UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STA TES COAST GUARD 

vs. 

LICENSE NO. 962807 

Issued to: FABIAN ZERINGUE, SR. 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2653 

The complaint below alleges that a post-casualty urine sample collected from Mr. 

Fabian Zeringue, Sr., (Respondent) tested positive for cocaine. The complaint seeks 

revocation of Respondent's Coast Guard license, alleging that Respondent performed a 

safety sensitive function in violation of federal regulations governing the use of alcohol 

and dangerous drugs. The Honorable Archie Boggs, a United States Coast Guard 

Administrative Law Judge (ALJ), dismissed the complaint for failure of proof by a 

Decision and Order (D&O) issued on March 27, 2003. The Coast Guard appeals, seeking 

Commandant review pursuant to 46 U.S.C. § 7701 et seq., 46 C.F.R. Part 5, and the 

procedures set forth in 33 C.F.R. Part 20. 

FACTS 

At all times relevant herein, Respondent was the holder of the above-captioned 

merchant mariner license, issued to him by the United States Coast Guard. Respondent's 

license authorizes him to serve as master of steam or motor vessels of not more than 100 

gross registered tons upon near coastal waters, to serve as mate of steam or motor vessels 
ZERINGUE NO. 2653 

of not more than 200 gross tons upon near coastal waters, to engage in commercial 

assistance towing, and to serve as a radar observer unlimited. 

On June 29, 2002, the 48-foot towing vessel UTV MISS LORI was eastbound on 

the Intracoastal Waterway (ICW) near mile marker 10 in Louisiana. The UTV MISS 

LORI was in the center of the channel, pushing an empty 200 foot hopper barge. At 

approximately 10 p.m. that evening, the shrimp boat FN HECKLE AND JECKLE was 

westbound in the center of the ICW channel heading toward the UTV MISS LORI. As 

the vessels approached, the FN HECKLE AND JECKLE turned to the UTV MISS 

LORI's starboard. The UTV MISS LORI responded by turning to port. When the 

vessels neared to within approximately 300 feet, the FN HECKLE AND JECKLE 

veered to the UTV MISS LORI' s port, crossing in front of and colliding with the UTV 

MISS LORI. The FN HECKLE AND JECKLE sank; its four-person crew was 

subsequently rescued by a nearby fishing vessel. Respondent, who was employed by 

Trace Marine, LLC, and holds a U.S. Coast Guard license, was operating the UTV MISS 

LORI at the time of the collision. 

Approximately three hours after the collision, Trace Marine ordered Respondent 

to submit to a drug test as soon as possible in accordance with federal regulations at 46 

C.F .R. Parts 4.06 and 16.240.1 Shortly before noon on the day after the accident, 

Respondent reported to a local hospital to provide a urine sample. Respondent met the 

urine sample collector, who asked Respondent for photo identification (ID). Respondent 

stated that he had left his wallet in his car, and offered to get it. The collector declined, 

1 46 C.F.R. § 4.06-S(a) provides that "[a)ny individual engaged or employed on board a vessel who is 

determined to be directly involved in a serious marine incident shall provide blood, breath or urine 

specimens for chemical tests required by Sec. 4.06-10 when directed to do so by the marine employer or a 

law enforcement officer." See id. § 16.240 (same). 

2 
ZERINGUE NO. 2653 

and proceeded to collect a urine sample from Respondent. A urine sample identified as 

Respondent's subsequently tested positive for cocaine. 

PROCEDURAL HISTORY 

A hearing on the complaint was held at the Coast Guard Marine Safety Office in 

New Orleans, Louisiana. The hearing began on August 27, 2002, then was continued 

until and completed on September 24, 2002. The Coast Guard presented testimony and 

documentary evidence on the collection and testing of Respondent's urine sample. Coast 

Guard witnesses included the Trace Marine port captain who ordered Respondent's drug 

test, the urine sample collector, the drug testing laboratory director, the certified scientist 

who reviewed the results of the drug test, and the physician who reviewed the results of 

the drug test. Respondent testified on his own behalf. Respondent also called the 

director of toxicology from a separate drug testing laboratory (not involved in the drug 

test) to describe standard urine collection protocols. 

Respondent did not dispute that he provided a urine sample nor that a urine 

sample identified as his tested positive for cocaine. Nor did Respondent dispute that he 

signed a custody and control form certifying that: (1) he provided a urine sample to the 

collector, (2) the specimen bottles were sealed with tamper-evident seals in his presence, 

and (3) the information on the form and the bottle labels was correct. But Respondent 

did dispute that it was his urine sample that tested positive. Respondent focused his 

defense on the collector's failure to require photo identification. 

