November 26, 2014

Tenth Circuit: Venue Proper and Sufficient Evidence to Show Copilot Was Under the Influence of Alcohol During Flight

The Tenth Circuit Court of Appeals published its opinion in United States v. Cope on Tuesday, May 1, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol. He now challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations.

Petitioner argues that there is no evidence that he was under the influence of alcohol in Colorado and thus venue in the District of Colorado was improper. The Court disagreed, finding that because he was operating a common carrier in interstate commerce, it is immaterial whether he was “under the influence of alcohol” in Colorado. “Venue is proper in any district through which Mr. Cope traveled on the flight, including the District of Colorado.”

Petitioner also argues that the district court put improper weight on the breathalyzer tests, which he contends are invalid, and that there was insufficient evidence that he was “under the influence of alcohol.” The Court found that the district court was entitled to weigh competing testimony about the tests. Additionally, his “high BAC combined with the evidence that [Petitioner] drank a significant amount of alcohol the night before the flight, implicitly admitted that he would fail a breathalyzer test, smelled of alcohol, and had red eyes and a puffy face before the flight, is sufficient evidence for a reasonable fact-finder to find that [Petitioner] was ‘under the influence of alcohol.'”

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