Breath Analyzers: A Boon Or A Bane?

Sanjeev Kumar and Anshul Sehgal comment on whether breath analyzers for pilots are a boon or a bane.

I. INTRODUCTION

A blow of air,after drinking and driving on the roads, before the enforcement authorities, can land you with a hefty fine or end up being hauled up behind ‘bars’. But a pilot, before his flight, could lose his job and probably bring down curtains on his career if a breath analyzer test records a miniscule presence of alcohol in the puff of air blown for the pre-flight alcohol test.

Pilots in India carry out their duties under strict governance of the Director General of Civil Aviation (“DGCA”). The DGCA has implemented stringent measures to keep erring pilots in the check, who report for flying duties under the influence of alcohol.

II. THE LAW & THE PREJUDICE

The DGCA periodically enforces the Civil Aviation Requirements (“CAR”) under the Aircraft Rules 1937 (“Rules”) which lays down the procedure for ‘medical’ examination of concerned flying personnel for testing blood alcohol levels before reporting to duties.

Importantly, the applicable CAR is titled as a procedure for ‘medical’ examination.It also lays down that flying personnel, such as pilots, would be subject to ‘only’ breath-analyzer examinations to ascertain if such a pilot is flying under the influence of alcohol. Thus, breath analyzer tests have been deemed to be given the status of a medical examination,astonishingly without there being any usage of any medical equipment. These handhelddevices used for conducting such tests are battery-operatedand hence by their very nature are prone to maximum permissible errors and by no means can be endorsed to be equipped for carrying out medical examinations.

The Indian regime under CAR is extremely strict when compared to other countries which states that the level of blood alcohol for safe flying is ‘Zero’. Thus, even an iota above Zero is treated as a positive test and is constituted as an offence. The concerned personnel if found guilty stands to be suspended under CAR for a period of three months, second repeat violation entails suspension for three years and a third violation renders suspension of license from performing flying duties.

It is a known scenario that professionals like pilots must be technologically updated and have to be involved in regular performance of their duties.Thus, even the first violation that entails suspension of three months might prove to be sufficient for shutting down the entire career of such a professional. Shockingly, the government places entire reliance for such decisions on the outcome of recordings by breath-analyzer devices, which have historically proven to be prone to errors, just like any other device would be. Hence, the burning question is that whether such devices can be outrightly trusted, when careers of professionals are at stake?

In the past, several instances have been reported that pilots/crew members have been suspended from their flying duties after having failed pre-flight breath analyzer test. A lot of resistance has also been shown by the affected who have cried foul before the authorities for being subjected to faulty devices. Many pilots have challenged the decisions of the DGCA before constitutional courts and almost in every such situation the stand of the government is that the CAR does not provide for any other method of testing. In all cases there appears to be complete ignorance to certain rules and regulations which do provide for true medical examinations as well. However, be that as it may, the flying watchdog, the DGCA, has not shifted from the method of such tests and continues to repose faith in devices that are prone to errors.

III. THE DICHOTOMY

Upon a scrutiny,the Rules ¹ as well as CAR ² explicitly lays down that no flying personnel should be in a state of intoxication or have detectable blood alcohol whatsoever in their breath, urine or blood alcohol analysis. Hence, it is not the case that the law does not provide for cogent and much more scientific ‘medical’ examination than the errant breath analyzers. However, the concerned Regulation under CAR which lays down the procedure for examination is completely silent upon usage of scientific methods to carry out such tests and instead only provides for usage of breath analyzers as a method for examination. Thus, there being a situation of conflicting and restrictive provisionsunder the same law.

Undoubtedly, breath analyzers are a much more convenient method of carrying out such tests.Apart from being non-invasive, they are less time consuming and provideresults on the go, which may not be possible with scientific methods such as blood/urine tests, which are invasive, and the entire process is time consuming. However, every technology comes with its own set of challenges!

Breath analyzer tests have now rampantly become a huge issue of outcry amongst flying personnel, since routine things of usage, such as colognes, mint, mouthwashes, etc. appear to impair the true results, as the level of blood alcohol level is ascertained by the breath blown into such devices. Thus, usage of any external substances which are alcohol based and are a matter of routine care or hygiene naturally have the tendency to impact the readings on such devices and may not necessarily show the actual blood-alcohol levels. Hence, it is high time that the government pays heed to the challenges posed due to the usage of technology and placing sole reliance on such methods raises the doubt that whether these breath analyzers prove to be a boon or a bane!?