The collector, who testified by telephone, described the standard procedures she 

follows when collecting urine samples, including: preparation of the bathroom area; 

requesting a photo ID from the donor; standing outside the bathroom door during the 

collection; asking the urine donor to watch the urine sample at all times until it is 

3 
ZERINGUE NO. 2653 

packaged and sealed; transferring the urine sample from the collection bottle into two 

vials in front of the donor; asking the donor to help place a tamper evident seal over the 

vials and initial the seal; completion of a Drug Testing Custody and Control Form 

(DTCCF); and asking the donor to sign the DTCCF certifying that: (1) the donor 

provided a urine sample to the collector, (2) the specimen bottles were sealed with 

tamper-evident seals in the donor's presence, and (3) the information on the form and the 

bottle labels was correct. 

On cross-examination, the collector testified that she remembered Respondent's 

urine collection because performing a post accident collection was, in her experience, 

unusual. She testified that she "vaguely" remembered Respondent, describing him as 

approximately 5'9" to 5' 11" with medium to dark brown hair- she didn't believe his hair 

was long but couldn't say whether it was short or medium. She did not recall Respondent 

being either slim or heavy. The collector acknowledged that her failure to require 

Respondent to provide photo identification was a failure to follow standard procedures. 

The DTCCF signed by Respondent was admitted into evidence. [Investigating 

Officer (IO) Exhibit 3] The form lists an ID number for the sample collected from 

Respondent. [IO Exhibit 3] The form includes a block signed by the collector certifying 

that the urine specimen was collected, labeled, sealed and released to a delivery service in 

accordance with applicable Federal requirements. [IO Exhibit 3] The form lists 12:36 

p.m. as the "time of collection." [IO Exhibit 3] The laboratory copy of the form includes 

a block with the name and signature of the laboratory accessioner attesting that the 

laboratory received the primary specimen bottle with the "seal intact." [IO Exhibit 3] 

The Coast Guard offered an expert witness on handwriting analysis to testify that the 

4 
ZERINGUE NO. 2653 

donor signature on the custody and control form was Respondent's, but Respondent 

admitted through counsel that the signature was his and the handwriting witness was not 

called. 

The laboratory director testified as to the standard procedures followed by the 

laboratory when testing urine specimens. The director testified that the accessioner's 

signature indicates that the accessioner verified "the identification on the bottle matched 

that of the custody and control form," opened the bottle, and "received, reviewed, 

accessioned and then placed [the bottle] in temporary storage." [Tr. at 77 - 78] The 

initial screening test and confirmation test performed on the urine specimen were, 

according to the director, performed by two technologists at the laboratory. The 

laboratory director testified that the accessioner and technologists must follow standard 

procedures, and that there is no indication that standard procedures were not followed. 

The accessioner and technologists were not called as witnesses. 

Respondent's toxicology witness, Ms. Patricia Pizzo - a frequent witness for the 

Coast Guard with 23 years experience in forensic toxicology, testified that a collector 

must receive a photo ID or notate the absence of identification on the custody and control 

form, neither of which occurred. The witness further testified that the weakest link in the 

urine testing program is ensuring that the collection of the sample has been properly 

controlled, and that the photo ID requirement helps ensure an exact link between the 

donor and the urine sample. On cross-examination, the witness acknowledged that 

failure to collect a photo ID is not a "fatal flaw" from a laboratory testing standpoint, but 

explained that the photo ID requirement is a collection issue while the term "fatal flaw" 

refers to laboratory testing issues. She explained that, for laboratories, fatal flaws 

5 
ZERINGUE NO. 2653 

include: broken seals, lack of identification of the collector, insufficient volume to test, or 

mismatched specimen and chain of custody identification numbers. [Tr. at 66 - 67] 

Respondent argued that the collector's failure to require photo ID demonstrates 

that required procedures were not followed, and that the failure to follow established 

procedures draws into question the integrity and reliability of the overall urine collection 

process followed in his case. Respondent asserted that other discrepancies drew into 

question whether his urine sample could have been confused with another urine sample. 

Respondent testified that he recalled providing a urine sample to the collector at 

approximately 12:00 noon, while the DTCCF lists 12:36 p.m. as the time of collection. 

