Legalization of Marijuana Impact
Votes
Open

For the purposes of this discussion - I don't want it to degenerate into a “The FAA should allow it”.
I'm working on the well-advertised view and advice that while many states may have legalized marijuana for recreational use - flying is a federal matter and at a Federal level it is still illegal.  Thus “Flying under the Influence” is a bust.

Wondering how this affects the following scenario:

In a state where recreational marijuana is legal - there is a large public event / festival / street party.  The air is heavy with secondhand smoke from marijuana consumption.  To the point that once stood away from the event in clear air - clothing, hair and beard/mustache are tainted with the smoke and it can still be smelled.

Thus for sure (as I used to work in an environment where this testing took place) a hair clipping sample would come up positive for marijuana - indicating you had been in the presence of it.  Which in certain zero tolerance scenarios would get you sanctioned (loss of job / expulsion from academia being two examples).

Given the heavy secondhand smoke - I conjecture (but do not know) that you might not actually pass a “pee in the cup” test soon after exposure in this environment.

A self-assessment for IM SAFE may not give the correct result if you are mildly cognitively affected.

--

Within a time period of exposure - there is an accident. The accident is 100% the result of a mechanical failure and your decision making was sufficiently good that you avoided any harm to persons and walked away, but the plane is a write off and a zealous official has you drug tested.  And you “fail”.  The FAA now take an interest - whether as part of an NTSB investigation or when you have to fill in a Medical Application in the near future and not lie.

--

Saying “avoid the event/party” is not an acceptable answer/idea.  I literally and unexpectedly ran into such a scenario this weekend. I simply had no choice but to end up exposed for 3+ hours.

I seriously considered the wisdom of flying the next morning - not because I felt impaired - but because of the possible consequence of such a scenario.

--

So has this happened yet?  Is there any “case law” of what to do?

7 Replies
Votes
1407 Posts

The FAA's position on this is pretty simple – a positive test is a positive test and it doesn't matter what you say about how you were exposed or the legality of the substance in the location where you say you were exposed.  They will treat you as a substance abuser.  And yes, there are cases on point.

Votes
John,

I saw your extensive replies in my email - but I see you are "testing" and it does appear that your posts are "disappear" here.  And I can't "reply by email" per the link in my email.  

Something appears to be broken
Votes

He's doing that because he is trying to troubleshoot the AOPA system.  For some reason, I have been unable to reply to this particular post.  He did say that he was able to post some things from my response.  I'm going to break it up and post what I can, until I run into the error again.

Votes

I’m going to answer your questions in the order presented.  I am a recently retired FAA Operations Inspector and dealt with a few drug cases.

First, the regulations. 

91.17 deals with alcohol & drug use.  91.17 (a) (1), (2) & (4) deal with alcohol.  91.17(a)(3) states “No person may act or attempt to act as a crewmember of a civil aircraft while using any drug that affects the person’s faculties in any way contrary to safety.”  This applies to OTC medications, as well as illicit drugs.  There is no language in the regulations exempting operations in states where marijuana might be legal.

91.17 (c) outlines a requirement to submit to a drug test “on request of a law enforcement officer”. It also contains language requiring the crewmember to authorize the release of the results of the drug test.

91.19 prohibits carriage of drugs (including marijuana) aboard an aircraft, unless authorized under a Federal or State statute.  I know of no State statute that would authorize such carriage.  If there were one, federal preemption would take precedence.

61.15(a) addresses a conviction for the violation of any Federal or State statute relating to the growing, processing, manufacture, sale, disposition, possession transportation or importation of drugs (including marijuana).  It carries a penalty of suspension or revocation of any certificate, or denial of an application for any certificate for up to 1 year after the conviction date.

Same penalty for violations of 91.17 or 91.19.

Votes

Now, on to your questions.

I looked up the laws concerning recreational marijuana.  In looking at the laws for CO, WA, OR, AK, DC, CA, NV & MA, there is no state where the recreational use of marijuana is allowed in public.

I searched for info on hair clipping tests.  On www.healthline.com, they describe these tests.  They state that test results are not affected if you wash your hair, dye it or use styling products.  It goes on to say that drugs in the bloodstream become part of the hair cells as they grow.  This suggests that if someone smoking marijuana blew smoke on your hair, it would not cause a positive result for a hair clipping test.

Depending on the exposure to second hand smoke (and the quantity of THC in the joint), you might get a positive result from this type of exposure.

With regard to IM SAFE, if one is impaired (and as such not able to determine his level of impairment), how could that person have any confidence in the evaluation?

Not sure what is meant by “Within a time period of exposure”.  Do you mean within a couple of hours, within 8 hours, the next day or after a couple of days?  At any rate, if there is an accident, it would be the law enforcement person (FAA inspectors are not law enforcement personnel) who would ask for a drug test. (See 91.17(c))  Whether the pilot perceives him as “zealous” or not does not impact the need to submit to the test.  In the case of an accident, inspectors do speak with law enforcement agencies.  If a drug test was administered, the FAA will want to see the results.  (See 91.17 (d) & (e))  Not only will the FAA take an interest, the insurance company investigator will also take an interest.  If drug use was involved, the insurance company will likely deny any claim.

Avoiding the event may not be acceptable to you, but for me, unless I were handcuffed and dragged to such an event, I do have a choice.  One needs to weigh what is more important in his life and act accordingly.  I’m 72 and during the late 60s while in high school, I attended a few parties where marijuana was present.  I never used it.  I also had a party at our house when my parents were gone.  Someone showed up with marijuana and I threw him out. There is always a choice.

Votes
1407 Posts

I think the bottom line is pretty simple – you can ingest THC or you can be a pilot but you can't do both legally no matter what state you live in.