UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

RONALD ARTHUR LAWRENCE 

Respondent

_________________________________ Docket Number 2009-0050 

Enforcement Activity No. 3415053

DECISION AND ORDER

Issued: December 14, 2009

Hon. Parlen L McKenna

Appearances: 

CWO Cynthia L. Reavis 

Lt. Kristine Neely 

Sector San Francisco 

For the Coast Guard 

KEN MOYAL, Esq. 

For the Respondent 

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TABLE OF CONTENTS 

PRELIMINARY STATEMENT ........................................................................................ 1

OVERVIEW ....................................................................................................................... 2

FINDINGS OF FACT......................................................................................................... 4

PRINCIPLES OF LAW .................................................................................................... 13

A. Jurisdiction .............................................................................................................. 13

B. Establishing a Prima Facie Case of the Use of Dangerous Drugs .......................... 14

C. Rebutting the Presumption ...................................................................................... 14

D. Standard of Proof and Evaluation of the Evidence ................................................. 15

E. Drug Testing Requirements under 46 C.F.R. Part 16 and 49 C.F.R. Part 40 .......... 16

F. The Effect of Minor, Technical Violations of the Drug Testing Regulations ......... 18

ANALYSIS ....................................................................................................................... 18

A. Respondent Failed to Rebut the First Element of the Coast Guard’s Prima Facie 

Case. .............................................................................................................................. 19

B. Respondent Failed to Rebut the Second Element of the Coast Guard’s Prima 

Facie Case. .................................................................................................................... 19

1. Errors in the MRO’s Verification Call did not Rise to a Level Sufficient to 

Invalidate the Positive Drug Test. ............................................................................. 20

C. Respondent Failed to Rebut the Third Element of the Coast Guard’s Prima Facie 

Case ............................................................................................................................... 21

1. Respondent’s Alleged Collection Errors. ............................................................ 21

2. Respondent Alleged the Collector Used an Unsealed, Non-Standard Specimen 

Collection Cup. ......................................................................................................... 23

a. The Collector’s Version of Events. ...................................................................... 24

b. Respondent’s Version of Events. ......................................................................... 27

c. Respondent Failed to Establish that the Collector Used an Unsealed, NonStandard Collection Cup. .......................................................................................... 30

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW .......................... 32

ORDER ............................................................................................................................. 33

ATTACHMENT A: Witness and Exhibit List ................................................................. 34

ATTACHMENT B: Notice of Administrative Appeal Rights ......................................... 36
PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) instituted this suspension and revocation 

proceeding against Respondent Ronald A. Lawrence in the discharge of its duty to promote the 

safety of life and property at sea. The hearing was brought pursuant to the legal authority 

contained in 46 U.S.C. §§ 7701-7705 and was conducted in accordance with the procedural 

requirements contained in 5 U.S.C. §§ 551-559, Part 5 of Title 46, and Part 20 of Title 33 of 

Code of Federal Regulations. 

On February 10, 2009, the Coast Guard issued a Complaint charging Respondent with 

violating 46 U.S.C. § 7704(c), alleging one count of Use of, or Addiction to the Use of 

Dangerous Drugs. Specifically, the Coast Guard alleged that: 1) Respondent took a drug test on 

December 23, 2008; 2) the urine specimen was collected by Ruth Illescas of Contra Costa 

Industrial Medical Clinic (CCIMC); 3) Respondent signed a Federal Drug Testing Custody and 

Control Form; 4) the urine specimen was analyzed by Medtox Laboratories, Inc. (Medtox) using 

procedures approved by the Department of Transportation; and 5) that the specimen 

subsequently tested positive for amphetamines, as determined by the Medical Review Officer 

(MRO), Dr. David Wren, Jr..1

 See CG Ex. 2.2 On March 17, 2009, Respondent filed an Answer 

by which he admitted all jurisdictional allegations and denied the Complaint’s factual 

allegations. See CG Ex. 3. 

On April 8, 2009, the Chief Administrative Law Judge referred this case to the 

undersigned for hearing and disposition. The hearing in this matter was held on July 9, 2009 and 

 

1

 Respondent’s specimen came back positive for methamphetamines, not amphetamines. The Coast Guard’s nonattorney representatives must pay closer attention to detail. This could have been a material error requiring 

dismissal. Here, however, there was no prejudice to Respondent and he had actual notice of the charge, was able to 

put forward his defense, and fully litigated the issues without objection to this defect. See Kuhn v. Civil 

Aeronautics Board, 183 F.2d 839 (D.C. 1950); Appeal Decisions 2578 (CALLAHAN) (1996); 2545 (JARDIN)

(1992); 2512 (OLIVO) (1990); 2422 (GIBBONS) (1986); and 2416 (MOORE) (1986). 

2

 The Coast Guard’s Exhibits are designated as CG Ex. [numeric], Respondent’s Exhibits as Resp. Ex. [alphabetic], 

and the transcript of the proceedings as Tr. [xxx]. 

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on September 16, 2009. Non-attorney representatives Chief Warrant Officer Cynthia L. Reavis 

and Lieutenant Kristine Neeley represented the Coast Guard. Mr. Ken Moyal, Esq. appeared on 

behalf of Respondent. The Coast Guard offered five (5) witnesses and twenty (20) exhibits were 

introduced and admitted into evidence. Respondent offered five (5) witnesses and eleven (11) 

exhibits were introduced, of which ten (10) were admitted into evidence.3

 Both parties’ 

witnesses and exhibits are identified in Attachment A. Neither party submitted post-hearing 

briefs, proposed findings of fact or conclusions of law. Each party elected to make a closing 

argument on the record at the end of the second day of the hearing. See Tr. 545-560. 

OVERVIEW

This case centers on questions concerning an onsite drug collection that occurred on 

December 23, 2008. Respondent’s urine specimen collected on that date came back positive for 

“metabolized” methamphetamine.4 In a drug case based solely upon such a urinalysis test result, 

a prima facie case of the use of a dangerous drug is made when the following three elements are 

established: 1) the respondent was the person who was tested for dangerous drugs; 2) respondent 

failed the drug test; and 3) the test was conducted in accordance with 46 C.F.R. Part 16. 

If the Coast Guard establishes its prima facie case by a preponderance of the evidence, a 

presumption of dangerous drug use arises, and the burden then shifts to the respondent to 

produce persuasive evidence to rebut the presumption. If the respondent fails to rebut the 

presumption, the undersigned may find the charge proved on the basis of the presumption alone. 

One way a respondent can successfully attack the Coast Guard’s case is to establish by a 

 

3

 Respondent’s Exhibit G, an email from Ensign Samud Looney to Respondent dated February 12, 2009, was 

introduced and admitted during the second session but was not provided to the court at the end of that session. The 

court later asked Respondent’s counsel to produce a copy of this exhibit but Respondent’s counsel was unable to 

locate a copy of the email. The Coast Guard was also asked to provide a copy of the February 12, 2009 email but 

was unable to do so. Respondent’s Exhibit G must thus be stricken from the record of these proceedings. The 

substance of this email, however, was considered in rendering this decision as it was discussed at both sessions. See

Tr. 273-275, 438-442. 

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preponderance of the evidence a problem with one of the three (3) elements of the Coast Guard’s 

prima facie case. 

Here there is no question the Coast Guard established the first two elements of its prima

facie case. If Respondent successfully rebuts the third leg of the government’s prima facie case 

that the test was conducted in accordance with the regulations, the test must be thrown out and 

the charge dismissed. 

Respondent presented evidence that the collection process and the MRO’s verification 

call did not follow the requirements of the applicable regulations. Even if such errors are fully 

established, the effect of all of these errors are not enough to invalidate the test results because 

such errors do not establish a problem either with the integrity of the sample provided or the 

chain of custody. Such errors, however, do lend some credence to Respondent’s allegation that 

the collector presented him with an unsealed, non-standard specimen collection cup of uncertain 

origin. 

The use of such a collection cup, if established, would fatally impact the test results. 

Respondent and the collector have incompatibly divergent positions as to the collection cup that 

was used, and resolving this question settles the case. 

This is a very close case and, except for a couple of issues discussed below, it could have 

come out either way. This is a very serious matter dealing with Respondent’s livelihood and 

professional and personal reputation on the one hand and the need to protect the public from drug 

users in safety-sensitive positions on the other. After carefully weighing all of the evidence, I 

find Respondent’s allegation that the collector failed to present him with a sealed specimen 

collection cup is not credible and not supported by the weight of the evidence. Respondent thus 

failed to rebut the Coast Guard’s prima facie case by demonstrating that the test was not 

 

4

 “Metabolized” means that the methamphetamine into the donor specimen collection cup had been processed 

through Respondent’s body. 

