UNITED STATES OF.AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD, 

vs. 

RICARDO A. SEBASTIAN, 

Respondent. 

) Docket Number CG S&R 00-0249 

) 

) Coast Guard Case No. P AOO 000650 

) 

) 

) 

) 

_________________________________ ) 

DECISION AND ORDER 

On AprilS, 2000, a Complaint was filed charging Respondent, a holder of Merchant 

Mariner Document Number 576-35-1530, with violation of 46 USC§ 7704(c) (use of or 

addiction to use of dangerous drugs) as a consequence of a March 19, 2000 random drug test 

from which the specimen provided by Respondent tested positive for amphetamines. 

Respondent answered the complaint admitting holding the Merchant Mariner Document, 

that acting under authority of that document he served as a crewmember aboard the vessel S.S. 

Independence as required by law and regulation. He also admitted, he took a random drug test 

on March 19, 2000, that a urine specimen was provided on that date, that he signed a 

Department of Transportation Drug Testing Custody and Control Form, and that the specimen 

was analyzed by Quest Diagnostics using Enzyme Immunoassay and Gas Chromatography/ 

Mass Spectrometry procedures approved by the DOT. However, he denied that the specimen 

tested positive for amphetamines, and further denied the Medical Review Officer determined 

that the test was valid. As a result of his denials he demanded a hearing. 

On June 9, 2000 a hearing was held in Honolulu, Hawaii. At the hearing, the Coast 

Guard was represented by its investigating officer, and Respondent appeared pro se but was also 

assisted, with his permission, by his companion, Balarie Johnson. 

The Coast Guard introduced twelve (12) exhibits, and presented two (2) witnesses. The 

first was Kenneth Kodama, Technical Manager, Quest Diagnostics who testified by telephone. 

The second witness was Dr. Glenn Furuya, Medical Review Officer, of Clinical Labs of Hawaii. 

Respondent did not testify. However, he earlier provided to the Judge and the Coast 

Guard several documents in which he essentially asserted that he was not a user of dangerous 

drugs, that any positive test result for amphetamine was a consequence of ingestion of over the 

Sebastian Decision & Order- I 
counter medications for congestion due to a cold. At the hearing his representative Ms. 

Johnson reiterated that defense and added that he also had ingested Sudafed and over the 

counter decongestant, used her asthma inhaler, Albuterol, and took her prescribed antibiotic 

Entrex. 

In these cases the Coast Guard must prove its case against the mariner charged on the 

basis of reliable, probative and substantial evidence. 46 CFR § 5.63. This substantial evidence 

standard has been determined to be the equivalent of the preponderance of the evidence 

standard. See Commandant Decision on Appeal2472 (Gardner) and Steadman v. United States, 

450 US 91 (1981) which concluded that the preponderance of the evidence standard shall be 

applied in administrative hearings governed by the Administrative Procedures Act, such as this' 

hearing. 

For some time now, the Coast Guard has brought cases charging use of a dangerous drug 

under 46 USC § 7704( c) based solely upon the results of chemical testing by urinalysis. 46 

CFR § 16.201(b) provides that one who fails a chemical test for drugs under that part will be 

presumed to be a user of dangerous drugs. In turn, 46 CFR § 16.105 defines "fail 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 CFR §40. In other words, 46 CFR § 16 establishes 

a regulatory presumption on which the Coast Guard may rely, provided the Coast Guard can 

satisfactorily show that a 49 CFR §40 chemical test of a merchant mariner's sample or specimen 

was reported as positive by an MRO. This presumption, however, does not dispense with the 

obligation to establish the presumption by the same standard of proof, i.e., the elements ofthe 

case must be shown by a preponderance of the evidence. The elements of a case of presumptive 

use are as follows: 

"' First, the Respondent was the person who was tested for dangerous drugs. Second, the 

Respondent failed the test. Third, the test was conducted in accordance with 46 CFR Part 16. 

Proof of these three elements establishes a prima facie case of use of a dangerous drug (i.e. 

presumption of drug use) which then shifts the burden of going forward with the evidence to the 

Respondent to rebut that presumption. If the rebuttal fails then the Judge may find the charge 

proved solely on the basis of the presumption. See Commandant Decision on Appeal2592 

(Mason); 2584 (Shakespeare); 2560 (Clifton) . 

. · -··· The first element is to show that the respondent was the person who was tested for 

dangerous drugs. This involves the proof of identity of the person providing the specimen. 

Also, proof of a link between the Respondent and the sample number or Drug Testing Custody 

and Control number which is assigned to the sample, and which identifies the sample 

throughout the chain of custody and testing process, and proof of the testing of that sample. 

Respondent admitted much of the first element. In particular, the specimen was assigned 

an a~propriate identification number by the collector, Lulu Cowden, of Clinical Labs of Hawaii. 

