Intoxication charge against SkyWest pilot is dismissed

A criminal intoxication charge against a pilot who was about to fly a commercial aircraft out of Rapid City last month has been dismissed in part because the Rapid City Police Department failed to test the pilot’s blood for several hours.

Police officers handling the case apparently did not know the legal blood-alcohol limit for operating a plane, which led them to initially forgo a blood test even after the pilot asked for one. By the time police realized the mistake and obtained a blood sample, four hours had passed.

The delayed test did not detect a measurable amount of alcohol, despite an earlier police breath test that indicated a blood-alcohol content of 0.046 percent. The legal limit for operating an aircraft in South Dakota is 0.04, which is lower than the better-known driving limit of 0.08.

On Monday, at the request of the Pennington County State’s Attorney’s Office, a judge dismissed a charge of operating an aircraft while intoxicated that had been filed against pilot Russell Duszak, 39, of Salt Lake City. No explanation for the dismissal was provided during the brief court proceeding at the Pennington County Courthouse in Rapid City.

Afterward, Deputy State’s Attorney Lara Roetzel told the Journal that the delayed blood test thwarted her prosecution.

“His blood was drawn four hours after the initial detection of alcohol in the cockpit of the plane,” Roetzel said of Duszak, who police said smelled of alcohol and had reddened eyes prior to his arrest. “And due to the way that blood dissipates, it ended up reducing it to an amount that was not measurable.”

A breath test, Roetzel added, is not admissible in court. When asked why the blood test was delayed four hours, Roetzel deferred the question to police. Police spokesman Brendyn Medina responded with a lengthy email to the Journal.

Medina wrote that the incident “posed a set of highly unusual circumstances for our officers.”

“Four hours is a long span of time to lapse between the initial PBT (preliminary breath test) of an individual suspected of being under the influence, and the subsequent blood draw,” Medina’s email said, in part. “But, our officers worked diligently in this incident to ensure it was handled in the most proper and professional manner possible under the law, while protecting the safety of the plane’s passengers, and the rights of the pilot.”

Further details of the police department’s actions are contained in their own written reports, which are part of the public court file.

The reports say that a Transportation Security Administration worker noticed the smell of alcohol on Duszak about 8 a.m. Oct. 26 as Duszak passed through a metal detector at Rapid City Regional Airport. The TSA worker reported her observation up the chain of command, and another TSA worker notified Rapid City police Officer Paul Hinzman.

When Hinzman arrived at Duszak’s departure gate, passengers were still waiting to board the 50-seat SkyWest Airlines jet with a passenger list of 45. Duszak, the flight’s co-pilot, was in the cockpit conducting pre-flight procedures.

Hinzman noticed that Duszak’s eyes were slightly red and his breath smelled slightly of alcohol. Additional officers who later came in contact with Duszak reported similar observations.

Hinzman took Duszak to the airport office of Delta Air Lines, which is a SkyWest partner. There, at about 8:30 a.m., Rapid City police Officer Jerred Younie administered a breath test on Duszak and recorded a blood-alcohol content of 0.046 percent.

Rapid City Police Lt. Mark Eisenbraun arrived about 8:45 a.m. and spoke to Duszak.

“I told him it was not our intention to proceed with any state charges however I warned him there would likely be consequences from the airline authorities,” Eisenbraun wrote in his report. “He told me he wanted a blood test. I told him that since we were not charging him with a crime, I had no reason to take a blood sample. I did offer him the use of the local on-call blood technician but I advised him he would be responsible for the testing and storage of the sample. At his request I called dispatch and asked for the blood technician to respond to the airport.”

The police reports do not say whether Duszak actually obtained his own blood-test result. Nor do the reports specifically explain why Eisenbraun declined to order an official blood test, or why Eisenbraun decided against pursuing a criminal charge at that time.

It appears, however, that Eisenbraun may have thought no crime had been committed because he might not have been aware that the legal blood-alcohol limit for operating an aircraft is 0.04 percent, which is lower than the legal limit of 0.08 for driving a vehicle.

Eisenbraun’s written report says that after he spoke to Duszak, Eisenbraun left the airport, which is about eight miles east of Rapid City, and returned to the police station downtown. There, Eisenbraun spoke to Lt. Elias Diaz.

“Lt. Diaz and I consulted additional resources and found the statute SDCL 50-13-17,” Eisenbraun wrote in his report. “This statute prohibits the operation of an airplane with a BAC over .04.”

Eisenbraun contacted Officer Hinzman and told him not to release Duszak. Eisenbraun also sent Officer Younie back to the airport to renew the investigation into Duszak.