Respondent also testified that, contrary to the collector's description, his head was shaved 

at the time of the collection, he is 5'9", and he weighs 260 lbs. Respondent 

acknowledged that he had previously tested positive for drug use, completed a drug 

rehabilitation program supervised by the Coast Guard, and that his Coast Guard license 

was subsequently returned to him. Respondent testified that he had not used cocaine in 

the weeks or months prior to the collision, and that it had been approximately six years 

since he last used cocaine. 

The Coast Guard argued that the chain of custody for Respondent's urine sample 

was maintained at all times and that the urine sample tested positive for cocaine. The 

Coast Guard further argued that failure to collect a photo ID was not a fatal flaw and any 

inference that someone else may have provided the sample is neither credible nor 

supported by the evidence. The collector's description of Respondent was, according to 

the Coast Guard, insignificant given her statement that her recollection was vague. 

Finally, the Coast Guard argued that there is no meaningful significance to Respondent's 

6 
ZERINGUE NO. 2653 

recollection of providing the sample at noon and the DTCCF listing 12:36 as the "time of 

collection" because the collector may have written 12:36 to indicate the time the sample 

was released to the courier rather than the time the sample was collected from 

Respondent. [Tr. at 88] 

The ALJ issued his decision on March 27, 2003. The ALJ found that the collector 

did not obtain positive identification of Respondent as required by 49 C.F.R. Part 40. 

Explaining that the "failure to obtain proper identification on Mr. Zeringue is fatal," the 

ALJ rejected the Coast Guard's proposed findings of fact with respect to the laboratory 

testing of the urine sample. [D&O at 4] The ALJ accepted Respondent's proposed 

findings that the 

entire and only purpose of the rigorous specimen collection requirements 

is to ensure 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. . . . The gravity of this proceeding is not to be under estimated 

[sic], 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. . . . Considering all of the facts and evidence 

adduced by the parties ... the Coast Guard has not borne its burden of 

proving that the specimen collecteq and the test results therefrom are 

attributable to Respondent, Mr. Zeringue. 

[D&O at 7] The decision extensively quotes Ms. Pizzo's testimony as to the significance 

of the positive identification requirements set forth in 49 C.F.R. Part 40. Concluding that 

the collector "did not follow the guidelines for collection as provided for in the Code of 

Federal Regulations," the ALJ held the alleged use of cocaine "not proved due to the 

failure of the collector to comply with the regulations" and dismissed the complaint. 

[D&O at 8, 12] 

7 
ZERINGUE NO. 2653 

The Coast Guard appeals arguing that there is "no basis in fact or law" for the 

ALJ's determination that failure to require photo ID "represented a fatal flaw requiring 

dismissal." [Brief of Appellant at 3] The Coast Guard argues that failure to collect a 

photo ID is a mere technical infraction of 46 C.F.R. § 40.61(c), not a "fatal flaw'' as 

identified in 46 C.F.R. Subpart I. Appellant Coast Guard further argues that several 

Commandant Decisions on Appeal (CDOAs) have held that minor technical 

discrepancies in the drug testing process are not fatal flaws unless the urine specimen's 

integrity or the chain of custody are breached. Finally, Appellant objects to a finding in 

the D&O of no indication that Appellant was at fault in the collision, arguing that fault as 

to the collision is irrelevant and was neither alleged nor litigated. 

BASES OF APPEAL 

The Coast Guard specifies the following two bases of appeal: 

I The AL.J's decision that the specimen collector'sfailure to obtain a photo 

identification of the Respondent is a fatal flaw to the Department of 

Transportation 's (DOT's) drug testing procedures necessitating dismissal 

of the Coast Guard's complaint has no basis in fact or law. 

II The AL.J's acceptance of Respondent's Findings of Fact and Conclusions 

of Law number 2, is not supported by the record and is inherently 

incredible since the Respondent was never charged with negligence for the 

underlying collision that resulted in his drug test and the matter was never 

litigated at the hearing. 

OPINION 

This appeal turns on the ALJ's finding that "failure to obtain proper identification 

on Mr. Zeringue is fatal" and the ALJ's holding that the alleged use of cocaine was not 

proved. [D&O at 4, 12] 

The outcome of this appeal is guided by our governing standard of review and the 

deference due an ALJ in assessing the evidence. Appellant Coast Guard correctly notes 

8 
ZERINGUE NO. 2653 

that, as a matter of law, the D&O should not have included a finding of fact or 

conclusion oflaw as to fault in the collision. The D&O will be modified accordingly. 