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conducted in accordance with 46 C.F.R. Part 16. Therefore, the charge of use of, or addiction to 

the use of dangerous drugs, is hereby found PROVED. 

FINDINGS OF FACT

The following Findings of Fact and Conclusions of Law are based on the observations of 

the appearance and demeanor of the witnesses who testified at the hearing and upon an analysis 

of the entire record, arguments of the parties, and applicable regulations, statutes and case law. 

Each exhibit entered, although perhaps not specifically mentioned in this decision, has been 

carefully reviewed and given thoughtful consideration. 

1. At all relevant times, Respondent was the holder of a Merchant Mariners License number 

1503397 and Merchant Mariner Document number xxx-xx-[REDACTED]. CG Ex. 2. 

2. On December 23, 2008, Respondent served as a ferry boat captain for the Delta Ferry 

Authority (DFA) and was master of the M/V VICTORY II, which makes runs for the 

DFA between Jersey Island, Bradford Island, and Frank and Webb Tract Islands in a 

tributary of the San Joaquin River. CG Ex. 16. 

3. Respondent has been the primary ferry boat captain for the DFA for approximately ten 

(10) years. Tr. 216. 

4. Since the beginning of his employment with the DFA, Respondent has participated in 

approximately nine (9) drug tests in connection with such employment and all were 

negative with the exception of the December 23, 2008 test. Tr. 216-217; 238-239. 

5. All of Respondent’s approximately nine (9) drug tests, except for the one on December 

23, 2008, were conducted at the Contra Costa Industrial Medical Clinic (CCIMC) 

facilities. Tr. 217. 

6. Sometime in mid-November 2008, the DFA changed its collection policy to permit onsite 

collections for drug testing due in part to the remoteness of the place of employment and 

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the time (two-four hours) it took to send its employees to the CCIMC facilities for drug 

testing. Tr. 219-220. 

7. Respondent participated in the DFA’s meeting at which it was determined that the 

organization would move to a policy of conducting onsite collections. Tr. 220, 244. 

8. Respondent was a key member of DFA’s drug testing program, was “instrumental” in 

establishing the DFA’s drug testing procedures, and was very aware of the random drug 

testing program as implemented in late 2008. Tr. 248-250. 

9. In late November, Respondent attended a subsequent DFA meeting at which Coast Guard 

Ensign Samud Looney and several DFA personnel also attended to discuss the random 

drug testing protocol and onsite testing. Tr. 244-248. 

10. During this late November meeting with Ensign Looney and other DFA personnel, it was 

discussed that the DFA would have at least one more random drug test for its employees 

before the end of the year. Tr. 247-248, 408. 

11. At this meeting, it was also determined that fifty (50) percent of DFA’s crew would be 

subjected to random drug tests each year, i.e., three (3) tests for its six (6) eligible 

employees. Tr. 246-248. 

12. In the context of this policy change, with approximately thirty (30) days remaining in the 

calendar year, Respondent stated to his boss that he would be happy to take a random 

drug test at any time. Tr. 249. 

13. Respondent underwent an onsite, random drug test on December 23, 2008, as part of his 

employment with DFA. CG Ex. 5. 

14. On December 23, 2008, Respondent’s son, Bobby, was serving as his deckhand on the 

ferry. Tr. 362. 

15. Bobby provided a written statement, dated February 18, 2009, concerning the drug test on 

December 23, 2008. Resp. Ex. E. 

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16. The onsite drug test took place at Webb Tract Island. CG Ex. 5. 

17. Ms. Ruth Illescas, an employee of CCIMC, was the collector for Respondent’s onsite 

drug test on December 23, 2008. Tr. 88-89; CG Ex. 14. 

18. Ms. Illescas began working for CCIMC as a medical assistant in April 2002. Tr. 81-82. 

19. Ms. Illescas completed Substance Abuse Program Administrators Association’s 

(SAPAA) online training in drug collection procedures in March 2003. Tr. 84-85. 

20. During her employment at CCIMC, Ms. Illescas has conducted several hundred specimen 

collections for drug testing at CCIMC facilities. Tr. 87-88. 

21. Prior to conducting Respondent’s onsite collection on December 23, 2008, Ms. Illescas 

had done one or two other onsite collections. These collections occurred approximately 

two years before Respondent’s onsite collection. Tr. 88-89, 154-156. 

22. Ms. Illescas stated that onsite collections follow the same standard procedures as 

collections done at CCIMC facilities. Tr. 189-190. 

23. Ms. Illescas testified that she always follows standard procedures as outlined in the drug 

testing regulations. Tr. 91-99. 

24. Ms. Illescas testified that she had never conducted a drug test collection without checking 

the identification of the sample’s donor. Tr. 93-94. 

25. Respondent testified that on October 13, 2008, Ms. Illescas allowed an employee of the 

DFA to be tested at the CCIMC facility without having proof of identification since 

Respondent vouched for his identity. Tr. 406-407. 

26. Ms. Illescas got lost on her way to the collection site and had to call a representative of 

the DFA four or five times for directions to the onsite collection site. Tr. 109-110, 163. 

27. Ms. Illescas did not realize at the time she arrived at the Jersey Island ferry landing that 

she would have to travel via the ferry to the Webb Tract Island site to conduct the onsite 

collection. Tr. 112, 164-165. 

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28. Ms. Illescas admitted to being scared of going on the ferry on her way to conduct the 

onsite collection. Tr. 118. 

29. Ms. Illescas was surprised by the lack of facilities at the onsite collection site at Webb 

Tract Island. Tr. 113-114, 166. 

30. Ms. Illescas brought a red biohazard box containing four specimen collection kits, a 

clipboard with a patient registration sheet and the consent form, pens, evidence tape, and 

bluing agent to use for the onsite collection. Tr. 101-102, 107-108, 136. 

31. Respondent and his son claimed not to have seen the red biohazard bucket Ms. Illescas 

brought to the collection site. Tr. 389-390, 421, 432. This testimony is accepted as 

credible. 

32. Ms. Illescas testified that from the moment she started the collection process near the 

portable toilet on site, she did not go back to her car until the collection was complete. 

Tr. 135-136, 139-140. This testimony is rejected as not credible. 

33. Respondent and his son testified that Ms. Illescas retrieved certain items from her car 

during the collection, including plastic baggies to use as gloves for transferring 

Respondent’s specimen to the split sample bottles and the actual collection cup itself. Tr. 

373-375, 377, 379, 417-418, 425. The testimony is accepted as credible. 

34. It is more likely than not that Ms. Illescas parked her automobile within four (4) to six (6) 

feet of the portable toilet as Respondent and his son claimed (see Tr. 366-367, 412) and 

not twenty (20) to thirty (30) feet away from the portable toilet, as Ms. Illescas claimed 

(see Tr. 118-119, 135-136, 172). 

35. Ms. Illescas testified that she chose one of the Medtox specimen collection cups and 

unsealed it in Respondent’s presence for him to provide the urine specimen. Tr. 136-137, 

149. This testimony is rejected as not credible. It is more likely than not that the 

collector walked a few feet to her automobile, grabbed a sealed Medtox collection cup 

7 
kit, opened it while at the car and walked the few feet back to Respondent for 

presentation of the opened Medtox specimen collection cup. 

36. Respondent and his son testified that the specimen collection cup presented by the 

collector to Respondent was not sealed and did not have a plastic covering. Tr. 376, 418-

419. This testimony is accepted as credible. 

37. Both Respondent and his son testified that the cup used for the collection did not have a 

temperature strip. Tr. 379-380, 482. This testimony is rejected as not credible. 

38. Despite her testimony to the contrary, it is more credible that Ms. Illescas did not instruct 

Respondent to wash his hands prior to providing the specimen and in any event 

Respondent did not wash his hands before the collection commenced given the apparent 

lack of a water source onsite. Tr. 103, 184, 423-424. 

39. Ms. Illescas used two sterile Medtox bags from two other Medtox collection kits as 

gloves to handle the specimen provided by Respondent. Tr. 139, 195. 

40. Ms. Illescas stated that when she returned from the onsite collection, all of her supplies 

were still in the red biohazard box and did not remember leaving certain items onsite. Tr. 

146, 182-183. 