Younie received the call from Eisenbraun at 9:46 a.m. Younie found Duszak, who was still at the airport, and asked him to answer more questions and submit to a blood test. Duszak declined to do either, on the advice of a lawyer he’d spoken with by phone.

Meanwhile, Officers Eisenbraun and Diaz had spoken with Roetzel of the Pennington County State’s Attorney’s Office, and they determined there was probable cause to arrest Duszak for operating an aircraft while intoxicated.

Officer Younie arrested Duszak, took him to the Pennington County Jail in Rapid City, and filed paperwork asking for a search warrant to force Duszak’s submission to a blood test. A magistrate judge granted the warrant.

Finally, at 12:38 p.m. — four hours and 38 minutes after the TSA worker smelled alcohol on Duszak’s breath — a blood test was administered.

Duszak posted a $300 bond and left jail sometime that day. SkyWest, which is based in St. George, Utah, placed him on unpaid leave. He remained on unpaid leave as of Monday afternoon, a SkyWest spokeswoman said. The Oct. 26 flight that Duszak was intended to co-pilot from Rapid City to Salt Lake City was delayed two hours until a new crew arrived.

Then, on Monday, during what was supposed to have been Duszak’s initial court appearance, the charge was dismissed because the blood test did not detect a measurable amount of alcohol.

Roetzel, in her interview with the Journal, said an earlier blood test might have produced a measurable amount of alcohol. Even if that amount had been below the 0.04 percent limit, Roetzel said, she could have extrapolated backward to establish Duszak’s likely blood-alcohol content at the time he was sitting in the cockpit. But because the blood test was so delayed and did not detect a measurable amount of alcohol, Roetzel said, there was nothing to extrapolate from.

An additional factor that hindered the prosecution is a quirk in the law. Roetzel said the state’s legal definition of driving a vehicle under the influence of alcohol allows evidence other than a blood test. But the separate state law defining the operation of a plane while intoxicated allows only blood-alcohol evidence.

Since breath tests are inadmissible in court, Roetzel said, the only way to prove a charge of operating an aircraft while intoxicated is with a blood test. She suggested that state legislators should consider amending the law to allow other evidence in similar future cases.

When the Journal reached Duszak by phone Monday, he declined to comment. Duszak had an attorney, Jay Shultz, of Rapid City, who had barely gotten up from his chair at Monday’s court proceeding before the prosecution moved for dismissal and the judge agreed. In a brief interview outside the courtroom, Shultz said the blood test had indicated a blood-alcohol content of less than 0.015 percent. He declined further comment about the case.

A SkyWest spokeswoman said the company is conducting its own investigation into the matter. Duszak also faces a pending review of his pilot’s certificate by the Federal Aviation Administration, according to FAA spokeswoman Elizabeth Isham Cory.

Timeline of pilot investigation

A timeline of the Oct. 26 investigation into a pilot at the Rapid City Regional airport, according to information in written police reports.

8 a.m.: A Transportation Safety Administration worker notices alcohol on the breath of pilot Russell Duszak and reports it up the TSA chain of command. Another TSA worker notifies Rapid City Police Officer Paul Hinzman, who takes Duszak out of the cockpit during his pre-flight routine.

8:30 a.m.: Rapid City Police Officer Jerred Younie administers a breath test to Duszak, which indicates a blood-alcohol content of 0.046 percent.

8:45 a.m.: Rapid City Police Lt. Mark Eisenbraun arrives at the airport and speaks to Duszak, who asks for a blood test. Eisenbraun tells Duszak he is not being charged with a crime and a blood test is not necessary. Eisenbraun returns to the police station, confers with Lt. Elias Diaz, and they find a state law that says the blood-alcohol limit for operating an aircraft is 0.04 percent.

9:46 a.m.: Eisenbraun sends Officer Younie back to the airport to renew the investigation. Duszak, saying he has since spoken to a lawyer by phone, acts on the advice of that lawyer and declines to answer Younie’s questions or submit to a blood test. Eisenbraun and Diaz inform Younie they have spoken with Deputy State’s Attorney Lara Roetzel and have determined there is probable cause to arrest Duszak. Younie makes the arrest and takes Duszak to the Pennington County Jail. Duszak files paperwork seeking a judge’s warrant to force Duszak to submit to a blood test, and a judge grants the warrant.

12:38 p.m.: Blood is drawn from Duszak. Roetzel later says the test did not detect a measurable amount of alcohol, because the alcohol in Duszak’s blood likely dissipated significantly in the four hours between the breath test and the blood test.

Source:  http://rapidcityjournal.com