POOR MAN’S P-51: THE T-28 TROJAN

THE T-28 TROJAN
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THE POOR MAN’S P-51: THE T-28 TROJAN

THE T-28 TROJAN

THE T-28 TROJAN – Which One Of You That Have Gone To An Airshow Have Dreamed Of Owning An Old Military Plane?  

The Honest Answer Is That We All Have Because There Is Just Something Extra Appealing About The Looks, Sounds, And Flying Characteristics Of Warbirds.

Being An Aviation Enthusiast, I Have Either Owned Or Partnered A Bonanza 35M, A Pitts S1T. 

A Baron 55D And A Twin Jet Hispanic Aviacion Casa Saeta HA200. 

All These Planes Were Great In Their Own Way, But They Just Didn’t Have “The Right Stuff” To Satisfy My Aviation Itch.

Having A Father Who Earned Some Time In B-25’S In W.W.II, Reading About Warbirds, And Regularly Visiting Aviation Museums And Airshows, I Felt A Need To Explore Satisfying My Plane Itch By Getting Into A Warbird.  

Indeed, Thinking “Like Father, Like Son,” I Volunteered A Lot Of My Time And Money To An Aviation Museum And Its B-25.  

Politics And More Politics, However, Made Me Realize That A Large Group Run Bomber Was Not For Me.  

Accordingly, I Began To Look For A Sexy Military Plane That I Not Only Would Enjoy Flying And Sharing But Also, Would Not Financially Break Me.  

Further, Not Being A Military Pilot, I Also Wanted A Bird That Would Be Forgiving.

Of Course, These Limitations Eliminated A B-25 Because It Was, At A Minimum, A Two-Pilot Aircraft And Cost Prohibitive For One Person In Terms Of Acquisition, Maintenance And Hangar.  

The P-51 Mustang, F4U Corsair, Bear Cat, Wildcat, Hellcat, P-32 Lightning, P-40 Warhawk, P-63 King Cobra, Lockheed T-33, And North American F-86 Were All Without Doubt Sexy Enough, But Not Being Independently Wealthy Or A Recent Lottery Winner, The Acquisition And Maintenance Costs Were Impracticable.  

Further, Absent Some Major Modification, You Simply Could Not Share The Thrill Of These Birds By Bringing Along A Passenger-Copilot.

What Were Left Then Were The Trainers, I.E., The North American T-6s, T-28s, And The Beechcraft T-34s.  

Each Of These Planes Could Be Shared, They All Had Military History, And Parts Were Prevalent For Each.  

Moreover, They Were Somewhat Forgiving As Trainers And Yet They Were Aerobatic, And Though Not Cheap To Operate To, Insure To And Purchase, They Were Priced Within Reason When Compared To Fighters, Pursuit Planes Or Jets.

Having Narrowed The Field, I Began To Talk To Trainer Owners About The Various Types Of Birds.  

I Also Did Article, Book, And Internet Research On Them.  

Additionally, I Specifically Read The POH For Each Aircraft And Demo Flighted Several Variants Of Each Trainer. 

Two Additional Considerations I Had Were Range And Speed, Which Knocked The T-6 Out Of The Running Because It Locked Both. 

Lower Speed And A Higher Purchase Price Narrowed The Field Again By Eliminating The T-34.

Robert Genat’s Book Final Tour Of Duty, North American’s T-28 Trojans Was The Turning Point In My Decision To Select The T-28.  

Genat Writes That Comparison Flight Tests Not Only Demonstrated That The Trojan Can Out Climb, Out Roll And Out Turn A Mustang, But Also, That It Had A Very Colorful Quiet Career As An Actual Warbird.  Indeed, Says Genat, The

“T-28 Is Arguably The Best Kept Secret In Aviation  ***[A]Nd May Be The Most Complex Propeller Driven Warbird Around, But It Is Also One Of The Easiest To Maintain.”

The Choice Made, As A Precaution Against Nativity And Compulsion, I Decided To Go To School Before I Became A Sorry Buyer.  

Yes, That’s Right, I Went To A T-28 School Called Darton For 5 Days. 