41. Ms. Illescas left the evidence tape and bluing agent behind when she left the collection 

site. Tr. 389-390, 432-434; Resp. Ex. H and I. 

42. Upon returning to CCIMC, Ms. Illescas expressed concerns to Ms. Patricia Thomas, 

CCIMC Administrator, about the onsite collection in that there was no access to water to 

have Respondent wash his hands and that she did not have gloves. Tr. 146-147; 186-187. 

43. Ms. Illescas admitted that such errors were “minor” ones that would not put her job in 

jeopardy. Tr. 202-203. 

8 
44. The chain of custody form indicates the site of collection being Oakley, California, as 

Ms. Illescas was not sure where the collection site was located. Tr. 159-160. Oakley, 

California was incorrectly listed by Ms. Illescas as the collection site. See CG Ex. 14. 

45. Ms. Illescas would be at risk of losing her job if she used a cup other than the standard 

collection cup for collection of a specimen. Tr. 190, 201-203. 

46. Ms. Illescas admitted to not packing gloves for the onsite collection and characterized 

this failure to pack gloves as an “oversight.” Tr. 197. 

47. On December 23, 2008, Respondent was wearing two jackets. Tr. 382-383, 413. 

48. Ms. Illescas did not instruct Respondent to remove his jackets or exterior clothing before 

providing the sample. Tr. 383-384, 421. 

49. It is more likely than not that Ms. Illescas placed the collection cup containing 

Respondent’s sample either on a metal chair located next to the portable toilet or on the 

ground as she walked a few feet to her automobile to open two other Medtox collection 

kits to obtain the plastic transmittal bags to use as gloves. Tr. 386, 425-426. 

50. Respondent provided a written statement, dated February 12, 2009, concerning the drug 

test on December 23, 2008, which took the form of a letter to the MRO complaining 

about alleged errors in the collection process. Resp. Ex. D. 

51. Respondent initially stated in his February 12, 2009 written statement that Ms. Illescas 

pulled the collection cup from the back seat of her automobile (see Resp. Ex. D), but 

testified at the hearing on August 9, 2009 that she pulled it from under the front seat. Tr. 

417-418, 467. 

52. Respondent’s wife types all of his correspondence for him. Tr. 485. 

53. Respondent dictated his February 12, 2009 written statement to his wife to type, but he 

did not proofread the statement as typed before sending it to Dr. Wren. Tr. 485-487. 

9 
54. Respondent’s urine specimen was subsequently sent for testing to Medtox, where the 

testing of Respondent’s urine was done correctly. Tr. 14. 

55. The chain of custody of Respondent’s urine specimen remained intact from transmittal of 

the specimen to Medtox and through the specimen’s testing. Tr. 25-26. 

56. Medtox received Respondent’s urine sample (both the primary and the split sample) in an 

acceptable condition. Tr. 48. 

57. The flip top lids on the split specimen vials containing Respondent’s urine sample were 

not separated from the vials and were still connected to the specimen vials at Medtox. Tr. 

49, 142. 

58. Respondent’s specimen tested positive for metabolized methamphetamine at a 

concentration of 3,844 nanograms per milliliter and metabolized amphetamine at a 

concentration of 459 nanograms per milliliter. Tr. 52; CG Ex. 15, 18, 21. 

59. The metabolized amphetamine was present above 200 nanograms per milliliter in 

Respondent’s specimen, but did not exceed the threshold of 500 nanograms per milliliter 

to report the amphetamine as positive. Tr. 53; CG Ex. 15, 18. 

60. Drugs like amphetamine and methamphetamine have a limited window of detection in 

urine – approximately three days. Tr. 59-60. 

61. Dr. David Wren, Jr. was the MRO who reviewed and verified Respondent’s positive test 

result. Tr. 277-280; CG Ex. 21. 

62. Dr. Wren has been a certified MRO for approximately seven and a half years. Tr. 278. 

63. Dr. Wren asked Respondent to bring in a list of the medications Respondent claimed he 

was using that might have led to the positive result. Tr. 287-288; CG Ex. 21. 

64. Respondent never produced such a list, nor did Respondent provide any bottles of 

medication to the MRO. Tr. 288. 

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65. Respondent claims he did not produce the list to the MRO because the MRO told him 

that he was not aware of any medicines that would contain methamphetamine. Tr. 477. 

This claim is found credible based on the MRO’s substantive testimony on drugs 

containing the substance in question. See Tr. 284. 

66. Respondent did not tell Dr. Wren anything about any alleged collection errors during the 

December 30, 2008 verification call. Tr. 477. 

67. The MRO’s drug test verification call with Respondent on December 30, 2008 lasted 

approximately two minutes. Tr. 306-307. 

68. During the verification call, Dr. Wren failed to inform Respondent that the call was a 

verification call or that the information provided by Respondent would be used in making 

a determination as to whether or not he was going to validate the results of the December 

23, 2008 drug test. Tr. 429-430. 

69. The MRO does not believe that Ms. Illescas would lie about the procedures she used for 

the onsite collection and has found her to be forthright and honest. Tr. 295. 

70. Respondent had a second drug test conducted at CCIMC on December 31, 2008, and the 

results of that test were negative. Tr. 290-291. Given the approximately three (3) day 

detection window, Respondent’s second drug test is not exculpatory. 

71. On December 31, 2008, Respondent complained to Ms. Vicki Owens, a CCIMC 

employee, about the collection procedures on December 23, 2008, including the lack of 

the collection kit being sealed and Ms. Illescas’ use of plastic bags for gloves and claims 

that she told Respondent that if the collection happened as he depicted it would be an 

invalid test. Tr. 434, 477-478, 493-498. 

72. Ms. Owens denies telling Respondent that his complaints, if true, about the collection 

would invalidate the test. Tr. 499-500. 

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73. On or about January 2, 2009, Respondent spoke with CCIMC’s office manager and 

related his version of the collection on December 23, 2008, including the allegation that 

Ms. Illescas used an unsealed collection cup she pulled from under her car seat. Tr. 444-

445, 475. 

74. On January 9, 2009, the MRO wrote a return to work letter for Respondent based on the 

drug test of December 31, 2008 being negative. Tr. 291; Resp. Ex. J. 

75. Sometime in February 2009, Respondent expressed to Mr. David Forkel, a DFA director, 

concerns about the collection methods used during the onsite collection, specifically, that 

there was not a proper collection cup and that Ms. Illescas had used plastic bags as gloves 

and that she had never asked Respondent to wash his hands. Tr. 234. 

76. Mr. Forkel considered Respondent’s positive drug test out of character. Tr. 238. 

77. Mr. Forkel was shocked that Respondent’s drug test came back positive and considers 

Respondent an excellent employee who never deviated from the rules or regulations 

surrounding his license. Tr. 223. 

78. Mr. Forkel would have Respondent return to work for the DFA if the charges in the 

matter are not proven and would have no concerns about Respondent operating a DFA 

vessel. Tr. 251-252. 

79. Sometime in February 2009, Respondent expressed to Ensign Samud Looney his 

concerns about the collection process, including the collection cup used, and Ms. Illescas’ 

use of plastic bags for gloves. Tr. 272. 

80. Mrs. Carrie Lawrence, Respondent’s spouse, testified that Respondent complained to her 

before the drug test result was provided that there were problems with the collection 

process, including that Ms. Illescas did not have all her materials and could not find a cup 

to collect the sample and took one out of her car. Tr. 347, 427-428. 

12 
81. The Coast Guard attempted to impeach Mrs. Lawrence’s testimony with questions about 

Respondent’s arrest record. Tr. 350.5

PRINCIPLES OF LAW

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges have the 

authority to revoke a merchant mariner license for violations arising under 46 U.S.C. § 7704. 

See 46 C.F.R. § 5.19(b). Under Coast Guard procedural rules and regulations, the Coast Guard 

bears the burden of proof and must prove the violations by a preponderance of the evidence to 

prevail. 33 C.F.R. §§ 20.701, 20.702(a). In this case, the Coast Guard seeks to prove that 

Respondent used a dangerous drug on the basis of a failed, random drug test and so revoke his 

Merchant Mariner’s License. 

