Airmen who have a regulatory diagnosis of alcohol dependence or abuse may require evaluation and monitoring before they can obtain a medical certificate. Based on weighing all of the evidence, the evidence provided by the Administrator and the evidence provided by respondent, I find that the Administrator has not proven by a preponderance of reliable, probative and credible evidence that respondents conduct on April 4, 2011, constituted a refusal, to submit to a required drug test under 49 U.S.C. The United States Court of Appeals for the District of Columbia again agreed with Pasternak and reversed the Board Decision and vacated its Order. Among them is the definition of a refusal which is as follows: Refusal to submit to a drug test means an employee engages in conduct including, but not limited to that described in 49 C.F.R. There are plenty of resources out there to help with medicals. How long do I have to report my alcohol- and/or drug-related motor vehicle action (MVA)? A notification letter must be submitted within 60 days from the effective date of a driver license suspension. Oklahoma City, OK 73125. 40.191 which says that an airman has refused to submit to a drug test when he fail(s) to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure. My son is going to college for aviation with hopes of being a commercial pilot like his dad. Consequently, I do not find that the Respondent refused to submit to a drug or alcohol test as required under 14 C.F.R. so that the original out of temperature range and the subsequent specimen can be dispatched to the laboratory together. If the airman fails to provide 45mL of urine, he has thereby engaged in conduct that constitutes a refusal unless there is an adequate medical explanation for the failure. With regard to the respondents second argument that the evidence showed the urine tests were in error, the airman argued that drug impairment was inconsistent with his flying skills during the emergency landing, that he was praised by witnesses for his performance, that his Principal Operations Inspector was surprised the positive test results, and that respondent voluntarily submitted to the urine test. This is not an innocent or unforeseen mistake on the part of the FAA in promulgating its drug testing rules. Cant. Furthermore, the Board, in commenting on hair testing noted that the HHS NPRM would permit agencies to use hair testing as a supplement to existing urine testing programs. 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. 120.7. Federal Aviation Administration Make no mistake: substance abuse affects your mind, body, and your future. 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.48, After Petersen prevailed and defeated the Administrators emergency order of revocation, he filed a claim for attorneys fees and expenses under the Equal Access to Justice Act.49 The irregularities in the drug testing process were called to the attention of the Administrator by written statements of Petersen and the two other mechanics, but the FAA chose to go forward with the case relying upon the non-specific testimony of Mr.Jordan on the possibility that Petersen and the other two mechanics were lying.50 Judge Geraghty found that the FAA, in ignoring the statements of Petersen and the two other mechanics, failed to thoroughly and properly investigate the case and proceeded with the prosecution based upon a case that was weak or tenuous.51 Judge Geraghty then awarded Petersen attorneys fees of $6,859.91 and costs of $60.00.52. Nothing wrong with that and it doesn't make them a bad person (I am not saying that excuses drunk driving). January is optimistic, unless you started this process back in May. The airman's lengthy personal statement (his right) defends his right to continue to drink responsibly. The previous version of this policy allowed eligible individuals the opportunity to promptly receive an emergency order of revocation sooner than without that policy because much of the investigation and evaluation processes was abbreviated or eliminated. The Administrators argument is that the regulation trumps all testing procedure, training, policy, and what should be controlling, of course, is the regulation. Consequently, I do not find that the Respondent refused to submit to a drug or alcohol test as required under 14 C.F.R. When Tullos came in, she told him to empty his pockets and wash his hands and provide a urine specimen. the Administrator brought a revocation action against the airmans airline transport certificate and his first class medical certificate because he allegedly left the drug testing site without having been told by the Sample Collector that his leaving the site would be considered a refusal to test. When the Medical Review Officer learned that Pasternak had left the testing site, he concluded that Pasternak had refused to submit to a DOT drug test. Along with Petersen, mechanics Drew and Simmons were called in for testing. In briefings before the United States Court of Appeals for the District of Columbia, the FAA admitted that leaving a drug testing site with permission is not a refusal to submit to a drug test. It lists the ABSOLUTE MINIMUM information required by the FAA to make a determination on an airman medical certificate. Reddit and its partners use cookies and similar technologies to provide you with a better experience. Detailed typed personal statement from you that describes the offense(s): a. The United States Court of Appeals for the District of Columbia reversed and remanded the case to the NTSB because there was no evidence in the record to support the NTSBs conclusion that Pasternaks behavior. 