There is no showing, however, that the ALJ was arbitrary and capricious in finding the 

alleged use of cocaine not proved. Except as to the issue of fault, the D&O is affirmed. 

A. Standard of Review 

On appeal, a party may challenge whether each finding of fact rests on substantial 

evidence, whether each conclusion of law accords with applicable law, precedent, and 

public policy, and whether the ALJ committed any abuses of discretion. 46 C.F.R. 

§ 5.701. Under the governing standard ofreview on appeal, 

great deference is given to the Administrative Law Judge in evaluating 

and weighing the evidence. The Administrative Law Judge's 

determinations in this regard will not be disturbed and will be upheld on 

appeal unless they are clearly erroneous, arbitrary and capricious, or based 

on inherently incredible evidence. 

Appeal Decisions 2541 (RAYMOND) (citing Appeal Decisions 2522 (JENKINS), 2492 

CRATID, 2333 (ALA YA)). See also Appeal Decisions 2647 (BROWN), 2628 (VILAS) 

("If the ALJ's findings are supported by reliable, credible evidence, they will be upheld 

because he saw and heard the witnesses, even if there was evidence on which he [or I 

sitting in his stead] might reach a contrary conclusion. Stated another way, I will not 

substitute my findings of fact for the ALJ's unless the ALJ's are arbitrary and 

capricious."). Appeal Decision 2546 (SWEENEY). 

B. The ALJ's Decision on Proof of Drug Use 

A Coast Guard license "shall" be revoked if "it is shown that a holder has been a 

user of, or addicted to, a dangerous drug .. . unless the holder provides satisfactory proof 

that the holder is cured." 46 U.S.C. § 7704(c). At the hearing below, the Coast Guard 

9 
ZERINGUE NO. 2653 

bore the burden of proving Respondent's alleged use of cocaine by a preponderance of 

the evidence. 33 C.F.R. §§ 20.701 , 20.702. Aprimafacie case of drug use can be 

established where the Coast Guard proves that a person has failed a drug test required 

under the regulations. See 46 C.F.R. § 16.20l(b). The ALJ found that the collector's 

failure to obtain identification of Respondent fatal to proving that the specimen tested 

was from Respondent, and held the alleged use of cocaine not proved. The Coast Guard 

argues on appeal that the ALJ had no basis in fact or law for concluding that failure to 

obtain a photo ID from Respondent is a "fatal flaw to the DOT drug testing procedures 

necessitating dismissal." 

1. Fatal Flaw 

The term "fatal flaw" has a specific meaning in the federal drug testing 

regulations. Coast Guard regulations applicable to "Merchant Marine Officers and 

Seamen" appear at 46 C.F.R. Subchapter B. Those regulations at Part 16 prescribe 

standards and procedures for testing merchant marine personnel for the use of dangerous 

drugs. 46 C.F.R. § 16.lOl(b). The regulations require marine employers to "ensure that 

all persons directly involved in a serious marine incident are chemically tested for 

evidence of dangerous drugs and alcohol." Id. § 16.240. A person who fails a drug test 

required under Part 16 "will be presumed to be a user of dangerous drugs." Id. 

§ 16.20l(b). The regulations specify that drug testing conducted under Part 16 "must be 

conducted in accordance with 49 CFR Part 40" and that the "regulations in 49 C.F.R. Part 

40 should be consulted to determine the specific procedures which must be established 

and utilized." Id. § 16.113. 

JO 
ZERINGUE NO. 2653 

49 C.F.R. Part 40 is titled "Procedures for Transportation Workplace Drug and 

Alcohol Testing Programs." Part 40 addresses both the process of collecting urine 

specimens and the testing of urine specimens by drug testing laboratories. In Subpart E, 

Urine Specimen Collections, the regulations specify the preliminary steps a urine sample 

collector "must talce," including: 

( c) Require the employee to provide positive identification. You 

must see a photo ID issued by the employer (other than in the case of an 

owner-operator or other self-employed individual) or a Federal, state, 

or local government (e.g., a driver's license). You may not accept faxes 

or photocopies of identification. Positive identification by an employer 

representative (not a co-worker or another employee being tested) is 

also acceptable. If the employee cannot produce positive identification, 

you must contact a DER to verify the identity of the employee. 