A. Jurisdiction 

Jurisdiction is a question of fact and must be determined before the substantive issues of 

the case are decided. Appeal Decision 2620 (COX) (2001). When the Coast Guard charges a 

respondent with the Use of or Addiction to Dangerous Drugs, jurisdiction is established solely 

upon a showing that Respondent holds a license, certificate of registry, or merchant mariner’s 

document. See 46 U.S.C. 7704(c) (“If it is shown that a holder [of a license, certificate of 

registry, or merchant mariner’s document] has been a user of, or addicted to, a dangerous drug, 

 

5

 The Coast Guard attempted to discredit Mrs. Lawrence’s character testimony by asking questions concerning her 

knowledge of Respondent’s arrest record. See Tr. 349. The Coast Guard had every right to probe Mrs. Lawrence’s 

degree of knowledge and familiarity with Respondent and the basis for her testimony as to Respondent’s character. 

See, e.g., Michelson v. United States, 335 U.S. 469 (1948); United States v. Monteleone, 77 F.3d 1086, 1089-90 

(8th Cir. 1996) (discussing the use of such impeaching evidence in the criminal context). However, the means of 

doing so by non-attorney Coast Guard investigating officers were questionable in that 1) no foundation was laid in 

the record for the allegations of an arrest and 2) the arrest was for behavior that had no connection to the conduct at 

issue (alleged indecent acts in front of a child, obstructing a police officer, and for receiving stolen property). See

Tr. 352. Respondent rebutted the potentially damaging credibility evidence against Mrs. Lawrence by explaining 

the circumstances of the arrest (providing the context of a contentious divorce) and noting that no conviction 

resulted from this incident. While the risk of tainting a jury with such evidence is not present in this context, the 

undersigned expects more from the government. In the future, the Coast Guard is encouraged to tread more 

carefully in a non-criminal proceeding when dealing with potentially inflammatory evidence, which is of little, if 

any, probative value to the issues at hand. 

13 
the license, certificate of registry, or merchant mariner’s document shall be revoked unless the 

holder provides satisfactory proof that the holder is cured.”); Appeal Decision 2560 (CLIFTON)

(1995). 

In this case, because the allegations of drug use arose while Respondent held a merchant 

mariner’s license, jurisdiction is established. See Coast Guard Ex. 2. Furthermore, 

Respondent’s Answer admits all jurisdictional allegations. See Coast Guard Ex. 3. 

B. Establishing a Prima Facie Case of the Use of Dangerous Drugs 

Marine employers must establish programs for testing of dangerous drugs, on a random 

basis, for employees who serve as crewmembers. See 46 C.F.R. § 16.230. A mariner’s Coast 

Guard issued credential is subject to revocation upon proof (including failing a random drug test) 

that the mariner is a user of or addicted to a dangerous drug, unless satisfactory proof of cure is 

established. 46 U.S.C. 7704(c); see Appeal Decision 2634 (BARRETTA) (2002). 

In these proceedings, the Coast Guard bears the burden of proof and must prove the 

allegations by a preponderance of the evidence to prevail. 33 C.F.R. §§ 20.701, 20.702(a). In a 

drug case based solely upon urinalysis test results, a prima facie case of the use of a dangerous 

drug is made when the following three elements are established: 1) the respondent was the 

person who was tested for dangerous drugs; (2) the respondent failed the drug test; and 3) the test 

was conducted in accordance with 46 C.F.R. Part 16. Appeal Decision 2603 (HACKSTAFF)

(1998). See also Appeal Decision 2653 (ZERINGUE) (2002). 

C. Rebutting the Presumption 

If the Coast Guard establishes a prima facie case by a preponderance of the evidence, a 

presumption of dangerous drug use arises, and the burden then shifts to the respondent to 

produce persuasive evidence to rebut the presumption. See Appeal Decisions 2603 

(HACKSTAFF) (1998); 2592 (MASON) (1997); 2589 (MEYER) (1997); 2584 

(SHAKESPEARE) (1997); and 2379 (DRUM) (1985). Such a presumption imposes on the party 

14 
against whom it applies the burden of going forward with evidence to rebut or meet the 

presumption. 33 C.F.R. § 20.703(a). 

To be clear, the presumption established by the failure of a urine test for dangerous drugs 

is rebuttable. A respondent faced with overcoming the presumption of use of a dangerous drug 

“may rebut the presumption by producing evidence (1) that calls into question any of the 

elements of the prima facie case, (2) that indicates an alternative medical explanation for the 

positive test result, or (3) that indicates the use was not wrongful or not knowing.” Appeal 

Decision 2560 (CLIFTON) (1995). If a respondent’s evidence sufficiently rebuts the 

presumption, then the burden of presenting evidence of a respondent’s drug use returns to the 

Coast Guard, which bears the ultimate burden of proof on this issue. Id.; 33 C.F.R. § 20.703(b). 

D. Standard of Proof and Evaluation of the Evidence 

In determining whether the government has established a prima facie case and whether a 

respondent has successfully rebutted the presumption that arises when a prima facie case has 

been established, the undersigned must make relevant findings that are supported by reliable, 

probative, and substantial evidence. See Appeal Decisions 2603 (HACKSTAFF) (1998); 2592 

(MASON) (1997); and 2584 (SHAKESPEARE) (1997). This “substantial evidence” standard is 

the equivalent of the preponderance to the evidence standard. See Appeal Decisions 2603 

(HACKSTAFF) (1998) and 2472 (GARDNER) (1987). If the Respondent fails to rebut the 

presumption by such standard, the undersigned may find the charge proved on the basis of the 

presumption alone. See Appeal Decisions 2603 (HACKSTAFF) (1998); 2589 (MEYER) (1997);

2584 (SHAKESPEARE) (1997); and 2266 (BRENNER) (1981). 

In evaluating the evidence presented at the hearing, the trial judge is in the best position 

to weigh the testimony of witnesses and assess the credibility of evidence. See Appeal Decisions 

2598 (CATTON) (1998), aff’d NTBS Order No. EM-185 (1999); 2589 (MEYER) (1997); 2584 

(SHAKESPEARE) (1997); and 2421 (RADER) (1986). Moreover, the trial judge has broad 

15 
discretion in making determinations of credibility of witnesses and resolving inconsistencies in 

evidence. See Appeal Decisions 2560 (CLIFTON) (1995); 2519 (JEPSON) (1991); 2516 

(ESTRADA) (1990); and 2492 (RATH) (1989). 

The findings need not be consistent with all evidentiary material in the record, so long as 

sufficient material exists in the record to justify the finding. See Appeal Decisions 2527 

(GEORGE) (1991); 2522 (JENKINS) (1991); 2519 (JEPSON) (1991); and 2506 (SYVERSTEN)

(1990). But the judge must resolve serious conflicts that exist in the testimony and issue specific 

credibility findings as necessary. See Appeal Decisions 2614 (WALLENSTEIN) (2000); 2492 

(RATH) (1989); and 2489 (JUSTICE) (1989). 

E. Drug Testing Requirements under 46 C.F.R. Part 16 and 49 C.F.R. Part 40 

The drug testing required by 46 C.F.R. Part 16 must be conducted “as required by [46 

C.F.R. Part 16] and in accordance with the procedures detailed in 49 CFR part 40.” 46 C.F.R. § 

16.201(a). The drug testing in question thus must meet the requirements of both 46 C.F.R. Part 

16 and 49 C.F.R. Part 40. “In the interest of justice and the integrity of the entire drug testing 

system, it is important” that these procedures are followed to maintain the system. Appeal 

Decision 2631 (SENGEL) (2002). 

The drug testing regulations found at 49 C.F.R. Part 40 contain several mandatory 

provisions regarding the collection process. A number of these provisions are specifically at 

issue in this case. Respondent raised issues with the collection that are addressed by the 

following sections of the regulations: 

• 49 C.F.R. § 40.49 – provides the requirements for the collection kit, which 

references the specifications for a specimen collection container at 49 C.F.R. Part 

40, Appendix A; 

• 49 C.F.R. § 40.61(c) – the collector must require a donor to provide positive 

identification via a photo id, but positive identification by an employer 

representative (not a co-worker or other employee being tested) is acceptable; 

16 
• 49 C.F.R. § 40.61(f) – the collector must direct the donor to remove any out 

clothing that could be used to conceal items or substances that could be used to 

tamper with the specimen; 

• 49 C.F.R. § 40.63(b) – the collector must instruct donor to wash and dry his or her 

hands before providing the urine sample; 

• 49 C.F.R. § 43.63(c) – the collector must select or allow the donor to select an 

individually wrapped or sealed container from the collection kit materials and 

with both collector and donor present, either the donor or collector must unwrap 

or beak the seal of the collection container; and 

• 49 C.F.R. § 40.65 – the collector must check the specimen’s temperature no later 

than four minutes after the donor has provided the specimen by reading the 

temperature strip attached to the collection container. 

