UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

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UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

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LONZELL SYKES 

Respondent Docket No. 99-0319 

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DECISION AND ORDER 

PETER A. FITZPATRICK 

United States Administrative Law Judge 

APPEARANCES: 

FOR THE COAST GUARD 

Lt. Kevin Carroll 

CWO John Gonzales 

United States Coast Guard 

Marine Safety Office - Hampton Roads 

Norfolk, VA 

FOR THE RESPONDENT 

Mr. Larry Blanchard 

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I 

PRELIMINARY STATEMENT 

This case began upon the filing of the Complaint on October 27, 1999. It 

alleged that Mr. Sykes took a Pre-Employment drug test on January 19, 1999 at the 

offices of Richard Hoffman, MD and that the result showed that his urine specimen 

contained Cocaine Metabolite. The specimen is alleged to have been collected and 

analyzed in accord with the procedures approved by the U S Department of 

Transportation. 

The Respondent's Answer was filed that same day. Mr. Sykes denied all 

jurisdictional and factual allegations. He also indicated that he did not understand the 

term "Affirmative Defense". 

A pre-hearing conference was held at Norfolk and all parties were present. At the 

outset I reviewed the Complaint and Answer and explained the nature of the hearing and 

the applicable law. The Respondent indicated that he was not a user of dangerous drugs - -- - -- - --

and denied those allegations of the Complaint. Both sides provided a description of the 

witnesses to be presented and the case was set for hearing as previously scheduled on 

December 1 7, 1999. 

The hearing was conducted as scheduled and the Respondent, his representative 

Mr. Larry Blanchard, and the Investigating Officers were present. The witnesses 

sponsored by the Coast Guard included Ms. Nancy Briach, Collection Site Person; Mr. 

James Callies, Scientific Director, Quest Diagnostics, Inc.; and Mr. George Ellis, 

President, Greystone Health Sciences Corporation. 

Tile Investigating Officer also offered-four exlrtbits into evidence. (I<J-1-;;-4). 

The Respondent testified but did not sponsor any other witnesses or exhibits. 

At the conclusion of the hearing I found that the allegations in the Complaint were 

PRE>VE-B by-th-e Preponderance-ofth-e Evi-d-ence;-A-fter-recei-ving-the Respondent's 

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record and mindful of the requirements of the applicable statute ( 46 USC 7704), I ordered 

Mr. Sykes' Merchant Mariner's Document to be REVOKED. 

II 

FINDINGS OF FACT 

1. Lonzell Sykes is the holder of Merchant Mariner's Document 224-66-6499 

issued by the United States Coast Guard. 

2. On January 19, 1999, Mr. Sykes took a Pre-Employment drug test at the 

offices of Dr. Richard Hoffman in Norfolk. Ms. Nancy Briachwas the person who 

collected his urine sample and completed the associated documents. She signed the Drug 

Testing Custody and Control Form and sealed the shipping container in Mr. Sykes' 

presence. Thereafter, she packaged the sample for shipment with the required forensic 

seals. 

3. Ms. Briach executed the certification on the Drug Testing Custody and Control 

form (DTCC) attesting to the fact that the specimen was provided by Mr. Sykes, and that 

it was collected, labeled, and sealed in accordance with Federal requirements. Also, Mr. 

Sykes himself executed the certification on the DTCC form attesting that the specimen 

was his, that it was sealed in his presence, and that the information provided on the form 

was correct. (1.0. 2). 

4. The sample was received at Quest Diagnostics on January 22, 1999. The 

_______ _.rcYe~ce"""'ipt of the kit as welLas_th_e_handlirig_andJ~sting_oLthe_sample_are_do_cnmented_onJhe, ___ _ 

laboratory's internal chain of custody. (I.O. 4). An examination of the seals on the 

mailing kit and bottle were performed to assure that the items were intact. There is no 

indication in this case that the specimen v1as opened after it had been sealed and before it 

arrived at the laboratory. 

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An internal chain of custody and additional numbering system were established 

at the laboratory. The initial drug screen was conducted and it revealed the presence of 

Cocaine is Mr. Sykes' sample. 

5. Next, another aliquot was taken from the sample and a confirmatory test (gas 

chromatography/mass spectrometry) (GC/MS) was conducted. That result revealed the 

presence of Cocaine metabolite in excess of the Federal threshold level. The Certifying 

Scientist, Eric R. Mortensen, signed the DTCC form on January 22, 1999. 

6. The laboratory results were sent to the Medical Review Officer, Doctor 

Stephen Oppenheim. Nearly 9 months later on September 20, 1999 the Doctor was able 

to speak with the Respondent and Doctor Oppenheim concluded the test result was 

positive. 

7. That positive finding was forwarded to the Coast Guard Marine Safety Office 

and the Complaint here followed. 

III 

CONCLUSIONS OF LAW 

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

of the Coast Guard under Sections 7702 and 7704, Title 46, United States Code. 

2. All Jurisdictional and factual allegations of the Complaint are supported by the 

Preponderance of the Evidence. They are PROVED. 