49 C.F.R. § 40.6l(c). 

In Subpart F, Drug Testing Laboratories, the regulations specify the steps that a 

drug testing laboratory must follow when receiving a urine specimen. As a first step, the 

laboratory must inspect each specimen for "fatal flaws." Id. § 40.83(c). The regulations 

list as fatal flaws the following: 

( 1) The specimen ID numbers on the specimen bottle and the CCF do 

not match; 

(2) The specimen bottle seal is broken or shows evidence of 

tampering, unless a split specimen can be redesignated (see paragraph 

(g) of this section); 

(3) The collector's printed name and signature are omitted from the 

CCF; and 

( 4) There is an insufficient amount of urine in the primary bottle 

for analysis, unless the specimens can be redesignated (see paragraph 

(g) of this section). 

Id.§ 40.83(c)(l) to (4); see id.§ 40.199(b)(l) to (4). When a "fatal flaw" is found, the 

testing process must be stopped. Id.§§ 40.83(d), 40.199(a). 

11 
ZERINGUE NO. 2653 

During the hearing, Respondent's toxicology witness, Ms. Patricia Pizzo, testified 

that failure to collect a photo ID is not a "fatal flaw" from a laboratory testing standpoint, 

explaining that the term "fatal flaw" refers to laboratory testing issues while the photo ID 

requirement is a collection issue. Ms. Pizzo testified that ensuring that the proper 

monitoring of the collection of a urine specimen is the weakest link in the urine testing 

program, and that the photo ID requirement helps ensure an exact link between the donor 

and the urine sample. The list of"fatal flaws" identified in 49 C.F.R. § 40.83(c) does not 

include potential problems in the collection process that might indisputably refute a 

positive test result, such as where a person's identification label is affixed to - and 

custody and control form is identified with - another person's urine specimen (as 

Respondent argued may have happened in his case). [Tr. at 86] 

The ALJ rejected the Coast Guard's proposed findings of fact and conclusions 

of law as to events that transpired after the collector failed to obtain photo ID, because 

"failure to obtain proper identification on Mr. Zeringue is fatal." [D&O at 4] The ALJ 

concludes that failure to obtain ID was fatal to the government's proof that it was 

Respondent's urine that was tested. The ALJ's use of the term "fatal" is consistent with 

its common usage in judicial decisions addressing sufficiency of proof and is distinct 

from the "fatal flaw" concept that is not involved here. See, e.g., US. v. Rico-Gonzalez, 

79 Fed. Appx. 988, 2003 WL 22506469 (91h Cir. 2003) ("an obvious error in the date of 

one of the documents is not fatal to the sufficiency of the government's proof of 

identity"); Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 591 (6th Cir. 2003) ("the 

same failures of the plaintiffs material proof, coupled with the same overwhelming 

12 
ZERINGUE NO. 2653 

uncontroverted evidence favorable to the defendant, are fatal to the plaintiff's 

circumstantial case.") 

The ALJ ultimately held that "the Coast Guard has not borne its burden of 

proving that the specimen collected and the test results therefrom are attributable to 

Respondent, Mr. Zeringue," explaining that this conclusion is based on a consideration of 

"all of the facts and evidence adduced by the parties." [D&O at 7] The accepted findings 

of fact note not only that the collector failed to obtain positive ID, but also Respondent's 

testimony that he had not used cocaine in the weeks or months prior to the collision and 

that Respondent's appearance is different than the description provided by the collector at 

the hearing. [D&O at 6-7] The D&O refutes Appellant's assertion that "the sole basis" 

for the ALJ's holding was the failure to obtain positive identification. 

2. Presumption of Drug Use 

Next, Appellant argues that the Coast Guard established aprimafacie case of 

drug use and thus was entitled to a presumption that Respondent used drugs. As noted 

above, a person who fails a drug test under 46 C.F.R. Part 16 "will be presumed to be a 

user of dangerous drugs." 46 C.F.R. § 16.201(b). The Coast Guard notes the three key 

elements that must be proved to establish aprimafacie case (i.e., presumption) of use of 

a dangerous drug: "(1) that the respondent was the person who was tested for dangerous 

drugs, (2) that the respondent failed the test, and (3) that the test was conducted in 

accordance with 46 C.F.R. Part 16" (citing Appeal Decision 2603 (HACKSTAFF)). If a 

Respondent produces no evidence in rebuttal to proof of the three elements, ''the ALJ 

may find the charge proved on the basis of the presumption alone." Appeal Decision 

2603 (HACKSTAFF); see 33 C.F.R. § 20.703 (a presumption in a Coast Guard 

13 
ZERINGUE NO. 2653 

administrative hearing imposes on the party against whom it lies the burden of going 

forward with evidence to rebut or meet the presumption, but does "not shift the burden of 

proof in the sense of the risk of non-persuasion''). 

