UNITED STATES OF AMERICA 

U.S. DEPARTMEXT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UYITED STATES COAST GUARD 

Complainant 

NEUELL. NASH GRIFFITH, 

Respondent 

Docket Number: 02-0637 

CG Case No. 1686445 

DECISION ,4ND ORDER 

Issued: August 20,2003 

lssued by: Honorable Archie R. Boggs, Administrative Law Judge 

Appearance: 

James A. Wilson, Assistant Senior Investigating Officer 

LTJG. Boris K. Towns 

United States Coast Guard 

Marine Safety Office 

800 David Drive, Room 232 

Morgan City, LA 70380- 1304 

For the Coast Guard 

L. Stephen Cox, Esquire 

Courtenay, Hunter & Fontana, L.L.P. 

Texaco Center, Suitc 1540 

400 Poydrrts Street 

New Orleans. L.ouisialla 701 30-3245 

For the Respondent 
PRELI&lINARY STATEMENT 

The United States Coast Guard ("Coast Guard") initiated this administrative action 

seeking revocation of License &umber 594821 issued to Respondent Neuell Nash Griffith. This 

administrative action was brought pursuant to the legal authority contained in 46 U.S.C. 7704 

and its underlying regulations codified at 46 C.F.R. Part 5. The Coast Guard issued a Complaint 

on October 21,2002, which charged Respondent Griffith with Use ofor Addiction to the Use of 

Danggrous Drugs based on a positive drug test by urinalysis for cocaine metabolite.' 

'The dangerous drug charge against Respondent Griffith is supported by five (5) factual 

allegations, which read as follows: 

1. On August 23, 2002, Rcspondent took a Post-Casualty drug test.' 

2. A URINE specimen was Collected by TESSIE DUPRE. 

3. The Rcspondent signed a Federal Drug Testing Custody and Control Form.' 

4. The uri~~e specimen was collected and analyzed by Quest 1)iagnostics (Atlanta. GA.) 

using procedures approved by the Department of Transportation. 

5. That specimen subsequently tested positwe for Cocaine metabolite. 

The Respondent filed an Answer to the Coast Guard's Complaint and requested a 

hearing. More specifically, Responcicnt Griffith admitted all jurisdictional allegations contained 

I During the pcnclnncy of this ciise. the U.S. Coast Guard transferred kom the Ilepart~nciit oi"1'ranspirtation 

to tile i>cpartincut ol'Ilonieland Security. I'ursuaiit to the Saving.; Provision of FIR 5005 Section 1512 (PI. 

107-296). pendirlg proceedings arc continiicd notwithstanding the transfer of the agency 

Itespo~ideiit Grillith reqliestcd lca~e Crolvl work to recover konl a moiorcycli: accident. IIe was directed 

by his employer to take a urinalysis bcljrc lie could rcturii to duty. 
in the Complaint, with the exccptioti ofthe listed telephone number, and denied all factual 

allegations for lack of sufficient infbrtnation. 

On November 6> 2002> this case was assigned to the undersigned judge for adjudication. 

The hearing in this matter convened on January 15, 2003 at the Marine Safety Office in Morgan 

City, Louisiana before the Honorable Archie R. Boggs, Administrative Law Judge of the United 

States Coast Guard. The hearing was conducted in accordance with the Administrative 

Procedure Act as amended and codified at 5 L.S.C. $$ 551-559, and the Coast Guard procedurai 

regulations located at 33 C.F.R. Part 20. Mr. James A. Wilson, Assistant Senior Investigating 

Ofticer, and Lieutenant Junior Grade Boris Towns represented the United States Coast Guard at 

the hearing. Respondent Griffith also appeared at the hearing accompanied by counsel, L. 

Stephen Cox, Esq. of Courtenay, Hunter & Fontana, L.L.P. 

A total of four (4) witnesses, including Respondent Griffith, testified in this proceeding. 

At the hearing, the Coast Guard introduced six (6) exhibits into evidence; whereas, the 

Respondent introduced two (2) exhibits into evidence. The witness and exhibits are listed in 

Appendix A. 

On February 14,2003, the Coast Guard tiled Proposed Findings of Fact. Rulings on the 

Coast Guard's proposed findings are in Appendix B. Respondent Griffith also filed a PostHearing Memorandum. However, rulings on the Iicspondents' Proposed Findings of Fact and 

Conclusions of Law are not rendered because the Respondents failed to enulnerate such 

Proposcd Findings of Fact and Conclusions of Law. 

1 .ilthougl~ an employer-directed drug icsc is a lion-kdcrril drug Icst under 46 CFK Piirt I6 aiid 49 CFK I'art 

40; a 1:cdciai 11r~1g I'cstiiig i'ostody and Control Form was uscd in ti;? colleciioii and rrnalysi.; prows\. 

