UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD ) 

vs. 

JOEL A. WESTGATE, 

Respondent. 

) Docket No. CG S&R 01-0151 

) 

) 

) 

) 

) 

DECISION AND ORDER 

This proceeding is brought pursuant to the authority contained in 46 USC 

§ 7704; 5 USC§§ 551-559; 46 CFR Parts 5 and 16, and 49 CFR Part 40 

PROCEDURAL HISTORY 

The Coast Guard has complained that Respondent the holder of a Merchant 

Mariners Document (Able Seaman, Wiper and Steward's Department) No. 535-68-2289 

is a user of dangerous drugs within the meaning of 46 USC § 7704( c). This arises from a 

routine pre-employment drug test on December 19, 2000. The test was positive for the 

metabolite Tetrahydracannibinol (THC) for marijuana. The Coast Guard seeks the 

revocation of Respondent's license and document. 

Respondent answered the complaint, admitted the jurisdictional allegations, but 

denied the factual allegation of the positive test. He did assert an affirmative defense 

contending that the collection procedures used by the collection facility were faulty 

resulting in a break in the chain of custody causing substantial doubt that the specimen 

tested was that supplied by the Respondent. 

Respondent has also asserted, in the alternative, that even if he is shown to have 

been a user of dangerous drugs in the past, he is no longer a user and has provided 

satisfactory proof he is cured within the meaning of 46 USC § 7704( c i. Thus, he says 

revocation of his license and document should not be ordered. 

A hearing in this matter was held on June 12, 2001, July 31, 2001 and August 1, 

2001. Nine witnesses testified and the Coast Guard presented 10 exhibits and Respondent 

1 46 USC§ 7704(c) provides as follows: 

"If it is shown that a holder has been a user of, or addicted to, a dangerous drug, the license, certificate of 

registry, or merchant mariner's document shall be revoked unless the holder provides satisfactory proof that 

the holder is cured." 

Decision and Order - 1 
presented 10. Additionally, two deposition transcripts were admitted. The parties were 

afforded the opportunity to present written closing arguments, which were filed on 

September 19, 2001. Reply arguments were filed on October 30 and 31, 2001. This 

matter is now ripe for decision. 

Jurisdiction is established in this matter by reason of Respondent's holding of a 

Merchant Mariner's document. See, 46 U.S.C. §7704(c); NTSB Order No. EM-31 

(STUART); Commandant Decision on Appeal [CDOA] No. 2135 (Fossani). 

PRELIMINARY DISCUSSION 

In drug testing 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 Appeal 24 72 

(Gardner) and Steadman v. United States, 450 US 91 (1981) which concluded that the 

preponderance of 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 a license or 

document holder is a user 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 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 urine 

specimen was reported positive by a MRO. This presumption, however, does not 

dispense with the obligation to establish the presumption by the same standard of proof, 

i.e., the elements of the case must be proven by a preponderance of the evidence. The 

elements of a case or 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 the presumption. If the rebuttal 

fails then this Judge may find the charge proved solely on the basis ofthe presumption. 

See, Commandant Decision on Appeal2592 (Mason) 2584 (Shakespeare); 2560 

(Clifton). 

To rebut the presumption, Respondent may produce evidence that (1) calls into 

question any of the elements ofthe prima facie case, (2) shows an alternative medical 

explanation for the positive test result, or (3) demonstrates the use was not wrongful or 

Decision and Order - 2 
knowing. If this evidence is sufficient to rebut the original presumption, then the burden 

of presenting evidence returns to the Coast Guard. The Coast Guard at all times retains 

the burden of proof. See, Commandant Decision on Appeal 2560 (Clifton). 

FINDING OF FACT AND DISCUSSION 

The first element of presumptive proof 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 of Drug Testing Custody and Control number which is assigned to the 

sample, and which identifies the urine specimen throughout the chain of custody and 

testing process, and proof of the testing of that specimen? This element involves the 

specimen collection procedures used by the collection facility. 

Respondent's version of the collection procedures to which he was subject are as 

follows. On December 19, 2000 Respondent was taken by the Port Captain for American 

Marine Safety, Inc., along with two fellow mariners, to the PV Family & Immediate 

Medical Care facility in Palos Verdes PE, California for a pre-employment physical 

[Dep. TR Carl Page at p. 9; TR. 7/31/2001 at pp. 68, 70]. After waiting some period of 

time he was escorted by Gerrard Doyle to have his eyes examined, a chest x-ray and an 

EKG. Doyle then took him to a room that served as the urine collection station. Upon 

entering the room, Respondent observed a standard custody and control form was 

partially completed attributable to him, but without Respondent's or the employer's 

telephone number and he expressed concern [TR. 71-72; CG 8]. Respondent was told it 

was of no importance and was then told to, and he signed the custody and control form, 

as well as the specimen bottle labels, which were found on a clipboard. [TR. 72-73}. 

