Proceedings Of The Marine

WIN 2015

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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45 Winter 2015–2016 Proceedings www.uscg.mil/proceedings are more likely than not to have occurred. To do this, the Coast Guard must prove all of the required elements of the offense charged. If the Coast Guard successfully proves the jurisdictional and factual elements for use of or addiction to a dangerous drug, 46 USC §7704 and 46 CFR §5.59 leave no discretion on sanc- tion, making revocation of the MMC mandatory unless the respondent provides satisfactory proof of cure. The Burden of Proof for a USCG-Mandated Drug Test As with other court cases, meeting the burden of proof is easier said than done, and involves several elements. Jurisdictional Element: First off, the Coast Guard must prove it has jurisdiction over the MMC. Administrative proceedings (also referred to as suspension and revocation [S&R] proceedings) are directed solely at merchant mari- ner credentials or endorsements — not against persons or property. In the case of drug use, jurisdiction exists if the respondent holds a valid MMC. To prove jurisdiction, the Coast Guard need only prove that the mariner was issued a merchant mariner credential, and that it is valid at the time of the hearing. If the mariner does not have a valid MMC, then nothing exists for the ALJ to issue an order of suspension or revocation against. Once jurisdiction is established, the Coast Guard then bears the burden of proving the factual elements of the offense by a preponderance of the evidence (more likely than not). Factual Elements: Unless the Commandant, the National Transportation Safety Board, or the federal courts modify or reject them, Commandant decisions and the principles and policies enunciated in appeal decisions are binding upon all administrative law judges. Regarding appeal decisions, 2 until recently, the Vice Com- mandant (by direction of the Commandant) has stated, "The Coast Guard may establish a prima facie case of illegal drug use by showing that: (1) the respondent was tested for a dangerous drug, (2) the respondent tested positive for a dangerous drug, and (3) the test was conducted in accordance with 49 CFR Part 40." 3 To prove these three elements, the Coast Guard needs only evidence from the urine collector, the laboratory, and the medical review offcer (MRO). However, in two recent appeal decisions, the Vice Com- mandant negated the results of the mariners' failed chemi- cal tests despite the Coast Guard proving the necessary elements. In Appeal Decision 2697, the Vice Commandant advanced previous appeal decisions by stating, "To estab- lish a prima facie case of drug use based solely on a urinalysis test result, the Coast Guard must prove three elements: (1) that respondent was tested for a dangerous drug, (2) that respondent tested positive for a dangerous drug, and (3) that the test was conducted in accordance with 46 CFR Part 16." With regard to Appeal Decision 2697, the Vice Commandant found, as previously noted, that the urinalysis test must have been conducted in accordance with 46 CFR Part 16, which requires that crewmembers selected for random drug test- ing be selected by a scientifcally valid method. When ran- domness is at issue, if it is not shown that a respondent was Buena / iStock / Thinkstock Administrative proceedings are directed at merchant mariner cre- dentials or endorsements — not persons or property. The administrative hearing is a trial- like proceeding where the Coast Guard always bears the burden of proof, which must be met by a preponderance of the evidence.

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