The Coast Guard's Black Swan Drug Case

Decision & Order Dated Dec. 12, 2007
USCG Docket No. CG S & R 07-0221
CG Case No. 2909338

It is frequently said that you cannot win a Coast Guard drug case, but here is an older (2007) ALJ Decision and Order which we recently came across in which the mariner, representing himself, did just that, and did it well. Although of no precedential value, and although it must, as you will see, be limited to its rather unique facts, the case is nonetheless of some interest to us, if for no other reason than to show that every so often, the Coast Guard does not prevail on what they no doubt thought was an airtight case.  Here the mariner’s feat would seem to be even larger than life because the mariner succeeded in doing something thought almost to be impossible – he defeated the Coast Guard’s prima facie case of dangerous drug use entirely by the use of character evidence. 

The Respondent license holder was 58 years old, and had worked 40 years as a fishing guide in Bedford County Virginia, where he had spent his entire life. On March 22, 2007, he took a random drug screening test in Roanoke, Virginia, and tested positive for cocaine metabolites. In fact, the test results came back at ten times the cut-off level for the metabolites. 

At the ALJ hearing, the Coast Guard established its prima facie case of dangerous drug use with all the usual evidence that showed that the chain of custody was intact, that all testing, collecting, and handling rules and procedures had been followed, and that the Medical Review Officer (MRO) had interviewed the mariner and had found no medically valid explanation for the chemical test results. True to form, the ALJ naturally found the testimony of the USCG toxicologist and MRO credible. To add to the mariner’s burden, there was evidence that the split sample also came back positive for cocaine metabolites by about the same magnitude. 

The Respondent, representing himself, denied cocaine use and testified that he had no idea how he could have tested positive. Continuing on in his own defense, he testified that he had never had any prior drug or alcohol charge, and had never had a boating or automobile accident. So far, this sounds like your average drug case, with the prosecution and defense cases unfolding very predictably, like they seem to do so many times, with the mariner seeming to be firmly planted on the slippery slope and headed rapidly for license revocation. But then, one can almost read in the decision that point where the ALJ’s mind begins to turn. It starts when the Respondent testifies that he had been a member of a local church for 42 years, did not smoke or use alcohol and was a solid member of the community with children and grandchildren.  Then there followed character evidence from two witnesses that the ALJ found particularly persuasive: the Respondent’s own physician; and a long time friend of the Respondent and, coincidentally, also a long time member of the Virginia legislature.

The Respondent’s physician testified, as many family doctors do in such cases, that he did not believe that the Respondent was a drug user, and that he did treat drug and alcohol abusers and that the Respondent just did not fit the profile. So far, rather standard stuff. But then came this: The Respondent had had one heart attack, and was at high risk for another. He had a strong family history of diabetes, hypertension and coronary disease. His physician said that if the Respondent had in fact taken the dose of cocaine that the Coast Guard claimed, it could have caused heart spasms, further restricted arterial blood flow, and brought on an increased risk of death. Moreover, the Respondent was fully aware of this dire medical prognosis, and accordingly was not likely to risk such extreme consequences. 

Then came the long-standing member of the Virginia House of Delegates, who had known the Respondent for 45 years, and testified that he was “truthful and law abiding”. Apparently the ALJ loved all of this; in his written D & O he went out of his way to observe that the Coast Guard’s accusations of drug use did not appear appropriate because he “could not help but compare Respondent with an older version of Andy Griffith in Mayberry.”


This case is obviously an anomaly and is to be limited to its admittedly unusual facts, unless of course you are being asked to represent Andy of Mayberry against cocaine use charges. Nonetheless, it may still be of some potential assistance to a MOPS attorney who may be called upon to defend a mariner against a drug charge. First, and most interestingly, the ALJ found all witnesses on both sides to be credible, which is in itself unusual for an ALJ. From this an attorney representing a mariner can argue that even if the ALJ finds the Coast Guard’s witnesses to be credible, as ALJ’s almost always do in a drug case, that fact does not necessarily preclude a finding for the Respondent as was done in this case. Secondly, and possibly of more future value for license defenses, this case presents an example of recognition by an ALJ, in at least one instance, in which the Coast Guard’s airtight prima facie case of drug use, unchallenged by any competing technical, toxicological or medical evidence, and unopposed by any explanation or excuse whatsoever, (other than “I don’t know why I tested positive”), did not prevail. From this fact, it is possible to argue that this case is a recognition by at least one Coast Guard ALJ that there are just going to be a certain number of drug cases in which the proof of chemistry was not reliable and  led to a mistaken and unjust conclusion, even though there was no explanation for such mistake entered upon the record.

As a post script, I would note with irony the likelihood that this mariner, with his admitted catalog of severe physical limitations, all of which formed an important part of his successful defenses to the Coast Guard’s drug dragnet, must now look forward to the likelihood of being hauled back before a Coast Guard ALJ to answer charges of medical waiver denial, based upon all the same medical conditions upon which he so successfully crafted his defenses to the drug charges.