted she did not recall telling Tullos he could not leave the lobby or the building. He sealed the bottles and put a piece of tape on the top. During post-accident drug testing, the airman submitted a urine sample collected at Cranston/Dottin Laboratory in St. Thomas, the sample being submitted to One Source Toxicology Laboratory, with a positive findings for cocaine on December 2, 2003. It was not, as respondent claims, incumbent on the FAA to produce scientific evidence showing that hydraulic fluid cannot adulterate urine to make it appear to obtain cocaine.. Use this sample reporting form to inform the Drug Abatement Division of a refusal to submit to testing by any individual that holds a part 61, 63 or 65 certificate. This is a refusal to test. Do I have to report anything other than alcohol and/or drug related convictions? The policy will also apply when any controlled substance conviction or motor vehicle action that was the basis for a violation of 14 CFR 61.15(a), (d), or (e) also forms the basis for an intentional falsification. 49 C.F.R. 120.7(o) (definition of refusal to submit to a drug test including engaging in conduct under 49 C.F.R. The question is whether or not this test was performed in a way which would preclude a reasonable probability that the adulterant could have been introduced in a manner other than by the respondent. In summarizing the Boards findings in relation to the airmans first argument, the Board noted: Assuming the test result are valid and found accurate, the record is abundantly clear that the differing results of urine and hair test are not inconsistent. Hopefully, the contents of this article will allow airmen and their counsel to achieve just and informed outcomes in litigation brought by the FAA asserting the airman refused to submit to or failed a drug test. Judge Geraghty, in rendering his initial decision, reasoned that the burden of proof was on the Administrator to prove Petersen knowingly introduced the adulterant; and the burden was not on Petersen to explain how the contaminant (surfactant) got into the urine specimen.47 Judge Geraghty noted that there was evidence the tops were off the collection bottles when the airman entered the testing facility, and he noted: How the contaminant got into the particular samples given by the respondent is not something I need to resolve here. Box 25082, Oklahoma City, Oklahoma 73125. The Sample Collector receives some basic training and then undergoes five consecutive error-free mock collections.Among the five mock collection scenarios, a Collection Sample Trainee must experience and successfully pass, two involve uneventful collections1,one involves an insufficient quantity of urine, one involves an out-of-range temperature scenario, and one involves a refusal of the employee to sign the Custody Collection Form (CCF).2In any case, the ability of a high school graduate to properly comply with the procedures and protocols for drug testing may determine your fate and your career as an airman. Please Note: You must send a written notification of your alcohol- and/or drug-related MVA. I. The case has been remanded to the NTSB for further proceedings relative to credibility findings by the Administrative Law Judge. Since the sample was split, the airman had the remaining sample submitted to Lab Corp in San Diego, California which again found a positive test result for cocaine.