Overview Of D.O.T. Drug And Alcohol Testing Regulations And Helpful Commandant And ALJ Rulings
A lot of justifiable confusion exists about the regulations governing drug and alcohol testing for mariners and transportation workers. This confusion exists even among ALJs, as has been noted by the Commandant in one recent Appeal Decision (App. Dec. 2692 (CHRISTIAN) (2011)). Accordingly, for those who may be called upon from time to time to defend mariners against Coast Guard drug or alcohol charges, a brief overview may be of assistance.
Part of the confusion, as noted by the Commandant, is quite possibly due to the fact that the regulations for drug testing versus alcohol testing are not parallel.
The regulations that relate to drug and alcohol testing of mariners are: 33 CFR Part 95; 46 CFR Part 16; 49 CFR Part 40; and 46 CFR Part 4. Here is what they cover:
- 33 CFR Part 95: Mariners operating vessels under the influence of alcohol.
- 46 CFR Part 16: Random drug testing for Mariners, but not alcohol testing.
- 49 CFR Part 40: Drug Testing for mariners; alcohol testing requirements not applicable to mariners.
- 46 CFR Part 4: Alcohol testing requirements for mariners. App. Dec. 2692 (CHRISTIAN) (2011) at 4-5.
“Alcohol” and “dangerous drugs” are defined separately in 46 CFR Part 16. The terms are not interchangeable and the meaning of “dangerous drug” does not include alcohol. 46 CFR s. 16.105; App Dec.2692 (CHRISTIAN) (2011) at 4. Neither 46 CFR sec. 4.06 nor 33 CFR Part 95 mandate procedures for selection of mariners for random alcohol testing. There are no regulations that govern selection of mariners for random alcohol testing. App. Dec. 2692 (CHRISTIAN) (2011) at 5. 46 CFR Part 16 contains regulations governing chemical testing for certainmariners for dangerous drugs. Section 16.201(a) adopts by reference the separate D.O.T. procedures for transportation workplace drug and alcohol testing, which are codified at 49 CFR Part 40. USCG v. John C, RUSSELL, D&O (Jan. 30 2008) (McElligott, ALJ).
In general, Coast Guard drug testing regulations require maritime employers to establish programs for chemical testing for dangerous drugs on a random basis for all mariners on inspected vessels who occupy positions that directly affect the safe navigation and operation of a vessel and who, in an emergency, are assigned to tasks critical to the safety of the vessel and its passengers and crew. See, 46 CFR sec. 16.230 (a); see also, Transportation Institute v. United States Coast Guard, 727 F. Supp. 648, 655-8 (D. D.C. 1989) (enjoining the Coast Guard from implementing the part of the drug testing regulations that require random testing of all crew members).
Refusal to Submit to a Drug Test
46 CFR Part 16 defines “refusal to submit” to a drug test by a mariner in three ways: (1) failure to appear for any test (except pre-employment test), within a reasonable time, after directed to do so by the employer; (2) failure to remain at the site until the testing process is complete; and (3) failure to provide a urine specimen. 46 CFR sec. 16.105 (incorporating 49 CFR sec. 40.191(a)).
A mariner’s refusal to submit to a drug or alcohol testing regulation constitutes Violation of a Regulation. 46 CFR sec. 5.569(d); United States Coast Guard v. John C. RUSSELL, D & O (Jan. 30 2008) at 8 (McElligott, ALJ).
A mariner’s refusal to submit to a drug test ordered by an employer is also Misconduct. App. Dec. 2615 (DALE) (2000).
Note, however, that a mariner who leaves the testing site before the testing process commences is NOT deemed to have refused a test. 49 CFR sec. 40.191(a) (2); App. Dec. 2685 (MATT) (2010) at 6-7. This includes a mariner who does not provide a urine specimen because he or she leaves the site before the testing process commenced. Again, such conduct is NOT deemed a refusal to test. United States Coast Guard v. John C, RUSSELL, D &O (Jan. 30 2008) at 8 (McElligott, ALJ).
Commandant Appeal Decisions have stressed that “(i)n the interest of justice and the integrity of the entire drug testing system, it is important that the procedures in 49 CFR Part 40 be followed to maintain the drug testing system.” App. Dec. 2688 (HENSLEY) (2010).
Fatal Technical Flaws
The HENSLEY decision gives us a good and useful synopsis of the technical deficiencies which have been found sufficient to defeat a Coast Guard drug use charge, as well as those which have not. The legal theory at work is violation of a mariner’s due process rights. The Commandant has found the following technical deficiencies to have been sufficiently fatal to defeat a drug charge against a mariner:
Unqualified collectors, without required training; failure to positively identify mariner; failure to collect Social Security numbers; improperly requiring mariner to certify samples before taken; improper certification of signature on control form. App. Dec. 2631 (SENGEL);
False testimony by lab’s director about credentials; misinformation given to mariner about right to re-test split sample; premature disposal of sample precluding further testing. App. Dec. 2621 (PERIMAN);
Improperly labeling specimens; leaving specimens unattended while pursuing mariner who failed to sign form; unresolved and conflicting testimony about chain of custody. App. Dec. 2614 (WALLENSTEIN);
Mariner leaving testing facility prior to commencement of test. App. Dec. 2685 (MATT).
Non-Fatal Technical Flaws
The following technical deficiencies were found to be minor in nature so as not to defeat the Coast Guard’s charge of drug use against the mariner:
Collector’s failure to prevent other people from entering restroom during testing; lack of continual possession of custody control form. App. Dec. 2546 (SWEENEY); Collector’s failure to have mariner initial specimen label; failure to permit mariner to choose his specimen jar. App. Dec. 2541 (RAYMOND) aff’d sub nom NTSB Order No. EM-176 (1994); Mariner failure to wash hands prior to providing sample; collector’s failure to record specimen temperature. App. Dec. 2537 (CHATHAM) aff’d sub nom NTSB Order No. EM-174 (1994); App. Dec. 2522 (JENKINS).
Good general discussions of drug regulations and cases can be found in the following: App. Dec. 2692 (CHRISTIAN); App. Dec. 2688 (HENSLEY) and USCG v. John C. RUSSELL, D & O (Jan. 30, 2008) (McElligott, ALJ).