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. If the referral physician makes the determination that a medical condition was not the cause of the inability to urinate and that the airman refused the test, then the MRO, if he accepts the recommendation, must check the Refusal to Test box or Other box on Step 6 of Copy 2 of the CCF and note the reason next to the Other box on the Remarks lines, and then sign and date the CCF. Counsel called upon to defend an airman in a claim brought by the FAA that the airman refused to submit to a drug test simply because he could not provide an adequate sample in terms of volume must consider a number of regulations together, including 49 C.F.R. I went through it my self a few decades ago and it involved a review of all of my medical records, a psychological test, and an MRI (for other issues) to finally get my first class medical issued. Use this suggested form to obtain authorization for the release of drug and alcohol testing records from a new safety-sensitive employee, and to request the employee's drug and alcohol testing records from a previous DOT-regulated employer. He orally advised the donors to wash their hands. He has been off his med's for about 6 months. 40.191(a)(2) [failing to remain at a testing facility]; and 49. Jordan further testified that before the samples were collected, he cleaned down the area, wiped off the sink, taped off the water supply, and he taped off the soap dispensers. On the second appeal by Pasternak to the United States Court of Appeals for the District of Columbia, the Court again reversed the NTSB because the FAA conceded that leaving a drug testing facility with permission does not constitute a refusal to test. Then, Ms. Snyder, along with the Director of Labor Relations, got on the phone and spoke with the Sample Collector who told Snyder that she had told Tullos he could not leave the collection site. This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. The NTSB found there was no basis for the airmans assertion that Judge Pope misunderstood the evidence on hair testing. 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. To be clear, an airman who cannot provide a 45mL sample of urine within three hours has refused the drug test unless there is an adequate medical explanation for the failure. Feel free to DM me. Use this sample reporting form to inform the Drug Abatement Division of a verified positive drug test by an employee who does not hold a part 67 medical certificate. In order to appreciate the intrusive nature of drug testing, the airman must appreciate that in the event the urine specimen he provides is outside of the acceptable range, then the Sample Collector is required to engage in direct observation, that is, actually observe the airman urinate. On January 31,2022, the FAAs Amended Prompt Settlement Policy for Legal Enforcement Actions Involving Medical Certificate Related Fraud, Intentional Falsification, Reproduction, or Alteration (i.e., amended prompt settlement policy) went into effect. If these commitments coincide with your personal ideals and professional aspirations, please consider joining the DOT family. For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of situational anxiety or dehydration. Kidding aside though, I am starting to wonder if we have gone so far down the Puritan rabbit hole that we now consider a person's statement that they are NOT an alcoholic as EVIDENCE that they ARE. 40.193(e) is instructive: For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of situational anxiety or dehydration.72. I cannot find that the Administrator has established the grounds for revocation of respondents ATP, airline transport certificate or his first class airman medical certificate. . He went to get his medical and told them he had taken ADHD medication in the past. It takes 9 drinks in an hour for a 220-pound male to get to .15. 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. Aeromedical decision-making guidance includes an analysis of the underlying disease or condition and treatment. Two weeks before the random drug tests, Petersen had been tested for drugs and was negative for cocaine. https://pilot-protection-services.aopa.org/news/2018/february/01/adhd-and-the-faa. Petersens test results indicated the sample had been contaminated and he was releasedfrom employment.43 Petersen had two drug tests subsequent to the random test at work, and both of the tests were negative for drugs.44, The FAA brought an emergency order of revocation on the theory Petersen refused to submit to a drug test by knowingly contaminating the test.45 According to Dr. Kuntz, the toxicologist, the Gas Chromatography (GCMS) test was positive for cocaine, but additional testing required to validate the results could not be accomplished because of the contamination.46. 14 CFR part 135 on-demand operators and 91.147 operators can use this sample form to report instances of emergency maintenance. In light of the foregoing, the NTSB affirmed the decision of Judge Pope revoking the airmans airline transport pilots certificate and his medical certificate. I do not know all the details, but everything turned out fine. What should I do? If they come back with full HIMS requirement he will have to pledge sobriety. (4) While having an alcohol . In response to Dr.Kellers request for an explanation, Taylor told Dr. Keller he used vitamins, PABA, ephedra, poppy seed food products, flu and pneumonia vaccinations, and he was exposed to hydraulic fluid at the time of the landing incident. Furthermore, the Board, in commenting on hair testing noted that the HHS NPRM would permit agencies to use hair testing as a supplement to existing urine testing programs.143 In summarizing the Boards findings in relation to the airmans first argument, the Board noted: The law judge simply concluded (correctly, in our judgment) that the negative hair analysis results did not disprove the positive results of the urine 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.