I Also Chose To Do This Because I Wanted To Know More About Radial Engines And What To Look For In Making A T-28 Purchase.  

As It Turned Out, This Was An Excellent Decision Because The School Is Designed To Have The Student To Fly Safe And Buy Safe.

Not Only Was The Proper Care And Feeding Of The Trojan Discussed, But Also, We Learned The Differences Between T-28 Models A, B, C, D, And F, The Respective After Market Options, And Most Importantly, Pre-Purchase Inspections, Maintenance, Parts, Training, Networking, And Support.  My Weeklong Class Was Comprised Of 15 Students, Two Of Which Have Become My Best Friends.  

Moreover, It Is Not Uncommon To See Others In The Class At A Major Airshow Or At Formation Training Or A Proficiency Gathering.  

One Of The Largest Gathering Of T-28’S Takes Place At Kenosha, Wisconsin In July Where Formation Training Occurs To Ready The Birds And Pilots For Oshkosh.  

This Year 18 T-28’S Showed Up And It Was A Great Time.

Darton Is Now Called Warbird Solutions, L.L.C. And Is Owned And Operated By Courtesy Aircraft In Rockford, Illinois.  

The School Is Now Four Days Long.  

Information Can Be Obtained From John Kraman At 1-800-426-8783.  

You Can Also See A Profile On The T-28 On Courtesy’s Website:  www.courtesyaircraft.com

Most T-28 Owners Also Belong To The North American Trainer Association (NATA).  

Texan, Mustang, And Mitchell Owners Also Belong To NATA.  

This Organization Maintains And Issues A Membership Directory With Names, Addresses, Phone Numbers, And E-Mail Addresses.  

Here, T-28 Operators, Owners, And Mechanics Can Put Out A Request For A Part, Information, And/Or A Good Place For A $100.00 Hamburger And Get Almost An Instant Response From One Of Our Members.  

NATA Also Publishes A Great Periodic Magazine That Has Regular Articles On The Maintenance And Flying Of North American Aircraft.

It Has Real Combat History

From A Historical Basis, The T-28 Simply Is Not As Well Know As The WWII Fighters Who Were Glamorized In Hollywood Productions Over The Last 60 Years. 

The Trojan, However, Was Never Designed To Be A Fighter, But Rather, A Trainer.  

Indeed, North American Designed It To Be A Complex Trainer To Help Jet Pilot Candidates Transition Into The F-86 And F9F.

Nevertheless, The Trojan As A T-28F, Or Fennec, First Went To War In Algeria In 1961-62 Under The French Flag.  

During The Same Period, T-28Bs, Flown By The Vietnamese Air Force, Also Saw Combat.  

The Trojan Became A Real Combat Warbird For The U.S. Military In The Vietnam Conflict.  

These Were The AT-28D (“A” Meant “Attack”) Models Which Were Fitted With…

  •  Armor Plate
  • Self-Sealing Fuel Tanks
  • Strengthened Wing Spar
  • Three Hard Points
  • A .50 Caliber Machine Gun Per wing
  • An Extraction Seat With Zero-Zero Capability Called A “Yankee Extraction Seat.” 

These T-28’S, Renamed “Tangos” By Their Pilots, Saw Action With A Group Called The Ravens.

The Actions Of The Tangos And Their U.S. Pilots Is Best Documented In A Book Entitled Ravens By Christopher Robbins Wherein He Tells About The Secret U.S. War In Laos.  

Robbins Chronicles  That American Pilots Went Into Laos As Part Of What Was Coded The Steve Canyon Program To Act As Advisers And Trainers For Laotian Pilots As Well As To Act As Forward Air Control (FAC) For Our Air Force Aircraft Flying Out Of Thailand And Vietnam.

T-28Ds Saw Additional Combat At The Same Time When Flown By The Royal Laotian Air Force (RLAF).  

Indeed, These Pilots Flew More Than A 100 Missions Per Month, And One Legendary RLAF Pilot, Lee Lue, Flew More Than 5000 Combat Missions.

Life Begins And Ends As A Trainer

The Trojan First Entered Service As The T-28A In 1950 As An Air Force Trainer.  