3 
After careful review of the hcts and applicable law in this case, I find that the Coast 

Guard has established by a preponderance of reliable and credible evidence that Respondent 

Griffith either used or is addicted to the use of a dangerous drug. 

FINDINGS OF FACT 

The Findings of Fact and Conclusions of Law are based on a thorough and careful 

analysis of the documentary evidence, the testimonies of witnesses, and the entire record as a 

whole. 

1. On Aupst 23,2002, Respondent Neuell Nash Griffith submitted a urine specimen that 

subsequently tested positive for cocaine metabolites on a standard Department of 

Transportation ("DOT") drug-screen test. (Entire Record). 

2. Respondent Ciriffith is the holder of U.S. Coast Guard License No 894821. He is authorized 

to operate steam or motor vessels of less than one hundred gross tons on inland waters and to 

act as mate aboard steam or motor vessels of less then two hundred bmss tones on coastal 

waters. (Transcript ("li-. 'y 13). 

3. At the time of the events giving rise to this action, Respondent was an employee of 

Tidewater Marine Corporation. He had been a licensed seaman for five years. (77~. la). 

4. During the month of August 2002, Respondent suffered severe back pain following an injury 

and requested leave hm work. . 13 I. Respondent sought medical attention for his 

injury at the Bourgeois Medical Clinic ("Clinic") in Morgan City, 1,ouisiana. (Tr. 129. /7'0). 

5. On August 23, 2002; Respondent Griffith took an employer-directed dnrg test as required by 

'Tidewater Marine. (7;. 37, 171, /l~cncy hiribit I). 
6. Tile Respondent reported to the Bourgeois Medical Clinic where h4s. Tessie Dupre. a 

certified drug screcner and urinc collector for the Clinic, identified Respondent Griffith by 

referring to his driver's license photo. (Ti. 12, 22-23, Agency Exhibit 2). Ms. Dupre verified 

the Respondent's social security nutnher and directed him to furnish a urine specimen for the 

test. (2 22-23, 30, 33-34). 

7. Ms. Dupre treated the employer-directed test as though it were a post-accident drug test," 

which is governed by the Department of Transportation ("DOT") drug testing procedures and 

regulations. in turn, Ms. Dupre filled out a Federal Drug Testing Custody and Control Form 

("'Custody and Control Fonn") and collected the Respondent's urine sample in accordance 

with DOT drug testing guidelines. (Tr. 37-44). 

8. When the Respondent retuned the sample, Ms. Dupre checked the temperature to ensure that 

it was between ninety and one hundred degrees Fahrenheit. (Ti. 41-42). Ms. Dupre then 

split the Respondent's urine sample by pouring the contents into two separate tubes. fly. 41- 

4 The sample bottles were sealed and dated in the Respondent's presence and, thereafter, 

packed for shipment with the required seals. (Tr. 43-44). 

9. The Respondent's urine sample was given the specimen identification number 1897008, 

which followed the specimen througl~outhe screening system. err. 33- 34, Aqency E.xizibit 

1, 3). 

4 Under Coast (iuard dnig testing rzgulations, iiiariners arc required to submit ti> malidatory drug testing 

regulations fc~llowing a scrious tnnrinc incident, jCL2 46 C.F.K. 53 4.06-10 and 16.240. A serious rnasine 

incident is dcfincd as: a rnarinc casunity resulting in the dcath or injury rcquiririg medical treatment beyond 

first aid ofa person; a riinrine ciisiialty ii~volving daiilage lo property in excess of 0; 10,000: a m;irine 

casualty involving actual or constructive kiss ill' any inspected vessel or any self-propelled uni~ispectcd 

vessel of 100 grc~ss tons or rnoro: or a discharge of at leal 10.000 gallons of oil or discharge of a hazardous 

s~hsr~ii~c~ into liic tiavigahlc waters of the United S~;rt(:s tvliether or not rcsulling Lfo~n a marine casualty. 

46 C.'..K. 3 303-2. Tile Kespoiicleiit's drug tcst did not ~jiiaiil\i :is a post-accidcnt drug tcst wirhin tiic 

ClJllieXt 01.46 C.k.K. P:lrt 16. 

5 
10. Ms. Dupre signed the Custody and Control Form certifying that the specimen was provided 

by Respondent Griffith and that it was collected, labeled, and sealed in accordance with 

federal requirements, Responcient Griffith also signed the Custody md Control Form 

attesting that the specimen was his, the infonnation provided on the form was correct, and 

that the sample was sealed in his presence. (Tr.44, Agency Exhibit I, 3). 