The regulations also provide a number of “fatal flaws” that require a drug test to be 

cancelled. See 49 C.F.R. § 40.199. A reading of the fatal flaws listed in Section 40.199 reveals 

that such flaws are directed more toward significant errors that may happen once the donor has 

provided a sample to be tested and here the Respondent only raised issues with the collection 

process and subsequent MRO verification call – not any such listed fatal flaws under Section 

40.199. 

The regulations further provide a non-exclusive list of other procedural deviations from 

the regulations that do not invalidate the test. See 49 C.F.R. § 40.209 (examples of such listed 

errors include minor administrative mistakes and the fact that a test was conducted in a facility 

not meeting the stated requirements in another part of the regulations). Section 40.209 makes it 

clear that a test may not be cancelled “based on an error that does not have a significant adverse 

effect on the right of the employee to have a fair and accurate test.” Id. The commentary to this 

section affirms that the proper remedy for such errors is not to cancel the test because “[t]his is a 

safety rule, and it is not consistent with safety to permit someone with a positive drug test to 

continue performing safety-sensitive functions because a collector made a minor paperwork error 

that does not compromise the fairness or accuracy of the test.” See 65 FR 79462, 79503 

(December 19, 2000). 

17 
F. The Effect of Minor, Technical Violations of the Drug Testing Regulations 

Coast Guard case law holds that minor technical infractions of the regulations do not 

violate due process unless the infraction breaches the chain of custody or violates the specimen’s 

integrity. See Appeal Decisions 2668 (MERRILL) (2007); 2575 (WILLIAMS) (1996); 2546 

(SWEENEY) (1992); aff’d NTSB Order No. EM-176 (1994); 2541 (RAYMOND) (1992), aff’d

NTSB Order No. EM-175 (1994); 2537 (CHATHAM) (1992); 2522 (JENKINS) (1991).6

 As 

indicated above, the regulations themselves clearly indicate that not all deviations from 

collection procedures will result in a cancellation of the test. The regulations list specific 

procedural problems that always result in fatal flaws (see 49 C.F.R. § 40.199), and problems that 

are correctible (see 49 C.F.R. § 40.203). But just because errors occur during the test that are 

not “fatal flaws” under 49 C.F.R. § 40.199 does not mean that such errors cannot rise to the level 

of flaws “fatal” to a resulting test. See Appeal Decision 2653 (ZERINGUE) (2002). The key 

questions center on whether the collection was conducted in a way that the integrity of the 

sample (or chain of custody) is potentially compromised and whether the results of the test can 

be deemed reliable. 

ANALYSIS

This case involves a unique set of circumstances. The collection of Respondent’s urine 

sample for drug testing occurred onsite in a remote location with limited facilities. See Tr. 113-

114, 166. There was no running water on site, the sample was to be provided in a portable toilet, 

and the collector had to work without the benefit of a desk or table for the collection. See CG 

Ex. 13; Resp. Ex. K. Despite the fact that the collection site at issue might not have met the strict 

 

6

 Indeed, specific procedural defects like not requesting identification, not instructing a donor to empty his pockets, 

and not instructing a donor to wash his hands have been found to be insufficient to establish liability upon a 

collector for negligence because “[s]uch precautions are in place to prevent employees from subverting the testing 

procedures or submitting an altered sample . . . .” Balistrieri v. Express Drug Screening, LLC, 2008 WL 906236, 

*14, n.14 (E.D.Wis. 2008). 

18 
criteria for such sites under 49 C.F.R. § 40.41, such deficiencies are not cause to reject the results 

of the test. See 49 C.F.R. § 40.209(7). 

The collector had only performed one or two onsite collections prior to collecting 

Respondent’s urine sample on December 23, 2008. See Tr. 88-89, 154-156. 

After the sample was sent to Medtox, it came back positive for methamphetamines. See Tr. 52-

57; CG Ex. 15, 18. Respondent does not dispute the chain of custody or the result of the test 

itself and admitted that Medtox did the testing of the sample he provided correctly. See Tr. 14, 

25-26. Respondent’s contention is that the test results were compromised by various errors both 

in the collection process and the MRO’s verification call and thus the test should be disregarded. 

See Tr. 25-26. 

A. Respondent Failed to Rebut the First Element of the Coast Guard’s Prima Facie Case. 

The first element of the Coast Guard’s prima facie case is established by 1) proof that 

Respondent provided the specimen on December 23, 2008 (see CG Ex. 14); 2) proof of a link 

between Respondent and the Drug Testing Custody and Control Number assigned to his urine 

sample, which identifies the sample throughout the chain of custody and testing process (id.); 

and 3) proof of the testing of that sample (see Tr. 52-57; CG Ex. 15, 18, 21). Respondent never 

disputed the chain of the custody for the urine sample, nor questioned the testing procedures by 

Medtox. See Tr. 14, 25-26. 

B. Respondent Failed to Rebut the Second Element of the Coast Guard’s Prima Facie

Case. 

The second element of the Coast Guard’s prima facie case is established by Respondent’s 

failure of the drug test. Respondent’s urine sample came back positive for methamphetamines. 

See Tr. 52-57; CG Ex. 15, 18. The MRO who reviewed the test results was appropriately 

qualified. See Tr. 277-278. The MRO reviewed the test results with Respondent and confirmed 

that the results were “positive”. See Tr. 287-288; CG Ex. 21. Respondent raised certain errors 

19 
in the MRO’s verification call that go to this element of the Coast Guard’s case, but as discussed 

below, such errors do not invalidate the test itself. 

1. Errors in the MRO’s Verification Call did not Rise to a Level Sufficient to Invalidate the 

Positive Drug Test. 

Respondent asserts that the MRO’s verification call was defective. In examining the 

evidence and testimony of the witnesses, Respondent established by a preponderance of the 

evidence that Dr. Wren’s verification call on December 30, 2008 was defective. The 

undersigned cannot see how the MRO in this case adequately followed all the procedures 

described in 49 C.F.R. § 40.135 for conducting such a verification call. The call lasted 

approximately two minutes and some required steps were impossible to perform within the 

allotted time frame. See Tr. 306-307. To be clear, it is not just the length of the verification call 

that leads the undersigned to question whether the correct procedures were followed – it is also 

the fact that the MRO was unable to specifically recall whether he went through each of the steps 

outlined in 49 C.F.R. § 40.135 in their appropriate order or at all. See Tr. 311-324. 

There is no evidence in the record that had Dr. Wren fully complied with the regulations, 

the result would have been any different for Respondent. Respondent did not ask to have his 

sample retested due to his concerns with the collection process and did not offer any alternative 

medical reasons (e.g., medications he was taking) for the positive test in his subsequent 

communications with the MRO. See Tr. 287-288, 477. 

The fact that the verification call itself might not have been technically compliant with 

the regulations does not, however, mandate that the test results be disregarded or that that the 

Coast Guard’s prima facie case be rejected unless such breached the chain of custody or 

somehow violated the integrity of the specimen provided. See Appeal Decision 2668 (Merrill)

(2007) (MRO’s defective verification call did not render the positive drug test unreliable because 

20 
it was “clearly a technical error that did not breach the chain of custody or violate the integrity of 

[r]espondent’s urine specimen.”). The MRO’s errors in this case simply do not rise to that level. 

C. Respondent Failed to Rebut the Third Element of the Coast Guard’s Prima Facie Case 

The third element of the Coast Guard’s prima facie case is highly contested in this matter. 

To be entitled to the presumption, the Coast Guard needed to show that the test was conducted in 

accordance with 46 C.F.R. Part 16, which necessarily involves proof of the collection process, 

proof of the chain of custody, proof of how the specimen was handled and shipped to the testing 

facility, and proof of the qualification of the test laboratory. The Coast Guard adequately put on 

its proof regarding the chain of custody (see CG Ex. 14, 15) and the shipment of the specimen to 

Medtox (see Tr. 25-26, 48). Respondent never disputed the chain of the custody for the urine 

sample, nor questioned the adequacy of the testing procedures by Medtox. See Tr. 14, 25-26.7 

Respondent did specifically argue a number of alleged collection errors. Therefore, the 

collection process itself must be examined in detail to determine the validity of the positive test 

results. 

