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UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

·UNITED STATES COAST GUARD 

lJNITED STATES COAST GUARD ) Docket No. CO S&R 00-0609 

) 

vs. ) 

) 

HANK J. RAPOZA ) 

DECISION AND ORDER 

This proceeding is brought pursuant to the authority contained in 46 USC § 7704; 

5 USC§§ 551~559; 46 CFR Pat15, and 33 CFR Part 20. 

Respondent has been charged in a complaint with having been convicted of 

violating a dangerous drug law of the State of Washington - - possession of cocaine on or 

about April27, 2000. 

Respondent holds Coast Guard license number 793349 (Master, Radar Observerunlimited, and First Class Pilot) and Merchant Mariner's Document numbei· 535-72~9369 

(Able Seaman, Wiper and Steward's Department). Respondent has admitted to Coast 

Guard jurisdiction in this matter. See Answer at paragraph 1. 

Respondent denies all factual allegations. He further says he was not convicted of 

such an -offense. 

A hearing was held in Seattle, Washington on December 14, 2000. Attorney 

Thomas Paul represented Respondent. The Coast Guard. offered two witnesses and eight 

exhibits. Respondent offered 6 character witnesses and five exhibits. After much 

discussion with the parties it was determined the witnesses would not add any probative 

evidence to a determination at1d thus, they were excused. Respondent's five exhibits 

were admitted. Respondent's exhibits 3 and 4 were duplicative of C 'ast Guard Exhibits 5 

and 6 (Drug Collii Waiver and Participation Agreement and Court vrder of Participation 

respectively). Coast Guard Exhibits 3, 4 atld 8 were excluded as inelevant. 

The principal question then remained whether, for purposes of 46 USC 7704(b), 

Respondent has been convicted of a state dangerous drug law. 

Respondent had been charged with possession of cocaine. His attomey requested 

the Superior Comt for King County, Washington consider him as a candidate for the 

Superior Court's Drug Court progratn. CO Exh 7. The King County Prosecuting Attorney 

agreed and a typical Agreement of Patticipation was executed. Resp. Exh 3, CO Exh 5. 
U.l;Uo/ll.l 0 i: ;57 'G'C.Uti C. i.LUo :~LJ SL"'>.l.LLJ: 

Subsequently, the Superior Court entered an Order of Participation. Resp. Exh 4; CG 

Exh 6. Respondent was thus admitted to participate in a defened adjudication program 

where he was required to undergo treatment for drug use and was placed under 

supervision including periodic urinalysis testing. Resp. Exh. 2. At the successful 

conclusion of the program the drug related charges would be dismissed. 

From my reading of the relevant statute and case law for the State of Washington, 

it appears that the drug court program is a deferred adjudication program designed to 

reduce or eliminate recidivism. It is also a program explicitly designed to avoid a 

conviction provided a participant complies with all of the conditions of the program for 

its prescribed term. 1 

The Coast Guard contends, however, this drug court program is pursuant to an 

order of the court and requires as a condition of participation drug treatment, payment of 

money and supervision of a participant. Thus, it is argued under 33 CFR § 20.1307(d), it 

is considered to a conviction. · 

33 CPR §20.1307(d) provides as follows: 

If the respondent participates in the scheme ::Jf a State for 

the expungement of convictions, and if he or she pleads 

guilty or no contest or, by order of the court, has to attend 

classes, contribute time or money, receive treatment, 

submit to any manner of probation or supervision, or forgo 

appeal of the finding ofthe trial court, the Coast Guard 

regards him or her, for purposes of 46 USC 7703 or 7704, 

as having received a conviction. The Coast Guard does not 

consider the conviction expunged without proof that the 

expungement is due to the conviction's having been in 

error. (Italics in original) 

If the order allO\ving Respondent to participate in the drug court program is a 

conviction for purposes of federall,aw, then revocation of his license and document are 

mandatory under 46 USC§ 7704. I have no discretion in the matt~r. 46 USC 7704 

provides in pertinent part: 

(b) If it is shown at a hearing Lmder this chapter that a 

holder of a license ... issued under this part, within 10 

years before the beginning of the proceedings, has been 

convicted of violating a dangerous drug law of the United 

States or of a State, the license ... sha}l be revoked. 

(Emphasis added.) . 

1 The drug court program is provided for in RCW 2.28.170 (Dmg Courts). Completion ofthe program 

results in a ~rim ina! charge being dismissed and no record of a conviction. See for example, State of 

Washington v. Taylor, 1988 Wash. App. LEXIS 60 (1998). 
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The question here is whether Respondent's participation in the drug court program 

is a conviction for purposes of federal regulations and law? The question is not whether 

it constitutes a conviction under state law. 

