Journal of Air Law and Commerce


Drunk flying poses a serious safety risk to airline passengers. The current system of detecting pilot intoxication and preventing drunk flying relies on the vigilance of coworkers, and statutes prohibiting “operating” an airplane while intoxicated. Courts have stretched the meaning of “operating” to criminalize pre-flight conduct, such as fueling and visual airplane checks. When viewed in conjunction with courts’ inconsistent and varied application of preemption doctrine to federal and state regulations of flying, it is evident that courts are tightening control over flight and pre-flight activities through complex judicial interpretation of facially simple statutes. This Article scrutinizes this approach through a comparison to drunk driving jurisprudence and proposes a more efficient solution: a statute requiring BAC testing once flight personnel arrive for work. Not only will this prevent the possibility of drunk pilots avoiding detection, and therefore enhance the safety or vital preflight activities, but it will also avoid the collateral effects of over-criminalization.