1 1. Resportdent's specimen sample was secured in a locked room until a courier was sent by 

Quest Diagnostics laboratory to collect the specimen and deliver it to their facility in New 

Orleans. (Tr. 44-45, 66). 

12. Quest Diagnostics is a certified facility and medical laboratory that perfom~s work place dn~g 

testing. (Ti: 43-44, 59-60, 65, Agency Exhibit I). 

13. The Respondent's specimen arrived intact at the laboratory and was carefully analyzed 

according to tested and approved procedures by the laboratory's scientists and computers. 

(li. 77, Agency Exhibit 4). The receipt of the specimen. as well iti; thc handling and testing 

procedures, are documented on the laboratory's internal chain of custody. (Agency Exhibit 

4). 

14. An initial screen test of the Respondent's urine sample tested positive for cocaine. (Ti.. 70- 

71). Another aliquot was taken from the original sample and a confirmatory test (gas 

chromatography/mass spectrometry) was conducted. (Zi. 74). That test result also revealed 

the presence of cocaine metabolite in exccss of tile DOT threshold. fli-. 70-71, Agcnclj 

Exhibit 4). 

15. Quest Diagnostics forwarded thc Respondent's test results to Dr. Melvin Bourgeois nfthc 

Bourgeois blcdical Clinic, who was the acting rncdical review officer (-'MRO") k)r 

Titiewater Marine. (Ti.. 11, 103-104, /lpeilcy Zi~hihit 5). 

6 
16. Dr. Bourgeois treated the urinalysis as though it were a post-accidcnt test, governed by the 

DOT drug testing procedures and regulations. In turn, Dr. Bourgeois completed the Custody 

and Control Fom and verified the urinalysis results in accordance with DOT drug testing 

bxidelines. (Tr. 102-1 05). 

17. Upon verifjing that the urine sample was positive for cocaine metabolite, Dr. Bourgeois met 

with the Respondent to discuss the positive urinalysis results. /Tr. 92, 94, 10.7-105, Agcney 

Exhibiz 4, 5). 

18. Upon lenming that he tested positive, Respondent immediately requested a retest of the split 

sanlple. Dr. Bourgeois documented the Respondent's request it1 the applicable medical 

review records. (Tr. 1113, 159-160, Agency Exhibit 6). 

19. Despite Respondent's expressed desire to obtain a retest, Dr. Bourgeois concluded that 

Respondent actually sought another urine test. (Tv. 119). This assumption was based on Dr. 

Bourgeois' past experience with patients who have requested a second urinalysis after testing 

positive for drugs. (Tr. 119). 

20. Dr. Bourgeois inforuled the Respondent that a retest was not a new urinalysis, but rather a 

retest of the original split sample specimen provided on August 23, 2002. (Tr, 117-1 19). 

When a retest is performed, the lab only checks lo see if the drug is present in the urine <md 

whether the test was conducted properly. (Tr. 11 7-119). More specifically, the split 

specimen retest is conducted qualitatively not quantitatively, and the cutofflirnit is 

significantly lower than on the first test. Cri. II%IIY). 

21. Becausc a split spccimen retest only detcrnmincs whether a drug is prese~lt in the urinc, Dr. 

Bourgeois consiciers it a waste of time and typically advises patients against scekirlg a retest 

even when they rcquest it. (5. 119, 152-154). 
22. Dr. Bourgeois advised Responilent to discuss the retest with his employer. Tidewater Marine. 

If Respondent still wanted the split sample tested, he could call the Bourgeois Medical Clinic 

and request it again. (Tr. 113, 119, Agerzcv Exhibit @. 

23. 'The Respondent never notified Dr. Bourgeois of his decision to retest the split sample after 

the procedure was explained. (Tr. 113, 119, Agcncv. Exhibit 6). Dr. Bt)ourgeois subsequently 

indicated in his MRO report that the Respondent was offered a retest hut failed to respond 

after the retesting procedure was explained. lli. 120, 155-1-56, 159, Agency Exhibit 6). 

24. Dr. Bourgeois did not direct Quest Diagnostics to retest the split sample. (Tr. 15@. 

25. Although the Respondent indicated he was taking prescribed medications, Dr. Bourgeois did 

not record these prescriptions in his report as he determined they would not interfere with the 

drug-screening test. T I 3 Accordingly, Dr. Bourgeois did not confer with the 

Respondent's physicians to determine whether treatment for a back and shoulder injury could 

have resulted in a positive dn~g test for cocaine. (E. 149-151, 164). 

