Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.
The Board also observed that its
precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result. However, even though the
unknown ingestion affi rmative defense was previously rejected, the Board concluded that the ALJ’s granting a hearing to the airman regarding the affi rmative defense was appropriate because it allowed the airman a full opportunity to off er evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affi rmed the ALJ’s determination that the airman’s evidence did not suffi ce to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine specimen. Thus, the affi rmative defense of “unknown ingestion” or “inadvertent ingestion” will not, without more, save a mechanic from a positive drug test result. Fortunately, the mechanic should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the mechanic will have the burden of proof; a burden that, unfortunately, is often not easy to meet — but at least it is a chance.
Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certifi cate with an instrument rating and can fl y single-engine land and sea, as well as multi-engine land aircraft. His practice
concentrates on aviation litigation, including insurance matters and creditor’s rights, FAA certifi cate actions and transactional matters. He represents clients throughout the country on aviation law matters. His also an adjunct professor at Minnesota State University - Mankato where he teaches aviation law and at William Mitchell College of Law where he is an instructor in the advocacy course. He can be reached via e-mail at
greigel@aerolegalservices.com.
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10 2014 23
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DOMmagazine.com
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