have unlimited record for forty years as a commercial airline pilot never ever had any indication violations any sort of problem with drugs or alcohol not a fact he was a of the many amazingly great airline pilot the kind you really want flying your air play he got into this problem that is is really apparent in the drug and alcohol collection process the deity controls the regulations of commercial pilot for lay's laboratory sample coming back positive it will then just take the laboratories result as a given fact and the actual in is bound to adopt according to congress whatever the department of health and human services guidelines are the do d agency didn't that controls the f a s guidelines is good with regard to or for d n a testing would it be possible for the f a a to take a different view and say you can use the specimens for d n a testing well that they  a has these regulations under par on twenty of the f a a horrors which basically take this the results of the laboratories finding and make those again in fact i asked him i guess what i'm asking is  there is no procedural way they don't follow the federal rules of civil procedure they follow their own rules under age twenty one of the n t s b those rules that allow a collateral attack on or in discovery or of it being switched somehow there's no there's no way to do that there's no way to preserve any evidence or weight there's no way to have a fifth amendment right to the evidence at cross examination create a record so the level circuit could even have anything new to look at waters didn't have any way to go after the d o t regulation because he can't believe it or not he couldn't even put a trial on it at the age of j about yet the d o t's regulations because the i want you to overturn it forty point one three as unconstitutional no i'm talking about a court toward action because it violates the the tenth of a ok so the statute says a state or local government may not prescribe issue or contain specimen for d n a testing under the department's regulations specifically the forty point one three regulation that you have already discussed and we believe that the department's action was consistent with the regulations with the statutes and with the now do you read the eighty eight department of health and human services regulation guidelines to essentially made the provision in the d the of the f a a the d o t regulations and what those a i'm trying to get back to the chief judge was asking about the department of health and human services guidelines which must be incorporated into the d o t regulations yes so d o t regulations a while for an exemption under forty point seven so when i read that i thought the department was taking the position that the eighty s guideline do not restrict its until monday to in its discretion for exemptions so i'm not sure what you're referring to in forty point seven i can look at now i know nobody cites it you know i appreciate that but i'm just trying to understand following up on the cheap don't use questions about the fact of the right what he's talking about is for you point three three one yes that regulations is that the department is that if they don't order wants to request a specimen for sort of any circumstance you can request that from the department then the department can consider that but it doesn't say that the department can release that if the request is for the purpose of the n h s thing that's specifically addressed by forty points thirteen and we've said that basically you have a specific regulation forty point thirteen that categorically bars that release and that that controls in this context over a more general regulation which allows a donor to request the release of assessment for some unspecified purpose and this scheme is consistent with the n h s guidelines which themselves categorically bar the release of a urine specimen for a testing i should also say but respect to point four forty point three three was the way that offered that regulation offered in practice is that it's basically a notification to the to the door that once they going on in other words we have a system here where when you read it it looks like you can figure out a way to get it but in fact you can't get it because the h h s guidelines  no trap but here's what i want to understand i'm a pilot i have a spotless record and i'm notified that i yearn sample test positive and i'm fired i know from all kinds of data in my hypothetical that the collection agency is a mass on errors eighty percent collection problems but the regulations say it's presume that the chain of custody is protected and there's the that's where the agency stops as i understand it so what i am but i'm just trying to understand is it that if i accept a job as a pilot and i'm on notice that i may be subject to random urine samples that testing if that's not the case all right first of all he didn't have a chance to challenge his license revocation he did have a chance to challenge the chain of custody as it happened in his case he said already doing that well he testified for example that he didn't see th under the n s t rules evidence or i can go to a state court and try to put in evidence so the petitioner put in the  you put in the addendum the regulations that set out the powers of the administrative law judge and the able jury has the authority just said what you would a district judge would have been a civil case to take evidence to to consider anything that the petitioner really can even listen to hearsay so the petitioner has the opportunity to put for example in your hypothetical problems with the collection site sr he can introduce that in his own defense and  the only thing he didn't put in as a d n a test and he could have requested it and didn't but what i'm trying to understand is how would i prove my case i can speculate i can say that the lab has a bad history but how can i show it in my particular case and just because i didn't see the specimen horde and i didn't have a videotape of the chain of custody i don't understand how you defend yourself in this case because the presumption is the agency acts properly it's regulations say it can't release this it's just totally discretionary parent test for d i mean you can challenge but you have one hand tied behind your back i don't think that's accurate your honor to be honest i think again the plaintiff can put on his case and and there's no guarantee that the l j will accept th from the relevant government officials from sam so that say the d n a testing in their view is not a proper matrix and doesn't for proving that the urine sample is not you know the person who submitted it and  challenge all that i understand in terms of what your understanding once in two thousand in the preamble all right is what d n a testing is capable of doing what was in the preamble of the other things in the preamble is that even if that the d n a test were to come back  reference sample or both of them so mr jones so i'm clear in your view of the regular tories system is such that any totally innocent person say is that even if you have a d n a test even if you assume we could tell you something that can't as our here's my hypothetical it doesn't matter because it still wouldn't prove that he didn't substitute the sample and a substitute sample is a positive my question is under the d o t regulations they give four examples of why you can't be sure who's your and this is all right he could have substituted it he could have doctored it he could have done all these things so he's trying to rebut those presumptions all right and the hypothetical i'll give you is if he were able to test the urine let's assume he's a caucasian male shows that it's the urine aman asian or african american male that's my hypothetical there's no way he's going to have an opportunity to demonstrate that because all the presumptions under the regulatory system preclude him from getting that information so he goes to the state court and tries to do it and he still can't get  that's what i'm concerned about is just in my hypothetical where a mistake has been made there's no way to prove that mistake our answers even if there has been a mistake made that evidence doesn't understand the government's explanation as meaning that d n a testing wasn't far enough progressed at that time and that now or that now it's better but the argument was even if d testing were perfect right it wouldn't matter because there's no way to know whether the sample that he's providing it against i was actually is it has nothing to do with the quality of d fact it did test the for this case so we in a normal drug in a drug case we see here thousands of times drugs or seize police don't know what kind of drugs they are in fact they may not be drugs at all they might  difference between somebody going to jail or not going to jail correct correct can they do the same thing here so and sometimes it turns out that there's a missing piece in the chain of custody the lab technician fail to write i had a lab it wasn't really he sealed anything like that in those cases the phantom is acquitted because it is the same process here yes so the only question is since this is this is a process that we used to decide whether people go to jail in drug cases or not the only question really is whether d n a makes a difference that is improves the chances and i take it the government's argument is whether it's the most persuasive argument or not but the government's argument is that we can't control the chain of custody with respect to a d n a test you don't know where the original stuff came from other than his signing that it was him and you don't know what happens once you release this to another lab this  r i understand the rationale for the question so when he was for reinstatement in one is it two years yes he may and his record shows he has this positive drug really not the case there is no way to submit any other evidence of what happened the n t s b hearing the board doesn't have any right to conduct any sort of trial at all there are five members in good sort of us and what about the going to ensure it's going to be one hundred percent if you ever miss i'll think that i don't mean to imply that their method is the best the only question is whether their method is a rational one and if you want to change the you am i going to pay the bills i mean this is just really unbelievable to be honest with you i mean this is the most arbitrary capricious situation i've ever seen it's it is surely going to corns with what i consider the constitution to be united states i really