It Was The Last Single Radial Engine Aircraft Designated By The Military.  The Air Force Purchased 266 A-Models To Replace The T-6s As Transition Trainers To F-80s, F-84s, And F-86s.  

These Models Were Under Powered With An R-1300 Wright Cyclone Which Produced Only 800 Hp. 

 The Air Force Flew The A-models Until 1956 When They Were Replaced By The Beechcraft T-34 Mentor.  

These Birds Then Went To National Guard Units Or To Davis-Monthan Air Force Base To Be Mothballed Or Were Given Away By Our Government As Part Of A Foreign Assistance Program.  

Of Interest, Is That The T-28A Was Modified And Became The Fennec Which Became The First Trojan Warbird.

In 1953, The U.S. Navy, Believing The Air Force’s A-Model Was Under Powered, Modified And Flew The First T-28B.  

This Aircraft Differed Substantially From The A-Model’s 7 Cylinder Motor In That It Now Carried A 9 Cylinder  R-1820 Wright Cyclone Engine Which Boosted Hp To 1,425 And Increased Top Speed To 346 Mph From 292 Mph.  

It Also Went To A 3-Blade Prop From A 2 Blade.  

These engines And Prop Changes Increased The B Models Service Ceiling To 37,000 Feet, A 6,000-Foot Increase Over The A-Model.  

Interestingly, It Was Bob Hoover Who Was The Test Pilot For The T-28B.

The Navy Purchased 466 B-Models.  

Understanding A Good Thing When They Saw It, The Air Force And Army Also Purchased B-Models.  

In 1955, Delighted With The Performances And Maintainability Of The B-Model, But Desiring The Ability To Train Its Pilots For Carrier Take Off And Landings, The Navy Ordered Yet Another 299 Trojan Variants, The T-28C.  

Generally Speaking, The C Had A 7” Shorter Prop, A Speed Brake On Its Belly, A Smaller Nose Wheel, And A Tail Hook.  

The Navy Retired Its T-28s In 1982.  

Its Replacement Was The T-34C And The T-2 Buckeye.

SPECIFICATIONS & FLYING CHARACTERISTICS FOR THE T-28C

Whether VFR Or IFR The T-28, At 8,000 Plus Pounds, Is A Very Stable Platform.  

Indeed, Between 1970 And 1980, The National Science Foundation, In A Study Of Hail, Used A Modified T-28B To Successfully Penetrate More Than 750 Thunderstorms.  

This Test Plane Was Struck Several Times By Lightening.  

At 170 Knots, The Trojan Is A Great Cross-Country Bird Affording A Terrific View To Both Pilots.  

True Airspeed, However, Ranges From 190 To 260 Knots Depending On Altitude, Your Power Setting And The Size Of Your Gas Credit Card.  

It Has Enough Luggage Space To Carry Several Suitcases, Duffel Bags, And A Kitchen Sink.  

Its Superb Visibility, Predictability, Flight Control, And Throttle Response Make It Wonderful For Formation Flight.  

It Is A Plane That, When Properly Trimmed, Can Literally Be Flown With Two Fingers No Matter Whether You’re Going  Fast Or Slow.  

Of Course, That’s How A Trainer Is Supposed To Fly And This One Does Just That.

Robert Genat In Final Tour Of Duty Writes About The Trojans Flying Characteristics:

“Because Of Its Hot Performance, A Mustang Can Get A Relatively Inexperience Pilot Into Trouble Quicker And More Seriously Than A T28 Can.  Remember Though, The Mustang Was A Fighter Not A Trainer.  From The Standpoint Of Flyability, The Mustang Lacks The Control Harmony Of The T-28.  You Have To Fly The P-51 More Purposefully, Always Aware That Little Things Can Upset The Mustang, The Rudders Have One Pressure, The Elevators Another, And The Ailerons A Third.  The Mustang Is Also Less Neutrally Stable, Like Most Fighters.  The Mustang Will Spin Inverted, The T-28 Won’t.

