UNITED·STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

FABIAN ZERINGUE, SR 

Respondent. 

Docket No. 02-0462 

CG Case No. ES1647989 

DECISION AND ORDER 

Issued by: Archie R. Boggs, Administrative Law Judge 

PRELIMINARY STATEMENT 

This proceeding is brought pursuant to the authority contained in 5 USC 551-559; 

46 USC Chapter 77; 46 CPR Parts 5; and 33 CPR Part 20. 

Fabian Zeringue, Sr. was served with a Complaint by U.S. Coast Guard 

Investigating Officer on 19 July 2002. The Complaint alleges statutory authority as 46 

USC 7702( d) and regulatory authority as 33 CPR part 20 subchapter L. 

The factual alleg~tions are as follows: 

1. On June 29, 2002, the Respondent served as Master aboard the MN Miss Lori 

when it was involved in a marine casualty. 

1 

·, .. 
2. The Respondent was ordered to take a post-casualty drug test on June 30, 

2002. 

3. The urine specimen was collected by CIBI and analyzed by One Source 

Laboratory using procedures approved by the Department of Transportation. 

4. That specimen subsequently tested positive for cocaine. 

Mr. Zeringue was represented by George F. Riess, attorney at law, 938 Lafayette 

Street, Suite 100, New Orleans, LA 70113-1067. He denied the factual allegations. He 

requested a hearing. 

A hearing was held in accord with the request on 27 August and 24 September 

2002 at the Marine Safety Office, 1615 Poydras Street, Suite 737, New Orleans. CWO 

David Cornett presented the case for the Coast Guard. 

In support of the Complaint the Investigating Officer introduced in evidence the 

testimony of(l) Dennis A. Vallejo, Trace Marine Port Engineer; (2) Debbie Malone, 

urine collector, for Confidential Identification Bureau, Inc., Gretna, LA, who collected a 

urine specimen from Mr. Zeringue on 30 June 2002; (3) Dr. Stephen E. Harris, laboratory 

director for One Source Toxicology Laboratory, Houston, TX; and (4) Dr. Brian Heinen, 

Medical Review Office, Eunice, LA. 

Mr. Zeringue testified in his own behalf and he called Tom Freijo, certifying 

scientist for One Source Toxicology, Deer Park, TX; and Patricia Pizzo, director of 

toxicology for Kroll Laboratory Specialists, lilc., Gretna, LA. (Ms. Pizzo ordinarily 

testifies as a witness for the Coast Guard.) 

2 

·, ~. 
FINDINGS OF FACT 

Both the Coast Guard and the Respondent submitted Proposed Findings of Fact 

and Conclusions of Law. The Coast Guard's Proposed Findings are accepted in part and 

rejected in part. The Respondent's Proposed Findings of Fact and Conclusions of Law, 

are accepted and adopted in toto as the Administrative Law Judge's Findings of Fact. 

.. COAST GUARD'S PROPOSED FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

ACCEPTED 

1. Respondent, Mr. Fabian F. Zeringue, Sr., is the holder of Coast Guard License 

number 962807 (2nd issue)~ 

ACCEPTED 

2. On June 29, 2002, at approximately 2200, Mr. Zeringue was acting under the 

authority ofhis Coast Guard license while serving as operator ofUTV MISS LORI, when 

it was involved in a collision with a commercial shrimping vessel in the Intracoastal 

Waterway at mile marker 10, near the entrance to Bayou Bienvenue. 

ACCEPTED 

3. On June 30, 2002, approximately three hours after the marine casualty, Dennis 

Vallejo, Port Captain for Mr. Zeringue's employer, Trace Marine, instructed Mr. 

Zeringue to submit to a chemical test for dangerous drugs· as soon as possible. This drug 

test was ordered in accordance with the regulations in 46 CFR Parts 4.06 and 16.240. 

The marine employer reported the marine casualty and the fact that a drug screen was 

performed on Forms CG-2692 and CG-2692A (introduced into evidence as IO Exhibit 

#1). 

ACCEPTED 

4. Mr. Zeringue reported to West Jefferson Memorial Hospital at approximately 1200 on 

June 30, 2002, to submit a urine specimen. 

