CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1896383
...Christopher Scott Hughes ("Hughes"), a pilot for a commercial airline, and Thomas Porter Cloyd ("Cloyd"), a copilot for the same airline, were criminally prosecuted as codefendants and convicted of operating an aircraft while intoxicated or in a careless or reckless manner, in violation of section 860.13, Florida Statutes (2002)....
...Both requests were denied by the trial court. Over the defendants' objections, the court granted the State's request for an instruction on principals. In closing argument, the State argued, over defense objection, that the defendants could be found guilty of violating section 860.13 under two separate theories: (1) by being under the influence of an alcoholic beverage or (2) by operating the aircraft in a careless or reckless manner....
...While we conclude that the preemption issue is barred by res judicata, had the issue not been barred, we would have found, as did our sister court to the north, that the defendants' prosecutions were not preempted. Gluhareff v. State,
888 So.2d 733 (Fla. 5th DCA 2004) (determining that section
860.13 is not preempted by federal law)....
...*186 Hughes argues that his prosecution is expressly preempted by 14 C.F.R. 121 App. I, § XI, which provides, in part, that any state law covering the subject matter of 14 C.F.R. Parts 65, 121, and 135, including drug testing, is preempted. We find that section 860.13, Florida Statutes, criminalizing the operation of an aircraft while under the influence or in a careless or reckless manner, does not cover the subject matter of the specified Parts....
...nts imposed upon such employees. Hughes v. Attorney Gen. of Fla.,
377 F.3d 1258, 1273 (11th Cir. 2004), cert. denied,
543 U.S. 1051,
125 S.Ct. 881,
160 L.Ed.2d 772 (2005). However, unlike the Parts of the Code of Federal Regulations specified above, section
860.13 does not impose certification or operating requirements upon airline employees....
...We disagree because a pilot could comply with both the Florida law and the federal law and regulations, and criminalizing the operation of an aircraft while intoxicated does not stand as an obstacle to the federal regulatory scheme. Hughes,
377 F.3d at 1266 n. 11. CONSTITUTIONAL CHALLENGES Hughes claims that section
860.13, Florida Statutes (2002), is unconstitutional (1) due to vagueness and (2) because it incorporates federal standards....
...en denied adequate notice. . . . "). After reviewing the evidence presented at trial, we conclude that Hughes lacks the requisite standing to challenge the statute on vagueness grounds since his conduct clearly falls within the conduct proscribed in section 860.13, and that Hughes, who is a person of at least ordinary intelligence, should have had no difficulty in knowing that his conduct was violative of section 860.13. Section 860.13 is entitled "Operation of aircraft while intoxicated or in careless or reckless manner" and provides that it is unlawful to operate an aircraft in the air or on the ground while under the influence of alcoholic beverages or in a careless or reckless manner so as to endanger the life or property of another....
...hecks, entering critical data in the aircraft's computer, computing takeoff speeds, fuel load, and radio configurations, and communicating with the tower and the tug. We, therefore, agree with the State, that Hughes' conduct is clearly prohibited by section 860.13 and that he "cannot seriously contend that [he][was] not on notice that [his] conduct was illegal." This is especially true given the fact that commercial airline pilots operate in a highly regulated industry where there is zero tolerance for alcohol in the cockpit....
...The plain and ordinary meaning of a word can be ascertained by reference to a dictionary, Sieniarecki,
756 So.2d at 75, or one may look to "`case law or related statutory provisions which define the term.'" State v. Fuchs,
769 So.2d 1006, 1008 (Fla.2000) (quoting State v. Hagan,
387 So.2d 943, 945 (Fla. 1980)). Section
860.13(2) provides: In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation...
..."A person whose conduct clearly falls within [a] statute's prohibition cannot reasonably be said to have been denied adequate notice. . . ." McKenney v. State,
388 So.2d 1232, 1233 (Fla.1980). Incorporation Challenge Hughes additionally argues that section
860.13(2) unconstitutionally incorporates federal regulations that did not *190 exist at the time that the statute was enacted....