A Few Years Ago, A Comparison Test Was Conducted In An Attempt To Settle Once And For All Which World War II Aircraft Was Best.  

The Aircraft Chosen For The Test Were A P-51, A P-47, A F6F Hellcat, And A F4U Corsair.  

There Were Evaluated As A Test Pilot Would Have Evaluated Them On Ground Handling, Visibility, Cockpit Layout, Dogfighting, Tracking, Turning, Accelerating, Acceleration In A 1-G Pushover, Climbing Rate, And So On.  

The Pace Plane For The Test Was A T-28.

The T-28 Was Not Being Compared Officially, But Such Observations Naturally Occurred During The Evaluation.  The Only Warbird That Could Out climb The T-28 Was The F6F Hellcat.  

In The Dive, The T-28 Stayed With The P-51, To The T-28’S Redline.  The T-28 Had The Best Roll Rate.  

For The Dogfight Sequence, The T-28 Was The Target Airplane.  

Every Time The P-51 Tried To Track The T-28 Through A Level 4-G Turn, The Mustang Slipped Out.  

True, The T-28 Is A More Modern Airplane, And You Might Expect Better Performance With Successive Designs, But Is Makes A Great Story When A T-28 Cleans A P-51’S Clock.

Warbird Owners Described The T-28 As A Real Cadillac In Its Handling.  

The Whole Craft Is Designed Around Its Engine.  

It Certainly Doesn’t Fly As It Looks, Stubby And Chunky, Not At All Pretty On The Ground, And It Doesn’t Sound Too Good, Either.  

But In The Air, It’s A Thoroughbred.  

Drive A Mustang, A T-6 Or A T-34 Above 200 To 250 Knots, And Their Controls Get Very Heavy.  

Take A T-28 Out To The Redline And You Can Still Fly It With Two Fingers, Just As If You Had Serve-Boosted Controls.  

It’s A Sweet-Flying Airplane.

From An Aerobatic Point Of View, The T-28 Can Hold Its Own With Any Of The Warbirds. 

It Is Certified For The Following Aerobatic Maneuvers If Kept Within Plus 4gs And Negative 2g:

  • Inverted Flight (Not To Exceed 10 Seconds)
  • Loop
  • Immelmann Turn
  • Aileron Roll
  • Wing-Over
  • Chandelle
  • Spin (Except That Intentional Inverted Spins Are Not Permitted)
  • Barrel Roll
  • One-Half Cuban Eight

It Is, However, Limited To Ten Seconds Of Inverted Flight Because The Engine Oil System Is Not Designed For It.

Take Offs And Landings In The T-28 Are Exhilarating, Predictable, And Easy.  

Properly Trimmed For Climb, Descent And Torque (Remember, You Have 1,425 Hp At S.L., So 5° Right Rudder Is Required For Take Off), The Bird Will Fly Off And On The Runway By Itself.

Three Closing Notes:  First, With The Advent Of “Darton Clean Kits”, The Radials Reputation As An Oil Leaker Does Not Apply So The Trojan And Its Hanger Remain Relatively Clean.  

Second, The Design Around The T-28 Was To Improve Its Maintainability And Serviceability.  

Its Clam Shell Cowling Affords Easy Engine Access As Does Its Nose Wheel Well Engine Back Door.  

Third And Last, The T-28 Is The Best “Friend Maker” I Have Ever Known.  

Everyone In The T-28 Community Is Professional, Helpful, And A Sincere Friend.  Come Join Us.

* J. Gary Trichter Is A Lawyer Who Lives In Houston.  He Is A 2000+ Hour Pilot Who Holds An Airplane CFI, CFII, MEI, LOA’s For T-28’S And HA200 As Well As A Helicopter Private Pilot Rating.  The Author Wishes To Thank Phillip Fox Of Houston, NASA Superstar, For His Help And Insight With The Article Layout.

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PILOTS and DWI: THE FAA AND LEGAL MALPRACTICE: HOW TO PROTECT TWO LICENSES AT THE SAME TIME: YOURS AND YOUR CLIENT’S

Pilots and DWI
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PILOTS AND DWI: THE FAA AND LEGAL MALPRACTICE

Let’s talk about pilots and DWI as well as the FAA and legal malpractice. 