ACCEPTED 

5. The urine specimen collector was Debbie Malone of Confidential I.D. Bureau, Inc. of 

Gretna, LA. When Ms. Malone asked Mr. Zeringue for a form of photo identification, he 

stated he had left it in his wallet in his car. Ms. Malone told Mr. Zeringue he could not 

3 
return to his car to get the photo I.D. because the testing process had already begun. Ms. 

Malone proceeded with the drug screening of Mr. Zeringue without obtaining a positive 

identification as required by 49 CFR Part 40. 

NOT ACCEPTED. 

The failure to obain proper identification 

on Mr. Zeringue is fatal. 

No rulings are made on the remaining Proposed 

Findings of fact due to the failure 

of the collector to obain proper identification in accord 

with the regulations. 

6. Except for her failure to obtain proper identification of Mr. Zeringue, Ms. Malone 

properly followed all Department of Transportation (DOT) drug testing procedures in 49 

CFR Part 40 throughout the collection of Mr. Zeringue's urine specimen. 

7. Upon providing the urine specimen, Mr. Zeringue signed his name in Step 5 of the 

Federal Drug Testing Custody and Control Form (which appears only on Copy 2, the 

Medical Review Officer copy of the form), attesting to the fact that the specimen was 

properly sealed in his presence and that the information on the specimen bottle and on the 

control form was correct. (The MRO copy of the Custody and Control Form was 

introduced into evidence as IO Exhibit #4). The collector, Ms. Malone, signed her name 

in Step 4 of the collector copy of the control form (Copy 3), attesting to the fact that the 

specimen was properly collected and released to a courier for delivery to the laboratory 

for analysis. (Copy 3 was introduced into evidence as IO Exhibit #2). 

8. The urine specimen was delivered by courier to One Source Toxicology of Deer Park, 

TX for analysis. According to the Laboratory copy of the Custody and Control Form 

(introduced into evidence as IO Exhibit #3), the specimen was received at the laboratory 

on July 2, 2002. Receipt of the specimen was acknowledged by the signature of a One 

Source Toxicology laboratory accessioner, Ms. Renee Mosley, in Step 4 of the Custody 

and Control Form. Next to the words "Primary Specimen Bottle Seal Intact" Ms. Mosley 

checked the word "Yes" indicating that the integrity of the specimen bottle seal had not 

been compromised during its delivery from the collector to the lab. 

9. The urine specimen was analyzed in accordance with DOT procedures and found to be 

positive for cocaine metabolites. The results of the specimen analysis were reviewed by 

Tom Freijo, Jr., a positive certifying scientist on July 3, 2002. Mr. Freijo is a night shift 

employee. The Laboratory copy of the Custody and Control Form which he signed on 

July 3 indicating he had reviewed the results of the positive test had been pre-stamped 

with the name of Mr. Ste.ve Harris. Mr. Harris is another certifying scientist at One 

Source Toxicology, and is also the laboratory director. Mr. Freijo lined out the name of 

Mr. Harris on the form, signed his own name in the appropriate block, and printed his 

name to the left of the crossed-out name. Mr. Harris, who as laboratory director has final 

4 
review of all custody and control forms, signed his initials to the right of the crossed-out 

name indicating he had also reviewed the results. 

10. The results of the positive drug test were reported by the laboratory to a Medical 

Review Officer (MRO), Dr. Brian M. Heinen, M.D., of Eunice, LA, on July 3, 2002 

(report was introduced into evidence as IO Exhibit #5). On that same date, Dr. Heinen's 

MRO staff contacted the Respondent, Mr. Zeringue, and conducted a verification 

interview with him as required by DOT regulations, and using a worksheet internal to Dr. 

Heinen's office (worksheet introduced into evidence as IO Exhibit #6). Dr. Heinen's 

staff asked Mr. Zeringue if he had an explanation for the result of positive for cocaine. 

Mr. Zeringue stated he had taken "soma", a type of pain reliever. The MRO staff also 

asked Mr~ Zeringue if he desired a split sample re-test and he declined. Dr. Heinen 

reviewed the results of the interview and indicated on the MRO verification worksheet 

that there was no other explanation for the positive result than that the Respondent had 

used cocaine. 