...time of the adoption, any attempt to adopt or incorporate standards that will arise in the future is unconstitutional as an improper delegation of legislative power. Adoue,
408 So.2d at 570; State v. Carswell,
557 So.2d 183, 184 (Fla. 3d DCA 1990). Section
860.13 was last reenacted without any amendments in 1983. Thus, incorporation of a federal standard that did not come into existence until after 1983, would be unconstitutional. Section
860.13(2) provides: In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics. In Carswell, we found that section
860.13(2) does incorporate the federal standards for the safe operations of aircraft. Carswell,
557 So.2d at 184. As it was undisputed in Carswell that the federal standards relied upon in that case existed at the time of section
860.13's enactment, we concluded that there was no improper delegation of legislative power. Id. In the instant case, however, the parties dispute whether the federal standards relied upon in this case existed at the time that section
860.13 was reenacted in 1983....
...In 1983, the federal regulations clearly prohibited acting as a crewmember within eight hours of consuming alcohol. See 14 C.F.R. § 91.11. However, the prohibition against acting as a crewmember with a blood alcohol level of .04 percent or higher, did not exist in 1983. Thus, for section 860.13(2) to adopt and include the federal regulation prohibiting acting as a crew member with a blood alcohol level of .04 percent or higher, would constitute an unconstitutional delegation of legislative power. Because we must construe statutes in a manner so as to uphold their constitutionality, we interpret section 860.13(2) to incorporate only those federal aeronautic safety regulations that existed in 1983. As we conclude that section 860.13(2) cannot and, therefore, does not incorporate the federal .04 percent blood alcohol standard, we deny Hughes' constitutional challenge on that ground....
...ce evidence that, pursuant to federal regulations for the safe operation of an aircraft, a crewmember is prohibited from operating an aircraft within eight hours of consuming any alcoholic beverages, or with a blood alcohol level of .04 or above. As section 860.13(2) specifically provides that the court shall consider federal regulations governing aeronautics in determining whether the operation of the aircraft was *191 done in a careless or reckless manner, and the prohibition against operating an aircraft within eight hours of consuming any alcoholic beverage, which is found in 14 C.F.R. § 91.17(a), was in existence when section 860.13(2) was reenacted in 1983, we conclude that the trial court properly allowed the introduction of this evidence....
...We, however, agree with Hughes that the trial court erred in allowing the State to introduce evidence that under these same regulations, a crewmember is prohibited from operating an aircraft with a blood alcohol level of .04 percent or above, as this regulation was not in existence when section 860.13 was reenacted....
...The federal statutes in question, 18 U.S.C. §§ 342-43 (2000), was not created until 1986. See Pub. L. 99-570, Title I, *192 § 1971(a), Oct. 27, 1986, 100 State. 3207-59. This federal statute, therefore, could not have been adopted by the Florida Legislature when it reenacted section
860.13 in 1983 and, thus, was not admissible. Adoue,
408 So.2d at 570; Carswell,
557 So.2d at 184. Furthermore, section
860.13(2) requires the court to consider the "standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics." The .10 presumption of intoxication is not relevant as to whether Hughes was operating the aircraft under the influence or in a careless or reckless manner....
...any reasonable circumstances have been operated by the person accused. Jones v. State,
510 So.2d at 1149. Hughes, however, was not charged with violating section
316.193, the driving under the influence statute. Rather, he was charged with violating section
860.13, Florida Statutes (2002), "Operation of aircraft while intoxicated or in careless or reckless manner," which provides, in part, that: (1) It shall be unlawful for any person: (a) To operate an aircraft in the air or on the ground or water while under the influence of: 1....
...(2) In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics. § 860.13, Fla....
...raft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise). 14 C.F.R. § 1.1 (1997). As is readily obvious, section
860.13, the statute under which Hughes was charged and convicted, differs from section
316.193, the driving under the influence statute....
