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Houston FWI Defense Lawyer

Defense Strategies for Flying While Intoxicated (FWI) Charges in Texas

Operating a plane, either commercial or private, is unlike driving a motor vehicle on a road. There are serious differences but for one major similarity: the operator must not be under the influence of alcohol or drugs while operating a motor vehicle or a plane. If you are a pilot and fly while operating an aircraft simultaneously under the influence of chemical substances, you can be charged with flying while intoxicated (FWI). Pilots can be charged under federal and/or state laws, and as such, there is a great risk of severe penalties.

If you are a pilot and have been charged with an FWI in Houston or its surrounding areas at any of the international or local airports, then you need to contact an attorney with experience defending flying while intoxicated cases. Laws relevant to FWI are complex and challenging because pilots must follow both state law and federal law, the latter of which includes the Federal Aviation Regulation (FAR) as administered by the Federal Aviation Administration (FAA). These cases can be complex and require an attorney with experience in these types of cases. Doug Murphy has extensive experience in DWI law.

Flying Under the Influence of Alcohol or Drugs: Federal Law in Brief

The Federal Aviation Regulation § 91.17 addresses the use of alcohol and drugs by pilots. Among the many provisions, this regulation states that no person may operate or attempt to operate an aircraft:

  1. Within 8 hours of having consumed alcohol;
  2. While under the influence of alcohol;
  3. While using any drug that adversely affects safety; and
  4. With a blood alcohol content (BAC) of 0.04% or greater.

The FAA provides strict rules that regulate the consumption of alcohol by pilots and crew members of any civil aircraft, whether it is a commercial or private aircraft. A pilot or crew member who violates any of these provisions faces imprisonment, fines, and revocation of his or her pilot's license.

Implied Consent

Just as in driving a vehicle in all states, pilots also operate aircraft under an implied consent law. This law states that if you are a pilot, and you are suspected of being under the influence of alcohol or drugs, then you are required to submit to a breath or blood test upon request. If you refuse, a substantial fine and either suspension or revocation of your pilot's license will result.

Blood Alcohol Content (BAC)

Per the FAR, the bar for flying while intoxicated is half the legal limit (0.08% BAC) for driving a motor vehicle. This basically equates to 1 drink for men 100 pounds or under and 2 drinks for almost all other men unless you are 220 pounds or more, and then it is just under 3 drinks. For women who are under 100 pounds, this equates to less than 1 drink, while for all other women, it is basically 1 drink unless you are 220 pounds or more. These are, of course, estimates, but it shows how little alcohol can result in a BAC that qualifies for a flying while intoxicated charge.

Driving While Intoxicated (DWI) Convictions & Reporting Responsibilities

If you have ever been convicted of a DWI in Texas, then it, too, can jeopardize your flying privileges, just as it jeopardizes your driving privileges. DWI convictions must be reported to the FAA through the pilot's first-class medical application and the FAA Civil Action Security Division in Oklahoma City. This notification must be made within 60 days of the DWI conviction.

In addition, you must report what actions the state of Texas took against you when you were convicted of the DWI. Therefore, if you refused a chemical test and had your driver's license suspended for it, you must report this fact. If your driver's license was suspended through the administrative process, this, too, must be reported within 60 days of suspension. Your failure to report either a DWI criminal conviction or a driver's license suspension emanating from a drunk driving arrest may invoke additional penalties. The FAA keeps track of your DWI and driver's license suspension. If your driver's license is suspended twice in a three-year period, the FAA can deny your application for a pilot's license or revoke a current license.

Flying While Intoxicated: Texas Law

In the Houston metro and surrounding areas, there are several airports where both commercial and private aircraft are used. Some Houston and regional airports are:

  • George Bush Intercontinental Airport, which is the largest airport serving the fifth largest metropolitan area in the U.S.
  • Ellington Airport, which is 15 nautical miles from downtown Houston and is both a public and military airport.
  • William P. Hobby Airport, which is an international airport 7 miles from downtown Houston.
  • West Houston Airport, which is 13 miles from downtown Houston and is a privately owned but public-use airport.
  • Houston Southwest Airport, which is a public-use airport located in Arcola and is 15 miles southwest of the central business district of Houston.
  • Pearland Regional Airport, which is a public-use general aviation airport located in Brazoria County and is 17 miles south of the central business district of Houston.
  • David Wayne Hooks Memorial Airport, which is a public-use airport located near the city of Tomball in Harris County and is 23 miles northwest of the central business district of Houston.
  • Dry Creek Airport, which is a private airport located in Cypress and is 7 miles northwest of the central business district of Houston.