The urine specimen was placed in an appropriate container and sealed with a tamperproof seal 

that bore Respondent's signature. (CG Exhibit F) 

Notice ofHearing- 2 
The second element involves proof of the test results. The initial screening test and 

scientific analyses indicated the presence of amphetamines and methamphetamines. 

Confirmation and additional analyses were done by gas chromatography/mass spectrometry test 

(GC/MS) in accordance with the guidelines established in 49 CFR 40.29(±). (CG Exhibit F) 

The test results were forwarded to the MRO, Dr. Glenn Furuya, of Clinical Labs of Hawaii, who 

reviewed the results and conducted a telephonic interview with Respondent on March 27, 2000. 

Thereafter, the MRO confirmed that the laboratory test results were positive. (CG Exhibit J) 

The third element is to show that the test was conducted in accordance with 

46 CFR Part 16. This 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. 

Respondent's urine specimen was collected by Lulu Cowden, of Clinical Labs of Hawaii. 

The urine specimen was placed in an appropriate container and sealed with a tamperproof seal 

that bore Respondent's signature. (CG Exhibit F) It was then transported to Quest Diagnostics 

by air courier. Upon receipt at the San Diego Laboratory, Respondent's specimen was taken to a 

high security accessioning room where the specimen container was inspected for any tampering 

or prior opening. The condition of the package is documented. The specimen number is noted 

and entered into the lab's computer system. The Respondent's specimen is maintained in 

secured'storage during testing and following completion of testing. Each technician who access 

specimens document their activities on internal chain of custody forms. Upon completion of 

testing, specimens reported as positive, have their remaining portions stored in a secured frozen 

storage area. Each of these steps in the process are confirmed on pages 11 et seq. of CG 

Exhibit F. 

Finally, the laboratory's qualifications were established by the testimony of Kenneth 

Kodama and Quest Diagnostic's listing as a laboratory meeting minimum standards to engage 

urine drug testing for federal agencies. (CG Exhibit E) (65 Fed Reg. No. 44, p. 11795, March 6, 

2000). 

After review of the credible testimony, as well as the documentary and scientific evidence 

of record, the court is satisfied that there has been compliance with the regulatory requirements 

and DOT guidelines for collecting, analyzing, testing and confirming the presence of prohibited 

substances (amphetamines and methamphetamines) in Respondent's urine. In this case, the 

scientific test results and MRO confirmation submitted by Coast Guard was essentially 

unchallenged and thus raises a presumption of Respondent's use of prohibited substances. 

46 CFR Subpart B, 16.201 (b). It was thus incumbent upon Respondent to overcome the 

presumption by showing that he was not a user of dangerous drugs. 

Respondent was assisted at hearing by his companion, Balarie Johnson, who raised 

several possibilities that may have compromised Respondent's urine sample. Ms. Jolmson stated 

that Respondent, feeling ill, inhaled her asthma medicine inhaler (Albuterol), as well as taking 

Sudafed and a prescribed drug, Entrex. The MRO was unaware of respondent's ingestion of any 

Sebastian Decision & Order- 3 
of these substances. 1 However, upon questioning by the Court, he opined that none ofthem 

would explain the positive test results. 

Nevertheless, the MRO did agree that because pseudoephedrine (Sudafed) has a chemical 

similarity to methamphetamine (i.e., pseudoephedrine shares the same chemical structure as 

methamphetamine with an a-OH group) and the extremely harsh physical conditions that exist in 

the GC/MS process, that it would be appropriate to differentiate between the d- or!-

methamphetamine or amphetamirie.2 Consequently, this Court ordered a retest of the specimen 

for that purpose. 

A differentiation test was conducted and the results concluded that Sudafed could not be 

the cause of the positive amphetamine or methamphetamine results reported. 

Based on the record before me, Respondent has failed to rebut the. presumption arising 

from the positive drug test results. 

I must therefore conclude that the charge of"Use of Addiction to the Use ofDangerous 

Drugs" by Respondent, is proved. 

SANCTION 

46 USC § 7704( c) provides that if it is shown that a holder of a document is a user of a 

dangerous drug, the merchant mariner's document shall be revoked. As a result, Respondent's 

Merchant Mariner's Document 576-35-1530, is hereby revoked. 

Service of t~is Decision upon you serves to notify you of your right to appeal as set forth 

in 33 CFR Subpart J, §20.1001. (Attachment A) 

DATED: June 20, 2000. 

EDWIN M. BLADEN 

Administrative Law Judge 

1 CG Exhibit Fat page 52 shows a methamphetamine test result of2411.6 for sample number 161844505 which is 

respondent's specimen control number. 2 See Medical Review Officer Manual for Federal Workplace Drug Testing Programs, Chapter 5, Part A, 

Amphetamines, paragraph 3, Interpreting Laboratory Results, subpart c discussing over the counter medications 

containing pseudoephedrine. 

Notice of Hearing - 4