11. Mr. Zeringue's employer, Trace Marine was notified of the positive result by the 

MRO. Trace Marine notified CG Marine Safety Office New Orleans of the positive 

result when they submitted Forms CG-2692 and CG-2692A (IO Exhibit #1). 

12. Mr. Zeringue was served with a Complaint and Affidavit- Temporary Suspension 

form on July 19, 2002 and his license was seized by the Coast Guard under the authority 

of 46 USC 7702(d) and 33 CFR Part 20, Subpart L. 

Rulings on the Respondent's Proposed Findings of Fact and Conclusions of Law. 

RESPONDENT'S PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

ACCEPTED 

1. Respondent Fabian F. Zeringue, Sr., holder of Coast Guard License No. 

962807, was serving as Master ofUTV Miss Lori when that vessel was involved in a 

collision with a commercial shrimping vessel in the Intracoastal Waterway. 

ACCEPTED 

2. There is no indication from any source that Mr. Zeringue was in any way 

at fault in the collision; tather, every indication is that the collision resulted from the 

careless and reckless operation of the shrimping vessel by its crew. 

5 
ACCEPTED 

3. Mr. Zeringue was interviewed after the accident by Coast Guard personnel, including 

C.W.O. Cornett, who found no indication oflack of sobriety or drug influence of Mr. 

Zeringue. His employer, Trace Marine, requested Mr. Zeringue after the accident to 

operate the vessel UTV Miss Lori to the Michaud docking facility, a trip of 

approximately one hour duration. That trip and the docking operation proceeded without 

incident. 

ACCEPTED 

4. Mr. Zeringue was ordered by his employer to report to West Jefferson Memorial 

Hospital within 24 hours of the June 29 collision, and he did so as instructed. 

ACCEPTED 

5. The urine specimen collector, Debbie Malone, commenced the collection 

procedure in violation of 49 C.P.R. Part 40, requiring photo identification of the person· 

providing the specimen. Ms. Malone did ask Mr. Zeringue for a photo identification 

belatedly, at some point after commencement of collection of the specimen, and he 

responded that his photo identification was in his wallet in his car in the adjacent parking 

lot. Ms. Malone neglected and failed to request Mr. Zeringue to obtain the photo 

identification, with the explanation that the testing process, having already begun, could 

not be interrupted to conform with the mandatory positive identification requirements of 

49 C.P.R. Part 40. The Hearing Examiner in brief examination of Ms. Malone asked why 

she could not have interrupted the collection process so that the photo identification could 

be obtained, but Ms. Malone was not forthcoming with any explanation. 

ACCEPTED 

6. The requirement of positive identification of 49 C.P.R. Part 40 is not 

discretionary, but is mandatory. Respondent's expert in drug analysis and specimen 

collection procedures, Ms. Pat Pizzo, testified~ after having been duly qualified as an 

expert, that the positive identification requirement is mandatory in order to avoid 

misidentification of specimens. She testified, further, that the regulations governing 

collection procedures are designed to protect against confusion of specimens. She 

testified, further, that conformity with the positive identification requirement of 49 C.P.R. 

Part 40 is indispensable to the collection procedure. 

ACCEPTED 

7. The significance of this positive identification requirement is magnified by the 

testimony ofMs. Malone. When asked upon cross-examination to provide a description 

of Mr. Zeringue she described a man totally different than the Respondent. Mr. Zeringue 

is 5'8", bald (and was bald at the time of the collection) and weighs approximately 240 

lbs. Ms. Malone described a man with long dark hair, one taller than Mr. Zeringue, and 

6 
one with a completely different build. Ms. Malone could have demurred and refused to 

attempt to provide a description, but, instead, she indicated that she collected the 

specimen from a man described as someone clearly other than Mr. Zeringue. 

ACCEPTED 

8. At hearing counsel for the Coast Guard argued that Respondent had failed to 

produce any evidence that the testing procedures beyond initial collection were in any 

way fatal to the accuracy and conclusion of the test of the specimen. The entire and only 

purpose of the rigorous specimen collection requirements is to insure proper and accurate 

identification of specimens to be tested, and the reason for such rigorous regulation is that 

no respondent is· ever in a position to know anything about the specimen testing 

procedures and conclusions because he has no way of knowing whether they were 

followed. Hence, the indispensable significance of the mandatory requirement of 

positive identification at commencement of the specimen collection procedure. 