The first element that must be proved to establish a presumption of use of a 

dangerous drug requires "proof of the identity of the person providing the specimen; 

proof of a link between the respondent and the sample number or Drug Testing Custody 

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

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

that sample." Appeal Decision 2603 (HACKSTAFF). Here, the sufficiency of the Coast 

Guard's proof of identity - that it was Respondent's urine specimen that was tested - was 

challenged and evidence in rebuttal was provided. Respondent testified that he did not 

use cocaine in the weeks or months prior to the drug test, that the collector failed to 

follow required procedures by not collecting his ID, that he recalled providing his urine 

specimen to the collector 36 minutes earlier than the time listed on the DTCCF and that 

his physical appearance is different than the description provided by the collector. [Tr. at 

42 - 46, 78 - 79] 

The ALJ was presented with evidence challenging the Coast Guard's "proof of 

the identity of the person providing the specimen," thus challenging the Coast Guard's 

ability to establish the presumption. Appeal Decision 2603 (HACKST AFF). Moreover, 

because Respondent did provide evidence in rebuttal to the Coast Guard's proof of 

identity, the Coast Guard was not entitled to rely on the presumption alone. Appeal 

Decision 2603 (HACKSTAFF). The ALJ, "[c]onsidering all the facts and evidence 

adduced by the parties," concluded in this case that "the Coast Guard has not borne its 

14 
ZERINGUE NO. 2653 

burden of pr ving that the specimen collected and the test results therefrom are 

attributable tc Respondent, Mr. Zeringue." [D&O 7-8]. Whether Respondent "was 

adequately id !ntified as the donor of the urine sample which showed drug use is a 

question of£ ct for the Administrative Law Judge .... His conclusions will not be 

overturned w Jess they are without support in the record and inherently incredible." 

Appeal Deci~ ion 2542 (DEFORGE). The Appellant has not shown and the record does 

not demonstJ Lte that the ALJ's findings are without support or are inherently incredible. 

3. Precedent 

Final y, Appellant argues that several CDOAs have held that "discrepancies in the 

drug testing J rocess that are minor and technical in nature are not fatal flaws unless the 

infractions b each the chain of custody or the specimen's integrity." [Brief of Appellant 

at 6] Appell i.nt cites four cases in which drug use allegations were found proved by the 

ALJ despite ;rrors in the drug collection process, but each is distinguishable in key 

respects. 

Appellant primarily relies on Appeal Decision 2542 (DEFORGE), which upheld 

an ALJ's fin ling of use of marijuana despite the fact that the collector did not obtain 

photo ID wh !n the specimen was received. DEFORGE notes that adequate identification 

of the donor )fa urine sample is a question of fact for the ALJ and that the ALJ found the 

evidence of dentification, including the donor's signature on "the requisite portions of 

the docurnertation," sufficient in that case. Id. Appellant cites Appeal Decision 2631 

(SENG AL), which remanded the ALJ's finding of use of marijuana based on 

"considerabl ~ confusion as to both how the specimen donor was identified at the time of 

the collectio l and the identity of the person who signed [a] memorandum rectifying the 

15 
ZERINGUE NO. 2653 

incomplete [custody and control form]." The SENGAL decision notes 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," but recognizes that, 

"[i]n the interest of justice and the integrity of the entire drug testing system, it is 

important that the procedures outlined in 49 C.F.R. Part 40 are followed to maintain the 

system." Id. Finally, Appellant cites Appeal Decisions 2522 (JENKINS) and 2537 

(CHATHAM) , both of which upheld ALJ drug use findings despite missing entries on 

the custody and control form (CHATHAM) and failure to require the donor to wash his 

hands (JENKINS). 