So, you are a big time DWI/DUI lawyer and it is your lucky day!  

Your secretary tells you that a civil attorney friend has referred a commercial pilot neighbor of his and that he is now on the telephone and wants to schedule an appointment.  

Of course, hearing the potential for a large fee, you stop what you were doing and take the call.

Pilots and DWI: A Case Study

Captain Lucky Lindy, a 15-year major airline pilot with 15,000 flight hours and who is also a United States Air Force Reserve Flight Officer of 19 years, tells you that 16 days ago he was not so lucky as he was arrested for drunk driving by a member of the local constabulary.  

He apologizes for not coming in sooner, but he had been on a weeklong round trip flight out of the country and had to immediately report for military reserve duty upon his return.

Unlucky Lindy then informs you that he refused the Intoxiliar breath test and that he is very concerned that this incident might cause him to be forced into early retirement.  

The client’s high level of stress is clearly manifested in his voice and by the fact that he continually asks for assurances that he is not going to lose his lifetime investment in his aviation career.  

Reassuring him that he will be all right and that he is in the best of hands, you schedule an afternoon appointment for him.

FAA Reporting Requirements

Not being a pilot or a person with any real aviation experience, you call a local flight school to ask what is the Federal Aviation Administration (FAA) reporting requirement for DWI/DUI.  

A young certified flight instructor (CFI) first tells you that there are three types of pilot medical certificates:

  • a first class that is good for six months
  • a second class that is good for 12 months, and
  • a third class that is good for twenty-four months.

He further explains that all pilots must have a current medical certificate in order to be legal to fly.  

The CFI then said the only requirement that he knew about concerning a DWI/DUI conviction was that it be admitted in the space provided for it on the medical certificate application form.  

Feeling somewhat better informed, you thank the youngster, say goodbye, and wait for your new client to arrive.

The FAA First Class Medical Certificate

At your office interview later that day, Lindy tells you that his FAA First Class Medical Certificate will expire in two weeks and then requests your advice as to whether or not he needs to report his arrest to the feds.  

Not knowing about the Federal Aviation Regulations (FAR’s), you tell him not to worry, that you will do some research into the matter, and have an answer for him soon.

During the interview, you properly and thoroughly explain that his case is very defendable, that a DWI/DUI first offense, if there is a conviction, could theoretically result in a sentence of jail, a fine, both jail and a fine, and a driver’s license suspension of up to one year.

You further inform him that as a consequence of his breath test refusal and because he missed the 15-day period after his arrest to request an administrative hearing, he will lose his driver’s license for 90 days.  

The good news, however, is that he is eligible for an occupational license and that it is almost a sure thing the court will grant him one during the 3 month suspension period.

Pilots and DWI: “How will this affect my flying?”

Unlucky Lindy again revisits the questions with you as to “how will all this affect my flying?” and “do I have to report this to the FAA at this time or later?”  

Exactly how you answer this question will make a big difference to your legal malpractice carrier, if you have one, and to your retirement account if you do not have coverage.  

More importantly, it will make all the professional and emotional difference in the world to your pilot client

The New Medical Certificate Needs to Include Everything

Remembering the CFI’s quick tutorial, you inform the client that it is your opinion the medical certificate form only requires the reporting of “convictions” so there is no need to make reference of the arrest on the form when he applies for a new medical certificate.  

Fortunately, for you, that information is correct.  

You then say that it is your opinion that the FAA need not be notified at all unless there is a conviction.  

Oops!  

The force field around your retirement account just got weaker.  You misadvised your client.

The source of your error can be found in Section 61.15 of the FAR’s.  

It provides:

OFFENSES INVOLVING ALCOHOL OR DRUGS

(c) For the purposes of …this section, a motor vehicle action means:

(1) A conviction after November 29, 1990, for the violation of any Federal or State statute relating 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;

(2) The cancellation, suspension or revocation of a license to operate a motor vehicle after November 29, 1990, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, or while under the influence of alcohol or a drug (emphasis added);

(d) Except for a motor vehicle action that results  from the same incident or arises out of the same factual circumstances, a motor vehicle action occurring within three years of a previous motor vehicle action is grounds for:

(1) Suspension or revocation of any certificate, rating, or authorization issued under this part.