IV. PAST DECISIONS

A. Captain S.K. Kapur vs. Union of India and Ors. ³

The Delhi High Court here was dealing with a Writ Petition of a Pilot whose license was suspended for a period of three years. Apart from many other grounds, it was the pilots case that possible reasons for testing positive were that, since he was suffering from cough he had consumed a prescribed medicine which had alcoholic contents just before reaching the airport. It was also contended that he applied a‘Versace’ perfumewhich contained 95% alcohol. Thus, it was the pilots stand that the result of the breath analyzer tests could be affected by the presence of high level of alcohol in the perfume used by the petitioner and on account having consumed the medicine, on the date when he was tested positive. The Petition was however dismissed without laying down much observations on these aspects.

B. Arvind Kathpalia vs. State ⁴ and;

C. Indian Commercial Pilots Association vs. Director General of Civil Aviation and Ors. ⁵

Both the above cases were connected as they dealt with the same incident concerning a high ranking official and Senior Pilot of India’s National Airlines. While interpreting the provisions of CAR, the seriousness and importance of the provisions of CAR was laid down. It was held that under no circumstances can any member of the crew take any alcohol preparation which impair their capacity. Also, in terms of CAR the operator/crew member/maintenance personnel are obliged to ensure that there is no contravention of the Rules. Further, the DGCA was also directed to relook into the interpretation and functioning of CAR to ensure that there is no possibility, in the future, of anyone circumventing the mandatory requirement of the pre-flight breath analyzer examination with impunity.It was held that the importance of CAR and such tests is paramount, however the question which still, as per our understanding, remains unanswered is that, can there be sole reliance on breath analyzer tests only, which are themselves prone to manifold errors?

V. SIMILAR LAWS AND THEIR SITUATION

Even in other applicable laws entailing usage of breath analyzers, such as the Motor Vehicle Act ⁶, a person subject to a breath analyzer test may be statutorily required by the authorities to undergo laboratory tests, which are more scientific. The Ministry of Railways upon being made aware of constant faults in breath analyzers tweaked its policy ⁷ regarding loco pilots for such testing, by shifting to medical examination. Hence it is about time that the aviation watchdog also carried out necessary changes and shifted to full proof methods for such testing and stop wreaking mental and actual havoc with the professional careers of flying personnel.

VI. COMPARITIVE ANALYSIS WITH FOREIGN REGULATIONS

When compared globally as well, India appears to be trailing behind in a long way. The United Kingdom’s law ⁸ on this subject provides for different levels of proportion for detecting blood alcohol under breath, urine or blood analysis, since the degree of uncertainty changes in every method. The United States does not prescribe ⁹ a Zero level tolerance for its flying personnel and is 0.04% in breath analyzer test. The United Arab Emirates ¹⁰ lays down a detailed analysis which states that testing methodology plays a significant factor and breath analyzers are treated as non-evidential testing devices, since the possibility of false reading on such devices is much higher due to several external factors which can impact true results.

VII. FORENSIC EXPERT ANALYSIS

Forensic science experts as well, which have been relied upon by courts in matters involving alcohol detection analysis, have stated that breath analyzer test results can be at best considered as a possible cause for making the subject undergo reliable blood and/or urine tests and nothing more.Thus, all in all, sole reliance on breath analyzer tests appear to be too onerous and unfair on the professionals involved in dispensing their duties of flying whose careers are at risk, each day when they go through the rigors of breath analyzer tests.

VIII. CONCLUSION

A shimmer of hope appears to have been brought by the coronavirus pandemic for the flying personnel community, as the usage of breath analyzer equipment stands discontinued. Recently a sect of such flying personnel, the air traffic controllers, approached the Delhi High Court seeking suspension of the process of being subject to breath analyzer tests, due to high risk posed by the contagious virus. Important observations have been laid down by the Delhi High Court wherein it was stated ¹¹ that in view of the medical emergency posed by Covid-19, asking the personnel to be subject to breath analyzer tests poses a severe risk, which is completely non-pragmatic and unwise. Accordingly, the DGCA was directed to take urgent steps in devising alternate methods of detecting blood alcohol tests which are less risky.

Furthermore, as discussed above regarding the railway loco pilots, a similar petition was moved by the association of such loco pilots who also sought dispensation of breath analyzer tests. A Division Bench ¹² of the Delhi High Court, while relying on the observations passed by the Single Judge in the matter of air traffic controllers as discussed above, constituted a joint expert committee comprising of representative from the Railways, Aviation and Health Ministry to look into the safety aspect of breath analyzer tests and to come up with viable alternative methods.

Thus, the present situation is perfectly conducive for the Government regulator(s) to move ahead and adopt alternate and much more cogent basis of analyzing such tests which puts an end to the usage of breath analyzer devices, which have proven to be an albatross around the neck of the Government with the entire flying community and railways community criticizing the usage of such error prone and career ending devices.