1. Respondent’s Alleged Collection Errors. 

Respondent’s main contention is that the collection process itself was so flawed that the 

integrity of the subsequent test is compromised, and the test results indicating use of 

methamphetamine should be disregarded. To support his case, Respondent claimed a number of 

errors occurred in the collection process. The errors of potential import include: 

• The collector not having Respondent wash his hands before the specimen 

collection; 

• The collector not using a sealed specimen collection cup; 

• The collector not using a specimen collection cup with the required temperature 

strip; 

 

7

 In the absence of any particularized challenge to the qualifications of laboratory personnel or the MRO, the Coast 

Guard need not show that each of them was competent to perform the responsibilities they were employed or 

designated to fulfill, and the laboratory report itself, once it was signed by the MRO, constituted proof adequate to 

shift to appellant the burden of going forward with evidence that the positive finding was not the product of a 

wrongful use of the drug. See NTSB Order No. EM-176 (1994). 

21 
• The collector not using gloves; 

• The collector not maintaining constant control of the specimen collection cup 

containing Respondent’s sample by either putting the collection cup on the 

ground or on a nearby chair; 

• The collector not directing Respondent to remove all of his outer clothing before 

providing the urine sample; and 

• The collector failing to indicate the precise location of the collection on the 

required forms. 

Respondent has established by a preponderance of the evidence a number of these errors 

occurred in the collection process on December 23, 2008. But these errors, by themselves, do 

not lead to questioning the result of the drug test per se. Some of these errors, e.g., the collector 

not using gloves (see Tr. 139, 195) or not having Respondent remove his outer clothing (see Tr. 

382-384, 413, 421)8

 do not lead one to question the results to any significant degree. The 

collector’s use of gloves is primarily for the collector’s own protection in handling the urine 

sample, and the use of gloves is not a regulatory requirement in any event. The requirement to 

have a specimen donor remove outer clothing like jackets is aimed toward ensuring that the 

specimen donor does not have anything in such garments to adulterate the sample. 

The fact that the collector might not have maintained complete custody or control of the 

specimen provided by Respondent throughout the collection process is more troubling. Both 

Respondent and his son testified that the collector failed to do so as she retrieved plastic bags to 

be used as gloves for the transfer. See Tr. 386, 425-426. 

Even crediting the fact that the collector might have placed the specimen collection cup 

down while retrieving the plastic bags to use as gloves from her automobile four (4) to six (6) 

feet away, the impact of such momentary placement is a significant enough concern to render the 

test unreliable. If anything, such a relinquishing of control over the sample, even for a short 

 

8

 The Coast Guard could have recalled Ms. Illescas to rebut Respondent’s assertion that she did not have Respondent 

remove his outer clothing in conformity with the applicable regulations. The Coast Guard’s failure to do so leaves 

the undersigned in the position of treating Respondent’s credible account of such an instance as fact. 

22 
period, more likely would allow a donor to adulterate the sample with some substance to defeat 

the test – not render a positive result. 

The fact of Respondent not washing his hands prior to the collection is clearly established 

in the record. See Tr. 103, 184, 423-424. The necessity of Respondent washing his hands prior 

to providing the sample and the impact of such non-washing of his hands is the issue and 

whether the collector instructed him to wash his hands. The regulations are clear on this point. 

See 49 C.F.R. § 40.63(b) (before the employee provides the sample, the collector must 

“[i]nstruct the employee to wash and dry his or her hands at this time.”). The mandatory aspect 

of Section 40.63(b) is that the collector must provide the instruction to the employee to wash and 

dry his or her hands, not that the collector must make the employee wash his or her hands. 

While it is clear that the collector must instruct the employee to wash his or her hands, the effect, 

if any, of not being able to (rather than refusing to) wash one’s hands prior to providing a sample 

is not clear in the regulations. 

Here, given the apparent unavailability of a water source on the site (see Tr. 103), the 

collector in this case more likely than not failed to give such an instruction. Respondent’s failure 

to wash his hands prior to providing the sample (and the collector’s lack of instruction on this 

point) should not be taken to invalidate the results of the drug test as not having an employee 

wash his hands has been specifically rejected as a basis for invalidating a test. See, e.g., Appeal 

Decision 2522 (JENKINS) (1991). A technical violation of the regulations on this level is, by 

itself, a form of harmless error since the integrity of the specimen and the chain of custody were 

not adversely affected. 

2. Respondent Alleged the Collector Used an Unsealed, Non-Standard Specimen Collection 

Cup. 

The most significant and troubling alleged error concerns the specimen collection cup 

that was used on December 23, 2008. This alleged error has the potential to compromise the 

23 
integrity of the sample and must be examined in detail to determine whether Respondent has 

rebutted the Coast Guard’s prima facie case. The use of an unsealed collection cup could cast 

significant doubt on the integrity of the sample collected. Cf. Appeal Decision 2598 (CATTON)

(1998), aff’d NTBS Order No. EM-185 (1999) (finding that not providing a respondent with a 

sealed container fails to cast sufficient doubt on the test results when specimen container was 

unwrapped in view of respondent). Both the Coast Guard’s and Respondent’s expert agreed that 

the use of an unsealed, non-standard specimen collection cup would lead to a serious questioning 

of the test’s results. See Tr. 69, 75-76, 194, 210. 

The collector stated that she selected a Medtox collection kit and unsealed it in front of 

Respondent. See Tr. 136-137, 149. Respondent and his son claimed that the collector pulled an 

unsealed cup from her car. See 376, 418-419, 482. One cannot reconcile these divergent 

accounts on which specimen collection cup was used. The actual collection cup used is not 

available for review. It is critical to resolve the question of what collection cup was used (and in 

what condition, i.e., either sealed or not) to reach an appropriate decision in this case, and it is 

the undersigned’s duty to make such a determination. See, e.g., NTSB Order EA-4968 (2002) 

(refusing to overturn the trial judge’s findings where the evidence as to the collection process 

was a standoff and the judge found credible a claim that the collection cup was not unsealed in 

the donor’s presence). 

a. The Collector’s Version of Events. 

The collector’s version of events appears credible on its face.9

 The collector testified that 

she used a sealed, Medtox, DOT-approved collection cup (see Tr. 136-137, 149). There are 

reasons to believe that the collector did so. For example, the vials used to transmit the split 

sample to the laboratory were the standard vials that are contained in the Medtox specimen 

 

9

 Her employer, the MRO, found her to be a reliable employee and doubted that she would lie about the collection 

process. See Tr. 295. 

24 
collection kits. See Tr. 49. Such kits consist of the sealed collection cup, the transmittal bag for 

the split specimen, the two vials, and the absorbent chemical. See CG Ex. 11. 

If the collector used the standard split sample vials to transmit the specimen to the 

laboratory, why would she also not use the standard specimen collection cup containing such 

vials? The collector also stated she used the plastic transmittal bag from two other specimen 

collection kits as gloves to perform the transfer of the specimen. See Tr. 139, 195. If she had 

extra specimen collection kit transmittal bags, it stands to reason that she also had extra specimen 

collection cups. There would be no reason for the collector not to have used a standard, sealed 

specimen collection cup in the first instance if she had extra collection kits, which she would 

have opened to make use of the specimen transmittal bags as improvised gloves. 

Significant reasons exist to discredit the collector’s version of events. The collector 

portrayed herself as very thorough and always following procedures. See Tr. 91-99, 189-190. 

And yet, this was not a typical collection for her. This was only her second or possibly third 

onsite collection. See Tr. 88-89, 154-156. She was surprised at the lack of facilities on site. See

Tr. 113-114, 166. She got lost on her way to the collection site and had to contact the DFA 

numerous times to get directions as to how she was to proceed. See Tr. 109-110, 163. She did 

not know prior to getting on the ferry to Webb Tract Island that she would have to board her car 

onto the ferry, and admitted to being scared at this time. See Tr. 112, 118, 164-165. 

Furthermore, after the collection was finished, she left a couple of items used for the collection 

(i.e., the bluing agent and the evidence tampering tape) onsite despite her initial testimony that 

she brought everything back with her. See Tr. 146, 182-183, 389-390, 432-434, Resp. Ex. H and 

I. 

As for the collection itself, she admitted to not bringing gloves to the onsite collection, 

which she characterized as an oversight. See Tr. 197. The collector’s claim of opening up two 

extra specimen collection kits to use the transmittal bags contained therein as improvised gloves 

25 
surely does not sound like a standard operating procedure for conducting a collection. See Tr. 

139, 195. 

The collector also did not direct Respondent to remove his outer clothing prior to 

providing the sample, which is a clear violation of the regulations. See Tr. 382-384, 413, 421. 