(e) Each person holding a certificate issued under this part shall provide a written report of each motor vehicle action to the FAA, Civil Action Security Division (AMC-700), P.O. Box 25810, Oklahoma City, OK 73125, not later than 60 days after the motor vehicle action.  The report must include:

(1) The person’s name, address, date of birth, and airman certificate number;

(2) The type violation that resulted in the conviction or the administrative action;

(3) The date of the conviction or administrative action;

(4) The State that holds the record of the conviction or administrative action; and

(5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.

(f) Failure to comply with paragraph (e) of this section is grounds for:

(1) Suspension or revocation of any certificate, rating, or authorization issued under this part.

Bad Advice Could Result in Your Pilot’s License Being Revoked

Your incorrect advice could cause client Lindy to have his pilot’s license suspended or revoked if he does not notify the FAA Civil Aviation Security Division not later than 60 days after his driver’s license goes into suspension for refusing to submit to the Intoxiliar test.  

Of course, should Lindy lose his pilot’s license then he most likely would lose his job, too, and you will inevitably get sued!

Ouch!

Pilots and DWI and FAA Logic Aren’t Predictable

Lets change the facts a bit so that Unlucky Lindy comes to you and says he simply wants to plead guilty, get probation, and get this unfortunate episode behind him.  

He then asks “will it be sufficient to report my plea and conviction by affirmatively noting them on my medical certificate application?”  

If you are inclined to think that it is logical to assume the answer is “yes” because your client is actually notifying the FAA of his conviction by admitting it on the form, then you should be happy to know it is indeed a logical conclusion.  

Regrettably, however, like the rest of the government, the FAA does not always think, act or promulgate its rules logically.

The FAA and a Major Airline Captain: A Story About Bureaucracy

If you don’t like that answer, then consider the bureaucratic nightmare that befell a major airline captain in 1991.  

In May the pilot was arrested for drunk driving.  

Days after the arrest, feeling very concerned about his career and about following the rules, he actually called the local FAA office (Flight Standards District Office, a/k/a “FSDO”) to ask about the affect the DUI/DWI would have on his pilot’s license.  

The FSDO, being helpful, only reminded him that it would be necessary to report the conviction, if one happened, on his medical application form  when he reapplied for it the next month in June.

Not wishing to contest the DUI/DWI, the captain pled guilty on June 10.  

Within two weeks, during the completion of his medical application form, the captain in answer to question “21v” checked “yes” and self disclosed the conviction.  

Notwithstanding the fact that he did not make further reference to the conviction on the form, he did explain and further disclose the events giving rise to the conviction to the FAA Medical Examiner Physician.  

The doctor, ostensibly believing the captain fit for flying, issued him a new medical certificate.

On the first of October, the FAA’s Aeromedical Branch, following routine procedures, requested the captain to furnish further details of the conviction.  

The information was promptly furnished to the satisfaction of the branch.

Then comes the bureaucratic nightmare.  

The FAA popped the captain for a twenty day suspension for violating FAR 61.15 because he did not specifically notify the Civil Aviation Security Division in Oklahoma City within the sixty days as called for by the rule.  

“Wow!” you say?  

Well, so said the captain too!  “Unreasonable!” you say.  

Well, you must be clairvoyant because that is exactly what the dumfounded captain also said.

Does the word “appeal” come to mind?  

It did to the captain and he appealed to the National Transportation Safety Board (NTSB) saying in effect that because he had no intent to deceive and that he had in fact reported his conviction to the FAA, although not to the security division because he was unaware of the rule, it was unreasonable to find a violation and suspend him. 

“Wow!”, said the judge agreeing with the pilot.  

“Unreasonable!”, said the judge again agreeing with the pilot.  

Indeed, after hearing the evidence the judge not only found that there was “substantial compliance” with the rule, but also, he dismissed the case against the pilot.