ACCEPTED 

9. The evidence taken as a whole, including the failure of the collector to establish a 

positive identification of Respondent and her description of a man obviously not the 

Respondent indicates that the specimen collected that was tested as positive was collected 

from someone other than Mr. Zeringue, perhaps another donor providing a specimen at 

the same time as Mr. Zeringue. 

ACCEPTED 

10. Mr. Zeringue testified that, although he used cocaine years ago and underwent 

therapy and drug rehabilitation, he has had no contact with that drug since and was not in 

any way under its influence at the time of the specimen collection. Cross-examination by 

the Coast Guard failed to impeach the sworn testimony of Mr. Zeringue. 

ACCEPTED 

11. Mr. Zeringue testified that his livelihood depends upon maintaining his license 

with the Coast Guard, and that he and his family are dependent upon the income he 

derives from his livelihood. To deprive him of his license will deprive him of the only 

occupation he knows. The gravity of this proceeding is not to be under estimated, 

because the Coast Guard has indicated its intention to deprive Mr. Zeringue of his 

livelihood for life. Accordingly, the requirements of the collection and testing 

regulations and procedures must be strictly adhered to, and this forum cannot ignore the 

mandatory provisions of those requirements. 

ACCEPTED 

12. Considering all of the facts and evidence adduced by the parties at hearing the 

Honorable Hearing Officer, Administrative Law Judge Archie Boggs, concludes that the 

7 
Coast Guard has not borne its burden of proving that the specimen collected and the test 

results therefrom are attributable to Respondent, Mr. Zeringue. As a result, the charges 

against him are dismissed and his license returned to him. 

OPINION 

The evidence clearly shows that the collector in this case did not follow the 

.guidelines for the collection as provided for in the Code of Federal Regulations. 

The expert witness called by the Respondent, Ms. Pizzo, who frequently testifies 

for the Coast Guard, clearly indicated that the mandatory collection guidelines were not 

followed. 

Some of Ms. Pizzo's testimony follows: 

"Q. All right. Would you, Ms. Pizzo, would you give us the Code ofFederal 

Regulations requirements for the collection of urine samples. 

A. The collection guidelines were published in 49 CFR Part 40, and the 

actual urine collections are in Subpart C beginning at 4061, which takes you through a 

step-by-step collection process. The same guidelines were also published in a publication 

called The Urine Specimen Collection Handbook for Federal Work Place Drug Testing 

Programs published by SAMHSA, which is Substance -I'm sorry, Substance Abuse 

Mental Health Services Administration, which is the agency that regulates laboratories 

that do drug screen testing under the federal guidelines. 

Q. All right. And what are the steps? 

A. Well, the steps, obviously the first thing you have to do is prepare the 

restroom area, and there . .are very detailed explanations as to what you have to do to go 

through the preparation. And then as a collector, you have very specific steps that you 

8 

' .. 
must go through to make sure that you guarantee the integrity of the urine sample, and 

those steps include having the donor remove any exterior clothing, coats, things like that, 

to make sure they have no place to hide anything that could be used ~o adulterate the 

sample or bring in a clean sample. 

Then you must require the employee to provide a positive I.D. such as a photo 

I.D. or be identified by a member of the agency requesting the testing or by a supervisory 

personnel. And if you cannot obtain a positive I.D., the fact that you do not have one 

must be noted on the remarks line, and then you must ask the individual to provide two 

other I.D.s such as a Social Security card, that will guarantee that you are in fact 

collecting the sample on the correct person. 

Normally you ask the person to sign in on an entry log indicating the time that 

they arrived at the collection location. In the event that there is ·a problem with the 

collection, you have documentation of when they arrived. 