Though flying is regulated in part by federal and international laws, in Texas, the same laws that apply to DWI charges also apply to FWI charges. It does not matter what type of aircraft you operate at any of the above or other known airports in the region. If you are arrested for an FWI, an experienced DWI defense lawyer can fight a flying while intoxicated charge and protect your rights as a pilot and a citizen.

Flying While Intoxicated in Houston, Texas

The Texas Penal Code § 49.05 addresses the specific offense of flying while intoxicated. According to the statute, it is illegal to be intoxicated while you operate any aircraft. To be intoxicated means you do not have the normal use of your mental or physical faculties, e.g. balance and speech, due to the presence of alcohol, drugs, or a combination of both in your body, as defined by Texas Penal Code § 49.01(2).

Penalties for an FWI Conviction in Texas

The Texas Penal Code § 49.05(b) defines flying while intoxicated—with no priors or aggravating circumstances—as a Class B Misdemeanor. Class B Misdemeanors are punishable by up to 180 days in jail, a fine up to $2,000, or both. There is also a statutory requirement of a mandatory minimum jail term of 72 hours.

An FWI conviction may also impact the status of your pilot's license. Therefore, if you are a pilot for your career, your professional livelihood is at stake. This is reason enough to contact an experienced, reputable DWI lawyer in Houston, Texas. The sooner you contact a DWI attorney, the sooner he or she can begin working on your case and strategizing a successful outcome so that the impact of the charge is as minimal as possible.

Alcohol Effects on Pilots' Performance

Alcohol has an effect on the body that may be different while up in the air versus on the ground. During a flight, the barometric pressure in the cabin of a plane is lower than it is on the ground. The body's ability to absorb oxygen is reduced due to the decrease in cabin pressure. Hypoxia, or light-headedness, results due to less oxygen absorption. When you drink alcohol, you experience hypoxia sooner; the effects of the alcohol are multiplied in a faster time. Thus, this is the reason why some airlines want to or have policies to limit alcoholic intake by passengers. It's also the reason why the legal limit for blood alcohol content is lower for flying while intoxicated than it is for driving while intoxicated.

Effects of flying under the influence of alcohol have been shown in a pilot's impaired ability to fly:

  • Pilots have shown impairment in their ability to fly using instrument flight rules (IFR) or performing routine tasks using visual flight rules (VFR). Impairment has also been shown to affect pilots who use ILS (Instrument Landing System) to land the aircraft.
  • Studies have shown that pilots whose BAC levels are at or above 0.04% commit errors at an alarming rate when compared to a pilot not under the influence. Studies have also shown problems occur below the 0.04% BAC level, starting at 0.025%. In fact, the below chart of fatal general aviation accidents with alcohol as a possible contributing factor acts as testimony to the influence of alcohol on pilots' ability to operate an aircraft starting at lower than 0.04% BAC levels:


General Aviation Pilot Fatalities

Pilots with BAC of 0.02% or more

Pilots with BAC of 0.04% or more





























These statistics are old, but they demonstrate the impact limited alcohol has on a pilot while operating aircraft at high altitudes.

Apart from being under the immediate influence of alcohol at the time of flying, hangovers are also dangerous and, thus, the reason why a pilot should not have had a drink within 8 hours before operating an aircraft. Symptoms associated with hangovers include headaches, dizziness, stuffy nose, fatigue, upset stomach, irritability, impaired judgment, and increased sensitivity to light. These symptoms have a direct impact on a pilot's ability to operate the aircraft safely. The general rule as a pilot, therefore, is to abstain from alcohol within at least 8 hours of operation of the aircraft.

Contact a Houston Flying While Intoxicated Attorney

If you or someone you know has been charged with FWI, you need the best DWI lawyer possible to protect your right to fly, especially if piloting is your career. Doug Murphy is board-certified as a criminal defense lawyer and a DWI lawyer, a distinction held by only one other attorney in the state of Texas. When he's not defending your rights and winning cases, he's helping other DWI lawyers learn more about the law and increase their skills. The sooner a board-certified DWI attorney specialist becomes involved, the sooner investigating and strategizing can take place for the best possible outcome. We assist pilots not just in the defense of a DWI or flying while intoxicated case, but also with FAA licensing matters too.

At Doug Murphy Law Firm, P.C., we devote our resources and capabilities to DWI cases. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy is a board-certified DWI lawyer who not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. Contact Doug Murphy today at 713-229-8333 to discuss the circumstances of your case.

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