Contends That The Pilot 'Did Not Operate The Aircraft', Which Never Left The Ground

An attorney for the copilot of a Talon Air flight preparing for departure from Cherry Capital Airport In Grand Traverse County, MI on August 25 accused of operating an aircraft while intoxicated says the charges should be dropped because he did not actually operate the airplane.

The Detroit Free Press reports that Grand Rapids attorney Larry C. Willey filed a motion to dismiss the charges late last week. In the filing, Willey said that copilot Sean Michael Fitzgerald "did not operate the airplane," and therefore the criminal charges are inappropriate.

Fitzgerald reportedly had a blood alcohol level of .31 percent when he was removed from the airplane. That is more than four times the level for operating a motor vehicle and 15 times higher than the legal limit for operating an aircraft. Fitzgerald has been charged in federal court with operating a common carrier under the influence of alcohol, which carries a maximum penalty of 15 years in prison.

In his nine-page filing, Willey says that "the undisputed facts demonstrate that (Fitzgerald) did not operate the aircraft on Aug. 25." His argument is based on the fact that there were no passengers on board the aircraft, the engines had not been started, and the door of the aircraft was still open.

“Indeed, the pilot/captain, the person with ultimate control of the aircraft, had determined that the aircraft was going nowhere because of (Fitzgerald’s) intoxication," the motion states.

While Fitzgerald said that he was not intoxicated and that he had not had any alcohol since "having two beers at lunch the day prior," officers said they noted a strong odor of intoxicants on the copilot.

Talon Air fired Fitzgerald after the incident.

FMI: www.miwd.uscourts.gov