A motion filed on Friday is asking a judge to dismiss federal charges against Sean Michael Fitzgerald for “operating” a Talon Air Challenger 604 while intoxicated on August 25 at Cherry Capital Airport in Traverse City, Michigan. His lawyer, Larry Willey, claims in the motion that Fitzegerald—whose blood alcohol content at the time was determined to be 0.343, more than eight times the FAA's legal limit—by definition did not “operate” the aircraft.

According to the motion, the aircraft’s engines were not started; no passengers were on board; the aircraft door was not closed; no clearance to move the aircraft was attempted or given, nor was the aircraft moved; and the captain and defendant were “never seated together in the cabin [sic].” Thus, Willey argued, “The undisputed facts demonstrate that [Fitzgerald] did not operate the aircraft on August 25.’’

However, Fitzgerald was arrested while wearing headphones and seated in the cockpit with the auxiliary power on, according to the motion. The arresting officer, Sergeant Drzewiecki of the Traverse City Police Department, wrote in a police report that Fitzgerald appeared “to be making pre-flight checks of gauges.” Further, the motion says, Fitzgerald “had spoken to the tower for the routing information and the tape of the conversation shows that defendant had difficulty following/repeating the information.”

The federal charge accuses Fitzgerald, who was fired from Talon Air after the incident, of operating a common carrier while under the influence of alcohol, which carries a prison sentence of up to 15 years. A pretrial conference is scheduled for December 22, with the trial set to begin on January 9.