Further Thoughts on Defense of Drug Cases: More Practical Case Notes

Defending a licensed mariner against a Coast Guard drug claim can be a demanding task. From time to time, Currents & Eddies has discussed various aspects of defending drug charges against mariners, including reviews of recent decisions and other legal aspects of providing such a defense. This discussion follows and enlarges upon remarks made upon the subject at last spring’s MOPS Attorney Luncheon in New York, and also incorporates some earlier articles in this newsletter.

In App. Dec. 2692 (CHRISTIAN) (2011), the Vice Commandant took pains to straighten out confusion on the part not only of mariners, but also, obviously, of Coast Guard Investigators and Administrative Law Judges (ALJ’s), about which specific regulations apply to drugs, and which to alcohol. In that case, the Vice Commandant stated: 49 CFR Part 40 applies to mariner drug testing ONLY; 46 CFR part 16 (and specifically, sec. 16.230) similarly applies to Mariner chemical testing for drugs only and NOT ALCOHOL; 46 CFR sec. 4.06 governs mandatory chemical testing following incidents; and, because “dangerous drug” and “alcohol” are defined separately in the regulations (see 46 CFR sec. 16.10), the two terms are not interchangeable, and the requirements for alcohol testing are found separately at 33 CFR Part 95 (sec. 95.030) , and 46 CFR sec. 4.06. In CHRISTIAN, the ALJ below had improperly applied the drug test “randomness” standard from 46 CFR sec. 16.230 to an alcohol test, found that the alcohol test was not “random” and dismissed the Coast Guard’s case. The Vice Commandant reversed and remanded back to the ALJ to apply the correct standard. The governing regulations for drug versus alcohol testing are not parallel, and not clear; and accordingly, this is a good case to keep on file.

It is also important for the license defense attorney to distinguish what specific type of drug test the Coast Guard is attempting to enforce against the mariner, because the type of test will determine the Coast Guard’s burden of proof. The first question to ask is whether the drug test was a government-ordered test, or a company-ordered test. The five government-ordered tests are identified at 46 CFR sec. 16.210- 16.250: (1) pre-employment; (2) periodic; (3) random; (4) serious marine incident; and (5) reasonable cause. Of these, the most frequently challenged (and therefore probably the most challengeable) is the random test; but challenges have also succeeded against periodic and reasonable cause tests as well.

For a government-ordered drug test (sometimes referred to as a “Part 16” test), the Coast Guard has the burden of proving: (1) the respondent was tested for dangerous drugs; (2) the respondent tested positive; and (3) the test was conducted in accordance with 46 CFR part 16. App. Dec. 2697 (GREEN) (2011). If the Coast Guard can satisfactorily prove those three elements, it will benefit from a “regulatory presumption” that the mariner was a drug user. App. Dec. 2704, at 10-11 (FRANKS) (2014). The third element is the main tool for a mariner to challenge a government-ordered test. If the drug test ordered was a random test, the Coast Guard has the burden to prove that the selection of a crewmember for a random drug test was made by a scientifically valid method. If the Coast Guard cannot offer the scientific evidence of “randomness” then it will not meet its burden of proving the third element of its proof under GREEN, supra. The lesson for license defense attorneys from GREEN is this: in answering for a mariner in a drug claim, NEVER admit to the Coast Guard’s characterization of the drug test. If a mariner should admit to taking a “random”, the defense will be lost. The Vice Commandant notes that Green appears to have done that in his case, but because he was proceeding pro se, he was given some latitude.

In App. Dec. 2704 (FRANKS) (2014), the Coast Guard charged the mariner with failing a periodic drug test, but neither the ALJ nor the Vice Commandant found evidence in the hearing record that the test was a periodic test within the meaning of 46 CFR sec. 16.210 – 16.250. The Vice Commandant noted in FRANKS that the Coast Guard’s third element of proof, that is, proof that its test was conducted in accordance with regulation, meant two things: (1) that the reason for testing was one of the 5 specified by part 16; and (2) that the test was conducted in compliance with the procedures set forth in 49 CFR Part 40. FRANKS, supra at 4. In failing to prove that the test administered to the mariner was “periodic” within the meaning of the regulations, the Coast Guard failed to meet its burden of proving its prima facie case, and the charges were therefore dismissed.

A non government- ordered (or “non Part 16” ) test is one required by the employer rather than by Coast Guard regulations. The Coast Guard can still use failure to pass a non Part 16 drug test as proof of drug use. See, e.g., App. Dec. 2615 (DALE) (200) (mariner’s refusal to submit to an employer-ordered drug test was actionable as Misconduct). But here is the important distinction: in a non Part 16 case, the Coast Guard does not benefit from the “regulatory presumption” noted above under the discussion of the Green case. Rather, the Coast Guard must prove (rather than benefit from a presumption of), actual drug use. That means, in effect, that the Coast Guard needs more evidence to prove drug use than merely a positive test result, as would be the case in a part 16 claim. See., App. Dec. 2704 (FRANKS) (2014) at 10-11.

An overview of D.O.T. drug and alcohol testing regulations (including an earlier discussion of the CHRISTIAN case), as well as citations to helpful authorities for various drug charge defenses, can be found in CURRENTS & EDDIES No. 12 (12/21/11). The GREEN case was also discussed in detail in CURRENTS & EDDIES No. 13 (5/9/12); and the FRANKS case was reported earlier in CURRENTS & EDDIES No. 17 (12/23/14).