Drunk Driving Charges Following Drunk Flying Conviction

Posted by Jon Ibanez on December 8th, 2014

It’s not uncommon for a person to get caught driving under the influence after they’ve already been convicted of a California DUI. What is uncommon, however, is for a person to be caught driving under the influence after they’ve previously been convicted of operating some other type of vehicle while intoxicated like…say…an airplane.

Michael Ferrero, of Petaluma California, was arrested this past November for a California DUI after he drove his pickup truck into a ditch. According to the San Francisco Chronicle, the responding California Highway Patrol officer smelled alcohol and discovered an open bottle of vodka.

Sounds like a pretty standard California DUI. That is, until you hear about Ferrero’s previous alcohol-related conviction.

In 2012, California Highway Patrol plane piloted by CHP officer, Gary Wareham, was patrolling for speeding vehicles on the highways north of San Francisco when he spotted a plane flying approximately 50 feet above the road. At the time, the Press Democrat reported that Wareham followed the plane after witnessing it pitching and rolling through the air. Wareham followed the plane to a Petaluma, California airport

Ferrero later failed a breathalyzer. However Ferrero claimed that he had taken a shot of whiskey in the hangar after landing.

Ferrero ultimately pleaded no contest to flying under the influence, but not before saying, “Nobody needs to worry about me ever again.”

That proved to be an untrue statement with Ferrero’s current arrest.

I’ve covered the law for cycling under the influence, boating under the influence, and even riding a horse under the influence. What about the law for flying thousands of feet in the air (or in Ferrero’s case, 50 feet in the air) while intoxicated?

Crewmembers of civil aircrafts, including pilots, are governed by the Federal Aviation Administration (FAA). Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.” Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

California Public Utility Code section 21407 is similar to the federal regulations in defining a FUI charge. California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

The prosecution agency has discretion to charge under state or federal law.

The interesting question in Ferrero’s case is whether the prosecutor will treat the current charge as a second-time California DUI since, technically, this is Ferrero’s first time violating California’s Vehicle Code law for driving under the influence.

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