Does the word “appeal” come to mind again?  

It did to the FAA and it appealed to the full 5 member NTSB Board.  

“Wow!” said the Board.  

“Reversed” said the Board, and they reinstated the record of the conviction albeit without the suspension.  

The Board went on to say that “[a]s a general rule, airmen are expected and obliged to know the regulations to which they are subject, and ignorance of them is no defense.  

The reporting requirement regulation was in effect at the time of the [captain’s conviction] and its language is absolutely clear”.  (emphasis added)  

“Ouch!” said the captain.  “Ouch!” screamed the legal malpractice carriers!

Be Careful When It Comes to Pilots and DWI

The above examples ought to make you very careful in representing pilots in drunk driving prosecutions and/or administrative driver’s license proceedings that are collateral to the drunk driving case.  

Clearly, the effect of either a failure to report or even a properly filed report are quite consequential for the pilot  Clearly, too, if that effect was brought about by ignorance and improper advice of counsel then, it too, has serious consequences for the lawyer.

Unquestionably, FAR 61.15 is a landmine just waiting to get stepped on by the innocent pilot/client and the unwary lawyer.  

One would think if the self-disclosure requirement were that important to the FAA that it would have created a form for reporting the required information just as it did on the medical certificate application.  

That, however, is not the case because there is no preprinted form.

What You MUST Report to the FAA

To summarize, the pilot/client who is convicted of DUI/DWI must report that conviction on his medical application.  

He must also notify the FAA Civil Security Division in Oklahoma City within 60 days of the conviction.  

Contacting the local FAA FSDO is not compliance under the rule.  The pilot/client must also report any action taken on his driver’s license that emanated from the drunk driving arrest, i.e., a suspension for either failing the breath/blood test or for refusing a breath/blood test. 

This report, too, is made to the FAA Oklahoma Office Civil Security Division and must be made within 60 days of the suspension.  

In cases where the pilot/client suffers both a DUI/DWI conviction as well as an administrative license suspension that arose out of the same factual circumstances, he must timely report both of them to the Security Division or face a non-reporting violation.  

Note, however, that only one of the two reports can be used for suspension/revocation purposes under FAR 61.15 (d), i.e., the FAA needs 2 separate incidents within a 3 year period to deny an application or suspend/revoke a pilot license.

Playing lawyers for the moment, arguably the reporting requirement for both a conviction and/or a suspension for refusing and/or failing a breath/blood test is in our opinion stayed for as long as the conviction and/or suspension are on appeal.  

There is no law on this question as of yet but the 60 day clock on appeals we have handled have been treated by the FAA as starting when the appellate process was over and there were actual final court orders in affect.

Playing lawyers again, from a strategy viewpoint, in many jurisdictions it may be advantageous in defendable DUI/DWI prosecutions where the pilot/client plans on contesting the charge to always appeal the loss of an administrative driver’s license revocation/suspension hearing.  

This is true because in many jurisdictions, the license is suspension is rescinded as a matter of law where the criminal case ends with a verdict of “not guilty”.  

Clearly, this strategy will prevent you and your client from having to deal with the FAA on the issue of record correction and/or expungement.  

Said another way, it is a lot easier to not ring the bell in the first instance than it would be to unring it after the fact.

Lets stroll through the minefield with two more examples before we put this topic to rest.

EXAMPLE 1):  HOW ABOUT WHERE THE PILOT/CLIENT IS ARRESTED FOR DRUNK DRIVING, REFUSES THE INTOXILIAR TEST, DUI/DWI CHARGES ARE FILED BUT SUBSEQUENTLY DISMISSED FOR INSUFFICIENT EVIDENCE, HOWEVER, HE STILL SUFFERS A DRIVER’S LICENSE SUSPENSION FOR THE BREATH TEST REFUSAL.  LOOKING AT FAR 61.15(C) (2), THE QUESTION BECOMES DOES THE NOT SO CLEAR LANGUAGE:

“…for a cause related to the operation of a motor vehicle while intoxicated…”

(emphasis added) excuse such a pilot from the self reporting requirement because there was not sufficient evidence of “while intoxicated” to warrant a continued drunk driving prosecution?