Respondent argues, nevertheless, that I am bound by state law when determining 

what constitutes a conviction. He refe.rs me to Commandant Decisions on Appeal No. 

2355 (Rhule), 2611 (Cibulka) and 2435 (Baber). 

The answer to these questions will require my examination of the relevant 

CDOAs, the federal regulations and the intent behind them. 

My reading ofCDOA 2355,2611 and 2435 tells me that a reference to state law 

is necessary only where there is a plea of nolo contendere (no contest). These cases do 

not stand for the proposition that I am botmd to apply state law in every circumstance. 

Thus, I must look to the regulations and federal law to ascertain whether the 

deferred adjudication involved here will be treated under federal law as the equivalent of 

a conviction. 

When 33 CFR § 20.1307(d) was added to. the 1999 revision of the Coast Guard's 

·procedural rules, a comment was received stating that the term "conviction" was not 

clearly defined. The writer recommended the adoption 9fthe definition found at 46 CFR 

Part 10, which dealt with applications for licenses and documents. The Coast Guard 

responded that 33 CFR § 20.1307 established a definition of the term "conviction" that 

was both adequate and consistent with the definition in 46 CFR Part 10. See 64 Fed. Reg. 

at p. 28060 (May 24, 1999). The definition of conviction is found at 46 CFR § 10.103 

and provides in relevant pali as follows: 

.... If an applicant pleads guilty or no contest, is granted 

deferred adjudication, or is required by the court to attend 

classes, make contributions oftime or m()ney, receive 

treatment, submit to any manner of probation or 

supervision, or forego appeal of a trial court's conviction, 

then the applicant will be considered to have received a 

conviction . . . . (Italics added) 

The relevant provisions of 33 CFR § 20.1307( d) and 46 CFR § 10.103 are 

virtually identical except for the words "granted deferred adjudication." The comment 

response is clear. The two rules are intended to be consistent. 

Moreover 33 CFR § 20.1307(d) is also a restatement of 46 CFR § 5.547, which 

was repealed with the adoption of33 CFR § 20.1307(d). 46 CFR § 5.547 provided: 

The judgment of conviction for a dangerous drug la-vv 

violation by a Federal or State court is conclusive in 

proceedings under this part. If as part of a state 

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01106;01 07:58 .\U SL-\liLl 

expungement scheme the respondent pleads guilty or no 

contest or is required by the court to attend classes, make 

contributions of time and money, receive treatment or 

submit to any manner of probation or su.pervision or forego 

appeal of the trial court finding, the respondent will be 

considered, for the purposes of 46 U.S.C. 7704, to have 

received a final conviction. A later expungement of the 

record will not be considered unless it is proved that the 

expungement is based on a showing that the court's earlier 

"conviction" was in error (Emphasis added) 

However, 33 CFR § 20.1307(d) changed the wording in 46 CFR § 5.547 after the 

words ''guilty or no contest", by changing or is required by the court to or by order of the 

court. The obvious intent was to clarify that the expungement program would be 

sepaxate and distinct type of program from an order for treatment, supervision, and 

payment of money. 

Stated differently, the change in 33 CFR § 20.1307(d) to an order of the court 

changes the context. Provision is made for both a state expungement scheme and a court 

ordered program where a person is to attend classes, contribute money or receive drug 

treatment. This change achieves the objective of consistency between 33 CFR § 

20.1307 (d) and 46 CFR ~ 10.103 to include the concept of deferred aclj'udication. 

It is therefore, my interpretation of the current regulations, that the Coast Guard 

treats drug diversion programs, which are deferred adjudications, as convictions. 

I am bound to follow these regulations. Based on Wldisputed Respondent's 

Exhibits 3 and 4 (CG Exhibits 5 and 6) Respondent has been admitted by court order to a 

program of drug treatment and supervision. Such an order is considered a conviction 

under 33 CFR § 20.1307(d) and 46 CFR § 5.59(b) for which revocation of a license and 

document is mandatory tmder 46 USC§ 7704(b). 

As a result Respondent's license and document are revoked. 

Service of this Decision upon you serves to notify you of your right to appeal as 

set forth in 3 3 CFR Subpart J, §20.1 00 l. (Attachment A) 

DATED: December 14.2000. 

Edwin M. Bladen 

Administrative Law Judge.