PRINTER'S NO. 132
No. 129 Session of 2005
INTRODUCED BY WATSON, GEIST, HARPER, CRAHALLA, McCALL, BLAUM,
FAIRCHILD, FICHTER, GILLESPIE, KENNEY, McGILL, MELIO,
MILLARD, O'NEILL, PAYNE, PETRARCA, RUBLEY, SAMUELSON,
WOJNAROSKI, FREEMAN AND MANN, JANUARY 31, 2005
REFERRED TO COMMITTEE ON TRANSPORTATION, JANUARY 31, 2005
AN ACT
1 Amending Title 74 (Transportation) of the Pennsylvania
2 Consolidated Statutes, providing for flying while impaired;
3 and imposing penalties.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 74 of the Pennsylvania Consolidated Statutes
7 is amended by adding a chapter to read:
8 CHAPTER 65
9 FLYING WHILE IMPAIRED
10 Sec.
11 6501. Definitions.
12 6502. Offense.
13 6503. Penalty.
14 6504. Testing.
15 6505. Reporting.
16 § 6501. Definitions.
17 The following words and phrases when used in this chapter
1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Flight crew." Any person who performs or is assigned to
4 perform any duty in an aircraft during the time which the
5 aircraft is undergoing preflight inspection or maintenance or
6 boarding or carrying passengers or crew or at any time the
7 aircraft is under power or in flight.
8 "Law enforcement officer." Includes any officer with current
9 certification as provided for in 53 Pa.C.S. Ch. 21 Subch. D
10 (relating to municipal police education and training) and those
11 officers with limited jurisdiction whose jurisdiction is an
12 airport.
13 § 6502. Offense.
14 (a) General rule.--No individual may act or attempt to act
15 as flight crew of an aircraft in this Commonwealth:
16 (1) while under the influence of alcohol;
17 (2) while under the influence of a controlled substance
18 which affects the individual's faculties in any way contrary
19 to safety;
20 (3) when the alcohol concentration in the individual's
21 blood or breath, as measured within two hours of the time of
22 operation, or attempted operation, is 0.02% or more;
23 (4) while under the influence of any combination of a
24 controlled substance and alcohol which affects the
25 individual's faculties in anyway contrary to safety; or
26 (5) within eight hours after consumption of "liquor" or
27 a "malt or brewed beverage" as defined in section 102 of the
28 act of April 12, 1951 (P.L.90, No.21), known as the Liquor
29 Code.
30 (b) Owner.--An owner of an aircraft or the person in charge
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1 of an aircraft may not knowingly permit an individual to act or
2 attempt to act as flight crew of an aircraft if the individual
3 is under the influence of alcohol or a controlled substance, or
4 any combination thereof, which affects the individual's
5 faculties in any way contrary to safety.
6 § 6503. Penalty.
7 An individual who violates section 6502 (relating to offense)
8 commits a misdemeanor of the third degree and shall, upon
9 conviction, be sentenced to all of the following:
10 (1) To pay a fine of not less than $1,000 nor more than
11 $5,000.
12 (2) To imprisonment for not less than 72 consecutive
13 hours.
14 (3) For a violation of section 6502(a), to undergo
15 evaluation for substance abuse and, if the evaluation
16 indicates substance abuse, to undergo treatment ordered by
17 the court.
18 § 6504. Testing.
19 (a) Prearrest.--If a law enforcement officer has reasonable
20 grounds to believe an individual has violated section 6502(a)
21 (relating to offense), the officer may request that the
22 individual submit to a preliminary test of blood, breath or
23 urine on a device approved by the Department of Health for the
24 purpose of assisting the officer in determining whether the
25 individual is in violation of section 6502(a) and should be
26 placed under arrest. It shall be the duty of the law enforcement
27 officer to inform the individual at the time of the request of
28 the penalties for refusal under subsection (c) and the reporting
29 requirements under section 6505 (relating to reporting). If the
30 individual, after being notified of the penalties and reporting
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1 requirements, refuses to submit to chemical testing, the test
2 shall not be conducted. Nothing in this section shall be
3 construed to require a law enforcement officer to request an
4 individual to submit to a chemical test prior to placing the
5 individual under arrest for a violation of section 6502(a).
6 (b) Postarrest.--If an individual is arrested for violation
7 of section 6502(a), the individual shall submit to one or more
8 chemical tests of breath, blood or urine for the purpose of
9 determining the alcoholic content of blood or the presence of a
10 controlled substance. It shall be the duty of the law
11 enforcement officer to inform the individual at the time of the
12 request of the penalties for refusal under subsection (c) and
13 the reporting requirements under section 6505. If the
14 individual, after being notified of the penalties and reporting
15 requirements, refuses to submit to chemical testing, the test
16 shall not be conducted.
17 (c) Refusal.--Notwithstanding section 6503(1) (relating to
18 penalty), an individual who violates section 6502(a) and who
19 refuses to submit to a test requested or required under
20 subsection (a) or (b), shall be sentenced to pay a fine of not
21 less than $2,500 nor more than $5,000.
