AOPA Pilot Magazine - September 2018 - 26

FOR THE RECORD

Please keep off the grass

BY JARED ALLEN

Even legal marijuana use can land pilots in hot water
MARIJUANA USE MAY BE ALLOWED BY SOME STATES,

JARED ALLEN is

AOPA's Legal
Services Plan senior
staff attorney and is
an instrument-rated
private pilot.

but it's still a "controlled substance" under federal law
and pilots should consider it off limits. While it may be
obvious that attempting to fly under the influence or
knowingly possessing marijuana on an aircraft carries
severe penalties, any marijuana use by a pilot can result
in a medical certificate being denied or revoked.
The Controlled Substances Act, a federal law from
1970, classifies marijuana and any material containing THC (the psychoactive chemical in marijuana) as a
Schedule I controlled substance. Drugs can only be reclassified if the Drug Enforcement Administration makes
certain findings, so any possession, cultivation, or distribution of marijuana-or its use on federal property-is still
a federal offense punishable by fines, prison time, or both.
As a Schedule I drug, it is treated as illegal under
the FARs regardless of whether recreational or medical
use is permitted by state law. Several laws and regulations address airman use, possession, and/or carriage
of marijuana; the FAA further addresses it in its medical standards.
Flying under the influence of marijuana is addressed
by FAR 91.17, which 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." The regulation does not establish a threshold
for the presence of marijuana in the body, or specify a
time period after use in which operations are prohibited.
To date, no NTSB case addresses whether this rule or
other general medical condition rules, such as FAR 61.53,
prohibit any trace of marijuana in a person's system.
FAR 91.19 prohibits anyone from operating a civil aircraft within the United States with the knowledge that
marijuana is carried in the aircraft. An exception, added
in 1969 and relatively untested, allows carriage of narcotic drugs, marijuana, and other substances "authorized
by or under any Federal or State statute or by any Federal
or State agency." Without additional precedent, the
meaning and intent of this exception is debatable. Any
airman desiring to be a test case risks serious sanctions.
If an airman is found to have violated either of these
regulations, FAR 61.15 provides that the airman's pilot
certificate may be suspended or revoked, or any application for a certificate or rating denied for up to one
year. Revocation can be expected, as demonstrated by
a recent NTSB decision upholding the revocation of
a pilot's certificate for carrying on his aircraft three

26 | AOPA PILOT September 2018

chocolate bars containing THC that had been purchased legally in Colorado. The case has been appealed
to U.S. Court of Appeals in Washington, D.C.
FAR 61.15 also imposes the same penalty for any airman convicted for violation of any federal or state statute
relating to the growing, processing, manufacture, sale,
disposition, possession, transportation, or importation
of marijuana. Federal law provides for lifetime revocation of an airman's certificate if an airman is convicted of
certain crimes related to controlled substances, where an
aircraft was used and the individual served as an airman,
or was on the aircraft, in connection with the offense.
Severe consequences exist even when an airman's marijuana use is far removed from any aircraft
or flight activity. The FAA's medical application asks
whether an airman has been diagnosed with substance dependence or abuse, ever failed a drug test,
or used an illegal substance in the last two years.
"Substance" is defined by the FAA to include marijuana, and according to FAA guidance for medical
examiners, any reported use of a controlled substance
requires an application to be deferred, "even if legally
allowed or prescribed under state law."
Likewise, there are no exceptions to the reporting
requirement for failed drug tests resulting from "legal"
marijuana use. This reporting includes any and all positive drug tests whether administered at the federal,
state, or local level, or by a private employer.
Airmen who report marijuana use on a medical
application can expect to receive a letter from the FAA
requiring a forensic urine drug screen be performed
within 48 hours and sent to the FAA along with a statement concerning past, present, and future drug use.
Each matter is handled on a case-by-case basis, but it
is not unusual for a third class applicant to be required
to undergo at least a substance abuse evaluation.
Depending on the results, further treatment, such as
drug and alcohol monitoring, could be required.
Any marijuana use by a pilot raises legal and safety
issues, some of which may only become more complex
as the legal landscape concerning marijuana changes.
The best advice for pilots is to "just say no."
AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services plan is offered as part of AOPA's
Pilot Protection Services (www.aopa.org/pps).

http://www.aopa.org/pps

AOPA Pilot Magazine - September 2018

Table of Contents for the Digital Edition of AOPA Pilot Magazine - September 2018