...iction. While the driving under the influence statute, section
316.193, requires that the State prove that the accused was driving or in actual physical control of the vehicle while under the influence, the statute Hughes was charged with violating, section
860.13, requires operation of the aircraft while under the influence or in a careless or reckless manner. While operability may be a defense to the driving under the influence statute, it is an element of the crime charged pursuant to section
860.13....
...evidence of any mechanical or other problem which rendered the aircraft incapable of being operated without substantial mechanical repairs, the trial court did not abuse its discretion by failing to instruct on inoperability. THE VERDICT Pursuant to section 860.13, it is unlawful to operate an aircraft (1) while under the influence or (2) in a careless or reckless manner so as to endanger the life or property of another....
...He, therefore, argues that the trial court erred in permitting the State to argue, over his objection, that it was not necessary for the jurors to reach a unanimous verdict as to which unlawful act the defendant had committed, and in denying his request for a unanimity instruction. We agree. In reaching the conclusion that section 860.13 creates two separate offenses, rather than a single offense which can be committed in two separate ways, we examined other cases where this issue was addressed....
...then, does it create a single offense. When a statute sets forth various acts, stating that each is prohibited and/or provides for different punishment depending on the act committed, then the statute creates multiple offenses. The State argues that section 860.13 creates a single offense, the dangerous operation of an aircraft, which can be violated in either of two ways, by operating an aircraft while under the influence or by operating an aircraft in a careless or reckless manner....
...Because the statute, as worded, creates two separate offenses, [2] we agree with Hughes that unanimity was required. Thus, the trial court erred in permitting the State to argue otherwise and by denying Hughes' request for a curative instruction. Based on the particular facts of this case and the wording of section 860.13, we, however, conclude that the error constitutes harmless error, as any reasonable *199 person who concluded that Hughes was operating the aircraft while under the influence, would conclude that his conduct was careless or reckless....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1896381
...Christopher Scott Hughes ("Hughes"), a pilot for a commercial airline, and Thomas Porter Cloyd ("Cloyd"), a copilot for the same airline, were criminally prosecuted as codefendants and convicted of operating an aircraft while intoxicated or in a careless or reckless manner, in violation of section 860.13, Florida Statutes (2002)....
...Both requests were denied by the trial court. Over the defendants' objections, the court granted the State's request for an instruction on principals. In closing argument, the State argued, over defense objection, that the defendants could be found guilty of violating section 860.13 under two separate theories: (1) by being under the influence of an alcoholic beverage or (2) by operating the aircraft in a careless or reckless manner....
...While we conclude that the preemption issue is barred by res judicata, had the issue not been barred, we would have found, as did our sister court to the north, that the defendants' prosecutions were not preempted. Gluhareff v. State,
888 So.2d 733 (Fla. 5th DCA 2004)(determining *159 that section
860.13 is not preempted by federal law)....
...Cloyd argues that his prosecution is expressly preempted by 14 C.F.R. 121 App. I, § XI, which provides, in part, that any state law covering the subject matter of 14 C.F.R. Parts 65, 121, and 135, including drug testing, is preempted. We find that section 860.13, Florida Statutes, criminalizing the operation of an aircraft while under the influence or in a careless or reckless manner, does not cover the subject matter of the specified Parts....
...ents imposed upon such employees. Hughes v. Attorney Gen. of Fla.,
377 F.3d 1258, 1273 (11th Cir.2004), cert. denied,
543 U.S. 1051,
125 S.Ct. 881,
160 L.Ed.2d 772 (2005). However, unlike the Parts of the Code of Federal Regulations specified above, section
860.13 does not impose certification or operating requirements upon airline employees....
...We disagree because a pilot could comply with both the Florida law and the federal law and regulations, and criminalizing the operation of an aircraft while intoxicated does not stand as an *161 obstacle to the federal regulatory scheme. Hughes,
377 F.3d at 1266 n. 11. CONSTITUTIONAL CHALLENGES Cloyd claims that section
860.13, Florida Statutes (2002), is unconstitutional (1) due to vagueness and (2) because it incorporates federal standards....