22 (d) Test results admissible in evidence.--In a civil
23 proceeding arising out of a violation of section 6502 or in a
24 prosecution under section 6502, the amount of alcohol or the
25 presence of a controlled substance in the individual's blood, as
26 shown by chemical testing, conducted by a qualified individual
27 using approved equipment, of the individual's breath, blood or
28 urine shall be admissible in evidence. The following apply:
29 (1) Chemical tests of breath must be performed on
30 devices approved by the Department of Health using procedures
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1 prescribed jointly by regulations of the Department of Health
2 and the Department of Transportation. Devices must have been
3 calibrated and tested for accuracy within a period of time
4 and in a manner specified by regulations of the departments.
5 For purposes of breath testing, a "qualified individual"
6 means an individual who has fulfilled the training
7 requirement in the use of the equipment in a training program
8 approved by the departments. A certificate or log showing
9 that a device was calibrated and tested for accuracy and that
10 the device was accurate shall be presumptive evidence of
11 those facts in every proceeding in which a violation of this
12 chapter is charged.
13 (2) (i) Chemical tests of blood or urine, if conducted
14 by a facility located in this Commonwealth, must be
15 performed by a clinical laboratory licensed and approved
16 by the Department of Health for this purpose using
17 procedures and equipment prescribed by the Department of
18 Health or by a Pennsylvania State Police criminal
19 laboratory. For purposes of blood and urine testing, a
20 "qualified individual" means an individual who is
21 authorized to perform those chemical tests under the act
22 of September 26, 1951 (P.L.1539, No.389), known as The
23 Clinical Laboratory Act.
24 (ii) For purposes of blood and urine testing to
25 determine blood alcohol or controlled substance content
26 levels, the procedures and equipment prescribed by the
27 Department of Health shall be reviewed within 120 days of
28 the effective date of this subparagraph and at least
29 every two years thereafter to ensure that consideration
30 is given to scientific and technological advances so that
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1 testing conducted in accordance with the prescribed
2 procedures utilizing the prescribed equipment will be as
3 accurate and reliable as science and technology permit.
4 (3) Chemical tests of blood or urine, if conducted by a
5 facility located outside this Commonwealth, must be
6 performed:
7 (i) by a facility licensed and approved by the
8 Department of Health for this purpose; or
9 (ii) by a facility licensed to conduct the tests by
10 the state in which the facility is located and licensed
11 pursuant to the Clinical Laboratory Improvement
12 Amendments of 1988 (Public Law 100-578, 102 Stat. 2903).
13 (e) Refusal admissible in evidence.--In a civil action
14 arising out of a violation of section 6502 or a prosecution
15 under section 6502, the fact that the individual refused to
16 submit to chemical testing as required by subsection (a) or (b)
17 may be introduced in evidence along with other testimony
18 concerning the circumstances of the refusal. No presumptions
19 shall arise from this evidence, but it may be considered along
20 with other factors concerning the charge.
21 (f) Other evidence admissible.--This section shall not be
22 construed as limiting the introduction of any other competent
23 evidence bearing upon the question of the amount of alcohol or
24 the presence of a controlled substance in the defendant's blood.
25 (g) Test results available to defendant.--Upon the request
26 of the individual tested or the individual charged under section
27 6502(b), the results of a chemical test shall be made available
28 to the individual or the individual's attorney.
29 (h) Test by personal physician.--The individual tested shall
30 be permitted to have a physician of the individual's choosing
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1 administer an additional breath, blood or urine chemical test,
2 and the results of the test shall also be admissible in
3 evidence. The chemical testing given at the direction of the law
4 enforcement officer shall not be delayed by the individual's
5 attempt to obtain an additional test.
6 (i) Request by individual.--An individual involved in an
7 accident or placed under arrest for a violation of section 6502
8 may request a chemical test of the individual's breath, blood or
9 urine. A request under this subsection shall be honored when it
10 is reasonably practicable to do so.
11 (j) Immunity from civil liability and reports.--No
12 physician, nurse or technician or hospital employing the
13 physician, nurse or technician, and no other employer of the
14 physician, nurse or technician shall be civilly liable for
15 withdrawing blood or obtaining a urine sample and reporting test
16 results at the request of a law enforcement officer pursuant to
17 this section. No physician, nurse or technician or hospital
18 employing the physician, nurse or technician may
19 administratively refuse to perform a test and provide the
20 results except for good cause.
21 § 6505. Reporting.
22 A law enforcement officer shall report to the Federal
23 Aviation Administration:
24 (1) the name of the individual and the results of the
25 individual's chemical test administered under section 6504(b)
26 (relating to testing); and
27 (2) the name of an individual that refused to submit to
28 a chemical test under this chapter.
29 Section 2. This act shall take effect in 90 days.
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