Applying the NTSB logic about “language [that] is absolutely clear” from our first example, a reasonable pilot and/or reader should clearly interpret the “while intoxicated” language of FAR 61.15 (c) (2) to mean what it says, i.e., that there must be sufficient evidence that the driver was intoxicated to require him to notify the Civil Aviation Security Division.  

Requiring that a statute, rule, regulation or law be interpreted in light of the clear meaning of its words makes good sense to us.  

Indeed, that has been a judicial and legislative rule of construction for quite some time now.  Moreover, one would also think that a reasonable pilot and /or reader could rely on the doctrine of “stare decisis”.  

Remember, this is the doctrine that requires consistency so that “we the people” can rely on precedent in order for us to be “expected and obliged to know the regulations to which [we] are subject…”

Regrettably, there is no guarantee in life that either the FAA or the NTSB will act logically, reasonably, sensibly, on the clear meaning of a FAR, or on precedent.  

Such was the hard 120 day pilot’s license suspension lesson learned by an Ohio commercial pilot who had been stopped for erratic driving and subsequently refused to submit to a breath test.  

In that case the pilot was neither arrested nor charged with drunk driving but did suffer a one-year driver’s license suspension.

This case turned on the FAA’s and NTSB’s interpretation of FAR 61.15 (d)’s language “motor vehicle action”.  

On the rationale side of the controversy was the pilot who argued that a breath test refusal is not proof of alcohol or drug involvement. 

Indeed, the definition of “motor vehicle action” requires that the suspension be “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 (emphasis added).”  

In this regard, it is of import to note that the suspension was not for being intoxicated, but rather, only for refusing the requested test.  

Of course on the flip side of the controversy was the FAA which claimed in a conclusory and wholesale fashion, that a breath test refusal fit within the broad meaning of “motor vehicle action” under section 61.15.  

In a decision that runs afoul with reason and plain language, the NTSB simply deferred to the FAA and rubber-stamped its definition.  

So much for fairness, uniformity and “stare decisis”.

EXAMPLE 2):  OUR FINAL EXAMPLE INVOLVES THE SCENARIO WHERE THE PILOT/CLIENT, ALTHOUGH ORIGINALLY CHARGED WITH DUI/DWI, IS ALLOWED TO PLEAD TO A LESSER OR NEW NONINTOXICATION/ NONIMPAIRMENT/NONINFLUENCE CHARGE SUCH AS RECKLESS DRIVING AND THE ORIGINAL CHARGE IS DISMISSED, OR, WHERE THE DUI/DWI PROSECUTION RESOLVES ITSELF WITH A PRE-TRIAL DIVERSION, DEFERRED ADJUDICATION, OR PROBATION BEFORE JUDGEMENT, I.E., THERE IS NO FINAL CONVICTION.

The question here is: “whether or not FAR 61.15 requires self reporting of cases that are resolved without alcohol, drugs, intoxication, impairment, influence or that do not involve a final conviction?”  

The short answer, at least for now, is “no!”

The Devil is in the Details

So what does all this mean to the lawyer who represents the client/pilot who is accused of DUI/DWI?  

It means you need to be real careful to protect your pilot and yourself from collateral dangers that abound to the client because he is subject to a different and additional set of rules than the non-client/pilot due to his winged status.  

It means that not only do you need to go out and get a copy of the current FARs, but also, that you need to read and understand them.  

Review of NTSB decisions are also a must!  

Don’t get trapped!  

Read and don’t hesitate to ask others more knowledgeable for help or advice.  

A great place to start is the Aircraft Owners and Pilots Association (AOPA).

It has a pilot assistance hotline for members at 1-800-USA-AOPA (1-800-872-2572) and a web site at: www.aoap.org

In closing, those of us who have been lucky enough to represent pilots know that they are some of the greatest clients and nicest friends around. 

Remember, protecting a pilot’s license is protecting your own law license.  

Avoid the FAA pitfalls.  

Don’t crash and burn.

By J. Gary Trichter and Christian Samuelson

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