...een denied adequate notice. . . . "). After reviewing the evidence presented at trial, we conclude that Cloyd lacks the requisite standing to challenge the statute on vagueness grounds since his conduct clearly falls within the conduct proscribed in section 860.13, and that Cloyd, who is a person of at least ordinary intelligence, should have had no difficulty in knowing that his conduct was violative of section 860.13. Section 860.13 is entitled "Operation of aircraft while intoxicated or in careless or reckless manner" and provides that it is unlawful to operate an aircraft in the air or on the ground while under the influence of alcoholic beverages or in a careless or reckless manner so as to endanger the life or property of another....
...hecks, entering critical data in the aircraft's computer, computing takeoff speeds, fuel load, and radio configurations, and communicating with the tower and the tug. We, therefore, agree with the State, that Cloyd's conduct is clearly prohibited by section 860.13 and that he "cannot seriously contend that [he][was] not on notice that [his] conduct was illegal." This is especially true given the fact that commercial airline pilots operate in a highly regulated industry where there is zero tolerance for alcohol in the cockpit....
...The plain and ordinary meaning of a word can be ascertained by reference to a dictionary, Sieniarecki,
756 So.2d at 75, or one may look to "`case law or related statutory provisions which define the term.'" State v. Fuchs,
769 So.2d 1006, 1008 (Fla.2000)(quoting State v. Hagan,
387 So.2d 943, 945 (Fla. 1980)). Section
860.13(2) provides: In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation...
..."A person whose conduct clearly falls within [a] statute's prohibition cannot reasonably be said to have been denied adequate notice. . . ." McKenney v. State,
388 So.2d 1232, 1233 (Fla.1980). Incorporation Challenge Cloyd additionally argues that section
860.13(2) unconstitutionally incorporates federal regulations that did not exist at the time that the statute was enacted....
...time of the adoption, any attempt to adopt or incorporate standards that will arise in the future is unconstitutional as an improper delegation of legislative power. Adoue,
408 So.2d at 570; State v. Carswell,
557 So.2d 183, 184 (Fla. 3d DCA 1990). Section
860.13 was last reenacted without any amendments in 1983. Thus, incorporation of a federal standard that did not come into existence until after 1983, would be unconstitutional. Section
860.13(2) provides: In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics. In Carswell, we found that section
860.13(2) does incorporate the federal standards for the safe operations of aircraft. Carswell,
557 So.2d at 184. As it was undisputed in Carswell that the federal standards relied upon in that case existed at the time of section
860.13's enactment, we concluded that there was no improper delegation of legislative power. Id. In the instant case, however, the parties dispute *164 whether the federal standards relied upon in this case existed at the time that section
860.13 was reenacted in 1983....
...In 1983, the federal regulations clearly prohibited acting as a crewmember within eight hours of consuming alcohol. See 14 C.F.R. § 91.11. However, the prohibition against acting as a crewmember with a blood alcohol level of .04 percent or higher, did not exist in 1983. Thus, for section 860.13(2) to adopt and include the federal regulation prohibiting acting as a crew member with a blood alcohol level of .04 percent or higher, would constitute an unconstitutional delegation of legislative power. Because we must construe statutes in a manner so as to uphold their constitutionality, we interpret section 860.13(2) to incorporate only those federal aeronautic safety regulations that existed in 1983. As we conclude that section 860.13(2) cannot and, therefore, does not incorporate the federal .04 percent blood alcohol standard, we deny Cloyd's constitutional challenge on that ground....
...ce evidence that, pursuant to federal regulations for the safe operation of an aircraft, a crewmember is prohibited from operating an aircraft within eight hours of consuming any alcoholic beverages, or with a blood alcohol level of .04 or above. As section 860.13(2) specifically provides that the court shall consider federal regulations governing aeronautics in determining whether the operation of the aircraft was done in a careless or reckless manner, and the prohibition against operating an aircraft within eight hours of consuming any alcoholic beverage, which is found in 14 C.F.R. § 91.17(a), was in existence when section 860.13(2) was reenacted in 1983, we conclude that the trial court properly allowed the introduction of this evidence....