26. Dr. Bourgeois considered the type of drug test used by Quest Diagnostics to be virtually 

infallible. r 1 In his opinion, the gas chromatogaphy!mass spectrotnetry is the "gold 

standard for substance testing." As such, Dr. Bourgeois detennined that none of the 

medications mentioned by the Respondent would give a false positive. 1E. 113-114, 151). 

27. The Respondent claimed to be taking the prescribed lnedications Carisoprodoi and 

Vicoprofen. Carisoprodol is a neurological blockirtg agent often used in sleep medication or 

as a nluscle relaxant. 0. 0). It is a synthetic derivative of the heroin poppy anti resembles 

the activities ofopiates. r. 1 Vicoproten is a combination drug that coniains 

Flycirocodonc and Ibuprofen. It is a man-made synthetic opiate that is legally prescribed as a 
painkiller. . 8-83. Neither of the prescriptions, either separately or combined, would 

cause the Respondent's urine sample to test positive for cocaine metabolite. (Tr. 81, 84). 

CiLTI31ATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Neuell Griffith and the subject matter of this hearing are properly within the 

jurisdiction of the United States Coast Guard and the Acln~inistrative Law Judge in 

accordance with 46 U.S.C. $ 7704(e) (West Supp. 2002); 46 C.F.R. Parts 5 and 16 (2002); 

and 33 C.F.K. Part 20 (2002). 

2. At all relevant times, Respondent Griffith was the holder of U.S. Coast Card issued Lice~lse 

No. 894821. 

3. On Aupst 23,2002, Respondent Griffith voluntarily submitted to an employer-directed 

urinalysis for dangerous drugs. 

4. The use of a Federal Drug Testing Custody and Control Form for a non-federal einployerdirected drug test did not invalidate the results as the urinalysis was conducted under 49 CFR 

Part 40 procedures and the chain of custody remained intact. 

5. Respondent's specimen sample was collected, labeled, sealed, and released to Quest 

Diagnostics Laboratory in Atlanta, Georgia in accordance with all chemical and urine testing 

rules, including 46 C.F.R. Pait 16. 

6. Respondent's urine specimen was examined, handled using chain of custody procedures, 

analyzed and reported in accordance with ail chemical and urine testing rules, including 46 

C.F.R. Part 10. 

7. On .4ugust 28, 2002, Responcient's spccinien tested positive fbr cocaitlc as it excecded tlie 

DOT threshold for cocaine ~netaholitc on both the initial anci contirrnation tests. 
8. The Respondent failcd to present a leg~tir~late n~ed~cal ewplanatlnn that would account for the 

presence of cocaine metabolite in his urine sample. 

9. The charge of .'Use of or Addiction to the Use of Dangerous Drugs" against the 

Respondent 1s found PROVED by a preponderance of the reliable and crcd~ble evidence and 

testimony as taken fiom the record considered as a whole. 

DlSCUSSION 

In a suspension and revocation proceeding, the Coast Guard carries the burden of proving 

w alleged violation by a preponderance of the evidence. 5 USC $ 556(d); see also, 33 CFR 

$S 20.701 and 20.702; Appeal Decision 2485 (YATESI; &peal Decision 2635 (SINCLAIR). 

However, when a mariner is specifically charged with the use of a dangerous drug, the governing 

regulations allow a prestimption of drug use if the individual provides a urine sample and fails a 

chemical test conducted in accordance with 46 C.F.R. Part 16, which incorporates the DOT drug 

testing regulations codified at 49 C.F.R. Part 40 by reference. 46 C.F.R. $ 16.201(h). When 

the Coast Guard seeks to rely upon the regulatory presumption, all of the elements of the case 

must be shown by substantial evidence of a reliable and probative nature. Anpeal Decision 

2603 (HACKSTAFF); see also, Appeal Decision 2592 (MASON). Therefore, in order to 

successfully invoke the presumption above, the Investigating Officer must show (1) that the 

Respondent was the person who was tested; (2) that the Respondent failed the test; and (3) that 

the test was conciucted in accordance with 46 C.F.R. Part 16. SeL., A?peal Decision 2603 

(HACKST.4FF); see also, At>pcal Decision 2614 (W.&LLENSTW. i_Appeal Decision 25Q2 

{SkI14KESPE;4RE). 

A chemical test falls cvithiri thc scope of 46 C.F.R. Part 16 ifthe urinalysis was issued for 

one of thc tive (5) followiiig reasons: pre-employment, periodic. random, serious nlarine 

10 
incident. and reasonable cause testing. 46 C.F.R. $6 16.210 - 16.250. Ifthe urinalysis 

does not fall within one of the five categories specifically tlelineated in 46 CFR Part 16, the 

presunlption of drug use does not attach. However, that fact alone does not preclude the test 

results ti-om being admissible in determining whether the Respondent used a dangerous drug. 

