Mark V. Fusco

Spitting Alcohol

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I will be using a drone mostly to take aerial footage of wineries and vineyards. During my visits, I also conduct interviews with my hosts and we typically taste wine. This involves spitting the wine so I am not ingesting it. From all accounts in the FAA, I only see them say ingest meaning swallowing. Am I to infer that my normal practice will still be in compliance? While I would most likely take footage at a morning appointment prior to doing any tasting, it is my afternoon appointment that concerns me. I only typically do two appointments per day.

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That’s an interesting question.  The rule of thumb is “eight hours from Bottle to throttle.”

The reality is that an FAA official isn’t going to roll up on you and perform a sobriety check.  The only way they’re likely to get involved is in case of an accident that involves serious injury or death.   It kind of depends on how much you trust the judicial system and a jury of your peers.  If you’ve been swilling wine all day  and run into a low flying Cessna the optics would not be in your favor.  

 

 

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I'm a pretty unique case drone or not. There are maybe a handful of people that do anything like what I do and pretty sure no one does exactly the scope of programming I do on the 'net. The safe thing to do is to restrict any drone use to my first appointment prior to doing the interview. While it's highly unlikely the FAA would even catch me in the act, it's afterwards. It's pretty easy to figure out looking at my various social media feeds and YouTube if I had a second appointment on a day and used the drone for both. But it all depends on someone there noticing. I know people have gotten letters well after the fact inquiring about other violations because someone (FAA or not) reported them. I did ask them directly and I am waiting for an official reply. Until then, I'll let any potential interviews know that if they want drone footage, then the'll need to book a morning appointment.

Here is my site video wine review site: 1337wine

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If you don't ingest the alcohol,  then your blood level will not be effected.  That is what would determine if you were "legally" intoxicated or not.  If you were confronted, which as has been pointed out is unlikely, then your blood level would be checked.  Done deal.

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Well, straight from the horse's mouth. While they're not saying I'm breaking the letter of the law, they are saying that I would have a good chance of losing if something happened:

 

Thank you for contacting the FAA's Unmanned Aircraft Systems (UAS) Support Center. 
 
Sometimes, perception is reality.  Imagine you have an accident with drone after a wine tasting (spitting out notwithstanding).  Even if the accident is totally not your fault, there will be multiple witness who saw you raise a glass of alcohol to your mouth.  Will there be residual alcohol on your breath, in your bloodstream?  Would you be considered a responsible operator by law enforcement...by the National Transportation Safety Board?  I'll refer you to the governing regulations...
 
14 CFR Part 107.23 Hazardous Operation
14 CFR Part 107.27 Alcohol or Drugs 
14 CFR Part 107.57 Offenses Involving Alcohol or Drugs
14 CFR Part 107.59 Refusal to Submit to an Alcohol Test
 
Penalties are severe (up to $32,666 per violation and loss of certification).  Is it worth it? 

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Interesting reply.  Points to the challenge with our changing legal system.  Perception is not reality, reality is reality but our judicial system has been turned into a popularity contest where perception can effect the outcome more than reality. 

Sorry to say that this is common sense.  Asking this question online and directly to the FAA made the perception a reality.  Be very careful going forward, they have know way of knowing your blood/alcohol level watching your videos but that won’t stop them from trying to prosecute you.  

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I’m fine going to the source on this. I get not bringing added attention to me, but unless I can get a definitive legal answer rather than speculation I’ll never know. Besides, I produce a lot of videos and I’m very active on Instagram so it’s very obvious that I’m in the beverage industry.

 

Since my video descriptions will very likely mention drones it would only be a matter of time before I would show up on the FAA’s radar, and from what I’ve seen they can come at you well after the fact. 

As long as I stick to a policy that any drone footage comes from my first appointment of the day and is recorded prior to the video interview they can come at me. I’ll have time stamps to prove I tasted after piloting. It also adds value to a winery to be the first appointment of the day. If they want the footage then I’ll give it to them for free whereas as a winery that only wants footage would have to pay. 

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I'm not sure why you're trying to make something out of nothing.  But I gave you the "legal" answer above.  The FAA response is more trying to get you to consider that the "perception" of operation under the influence can be problematic and bad for your reputation, IMO.  It did not say that you would be operating illegally if your blood alcohol level was not over, or even close, to the legal limit, because you wouldn't be. 

If you have decided that you would prefer to be seen and taken as a professional and believe that sipping (and spitting) alcohol in the same appointment that you are operating a UAS would negatively affect that perception,  that's great.  Not sure why you needed to post in a public thread about it,  but whatever if it helps you to come to that conclusion.

 

On 8/23/2019 at 12:10 AM, Mark V. Fusco said:

I will be using a drone mostly to take aerial footage of wineries and vineyards. During my visits, I also conduct interviews with my hosts and we typically taste wine. This involves spitting the wine so I am not ingesting it. From all accounts in the FAA, I only see them say ingest meaning swallowing. Am I to infer that my normal practice will still be in compliance? While I would most likely take footage at a morning appointment prior to doing any tasting, it is my afternoon appointment that concerns me. I only typically do two appointments per day.

