Traverse City – An appeals court has affirmed the conviction of a co-pilot who was drunk before a flight.

There’s no dispute that Sean Fitzgerald’s blood-alcohol level was far beyond the legal limit. The issue for the federal court was whether Fitzgerald was operating the aircraft. He was in the cockpit, but the Talon Air plane still was parked at the Traverse City airport.

In a 2-1 opinion, the appeals court says the plane didn’t have to leave the ground for Fitzgerald to violate the law. The court, citing a dictionary, says to “operate” something is to run or control its functions.

In dissent, Judge Richard Griffin says he would have thrown out Fitzgerald’s conviction. Fitzgerald was sentenced last year to a year in prison.

Police say a breath test on Aug. 25 showed Fitzgerald had a blood-alcohol level of 0.30, nearly four times the legal limit for driving. The Boca Raton, Florida, man was preparing to fly a plane to Massachusetts from Traverse City when he was ordered out of the cockpit.

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