Appeal Decision 2633 (MERRILQ. Moreover, any fact that sheds light on the proof or falsity of 

a charge snay properly be considered for what it's worth. Set. Appeal Decision 2252 (BOYCE); 

see also, Appeal Decision 2542 fDEFORGE1. Therefore, the Coast Guard rnay offer evidence 

from any source that establishes tirug use in violation of 46 U.S.C. $ 7704. In turn, the 

Administrative Law Judge may consider any relevant and material evidence of drug use, 

including a chemical test that was not perforrned in strict adherence to the procedures of 46 

C.F.R. Part 16 and 49 C.F.R. Part 40. &Appeal Decision 2542 LDEFORCE). 

In this case, the Respondent agecd to take the employer-directed drug test following a 

leave of absence to recover from a back injury. A review of the record reveals that the 

Respondent did not object to his employer's request and voluntarily took the test, as he 

understood it was merely a part of the company's pol~cy before a mariner could return to work 

after taking an extended leave of absence. /rr. 171). As such, the evidence shows that the 

IZesponctent made an independent decision based on his own tiee will to take the drug test. In 

turn? it has been repeatedly held that revocation of a mariner's license can he predicated upon a 

voluntarily submitted urine sample that tests positive fix an illegal drug. See ilppeal Decision 

2635 (SINCI.AIR): see also Appeal Decision 2545 (JARDlN)&peal Decision 2633 

RRL Sumn~arily, the Rcspo~~tlent's voluntary sample can be used as the basis fbr a 

charge of dangerous cimg use. 
It shc,uld be noted that even ~f the urinalys~s wab not voluntary, it m~ght st111 be 

consideretf relevant evidence of drug use; as an employer has tlie right to request a non-federal 

test. According to Louisiana case law, an c~llployer's policy of eornpulsory drug testing does not 

abuse the rights of its employees rf the rule is reasonable and directly related to its goal of 

providing a safe place for its workers. Chiles Offshore, Inc. v. Deot. of Employment Sec., 

551 So.2d 849 (La App. 3 Cir. 1089); see also Casse v. Louisiaria General Services, Inc., 53 1 

So.2d 554 (La App. 5 Cir. 1988). In the instant case, Tidewater Marine Coyoration hils a 

legitimate interest in maintaining a drug-free work environment by instituting a drug-testing 

policy before an employee returns to work afier an extended leave of absence. Thus, the 

Respondent's nghts were not abused by the imposition of a mandatory unnalys~s. 

Although a technical violation of the regulations occurred when both the collection site 

and the laboratory used the Federal Drug Testing Custody and Control Form for a non-federal 

test, the error did not invalidate the urinalysis results. It is important to note that the applicable 

regulations require DOT tests be completely separate from non-DO'T tests in all respects. & 49 

C.F.R. 5 40.13(a). In particular, an employer is prohibited from using the Custody and Control 

Fo~m fix non-federal urine collections. & 49 C.F.R. 5 40.47(a). However, the regulations also 

provide that the use of the incorrect form does not automatically cancel the test, but rather is 

deemed a correctable flaw. 49 C.F.R. 5 40.47(b). 

While the technical error in the present case was not corrected by the MRO, case law has 

repeatedly held that a positive test result of an individual's urinalysis sample may still be 

considcsed substantial cvidencc as 1011: as the record indicates the actwal chain of custody has 

been maintained. See Appeal Decision 2606 (SWAN); see ~IISO Appeal Dccision 254 I 

(RAYMOUD), .4p~~ec~l Dccision 2603 (HACKSTAFFl. @eal Decision 2541 (RAYMOND) 

17 
I-'.,, I-',.. i.' 

c;..,., g: ... 

Therefore, tests that contain technical errors or minor infractions of the regulations, which do not 

affect the integrity of the sample, will still support the inkrence ofdrug use. Apl7eal Dwc 

2605 (SWANL h1)peal Decision 25555 ILAVALLAIS), Appeal Decision 2627 (SHAFFER). 

In this case, the evidence and testimony adduced at the hearing hlly support the integrity 

of the chain of c~lstody and provide sufficient proof thdt the urinalysis is scientifically valici. In 

particular, the urinalysis specimen was collected and analyzed by trained, experienced and 

qualified persons using carefully approved proced~~res and rules that govern chemical urinalysis 

drug tcsting. To begin with, Ms. Tessie Dupre collected the Respondent's urine sample at the 

Bourgeois Medical Clinic and assigned an appropriate identification number, which followed the 

sample throughout the screening process. ('Tr. 33-34, Agency Eshibit I, 3). The specimen was 

placed in an appropriate container and sealed with a tamperproof seal in the Respondent's 

presence. (7'r. 43-44), In addition, both Ms. Dupre and the Respondent signed the Custody and 

Control Fonn certifying that the specimen was in fact submitted by the Respondent, that thc 

infbnnation provided on the form was correct, and that the sample was collected, labeled and 

sealed in accordance with federal regulations. (I'F. TF. 44, Agmcv Exhibit 1, 3. 