This case - like all cases - involves its own unique facts and circumstances. The 

testimony received and documents admitted into evidence in this case do not duplicate 

the evidence admitted in prior cases. Accordingly, the ALJ's findings of fact in this case 

are not prescribed by factual findings in prior unrelated cases. In each case cited by 

Appellant, the ALJ who is entrusted with listening to the testimony and weighing the 

evidence, found the alleged drug use proved. Here, the ALJ found the alleged drug use 

not proved. Whether an ALJ finds an allegation proved or not proved, great deference 

will be accorded the ALJ's evaluation and weighing of the evidence, Appeal Decision 

2541 (RAYMOND), because it is the ALJ who "saw and heard the witnesses" and the 

evidence. Appeal Decision 2628 CVILAS). Findings of fact will not be substituted for 

those of the ALJ unless the ALJ's findings are arbitrary and capricious. Appeal Decision 

2628 CVILAS). No basis has been presented and none is evident for concluding that the 

ALJ' s findings in this case were arbitrary and capricious. 

16 
ZERINGUE NO. 2653 

This CDOA does not hold that the failure to follow identification procedures is 

fatal to proving drug use in all cases. Nor does this decision speculate whether the Coast 

Guard could have demonstrated through other evidence that it was Respondent's urine 

that was tested. This decision is guided by the deferential standard of review applicable 

to ALJ determinations on weight of evidence and sufficiency of proof where the ALJ' s 

decision rested on all the facts and circumstances including, but presumably not limited 

to, the failure to obtain photo ID. 

II. 

C. The ALJ's Finding on Collision Fault 

Appellant's second and final argument is that the ALJ erred in accepting 

Respondent's proposed finding that Respondent was not at fault in the collision that led 

to the drug test. Appellant argues that whether Respondent is at fault for the collision is 

irrelevant to the allegation that Respondent used cocaine, and that the ALJ should not 

have made a finding on fault in the D&O. 

At the hearing, the 10 introduced into evidence IO Exhibit 1, a form titled "Report 

of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident" 

(also known as a CG-2692B), which includes details on the facts and circumstances of 

the collision. Nonetheless, when Respondent began his testimony by describing the 

circumstances of the collision, the Coast Guard objected on relevance grounds. The 

Coast Guard argued that the drug test was required as a routine matter because of the 

serious nature of the casualty, not because of fault. The ALJ sustained the Coast Guard's 

objection and no further testimony as to the collision was allowed. 

17 
ZERINGUE NO. 2653 

Appellant objects to the finding in the D&O that Respondent was not at fault in 

the collision, but does not object to the subsequent finding that 

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

... who found no indication of lack 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 Michoud docking 

facility, a trip of approximately one hour duration. That trip and the 

docking operation proceeded without incident. 

[D&O at 6] In fact, the Coast Guard proposed and the ALJ accepted the finding that 

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

the authority of his Coast Guard license while serving as the operator of 

UTV MISS LORI, when it was involved in a collision with a commercial 

shrimping vessel in the Intercoastal Waterway at mile marker l 0, near the 

entrance to Bayou Bienvenue. 

[D&O at 3] Thus, the Coast Guard focuses its objection on the finding that Respondent 

was not at fault in the collision, not on findings concerning the circumstances of the 

collision or whether Respondent appeared to be under the influence of drugs or alcohol at 

the time of the collision. Indeed, Respondent could have used drugs without being at 

fault in the collision or at fault in the collision without having used drugs. Either way, 

the Coast Guard is correct that it is Respondent's alleged use of drugs that is relevant, not 

fault in the collision. 

Given that the ALJ sustained on relevance grounds the Coast Guard's objection to 

testimony concerning fault, the ALJ had no basis to find in the D&O that Respondent was 

not at fault in the collision. However, nothing in the decision or the record indicates nor 

does the Coast Guard argue that the finding on fault influenced the ALJ's conclusion that 

the alleged drug use was not proved. Thus, there is no evidence that the Coast Guard's 

case was prejudiced by the finding on fault. Accepting the proposed finding on fault in 

the collision was error, but that error was harmless. 

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ZERJNGUE NO. 2653 

CONCLUSION 

The ALJ's holding that the alleged drug use was not proved is entitled to 

deference under the applicable standard of review, is not arbitrary, capricious, or clearly 

erroneous, and is legally sufficient. The ALJ's finding that Respondent was not at fault 

in the collision is harmless error. 

ORDER 

The ALJ's D&O dated March 27, 2003 is MODIFIED by striking that part of the 

D&O, on page 5, that accepts Respondent's (there Respondent's) proposed finding of fact 

and conclusion of law number 2 as to fault. In all other respects, the D&O is 

AFFIRMED. 

RRYM.CROSS 

Vice Admiral, U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C. this ~ day of May, 2005 

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