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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46 Proceedings Winter 2015–2016 www.uscg.mil/proceedings the collector provides as evidence must prove he/she is properly trained and authorized to collect urine specimens for Department of Transportation drug testing. To do this, the Coast Guard need only produce documentation that the collector, at the time the specimen was collected, met all of the regulation's requirements. 6 The collector must also show that the mariner was properly identifed. For example, the collector must see an original employer photo ID (other than in the case of an owner-operator or other self-employed individual) or a federal, state, or local government ID. Employer representative (not a co-worker or another employee being tested) positive identifcation is also acceptable. The preferred means of identifcation is viewing the MMC and/or Transportation Worker Identifca- tion Credential. It is worth noting that the majority of drug use cases the Coast Guard loses are due to error(s) in the collection process. The Respondent Failed the Test. The second element to prove is that the mariner tested positive or failed the drug test, which requires sub-elements also to be proved. To fail a chemical test for dangerous drugs per 46 CFR Part 16 means: • the result arose from a chemical test conducted in accor- dance with 49 CFR Part 40, and • a medical review offcer reported it as "positive" because the chemical test indicated the presence of a dangerous drug at a level equal to or exceeding those established in 49 CFR Part 40. To prove this element, the Coast Guard leans slightly on the collector and heavily on the laboratory and medical review offcer. The Coast Guard will offer the laboratory's copy of the federal drug testing custody and control form (also referred to as the CCF) into evidence to show the chain of custody matches the collector's copy, indicating the chain remained intact. Once this is established, the Coast Guard will ask the ALJ to take "offcial notice" of the current list of Health and Human Services-certifed laboratories and instrumented initial test- ing facilities that meet minimum standards to engage in urine drug testing for federal agencies. 7 This combined with the CCF should serve as proof the chemical test was con- ducted in accordance with 49 CFR Part 40. The Coast Guard must then prove a medical review offcer reported the results as "positive" because the chemical test indicated the presence of a dangerous drug at a level equal to or exceeding those established in 49 CFR Part 40. To this end, the Coast Guard will frst prove the MRO's qualifca- tion by entering into evidence his or her training certifcates. selected for testing by a scientifcally valid random method, the drug test has not been shown to have been conducted in accordance with 46 CFR Part 16 and one of the elements of a prima facie case has not been established. Later, in Appeal Decision 2704, the Vice Commandant fur- ther clarifed the statements in Appeal Decision 2697 con- cerning the three elements required for a prima facie case of drug use. In Appeal Decision 2704, the Vice Commandant held that a prima facie case of drug use is established when: (1) the respondent was the person who was tested for dan- gerous drugs, (2) the respondent failed the test, and (3) the test was conducted in accordance with 46 CFR Part 16 (with the proviso that 46 CFR Part 16 incorporates by reference the regulations in 49 CFR Part 40). Under this rule, when the test was ordered pursuant to the regulations, but the justifcation for it is not consonant with the regulations, or the test is not conducted in accordance with 49 CFR Part 40 and is therefore unreliable, there is no prima facie case proved. 4 The Vice Commandant explained the procedures in 46 CFR Part 16 were established not only to protect public safety interests, but also to ensure that mariners' constitutional rights are safeguarded throughout the drug testing process. By expressly mandating limited, specifc types of drug tests, the regulation drafters ensured that the constitutionally protected privacy interests of the mariner were balanced with the overriding need to ensure a drug-free and safe workplace. The drafters of 46 CFR Part 16 recognized that the Fourth Amendment (which protects against unreasonable searches and seizures) applies, and that private employers' testing to comply with federal regulatory requirements constitutes government action. 5 Hence, when the employer conducts tests in accordance with 46 CFR Part 16, the employer acts as an instrument or agent of the government. Therefore, it is vital that if a marine employer orders a mariner to submit to a drug test under the authority of 46 CFR Part 16, the reason for the test must be fully supported by 46 CFR Part 16. The Respondent Was the Person Who Was Tested for Dan- gerous Drugs. To prove the respondent was tested for a dan- gerous drug, the Coast Guard leans heavily on the urine collector's training, actions during the collection process, documentation, and testimony concerning the proof of iden- tity for the person providing the specimen. Since the chemical test must have been conducted in accor- dance with 49 CFR Part 40, the testimony and documentation

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