TOPEKA — The threshold for running afoul of law enforcement officers in Kansas when piloting aircraft under the influence of drugs and alcohol would be significantly lowered under a bill pending in the Kansas House.
Existing law applicable to aviators was adopted in 1981 and hasn’t been updated during a 40-year span in which DUI statutes applied to motorists underwent extensive revision. In a two-year effort to modernize DUI law in Kansas, the Kansas Judicial Council came across the antiquated penalty for pilots who take the throttle while FUI.
The current law kicks in only when a pilot has a documented 0.10 blood-alcohol concentration, while the revised approach under House Bill 2387 would lower that aviator benchmark to 0.04 as measured within four hours of the time a person operated or attempted to operate an aircraft. That’s a level of impairment equal to standards for commercial drivers. Kansas defines an intoxicated general motorist as someone testing 0.08 by blood or breath.
Ed Klumpp, a retired Topeka police chief and member of the Judicial Council’s criminal law advisory committee, said the council met from 2018 through 2020 to develop the cluster of bills before the 2021 Legislature to redefine DUI law. It came to the attention of the council Kansas’ 1981 law on drug and alcohol impairment by pilots had never been amended or updated. The original law was passed at the urging of the Federal Aviation Administration.
“The problem they were trying to address was the federal agencies that do the enforcement of these laws or regulations obviously can’t respond in a timely manner to every report of a potential intoxicated pilot or when one has been observed, stopped from flying or involved in a crash,” Klumpp said.
The Kansas Agricultural Aviation Association submitted written testimony objecting to the legislation because it could encroach on authority of the FAA and contained unresolved probable cause issues.
Klumpp said the value of updating the aviation statute, although seldom used, was highlighted when it was discovered federal public awareness campaigns recommended local law enforcement agencies be called by anyone observing a potentially intoxicated person attempting or operating an aircraft. Kansas needs a law that reflects current sensibilities about alcohol or drug consumption and incorporates current methods relied upon to investigate suspected DUIs, he said.
“Having comprehensive and updated state statutes are critical for local law enforcement to properly investigate allegations as well as collect evidence,” Klumpp said. “The work of the local law enforcement agency is necessary for any criminal charges and administrative action taken by the Federal Aviation Administration.”
In addition to the blood-alcohol level, the bill would make a felony offense of someone guilty of operating an aircraft under the influence without a valid FAA license. The sanction would be not be less than 90 days and not more than one year in jail and a fine of $2,500. The individual wouldn’t be eligible for probation, suspension or reduction of sentence or parole until after 90 days of incarceration.
Operating an aircraft under the influence would be considered a nonperson misdemeanor. On a first conviction, the person convicted would be sentenced to 48 hours to six months in prison, or 100 hours of community service, and a fine of $750. A second or subsequent conviction would result in a sentence of not less than 90 days and not more than one year in prison with a minimum fine of $1,250.
Steve Hitchcock, representing the Kansas Agricultural Aviation Association, said the organization of commercially licensed aerial sprayers objected to the bill because it would appear to usurp authority of the FAA. Klumpp said in his testimony the bill before the House wouldn’t diminish federal authority in terms of regulating pilots.
Hitchcock said the House bill didn’t define probable cause at it applied to testing pilots for impairment. Standards applicable a law enforcement officers observations of people driving on Kansas streets and highways can’t be translated to a pilot operating at 5,000 feet, he said.
“The logistics of ‘pulling over’ a suspected offender would also not fit neatly into the observe-and-act protocols practiced on the highway. The level of knowledge and training of law enforcement personnel necessary to make them qualified assessors of aviation practices is also an area that merits thought,” Hitchcock said.
He said the organization placed high value on pilot safety and had no tolerance for people operating aircraft while impaired. The association can support well-reasoned regulations and statutes enhancing safety, he said.