A SkyWest pilot is suing two police officers in Rapid City, South Dakota for false arrest, alleging defamation and slander. Police say they detained him on a tip that he reeked of alcohol and that he failed a sobriety test.
This incident occurred all the way back in October 2016. Russell Duszak, a SkyWest pilot, showed up at 8:00 AM at Rapid City Regional Airport (RAP) to pilot a Delta connection flight to Salt Lake City on a 50-seat Canada Air Regional Jet. While proceeding to the gate, multiple TSA officers allegedly smelled alcohol on Duszak’s breath.
Rapid City Police were called and Duszak was removed from the cockpit. A field sobriety test (breathalyzer) was administered, which came back with a blood alcohol content (BAC) reading of 0.046 percent, which was above the legal limit of 0.040.
Duszak demanded a blood test, but was denied. In his report, Rapid City Police Lieutenant Mark Eisenbraun wrote:
I told him it was not our intention to proceed with any state charges however I warned him there would likely be consequences from the airline authorities. He told me he wanted a blood test. I told him that since we were not charging him with a crime, I had no reason to take a blood sample. I did offer him the use of the local on-call blood technician but I advised him he would be responsible for the testing and storage of the sample. At his request I called dispatch and asked for the blood technician to respond to the airport.
Duszak was told that he was not being charged with a crime, but nevertheless could not pilot the aircraft. Duszak again demanded a blood test. An airport nurse was summoned and Duszak was warned the test would be at his own expense.
In the meantime, Rapid City Police, who seemed to be unfamiliar with the law, consulted with the district attorney’s office and discovered a state law prohibiting pilots from operating with a BAC above 0.040. Duszka was subsequently detained.
After consulting with his attorney, Duszak declined to answer any further questions or voluntarily submit to a blood test. It took another two hours for police to administer a blood test (since they had to obtain a judicial warrant) and by that time, it came back with a reading of 0.015.
Duszak was never charged with a crime because of a wrinkle in South Dakota state law that only allows evidence in the form of a blood test for pilots who are intoxicated.
The Lawsuit
But Duszak has not piloted since. His recently-filed lawsuit, nearly three years later (likely right at the statute of limitations deadline), accuses Rapid City Police officers of falsely arresting him and defaming his character. He now alleges that they refused to administer a blood test in a timely fashion, rendering him unable to clear the cloud of doubt over his reputation. He accuses police of acting “maliciously” against him.
But Rapid City Police Chief Karl Jegeris pointed out the obvious on Twitter:
I have a high degree of respect for airline pilots, but I insist they be completely sober when flying aircraft out of RAP. This @skywestairlines pilot blew 0.046 BAC (blood alcohol content) on a portable breathalyzer test. Suing the Police Officers involved is absurd. https://t.co/ru1PBtn1iY
— Karl Jegeris (@chiefjegeris) September 12, 2019
CONCLUSION
This is an interesting fact pattern because of the delay in administering the blood test and the confusion over state law which only later led to Duszak’s arrest. Still, the fact that multiple witnesses reported that Duszak reeked of alcohol and that he failed a field sobriety test certainly does not bolster his case.
Portable alcohol breath testing machines aren’t reliable and the testing isn’t under the carefully controlled conditions that are necessary for this technology to work. The pilot was correct to demand a blood test. Mouthwash can create a strong alcohol smell when someone isn’t actually drunk at all.
The police messed up here, in my view.
The pilot subsequently refused to answer additional questions and refused to voluntarily submit to a blood test, prompting the police to seek a warrant to obtain said blood test, by which time his BAC was .15. For the safety of the passengers, pilots probably shouldn’t drink at all prior to a flight. This guy sounds like a jerk.
It was entirely reasonable for the pilot to refuse to voluntarily pay out of pocket for the blood test. That’s what was on offer. And it’s also the pilot’s right not to answer any additional questions.
For all we know, it was mouthwash. There is a *lot* that can go wrong with portable alcohol breath testing machines which is why prosecutors won’t take these results to court in DUI cases. Too many factors (especially heat) can skew the results.
The FAA rules forbid a pilot — commercial or private — from consuming alcohol within 8 hours of a flight in which they are a crew member or pilot in command. That Mr. Duszak still registered any alcohol level several hours after being removed from the aircraft shows that he had violated the rule of no alcohol within 8 hours of his flight.
I have ZERO sympathy for the ex-pilot. There are enough problems on board commercial aircraft, without drunk pilots adding fuel to the fire.