Next, the initial screening and scientific analysis of Respondent's urine sample indicated 

the presence of cocaine metabolite. A confinnation test and additional analysis were achieved 

through a gas chrot~~atograpl~yhass spectrometry test in accordance with the guidelines 

established in 49 CFR 40.29(f). (fi. 70-71, Agency f<.xlzihit 4). The test results were forwarded 

to the MRO, Dr. Melvin Bourgeois of the Bourgeois bledical Clinic, who reviewed the results 

and conducted an interview with the Respondent. (Tr. 93, 94, IO3-103, ilgcnc-v ILrhihii 4 unii 3). 

Thereafter, the MRO contirined that the laboratoly test results wcre positive. Or. 93, 94. 103- 

105, ,,lgertcy E,rizihii 4 and 5). 

13 
The recor(1 indicates that the chemical tests and procedures fbllowed by Quest 

Diag~iostics were conducted in accordance with 46 C.F.R. Part 16. Dr. Edward A'Zary, the 

laboratory's Scientific Director, verified that Quest Diagnostics is a certified facility and medical 

laboratory. (f?. 43-44, 59-60, 665, .4gency Edzibit 1). Through creclible testimony, Dr. '4'Zary 

described the procedures followed once the specimen arrived at the laboratory. More 

specifically, afier ensuring the specimen arrived intact_ the sample was carefully analyzed 

according to tested and approved procedures by the laboratory scientists and coniputers. (Tr. 77, 

Agrncy Exhibit 4). Moreover, the receipt of the specimen, as well as the handling and testing 

procedures, are documented on the laboratory's internal chain ofcustody. agency E,rhibit 4). 

Substantial evidence of a reliable and probative nature exists in the record to support a 

determination that Respondent Griftith used a dangerous drug. Although the Respondent hiled 

to produec any evidence to sufficiently rebut the accuracy or validity of the test, he raises two 

affirmative defenses. First, the Respondent contends that the Medical Review Officer ignored an 

explicit request to retest the urine specimen, which denied the Respondent an opportunity to 

refute the validity of the test results. Second, the Respondent argues that the MRO failed to 

conduct a thorough medical investigation to determine whethtr the Respondent's use of 

prescription medicine interfered with the screening results. For the reasons stated herein, all of 

the Respondents' arguments arc rejected. 

1. Th~Medical Review Officer did not Invalidate tile Test Results bv Failing to Honor the 

Respondent's Request to Retest the Urlnc Sam~le 

Respondent Griffith asserts that the absence of a retest denied him the opportunity to 

refute the validity of the test and tire ability to prove he never used cocainc. Having been denied 

the ncccssary cxculpatc1ry eviclcnce. Respondent argues that he was sevcrcly prcj~idiceci a~id tlie 

13 
integrity of the drug screening process was compromised. As such. Respondent contends that 

the laboratory test results indicating the presence of cocaine metabolites arc invalid. 

The federal drug screening re~wlations are in place not only to ensure a system of checks 

and balances during collection and analysis of specimens, but also to protect the integrity of the 

drug screening process. See .4~1,eaI Decision 25555 (L4VALLAIS). The regulations 

govemirig these proceedings provide that an employee has a right to obtain a retest of a split 

urinalysis satnple upon notificttion of a positive result. 49 C.F.R. 9 40.l71(ajt). The 

applicable regulations Further provide that the request may be verbal or in writing. See Id. 

However, once the request is made, the MRO must immediately provide written notice to the 

testing laboratory, directing the facility to forward the split specimen to a second certified 

laboratory. & 40 C.F.R. 5 40,17l(c). 

In this case, Respondent immediately requested a retest of the split specimen upon 

learning that he tested positive for cocaine. Although Dr. Bo~~rgeois documented this request in 

the medical review records, he ignored the Respondent's initial request and failed to instruct 

Quest Diagnostic to forward the sample onto a second laboratory for retesting. Dr. Bourgeois 

testified that he assumed Respondent aci~ialiy sought another urine test rather than a split sample 

retest. (Tr. IlY). This conclusion was based on Dr. Bourgeois' past experience with patients 

who've requested a second urinalysis after testing positive for drugs. r. 1Y. Dr. Bourgeois 

further testified that he considers the retcst "a waste of time" and typically advises patients 

against sccking a retest even when they request it. Or. 119, 152-154). Accorclingly, Dr. 

