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Forever Hold Your Peace: The Advantage of SilenceSilence and the FAA

An admission, by its very nature, carries an enormous amount of credibility and weight, with investigators, as well as FAA attorneys, and administrative judges  in later proceedings. Admissions are as close to silver bullets as legal evidence gets because they can carry multiple elements of the offense or violation the authority needs to prove.

Matthew Dyer is an attorney with Furey, Donovan, Tracy & Daly, P.C. in Bristol, CT. He primarily focuses on criminal law matters and counsels members of AOPA’s Legal Services Plan on a variety of FAA Enforcement, accident, and tax matters. Matthew is also a private pilot working on his instrument rating.

It’s a pilot’s worst nightmare—a loss of control and a damaged plane. Worse, damaged people: friends, family, business associates. Adrenaline rushes, fear and guilt set in, and we turn to the nearest authority figure to re-establish order amidst the chaos. Depending on the size, nature and damage caused in and by the accident, these authority figures even seek us out. And as those kind individuals from the FAA approach, our instincts to speak tend to take over. But, just as when we are behind the yoke, our instinct can be, and often is, wrong.

49 C.F.R. 830.2 and 830.5 require reporting accidents and serious incidents to the NTSB. Reporting to the FAA in the context of manned aircraft accidents or incidents, however, is never required unless that pilot has deviated from the rules during an in-flight emergency and the FAA specifically requests a written report under 14 C.F.R. 91.3.  Certain Unmanned Aircraft Systems accidents are reportable to the FAA under § 107.9.

49 C.F.R. 830.6 covers the information to be supplied to the NTSB when immediate notification under 830.5 is required. Additionally, 49 C.F.R. 830.15 requires that NTSB Form 6120.1 be filled out within 10 days after an accident, or after 7 days if an overdue aircraft remains missing (it is only required after an incident if specifically requested). Given the nature of these reporting requirements, speaking to FAA investigators may seem redundant. Nothing is further from the truth.

First, the NTSB and FAA are separate agencies with distinct goals. The NTSB investigates accidents or incidents with an eye towards furthering safety, and while the NTSB may designate the FAA as a party to an investigation and assign certain duties, the FAA’s typical role is to regulate and enforce pilot certification.  Admissions made by a pilot suspected of wrongdoing to the FAA may lose their contextual details once the investigator prepares a report—look no further than the interrogation scene in My Cousin Vinny to see how much context matters when preparing and understanding a narrative.

 

Second, an admission, by its very nature, carries an enormous amount of credibility and weight with investigators, as well as FAA attorneys and administrative judges in later proceedings. Admissions are as close to silver bullets as legal evidence gets because they can carry multiple elements of the offense or violation the authority needs to prove. Even DNA is not always that strong.

 

Third, the difference between a lapse in judgment and an intentional violation can mean the difference between losing a pilot certificate and keeping it, so it is critical to decide whether certain information should be presented to the FAA and how to best do so.  With the implementation of the FAA’s Compliance Philosophy, education or training is typically used to resolve unintentional deviations that arise from factors such as flawed systems and procedures, simple mistakes, lack of understanding, or diminished skills.  On the other hand, a violation that resulted from intentional, reckless, or criminal behavior does not fall within the Compliance Philosophy and typically requires legal enforcement action.

 

Speaking to an investigator means trusting the FAA to decide unilaterally whether a pilot’s mental state is deliberate or accidental.  Finally, as one FAA attorney put it (and I am profoundly paraphrasing), “I dont need the pilot to say anything.” The FAA has a variety of resources to mine for evidence after any accident or incident—there’s no need for a pilot to hold the nail hammering shut the door to flying by speaking. Take the time to speak to counsel first and protect the rights to your certificate that you worked so hard to achieve. 

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