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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48 Proceedings Winter 2015–2016 The Respondent Was Tested for a Dangerous Drug. The Coast Guard should frst prove the urine collector is prop- erly trained and authorized to collect urine specimens. If the collector is trained to the DOT drug-testing standard per 49 CFR Part 40, Subpart C — Urine Collection Personnel, this is done in the same manner as a 46 CFR Part 16 case. The Coast Guard need only produce the collector's training certifcates or training records. If the collector is not trained to the DOT drug-testing stan- dard, the Coast Guard will need to prove the collection was conducted in substantial compliance with 49 CFR Part 40, Subpart C, by whatever documentation and testimony is available, including the drug testing custody and control form. It is important to note that 49 CFR §40.47 prohibits using CCFs for non-federal urine collections. The Coast Guard must also prove that the collector affrmatively identifed the mariner by whatever means possible, preferably in sub- stantial compliance with Part 40 rules. The Respondent Tested Positive for a Dangerous Drug. Just as when proving this element for a USCG-mandated chemi- cal test, the Coast Guard leans heavily on the laboratory and MRO to prove this element for a marine employer-mandated chemical test. Since the testing is not necessarily in compliance with 46 CFR Part 16, the meaning of "to fail a chemical test for dangerous drugs" has an altered meaning. In a marine employer-mandated test the Coast Guard will need to prove: • the chemical test analysis was conducted in substantial compliance with 49 CFR Part 40, and • an MRO reported the result 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. The Coast Guard will introduce and offer into evidence the laboratory's copy of the CCF to show that the chain of custody matches the collector's copy, indicating the chain remained intact. Again, once it is established that the chain of custody remained intact, 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. However, if the laboratory is not approved, then the Coast Guard must establish that the science used to analyze the specimen is reliable and probative of drug use. Unlike testing requirement (46 CFR §16.250). This evidence must be reasonable, articulable, and based on direct observa- tion of specifc, contemporaneous physical, behavioral, or performance indicators of probable use. Where prac- ticable, this belief should be based on the observation of the individual by two persons in supervisory positions. The Burden of Proof for a Non-USCG Drug Test The aforementioned appeal decisions 2697 and 2704 not only lay out the course for proving a charge of use of a dangerous drug based on a USCG-mandated chemical test, they also open the door to proving a charge of drug use based on a marine employer-mandated chemical test. Appeal Decision 2704 stated that, for these tests: • the employer is not acting as an instrument or agent of the government, • the constitutional harms that Part 16 seeks to avoid are absent, and • the Coast Guard may place in evidence facts that tend to show drug use in order to prove a charge in accordance with 46 CFR §5.35. 11 Jurisdictional Element: For a marine employer-mandated chemical test, the jurisdictional elements are identical to those for a USCG-mandated chemical test. To prove jurisdic- tion, the Coast Guard need only prove that the mariner was issued an MMC and it is valid at the time of the hearing. Factual Elements: Proving the frst two factual elements for a marine employer-mandated chemical test is very similar to proving those elements for a USCG-mandated chemical test. The Coast Guard supports this law [46 USC §7704] through its suspen- sion and revocation program, where investigating of f icers work dili- gently to determine the best means for moving forward when notified of a failed drug test. With the cooperation of marine employers who also desire to pro- mote marine safety, the Coast Guard is able to ensure a safer day at sea for all.

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