Bourgeois advised Respondcnt to discuss the rctest and its financial cost with his eniployer, 

Tidewater Marine. If Rcspoiident still wantcd thc spiit sample tested, he coi~ld call the 

Bourgeois "vledical Clinic and rcqucst it again. (A,. 113, 119, Ageizcy /%hihit 6). 

I5 
Considering a mariner's livelihood is at stake. Dr. Bourgeois should have taken the time 

to diligently listen and com~nunicate with the Respondent. This \vould include, at the very Icast, 

a display of civility and coilsideration towards the Respondent during the interview. Instead, Dr. 

Bourgeois leapt to a brash and incorrect assumption. The Respondent testified that he 

specifically requested a split sample test, with the knowledge that another aliquot ofthe original 

sample would be retested. (7i- 188). In fact, the Respondent's knowledge of his rights regarding 

the retesting process was detailed in the information provided at the Bourgeois bledical Clinic. 

/'(t 189). Yet, despite Respondent's explicit request, Dr. Bourgeois in~properly directed the 

Respondent to first discuss the matter with his employer before contacting the Clinic with a 

second request. A thorough review of governing regulations reveals that there are no such 

additional requirements that rnust be fulfilled before a mariner may request a split specimen test. 

Although the MRO's failure to honor the initial request for retest constitutes clear error, 

it did not invalidate the test results. There was substantial evidence in the record corroborating 

the integrity of the specimen. Moreover, the record as a whole reflects that sufficient 

safe&%~ards and procedures were employed to ensure a proper chain of c~~stody and an 

unadulterated specimen. As such, the error is not fatal. 

It should be noted that a nun~ber of times throughout tlie course of the hearing, the 

Administrative Law Judge extended the opportunity to retest the split sample of Respondent's 

urine. I' 15 16 I However, Responcieut repeatedly rejected this oft'er. (Tr. 156, 160, 

191). As such. the Respondent's argurnerit that he was severely prejudicccl by the inability to 

retest the uriiiitlysis is without iiierit. 
11. The Medical ReviewOfficcr's Inquiry into Respondent's use ofmription Medication 

was Co- -- 

Respondent Griffith asscrts that Dr. Bourgeois failed to adequately interview him 

regarding his medical history or afford him the opportunity to present a legitimate medical 

explanation. More spec~fically, Respondent alleges that Dr. Rourgeols erroneously bel~eved the 

Respondent initially tested positive for marijuana rather than cocaine. Because Dr. Bourgeois 

was confused as to the nature of the drug detected, he prematurely dismissed the possibility that 

Respondent's prescription medication could cause a false positive. Respondent states that he 

was undergoing treatment for a back and shoulder injury that he sustained a few months prior to 

the drug test. As such, Dr. Bourgeois was required by federal regulations to thoroughly review 

the Respondent's medical history and contact his primary care physician to determine whether 

treatment for this injury was a potential cause for a positive test result. 

The applicable regulations provicie specific guidelines to assist Medical Review Officers 

through the verification process. &49 C.F.R. Part 40. In particular, the re&mlations provide 

that the MRO nonnally verifies a confinned positive test after itltcrviewing the employee. 

49 C.F.R. 5 40.133(a). D~iring the llledical interview, the MRO Innst review the employee's 

medical history and any other relevant factors presented by the employee. See 49 C.F.R. 5 

40.141(a). However, the employee carries the burden of proving that a legitimate medical 

explanation exits. s.~ 49 C.F.R. $ 40.137(c). 

Lf t11c employee asserts that prescriptition meciication interfered with the screening process, 

the 'LIRO must review and take reasonable stcps to \;erif')l the authenticity of all rnedical records 

provided by the employee. S3 49 C.F.R 40.14l(b). In addition, the MRO rl~ay contact the 

employee's physician if he bclievcs fill-thcr inlirrtnation is ncccssary. &e 30 C.F.R. 5 40.13!(b). 

17 
On the othcr hand, if the employee fails to present a legitimate mctlical explanation for the 

presence of drugs in his system, the MRO inust verify the test result as positive fbr drugs. & 

49 C.F.R. 6 49. 137(a). 

In this case, Dr. Bourgeois made a detennination that the type of prescription n~edication 

taken by thc Respondent would not interfere with the urinalysis results. According to the 

tt~tirnony of both the Respondent and Dr. Bourgeois, the Respondent was given the ttpportunity 

to present a legitimate n~edical explanation for testing positive. More specifically, when the 

Respondent replied that he had never used drugs or been around drug use, Dr. Bourgeois 

inquired about possible prescription medication. (Ti. 114-1 15, I76 186). However: Dr. 