The collector’s failure to specify the exact location of the collection on the required form also 

constitutes a technical violation as well.10 See Tr. 159-160, CG Ex. 14. 

Additionally, the collector would likely want to paint a picture that the collection was 

compliant with the regulations. She admitted that if she had used an unsealed, non-standard 

specimen collection cup, her job would be in jeopardy. See Tr. 190, 201-203. But she did 

discuss her problems with the collection with CCIMC staff after returning from the collection, 

and there is no evidence that such problems discussed included the use of a non-standard, 

unsealed collection cup. See Tr. 146-147, 186-187. Yet the collector admitted that such errors 

were “minor” and would not put her job in jeopardy. See Tr. 202-203. 

Finally, there was the unrebutted testimony11 that on another occasion, the collector 

allowed a CCIMC employee to provide a sample without adequately confirming his identity, 

despite the collector’s testimony that she always checked identification. See Tr. 93-94, 406-407. 

But the only evidence of this incident was Respondent’s own testimony, and Respondent did not 

provide corroboration from the DFA employee who was allegedly allowed to take a drug test 

under such circumstances. 

Such collection errors go primarily to procedural requirements that are designed to make 

sure that a donor does not cheat the test. Even if these errors by themselves or in combination do 

 

10 Respondent also alleged certain other minor technical deficiencies with the custody and control form (e.g., not 

having the complete employer information, employer representative information, etc.) None of these alleged errors 

call into question the integrity of the sample provided or the chain of custody. Even Respondent’s expert witness 

admitted that while technically not compliant, all of these errors were non-fatal. See Tr. 522-528. 

11 Again, the Coast Guard certainly could have recalled Ms. Illescas to rebut Respondent’s assertion but failed to do 

so. 

26 
not necessarily call into question the results of the test, they lend some credence to Respondent’s 

other claimed error about the specimen collection cup (which is of paramount significance). 

However, for the reasons stated below, the undersigned simply cannot make the key credibility 

determination in Respondent’s favor. 

b. Respondent’s Version of Events. 

Respondent’s version of events also appears credible on the surface. His version that the 

collector used an unsealed collection cup was supported by the testimony of his son, Bobby. 

Both Respondent and his son testified that the collector pulled an unsealed specimen collection 

cup from under her front car seat. See Tr. 373-375, 377, 379, 417-418. Both testified that the 

collector failed to maintain constant control of the specimen collection cup containing 

Respondent’s sample while the collector went to get some plastic bags to use as gloves. See Tr. 

381, 425. 

Respondent’s prior drug testing history and involvement with DFA’s drug policy 

implementation support his denial of being a user of dangerous drugs. Respondent had been 

subject to numerous random drug tests over his period of employment with the DFA and none of 

these tests had returned positive. See Tr. 216-217, 238-239. Respondent was heavily involved 

with the DFA’s drug testing policy and program changes that occurred in November 2008 (see

Tr. 220, 250) and was aware that a random, onsite drug collection would be conducted for one 

more DFA by the end of that year (see Tr. 408, Finding of Facts No. 10 and No. 11). Given this 

background, Respondent would have to take an unreasonable risk by using methamphetamines 

within an approximately one-month period during which he knew that a random, onsite drug test 

would be given to one of possibly four DFA employees, a set of employees to which he 

belonged. Respondent’s past history of clean random drug tests and involvement with the 

DFA’s drug policy implementation caution against finding that he was so reckless. 

27 
Respondent also made contemporaneous complaints to a CCIMC employee about the 

collection process once he received the positive test results. See Tr. 434, 477-478, 493-498. 

Such complaints centered in part on the collector’s use of a non-sealed specimen collection cup. 

Id. While the details about such complaints are somewhat vague, the fact that the collector used 

an unsealed kit for the collection remained constant in Respondent’s versions of events over 

time. Moreover, Respondent has consistently made the allegation concerning the use of an 

unsealed specimen collection cup to a number of people, including CCIMC’s office manager, the 

MRO, Ensign Looney, his wife, and his boss. See Tr. 234, 272, 347, 427-428, 444-445, 475; 

Resp. Ex. D. While certain elements of Respondent’s story have shifted over time (e.g., location 

from which the collector pulled the specimen collection cup as stated in Resp. Ex. D versus his 

testimony), the use of an unsealed collection cup was always present. 

Also weighing in favor of Respondent is the fact that his employer was shocked by the 

test results, has no concerns that Respondent is in fact a drug user, and is holding Respondent’s 

position as a ferry boat captain open for him pending resolution in this matter. See Tr. 223, 238, 

252. 

Significant reasons to discredit Respondent’s version of events are present as well. 

Respondent and his son obviously have a motivation to make the collection process appear as 

non-compliant with the regulations as possible to preserve Respondent’s right to work as a 

licensed mariner. 

Most troubling, Respondent’s written statement of events (see Resp. Ex. D) contradicts 

elements of Respondent’s testimony and established fact (see Tr. 467 (explaining contradiction 

between cup allegedly coming from under front or back seat of Ms. Illescas’ automobile); Tr. 

480-481 (explaining contradiction between split specimen vial lids allegedly being unattached to 

vials)). 

28 
The key discrepancy is that Respondent’s February 12, 2009 written statement claims 

that the lids for the split specimen vials were not attached to the vials and the collector placed the 

lids on a chair beside the portable toilet. See Resp. Ex. D. Specifically, Respondent stated: 

The tubes also were not in any kind of packaging and had no lids. I remember 

wondering how she was going to travel with my specimen and not spill it with no 

lids, when I noticed two small lids sitting on an old boat seat next to the port-apotty. Ruth picked up the cup from the ground containing my specimen and with 

the bags from her back seat I watched her pour the specimen into the two vials. 

Ruth then picked up the small lids I had seen on the old seat and placed them on 

the vials. 

Id. (emphasis added). This account of the separated specimen vial lids is very specific and 

detailed, and yet cannot be correct given the fact that the lids were attached to the vials upon 

receipt at Medtox. See Tr. 49. 

Bobby Lawrence’s February 18, 2009 statement contains much the same allegation. See

Resp. Ex. E. Specifically, Bobby stated the following: 

Then she pulls out two vials from a pocket on her shirt. She takes the lids off and 

lays them and one of the tubes on the chair by the other two boxes. Ruth bends 

down to the ground where the specimen cup has been sitting, uncovered, picks it 

up and pours it into the vial she is holding. Ruth fills one vile [sic], places a lid 

on it, lays it down, picks up the other vial and pours the remainder of the 

specimen into it and replaced its lid as well. 

Id. (emphasis added). Bobby’s statement offers a similarly detailed account of the two lids of the 

specimen vials being unattached. But, again, both the collector and Dr. Collins testified that the 

split sample vials had their lids attached. See Tr. 49, 142. 

Respondent provided an explanation for these discrepancies (see Tr. 480-481, 485-487), 

but the undersigned must still take into account such discrepancies when evaluating 

Respondent’s version of events. Given the seriousness of the allegations against Respondent, 

one would think that he would have ensured that his written statement of events concerning the 

collection were accurate and would have proofread his statement for any errors. The fact that 

Respondent’s wife typed his statement and the fact that he did not proofread it before it was sent 

29 
(see Tr. 485-487) also does not explain why such inconsistencies are present in his son’s 

statement as well. See Resp. Ex. E. 

There is no evidence in the record that Mrs. Lawrence also typed Bobby’s statement, and 

one must question why the same error of fact appears in both statements. Furthermore, one 

would anticipate that accounts delivered closer to the time in question (i.e., Respondent’s and 

Bobby’s written statements in February 2009 about events occurring late in December 2008) 

would be more, not less, accurate depictions of fact than testimonial accounts given months later. 

The replication of this error in Bobby’s statement casts doubt about the overall veracity 

and independence of his statement (which was written after Respondent’s statement) and his 

testimony generally. Either Bobby erroneously recalled the same event as Respondent (i.e., 

removal of the split sample vials’ lids) or was unduly influenced by Respondent’s earlier written 

statement. Serious questions about both Respondent’s and his son’s credibility thus exist. 

c. Respondent Failed to Establish that the Collector Used an Unsealed, Non-Standard 

Collection Cup. 

This case is replete with a lot of he-said-she-said with radically different and 

incompatible versions of events. One cannot objectively state that Ms. Illescas’ version of events 

is absolutely correct or Respondent’s version is absolutely correct in the abstract. Ultimately, the 

undersigned is left with the difficult task of determining whether to order the revocation of 

Respondent’s license in light of the conflicting testimony concerning the collection procedures. 

