Aviation alcohol enforcement instruction (2023I002)

Policy document | 01-03-2023

Of:	Board of Procurators General
To:	Heads of PPS units
Registration number:	2023I002
Effective date:	01-03-2023
Deleted:	Instruction on the revocation of licences under the Aviation Act (2015I006)
Relevant PPS policy rules:	Directive on criminal procedure for aviation laws and regulations (2023R002) Instructions on Public Prosecution Service out-of-court settlements (2022A003) Instructions on framework for enforcement (2020A007)
Legal provisions:	Sections 11.4, 11.5, 11.7 and 11.8a Aviation Act

1. CHECKS

Under the Aviation Act (hereinafter the Wlv), flight crew, as well as persons providing air traffic services or airport information or operating a ground station or mobile station, must cooperate with a preliminary breathalyser test upon the first request of an investigating officer. [1]

Unlike road traffic, in aviation a zero limit applies in principle with regard to alcohol consumption. Although Article 2.12(3) Wlv sets the limit at 90 µg/l resp. 0.2‰ this has only been done 'for measurement reasons'. [2]

For checks on aircrew, on-board operations also include pre-flight preparations. [3] In view of this, the inspection takes place at a time when the flight crew is actually performing work or preparing to do so. Entering the part of an airport intended for aircrew (the part where a crew centre is located) is considered as performing preparatory acts. Other preparatory acts include reviewing and submitting flight plans and consulting meteorology. Investigating officers record in a report of findings on the basis of which preparatory acts have been established.

If the preliminary breathalyser test is positive (an indication of excessive breath alcohol content), an order to cooperate with breath analysis will follow. Such cooperation includes agreeing to be taken to the police station or another place for conducting a breath analysis. [4] In principle, therefore, a suspect need not be arrested. Arrest of the suspect is, however, preferred in cases where the suspicion of violation of Article 2.12 Wlv or section 7.6 Schedule V Bv is not based on the breath test result, but on the investigating officer's interpretation of the suspect's behaviour. In these exceptional cases, the public prosecutor ((assistant public prosecutor assesses the importance of the suspicion.

2. TEMPORARY PROHIBITION TO CARRY OUT WORK

Given the aforementioned zero limit, in the event of any positive result, it is reasonable for an investigating officer to use his power to impose a temporary ban from working. [5] The duration of that ban is partly determined by the result of alcohol test and the average breakdown rate of alcohol according to the Trimbos Institute. [6] Conversely, it is maintained that 0.25 ‰ breaks down in one to one and a half hours. This leads to the following relationship between the breath or blood alcohol content and the duration of the ban:

Alcohol content		Duration of ban
up to 95 ug/l	up to 0.20 ‰	1 hour
95 to 120 ug/l	0.22 to 0.28 ‰	1.5 hour
125 to 150 ug/l	0.29 to 0.35 ‰	2 hour
155 to 180 ug/l	0.36 to 0.41 ‰	2.5 hour
185 to 210 ug/l	0.42 to 0.48 ‰	3 hour
215 to 240 ug/l	0.49 to 0.55 ‰	3.5 hour
245 to 270 ug/l	0.56 to 0.62 ‰	4 hours [7]

Should investigations reveal a suspicion of (a combination with) other substance use that may impair the ability to perform work, a longer ban is appropriate; at most, a 24-hour ban can be imposed. [8]

The investigating officers record the prohibition in an order, which includes the time of commencement and duration of the prohibition (Article 11.5(3) Wlv).

3. Revocation and and withholding

Under Article 11.7, (1) under a Wlv, the investigating officer may confiscate the licence (or the certificate of equivalence) if the test of exhaled air or the blood test shows (or in the absence of these examinations, there is a serious suspicion) that the alcohol content of the member of the flight crew is higher than 270 µg/l or 270 µg/l, respectively. 0,6‰. The same authority is given under Article 11.7(1)(b) Wlv on refusal to cooperate in any of the aforementioned tests. [9] The foregoing applies under Article 11.8a Wlv also for air traffic control officers (among others).

Although Article 11.7 Wlv - contrary to Article 164 of the Road Traffic Act 1994 (WVW 1994), which served as a model for this provision [10], prescribes no obligation to revoke, the importance of revocation in the case of members of the flight crew and air traffic control officers is at least as great in view of the danger and/or responsibility for passengers. [11] The Public Prosecution Service therefore instructs investigating officers to always proceed with the revocation the licence if the alcohol content exceeds 270 µg/l resp. 0.6‰ or there is a refusal to cooperate in an alcohol test.

A revoked licence and the report of revocation are submitted to the public prosecutor no later than the third day after the revocation.

A licence revoked on this ground will be withheld by the PPS. Given the high level of danger in aviation cited earlier, the PPS sets the withholding limit (by analogy with the systematics of the WVW 1994) equal to the revocation limit.

The licence remains withheld until the withholding period determined by the public prosecutor or the period of an unconditional disqualification imposed by the court has expired.

4. COORDINATION

Within the PPS

After the decision in the first instance and in the event of an appeal by the public prosecutor or the convicted person, the district prosecutor's office aligns the withholding period with the conditional or unconditional disqualification imposed in the first instance. The certificate of competence of the convicted person remains with the public prosecutor [12]. Upon expiry of the adjusted withholding period, the certificate of competence is returned by the prosecutor on behalf of the attorney general [13]. This decision will be reported to the district court.

After the court's judgment becomes final, the district court provides an extract of the judgment to the district court.

With the CJIB

As soon as enforcement is possible, the public prosecutor provides an irrevocable judgement or judgment to the Administration and Information Centre for the Chain of Execution of the Central Judicial Collection Agency (CJIB).

TRANSITIONAL LAW

This instruction is valid with immediate effect from the date of its entry into force.

[1]Article 11.4, (2), and 11.8a Wlv.

[2] Parliamentary Papers II 1995/96, 24513, no. 3, p. 11-12

[3] Parliamentary Papers II 1998/99, 26336, no. 3, p. 11-12

[4] After all, Article 11.6 section 2 Wlv stipulates that the suspect must comply with all instructions given by the investigating officer in the service of the investigation.

[5]Article 11.5(1) and 11.8a Wlv.

[6] Breaking down one standard glass of alcohol takes one to one and a half hours, see https://www.alcoholinfo.nl/effecten/afbraak-van-alcohol.

[7] At a higher alcohol content, no ban need be imposed on flight crew and air traffic control officers in view of the revocation and withholding instruction given below. In other cases, action is taken at the discretion of the court.

[8] The power to impose a temporary ban also applies when, in the opinion of the investigating officer, a member of the flight crew is found to be under the influence of drugs or psychotropic drugs to such an extent that he is unable to perform his duties properly.

[9] More specifically, these are the offences under Article 11.6, second, sixth, eighth and ninth paragraphs Wlv.

[10] Parliamentary Papers II 1995/96, 24 513, no. 3, p. 19 (MvT).

[11] Parliamentary Papers II 1995/96, 24 513, no. 3, p. 11 (MvT).

[12] The district court is not provided with a connection to the registry. Moreover, only one public prosecutor’s office number can be registered in this register per case.

[13] However, the attorney general remains responsible for the execution of the conditional or unconditional disqualification.