 

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Wow. I've been nothing but professional here. I'm not making anything out of nothing. Are you a lawyer? Will you represent me if I had to appear before a judge or some other governmental body?  I'm not being facetious. I really don't know. If so, then I'll definitely consider your advice as being something to take seriously. Again, I'm not being a jerk about this.

The whole issue is the bottle to throttle rule and what the regs say ingestion means. Does that include absorption via mucus membranes in the mouth? Maybe not, but it's a scientific fact it happens and a judge or commissioner or whatever you want to call some kind of official could rule against me. I could go out and get wasted, but as long as it's been 8 hours since my last drink AND my BAC is below 0.04 I'm good. BAC alone isn't good enough. Can't have a beer during lunch and then go fly a drone, plane, anything. Of course tasting and spitting won't even get me close to 0.04 BAC. Even if I tasted 10 wines during the interview. Unfortunately many people can't fathom spitting alcohol. I get strange looks all the time. I even spit when I review wines at home.

Countless times a judge's, jury's, official's, perception or interpretation of a law can get skewed. Av8Chuck has said as much. Yes, the FAA's answer was vague, which I was mostly expecting. However if anyone has seen something like this, hopefully they had. 

I also inquired with doctors elsewhere that deal with testing pilots medically for a living. Their answer was essentially the same as the FAA's. So I don't think I'm being overly cautious. I'm not sure about you, but I don't have a spare $32k (I know that's the max) for a fine and want to risk losing a cert barely after I get it. Especially if I plan on dong other commercial drone footage not related to wineries.

As far as a public forum. Since I'm already out there in the public doing these videos where I visit wineries it's not like asking a legitimate question in a public forum, or even asking the FAA the same question is going to matter. I do not feel like I've put a target on my back and larger than already happens being in the alcohol business. I take it very seriously even when I'm having fun with it. My use of a drone most likely is a unique case so I need clarification from people who either have experience with this or can interpret the regs with some kind of official legal standing.

If I'm completely misinterpreting your response as anything other than being 100% professional, I apologize. Text can be taken completely out of context when you can't see body language and hear vocal inflections.

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Mark,

My point about the public forum was simply this summary.

1.  You ask for advice;  Is is okay to test an alcoholic beverage, but not ingest it and thus not raise your blood alcohol level.

2.  The FAA basically tells you that even if you are not legally under the influence (by blood volume, not anecdotally) it still may look bad and may lead to more trouble than it's worth.

3.  You state that basically you agree with the FAA's statement and you would look more professional if you don't mix the tasting with the flying.

I'm just noting that you could have easily skipped the whole thread and went right to #3,  that's it.  I think it's a good choice! 

But that doesn't change the fact that if you do not operate with a blood alcohol level above or near the legal limit, you are not operating impaired.  That does not mean you cannot be harassed or charged with reckless operation if in fact you are subsequently operating recklessly. I hope you can understand the distinction.

Safe Flying!

 

Edited by Dave Pitman
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From experience;  here is the hazard that you must avoid.  

 

What you do after the winetasting matters.  If you operate anything, be it a drone, or a car, or an electric toothbrush -  if you are involved in an accident, even though it

is not your fault, accident investigators will determine what you did prior to the accident.  This could make you liable. 

 

So, do whatever you want beforehand, but legally intoxicated or not, your are still liable afterwards.

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If you were flying your Cessna, would you swill wine?  You should tell your host client that you cannot consume alcohol an fly your drone, but you will gladly accept after flying your mission.  That is about as professional as you can get.  Disregard all the other answers.  You are splitting hairs.  Just avoid it until after the mission.

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Yes by all means disregard everyone else.  I have no idea what I’m doing and I’ve read many posts from Dave, you definitely don’t want to listen to him...

 

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I am traveling to Oregon next month and I've instructed all the wineries that I've reserved the morning appointments for those that would like me to shoot drone footage. Since any wine tasting takes place at the end of my appointments, I won't have to worry about any real or perceived issues with the bottle to throttle rule. 

In my profession, alcohol is definitely prominent. We taste wines at all times of day. I taste, as in spit, wine almost every day at work. I'm actually part of a tasting group that meets every Monday morning at 9am. And we definitely spit when trying a lot of different wines at industry tastings. It's nothing to go to an industry tasting with hundreds of wines and actually taste a good 50+ wines. You have no choice but to spit.

Are there times when we'll enjoy (i.e. not spit) a couple ounces of a rare, old, or, expensive wine during an interview? Yep. Are there lunches that happen with wine? Sometimes. I can easily spit every single time if it meant the difference between flying a drone or not, but since that isn't enough, I'll remove any question and only shoot in the mornings and before the actual interview/tasting.

Side note - I passed my Part 107 today. A little more difficult of a test than I expected, but overall it wasn't terribly difficult. Some questions I missed weren't as critical to drone piloting as it was to normal piloting. I reviewed all of the ones I missed and figured out where I went wrong.

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