The undersigned has taken into account the entire record and the fact that the collection 

was not done in conformity with the drug testing regulations in making an overall credibility 

finding as to this key fact – i.e., whether an appropriate, sealed specimen collection cup was 

used. For the reasons discussed above, it is more likely than not that the collector had multiple 

Medtox standard collection kits onsite and used such a kit for the drug collection. It is also more 

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likely than not that the collector failed to unseal such a kit in Respondent’s presence but 

nevertheless used such a standard, Medtox collection cup for the collection of the sample. 

The fact that the collector failed to unseal the collection cup in Respondent’s presence is 

a close call in terms of determining whether the integrity of the sample was compromised. The 

case law holds that a collection error must rise to a level that compromises the integrity of the 

sample or raises an issue with the chain of custody to invalidate an otherwise positive test. The 

collector’s actions in this instance do not rise to such a level. The sample collection cup used 

was not some random, drinking cup of questionable origin but rather the facts and evidence as a 

whole point to the use of an appropriate Medtox collection cup into which Respondent provided 

his sample. There is absolutely no evidence to suggest that Respondent’s sample was somehow 

adulterated with metabolized methamphetamine by errors that occurred during the collection. 

Unless one were to hold as a matter of law that the failure to unseal an appropriate sample 

collection cup in the donor’s presence, by itself, rises to a level sufficient to disregard a positive 

test result, the test must stand. See, e.g., NTSB Order EA-4968 (2002). While the undersigned 

believes that the NTSB may throw such a case out, the current state of Coast Guard precedent 

does not allow for such a finding. 

At its core, the undersigned finds the collector’s version of events with respect to which 

collection cup was used more credible than Respondent’s depiction on this point, especially in 

light of the objective indicia of Respondent’s (and his son’s) either outright falsehood or 

significant failure to accurately recall a detail of the collection (i.e., the flip top lids of the 

specimen vials being detached from the vials). The collector’s version of events concerning key 

aspects of the collection simply holds together better with the facts and makes more logical sense 

for the reasons given above. 

To be sure, there are problems with the collector’s version of events concerning the 

collection and her credibility. But overall, the weight of the evidence simply does not tip in 

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favor of Respondent’s rebuttal attempts, and the Coast Guard, which bears the ultimate burden of 

proof, adequately established that the collector used an appropriate, specimen collection cup by 

substantial, reliable and credible evidence. Enough evidence is thus in the record to find as a fact 

that the collector provided Respondent with a collection cup in which to provide his sample in 

fundamental accordance with 49 C.F.R. § 43.63(c) and 49 C.F.R. Part 40, Appendix A and that 

the collection, as a whole, was done in sufficient accordance with the regulations to accept the 

results of the test. 

Respondent failed to establish any error in the collection (or the subsequent MRO 

verification call) that would lead to a finding that the positive test results should be disregarded 

because of either a problem with the chain of custody or the integrity of Respondent’s sample. 

The Coast Guard adequately met its ultimate burden of proof with respect to all three elements of 

its prima facie case and revocation of Respondent’s Coast Guard issued credentials is warranted. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

the United States Coast Guard and the undersigned in accordance with 46 U.S.C. § 

7704(c), 46 C.F.R. Part 5, and 33 C.F.R. Part 20. 

2. Respondent is the holder of United States Coast Guard Merchant Mariner’s License, 

Serial Number 1503397 and Merchant Mariner Document number xxx-xx-

[REDACTED]. 

3. On December 23, 2008, Respondent participated in a random drug test and tested positive 

for methamphetamine metabolite. 

4. The Coast Guard established it prima facie case that Respondent is a user of a dangerous 

drug by showing that 1) Respondent was the person who was tested for dangerous drugs; 

2) Respondent failed the drug test; and 3) the test was conducted in accordance with 46 

C.F.R. Part 16. 

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5. Respondent failed to rebut the Coast Guard’s prima facie case and the presumption that 

he is a user of a dangerous drug. 

6. The record as a whole, the testimony, and facts established at the hearing concerning the 

December 23, 2008 collection and subsequent testing of Respondent’s specimen do not 

compromise the results of the positive drug test so that such results must be disregarded. 

7. The factual allegation of “Use of or Addiction to the Use of Dangerous Drugs” against 

Respondent is found PROVED by a preponderance of the evidence. 

ORDER

IT IS HEREBY ORDERED that the charge against Respondent of Use of or Addiction 

to the Use of Dangerous Drugs is hereby found PROVED. 

IT IS HEREBY FURTHER ORDERED that service of this Decision and Order upon 

Respondent will serve as notice to Respondent of appeal rights as set forth in 33 CFR Subpart J, 

Section 20.1001. See 33 C.F.R. §§ 20.1001-20.1004 (Attachment B). 

/s/ Parlen L. McKenna___ 

Hon. Parlen L McKenna 

Administrative Law Judge

United States Coast Guard 

Date: December 14, 2009

33 
ATTACHMENT A

WITNESS AND EXHIBIT LISTS

COAST GUARD WITNESSES 

1) Dr. Jennifer Collins (telephonically) 

2) Ms. Ruth Illescas 

3) Mr. David Forkel 

4) Ensign Samud Looney – USCG 

5) Dr. David Wren, Jr. 

RESPONDENT WITNESSES 

1) Mrs. Carrie Lawrence 

2) Mr. Bobby Lawrence 

3) Mr. Ronald A. Lawrence 

4) Ms. Vicki Owens (telephonically) 

5) Ms. Halle Weingarten 

COAST GUARD EXHIBITS 

Coast Guard Exhibit 1 Letter from Mr. Dan Forkel, Delta Ferry Authority, to 

United States Coast Guard, dated January 7, 2009 

Coast Guard Exhibit 2 Complaint 

Coast Guard Exhibit 3 Answer 

Coast Guard Exhibit 4 Copy of Respondent’s Merchant Mariner’s License 

Coast Guard Exhibit 5 Report of drug testing 

Coast Guard Exhibit 6 Patient consent for use and disclosure of protected health 

information 

Coast Guard Exhibit 7 Letter from Mr. Dan Forkel, Delta Ferry Authority, to 

Contra Costa Industrial Medical Center, dated February 16, 

2009 

Coast Guard Exhibit 8 Photograph of collection kit and red box 

Coast Guard Exhibit 9 Photograph of red box 

Coast Guard Exhibit 10 Photograph of split specimen collection kit 

Coast Guard Exhibit 11 Photograph of split specimen collection kit contents 

Coast Guard Exhibit 12 Example of Medtox chain of custody form 

Coast Guard Exhibit 13 Ten (10) photographs of collection site on Webb Tract 

Island 

Coast Guard Exhibit 14 Copy of Custody and Control Form 

Coast Guard Exhibit 15 Medtox Laboratory report of positive drug test 

Coast Guard Exhibit 16 Certificate of Inspection for M/V VICTORY II 

Coast Guard Exhibit 17 NOT USED 

Coast Guard Exhibit 18 Medtox Laboratory Litigation Package 

Coast Guard Exhibit 19 Contra Costa Industrial Medical Clinic New Patient 

Registration and consent form 

Coast Guard Exhibit 20 DOT Drug Testing Guidelines binder 

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Coast Guard Exhibit 21 Contra Costa Industrial Medical Clinic Report of Drug Test 

Results 

RESPONDENT EXHIBITS 

Respondent’s Exhibit A Curriculum vitae – Halle Landesman Weingarten 

Respondent’s Exhibit B Chain of Custody and Consent Form 

Respondent’s Exhibit C CCIMC Roster 

Respondent’s Exhibit D Letter from Respondent to Dr. Wren, dated February 12, 

2009 

Respondent’s Exhibit E Statement from Mr. Bobby Lawrence, dated February 18, 

2009 

Respondent’s Exhibit F Letter from Mr. Ken Moyal, Esq. to Dr. Wren, dated 

February 25, 2009 

Respondent’s Exhibit G Email from Ensign Looney to Respondent, dated February 

12, 2009 – offered and admitted but stricken from the 

record per footnote 3 above 

Respondent’s Exhibit H Box of Tamper-Evident Tape 

Respondent’s Exhibit I Box Toilet Bowl Bluing Agent 

Respondent’s Exhibit J Letter from Dr. Wren re Respondent dated January 9, 2009 

Respondent’s Exhibit K Photograph of Respondent standing between portable toilet 

and truck on Webb Tract Island 

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