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IV 

OPINION 

1. Where a mariner is charged in the Complaint with a positive result on a drug 

test conducted in accord with the Department's regulations, the statutory mandate set out 

at 46 U.S.C. 7704(c) is controlling. That provision, in pertinent part, states that if it is 

shown (at a hearing) that the holder of a merchant mariner's license or document has been 

the user of a dangerous drug, the mariner's credentials "shall be revoked unless the 

holder provides satisfactory proof that the holder is cured." In such case the burden of 

proving the elements of the charge rests upon the Investigating Officer. The standard of 

proof, which must be established, is that the charge must be proved by substantial, 

reliable, and probative evidence. That term, as described in Appeal Decision 2603 

(HACKSTAPP) (1998) is the same as the preponderance of the evidence standard. See 

Steadman v SEC, 450 US 91 (1981). 

In a case where the charge is founded solely on the results of chemical testing by 

urinalysis, the presumption set out at 46 C.P.R. 16.201(b) is applicable. That rule 

provides that where a mariner fails a chemical test for dangerous drugs; "the individual 

will be presumed to be a user of dangerous drugs". As the Commandant recently stated 

in Hackstaff (Id. at 5): 

" .. .46 C.P.R.§ 16.105 defines "fails a chemical test for dangerous drugs" 

to mean that a Medical Review Officer (MRO) reports as "positive" the 

results of a chemical test conducted under 49 C.P.R. § 40. 

_________ In_other_words,-46-C.E.R.-§-L6-establishes-a-regulator-y-presumption-on 

which the Coast Guard may rely, provided the Coast Guard can 

satisfactorily show that a 49 C.P.R. § 40 chemical test of a merchant 

mariner's sample was reported as positive by an MRO." 

Thus,--in-order-to-successfuUyinvoke-tlie presumpttmrabove, the Investigating 

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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 conducted in accordance with 46 

C.P.R.§ 16. (Id.) If all three elements are proven the burden of going forward with the 

evidence shifts to the Respondent who must rebut the presumption. (Id.). 

The analysis below will therefore examine whether the Investigating Officer met 

the requirement to prove the three criteria necessary to invoke the presumption of illicit 

drug use against Mr. Sykes. 

2. Ms. Briach conducted the collection of Mr. Sykes' specimen on January 19, 

1999. Mr. Sykes signed the DTCC fonn and certified that the urine specimen provided 

was his, that is was not adulterated, that the container was sealed with a tamper proof seal 

in his presence, and that the information provided on the form and on the label affixed to 

each bottle was correct. (IO- 2). The Collector too, certified that the specimen identified 

on the form was the one provided by the Donor and that it was collected, labeled, and 

sealed in accord with applicable Federal requirements. 

At the hearing Ms. Briach specifically pointed out that she remembered Mr. Sykes 

and conducted the collection in accord with the DOT requirements. Indeed, the 

Respondent did not challenge the collection procedure at the hearing. A review of the 

certification above, the DTCC fonn, and the testimony of Ms. Briach make it clear that 

Lonzell Sykes was the individual involved in the collection here. There is no doubt too, 

that the evidence present on this record shows a properly conducted urine collection in 

accord with the DOT and Coast Guard regulations. 

3. Similarly, there is no challenge in this case to the accuracy of the chemical 

drug tests and procedures followed at Quest Diagnostics. Mr. Callies, the laboratory's 

c<eient-i-fle-Bi-reet-er, deseri-becl t-he-preeedures-fel-lewed enee-t-he-spee1-men--arnvecl--at- t-ho 

laboratory. It was inspected for tampering and to assure the sealed bottle was intact. A 

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bar code was applied to the bottle before the testing commenced. The first test was an 

enzyme immunoassay screening. In the instance at bar, Mr. Sykes' screening result 

showed a value for cocaine of 198 ng/ml. 

Next, another aliquot was removed from the original specimen and was subjected 

to a confirmatory analysis called gas chromatography/mass spectrometry. That test 

showed that Mr. Banks' specimen contained 1177 ng/ml of the cocaine metabolite 

sought. The Federally established cutoff on the confirmatory test is 150 ng/ml. (I.O. 4). 

Considering Mr. Callies' testimony, the detailed "Litigation Package" submitted 

by the laboratory and the lack of any challenge here to the testing process. I have 

concluded that Mr. Sykes' specimen was properly tested by a Federally authorized drug 

testing laboratory and that the results are accurate. 

4. Quest Diagnostic's Final Report was issued on January 25, 1999 and sent to 

the Medical Review Officer. The MRO was not able to contact the Respondent until 

September 20, 1999 when Dr. Oppenheim interviewed him by telephone. After that 

interview the Doctor concluded that there was no reasonable medical explanation for the 

presence of the drug in the Respondent's system and that a positive test result was 

involved. The Doctor signed the DTCC fonn verifying a positive result. 

I find that the Medical Review Officer properly performed his duties in verifying 

the test results here as Positive. 

5. Mr. Sykes testified that he does not use illicit drug and cannot understand how the 

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urine sample here tested positive. That denial is not sufficient to rebut the convincing 

evidence submitted in support of the Complaint. The evidence here is substantial, 

lta:ole and-probative tlianneRespondent was tne manner wllotooKtne arug test~liat 

the test was performed in accord with the applicable regulations, and that the results were 

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positive for cocaine metabolites. 

ORDER 

For the reasons set out above, I find that the Complaint in this case is PROVED. 

In accord with 46 USC 7704 and in the absence of any evidence of "cure", the 

Respondent's Merchant Mariner's Document is hereby REVOKED. 

Done and dated this 13th day of January, 2000 

At Norfolk, Virginia. 

p 

United States Administrative:'~aw Judge 

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