After they've been properly identified, then you actually begin with the collection 

process itself where you instruct the individual to wa.Sh their hands, make sur that they 

either select a urine collection container or you provide them with several that they can 

choose from. Then you instruct them to go to the restroom an~ how to provide the 

sample and bring it back to the collector. And at that time the collector seals it in the 

individual's presence, has the individual donor sign the chain of custody document, and 

then places the chain and the sealed urine container into a shipping container, usually a 

plastic bag, two sided, to be provided to a testing laboratory. 

Q. All right.~ Thank you. Do you have before you the collection and custody 

form that bears the designation 100156902? 

9 
A. Yes, sir, I have a copy of that document. 

Q. All right. With reference to your testimony that a picture I.D. must be 

presented.to the collector or in its absence there must be some notation made, do you see 

any such notation? 

A. No, sir. On this form, there is no notation in the remarks line. 

Q. All right. And that is. required, that is a notation would be required under 

the CFR, correct? 

A. Yes, sir. 

Q. All right. Likewise, isn't a positive picture identification, isn't that a 

mandatory requirement? 

A. Yes sir. The collect or is supposed to ask for either a photo identification, a 

positive identification by an agency representative, or identification by, for instance, a 

supervisor or manager of the employee. 

Q. All right. And in the absence of such an identification mandatory, the 

procedure and the protocol has not been followed and abided by, isn't that so? 

A. Yes, sir, that's correct. Without photo identification and remarks on the 

chain of custody form, then the collection protocol has not been followed. 

Q. What is the reason for that mandatory requirement of a photograph I.D.? 

A. To properly identify the donor that's going to provide the sample is in fact 

the donor who is required to provide the sample. There have been cases where donors 

send other people to provide samples for them, and the requirement for the photo I.D. is 

to assure that you do in fact have the correct individual. 

Q. Presume if you will that the collection oft he sample was noted on the form 

10 

·, ~. 
100156902 that we just spoke about, that that collection was noted to have been sealed, 

that is collected and sealed as of 12:36 p.m. 

A. Yes, sir. That's indicated on the form under the collection information. 

Q. Right. And presume further if you will that Mr. Zeringue actually provided 

the sample that he provided at noon or shortly before that. That gives rise, does it not, to 

a discrepancy that may bear upon whether or not the sample actually noted upon the 

form is actually the one that was given by Mr. Zeringue, isn't that so? 

A. Well, if the donor indicates that he gave the sample prior to the time that the 

collector actually has indicated that they've collected, then yes, that would question the 

validity of the donor providing the same sample. 

JUDGE BOGGS: Where did you get this form, Ms. Pizzo? 

MS. PIZZO: This form was provided to me by Mr. Riess. It's a copy of the chain 

of custody document, the federal custody control document from One Source 

Toxicology, and the documents that were provided were the original chain of custody, 

the first page, the collector's copy, and the MRO's copy. 

JUDGE BOGGS: Your laboratory didn't have anything to do with this collection? 

MS. PIZZO: No, sir. We had nothing to do with this collection. 

JUDGE BOGGS: All right. 

MR. RIESS: Are you finished, Your Honor?· 

JUDGE BOGGS: Yes. 

EXAMINATION BY MR. RIESS: 

Q. Just a couple more questions, Ms. Pizzo. What is the underlying purpose of 

11 
having the very strict protocol for the collection of urine samples? What's the underlying 

purpose of all that? 

A. The weakest link in the entire urine testing program is in the collection of 

the sample and to assuring that the sample provided by the donor has been properly 

controlled and monitored so that the results once they're completed can be linked back to 

that donor without any question of validity as to whose sample it is. So the requirement 

for the photo I.D. wast o assure that the donor who actually provided the sample was 

identified prior to the collection of the sample to make sure that there was an exact link 

from the donor to the urine container, the contents oft he urine collection itself." 

CONCLUSIONS OF LAW 

The Complaint which alleges that Fabrian Zeringue, Sr. tested positive for cocaine as a 

result of a post casualty drug test on 30 June 2002 is not proved due to the failure of the 

collector to comply with the regulations. 

ORDER 

The Complaint is DISMISSED. 

Date ~ '7 March 2003 

New ~s, Louisiana" 

~R. ARCHIE R. BOGGS 

ADMINISTRATIVE LAW JUDGE 

12 

·, ..