...We, however, agree with Cloyd that the trial court erred in allowing the State to introduce evidence that under these same regulations, a crewmember is prohibited from operating an aircraft with a blood alcohol level of .04 percent or above, as this regulation was not in existence when section 860.13 was reenacted....
...The federal statute in question, 18 U.S.C. § 342-43 (2000), was not created until 1986. See Pub.L. 99-570, Title I, § 1971(a), Oct. 27, 1986, 100 State. 3207-59. This federal statute, therefore, could not have been adopted by the Florida Legislature when it reenacted section
860.13 in 1983 and, thus, was not admissible. Adoue,
408 So.2d at 570; Carswell,
557 So.2d at 184. Furthermore, section
860.13(2) requires the court to consider the "standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics." The .10 presumption of intoxication is not relevant as to whether Cloyd was operating the aircraft under the influence or in a careless or reckless manner....
...any reasonable circumstances have been operated by the person accused. Jones v. State,
510 So.2d at 1149. Cloyd, however, was not charged with violating section
316.193, the driving under the influence statute. Rather, he was charged with violating section
860.13, Florida Statutes (2002), "Operation of aircraft while intoxicated or in careless or reckless manner," which provides, in part, that: (1) It shall be unlawful for any person: (a) To operate an aircraft in the air or on the ground or water while under the influence of: 1....
...(2) In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics. § 860.13, Fla....
...raft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise). 14 C.F.R. § 1.1 (1997). As is readily obvious, section
860.13, the statute under which Cloyd was charged and convicted, differs from section
316.193, the driving under the influence statute....
...viction. While the driving under the influence statute, section
316.193, requires that the State prove that the accused was driving or in actual physical control of the vehicle while under the influence, the statute Cloyd was charged with violating, section
860.13, requires operation of the aircraft while under the influence or in a careless or reckless manner. While operability may be a defense to the *168 driving under the influence statute, it is an element of the crime charged pursuant to section
860.13....
...here is no evidence to support the attempt or when the evidence establishes a completed offense. Fla. R.Crim. P. 3.510(a); Jorquera v. State,
868 So.2d 1250, 1252 (Fla. 4th DCA 2004). The definition of operate provided to the jury in accordance with section
860.13(2)'s incorporation of the federal standards for the safe operation of aircraft provides: Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this c...
...State,
785 So.2d 1182, 1199-1200 (Fla.2001)("[A] trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal."). THE VERDICT Pursuant to section
860.13, it is unlawful to operate an aircraft (1) while under the influence or (2) in a careless or reckless manner so as to endanger the life or property of another....
...He, therefore, argues that the trial court erred in permitting the State to argue, over his objection, that it was not necessary for the jurors to reach a unanimous verdict as to which unlawful act the defendant had committed, and in denying his request for a unanimity instruction. We agree. In reaching the conclusion that section 860.13 creates two separate offenses, rather than a single offense which can be committed in two separate ways, we examined other cases where this issue was addressed....
...then, does it create a single offense. When a statute sets forth various acts, stating that each is prohibited and/or provides for different punishment depending on the act committed, then the statute creates multiple offenses. The State argues that section 860.13 creates a single offense, the dangerous operation of an aircraft, which can be violated in either of two ways, by operating an aircraft while under the influence or by operating an aircraft in a careless or reckless manner....
...Because the statute, as worded, creates two separate offenses, [3] we agree with Cloyd that unanimity was required. Thus, the trial court erred in permitting the State to argue otherwise and by denying Cloyd's request for a curative instruction. *176 Based on the particular facts of this case and the wording of section 860.13, we, however, conclude that the error constitutes harmless error, as any reasonable person who concluded that Cloyd was operating the aircraft while under the influence, would conclude that his conduct was careless or reckless....