Bourgeois determined that none of the medications mentioned by the Respondent would give a 

false positive because the type of coniirmation test used by Quest Diagnostics is virtualiy 

flawless. /fi. 151). Dr. Bourgeois testified that the gas chromatographylmass spectromehy is 

the "gold standard for substance testing" because there are no known medical prescriptions that 

will interfere with tlie results. (jri-. 113-114, 140, 151, 164-165). In fact, Dr. Bourgeois stated 

that the only medical explanation for a specimen to test positive for cocaine is a legitimate 

medical prescription titr cocaine. 1'0.. 113-1 15, 151. 164-165). 

Based on the information provided by the Respondent, Dr. Bourgeois determined that 

there was no verifiable legitiinate medical explanation for the positive test result. As Dr. 

Bourgeois was satisfied with this detcnnination, aclditional iniitnnation regarding the 

Respondent's medical history and records was not necessary. Accordingly, Dr. Bourgeois was 

not required to extcnd his investigation ink the Rcsponcicnt's cntirc incdical history or even 

confer with the Responilcnt's other physicians. 
Upon revlew of the documentary e~ldencc and thc record as a whole, I find that the 

Respondent has not prcsented a leg~t~tnate inedlcal explanation that woiild account tbr the 

presence of cocaine metabolite in his urine sample. The Respondent claimed to be taking the 

prescribed medications Caiisoprodol and Vicoprofen. According to the testimony of Dr. Edward 

A'Zary, the Scientific Director at Quest Diabmostics, neither of the prescriptions, either 

separately or combined, would cause the Respondent's urine sample to test positive for cocaine. 

(7r. 81, 84). More specifically, Carisoprodol is merely a neurological blocking agent often used 

in sleep medication or as a muscle relaxant. (Tr KO). It is a synthetic derivative of the heroin 

poppy that resembles the activities of opiates. 1. 1. Similarly, Dr. A'Zary explained that 

Vicoprofen is a man-made synthetic opiate that is legally prescribed as a painkiller. (Tr. 82-83), 

The Respondent's mere assertion of prescription drug use was not sufficient to meet his 

burden of producing a legitimate medical explanation for the presence of cocaine in his system. 

At the hearing and throughout these proceedings, the Respondent declined to produce any 

evidence and/or expert testimony to demonstrate how those specific prescription drugs would 

interfere with the urinalysis or create a false positive for cocaine. In short, the Respondent failed 

to produce persuasive evidence to rebut the inference of illicit drug use. 

SANCTION 

Once the charge of dangerous drug use is found proved, all licenses and documents shall 

be revoked tlnless the Respoildent establishes satisfactory proof of cure. See 46 U.S.C. $ 

7704(c); see also 46 C.F.R. $ 5.5?(b); Appeal .Decision.Z5555 (LA-; A~peal Decision 

2527 (GEORGE:). In this case, the drug in issue is cocaine and tlic Responclc~lt did not provide 

any satisfactory evideitce of cure. Accordingly. an outright revocation of Respondent's license is 

mandatory. WI-[EREFORE. 

1 0 
ORDER 

IT IS ORDERED that G.S. Coast Guard License No. 894821, issued to the Respondent 

is hereby REVOKED. Respondent is ordered to immediately surrender his License to the 

Investigating Officers at U.S. Coast Guard Marine Safety Office Morgan City, Louisiana. It is 

hereby f~~rther, 

ORDERED that the service of this Decision on the Respondent's counsel will serve as 

notice to the Respondent of his right to appeal, the procedure for which is set forth in 33 C.F.R. 

20.1001 -20.1003. (Attachment A) 

ARCHIE R. BOGGS 'i 1 

Administrative Law Judge 

U.S. Coast Guard 

Dated th~s >-&& day ctf August, 2003 

New Orlea~ls, Louisiana 
CERTIFICATE OF SERVICE 

I hereby eeriify that I have served the foregoing document upon the following parties 

(or their designated representative) to this proceeding at the addresses indicated by Federal 

Express 

James A. Wilson, Assistant Senior Investigslting Office1 

LTJG. Boris K. Towns 

United States Coast Guard 

Marine Safety Office 

800 David Drive, Room 232 

Morgan City, LA 70380-1304 

L. Stephen Cow, E5qulre 

Courtenay, Hunter & Fontana, L.L.P. 

Texaco Center, Suste 1540 

400 Poydras Street 

New Orleans, Louisiana 70130-3245 

Attorney Advisor 

Done and Dated on August 2 1,2003 at 

Washington, District of Coli~snbia