Respondent then retired into a toilet facility found an empty cup on the stool and filled it 

and returned to the room and handed it to Doyle who placed it on a counter along with 

other specimen bottles [TR. 74-76]. Doyle did not label the bottle or place it into a sealed 

envelope. From there Doyle took Respondent to another room for a hearing test. After 

returning from the hearing test the specimen bottle was bagged and sealed and placed in a 

locker or cupboard. 

Gerrard Doyle the collector testified that the customary procedure is for the 

specimen bottle to be sitting on top of the stool in the lavatory [TR. 6/12/01 p. 37]. He 

also says there are several kits in the bathroom and the donor is to select any one of them 

[TR 6/12/01 p. 38]. Once the specimen is returned to him he pours the urine into another 

cup and has the donor sign the seal. He then places the seal over the cup and has the 

donor sign the chain of custody and control form. All of these are then put in a bag with 

another seal and returned to the bathroom, which has a spot in it for the bag [TR 6/12/01 

p. 37].3 The bag is then left for a courier to retrieve [TR. 37-38]. 

2 Since the drug test undertaken in this proceeding was on December 19, 2000 the applicable collection 

procedures discussed in this decision and order will be those found in 49 CFR Part 40 prior to their revision 

and amendment in 65 Fed. Reg. 644 (December 19, 2000). The amendments to 49 CFR part 40 are 

effective January 18, 2001. The revised 49 CFR Part 40 is effective August 1, 2001. 

3 See also TR. 8/1/01 at pages 52-53 [Court reading portion of Doyle Transcript to Ronald Springe I, MD] 

Decision and Order - 3 
Doyle's testimony is inconsistent in several important respects with that of Carlos 

Castillo another collector for PV Family & Immediate Medical Care. Castillo described 

the collection site customary procedures used in the collection process as follows. See TR 

July 31,2001 at pages 155-181. 

First, Step 1 in the custody and control form (CCF) is filled out together with the 

donor including obtaining identification and social security number from the donor. [TR. 

7/31/01 p. 163]. There is no testimony or evidence from Doyle regarding his obtaining 

identification information from the donor, because Doyle said the CCF is completed 

before the donor enters the room with information supplied by the union [TR. 6/12/01 p. 

66]. 

Second, a drug testing collection kit is taken from a closet and is unwrapped. A 

collection cup is given to the donor who is then escorted to the lavatory, which is part of 

the same room [TR. 7/31/01 pp 161-162, 166].4 Doyle said the kit is in the lavatory or a 

cup is waiting for the donor on the stool in the lavatory [TR. 6/12/01 p. 37]. 

Third, after filling the collection cup, the employee then exits the lavatory area 

and places the cup on the counter in the room. The technician then transfers the urine into 

a specimen bottle and seals are affixed. The donor then initials the seals affixed to the 

specimen bottle [TR. 7/31/01 pp. 168-169]. Doyle says on one hand, the specimen is 

returned to him and he pours the urine into another bottle or cup, on another hand the 

donor places the cup on the counter, then at yet a third version he says the donor pours 

the urine into another cup which is then sealed [TR. 6/12/01 pp 38-39, 40] and has the 

donor initial the tamper proof seals before they are attached to the specimen bottle [TR 

6/12/01 pp 42-43, 50-51, 65].5 

Based on these inconsistencies together with the manner in which Mr. Doyle 

testified6

, I have substantial doubt about the credibility and reliability of his testimony. I 

4 49 CFR § 40.23(b)(l) provides that if a separate collection container is used for urination the container is 

to be provided to the employee still sealed in its wrapper, or unwrapped in the employee's presence. 

Obviously Mr. Doyle was unfamiliar with this requirement. This lack of familiarity damages his 

credibility. 

5 See 49 CFR § 40.25 et. seq. which provides the collection site person is required to handle the specimen 

not the donor and it also required to affix the tamper proof seals to the specimen container. 6 Witness Doyle's testimony was by telephone so I was unable to observe his mannerisms or to personally 

observe physical appearance while testifying. Nevertheless, his tone of voice and the hesitancy in which he 

answered some of the questions put to him by the investigating officer, Respondent's counsel and this 

judge suggest Doyle was cmt and over confident in his answers. He treated his testimony as an unwelcome 

intrusion and reluctantly routine. He was hesitant in his answers suggestive to me, he was actually unsure 

of the procedures but related what he thought we wanted to hear or what he thought were the required 

procedures. Moreover, his choice of terminology for certain responses was arcane. For example, this socalled "spot" into which he places the specimen bag was most likely a secure refrigerator, which identity 

should have been natural and well known to him. I compared Mr. Doyle's testimony to that of Carlos 

Castillo [TR. 7/31/01 ], which helped me confirm my overall opinion, that Mr. Doyle's testimony was 

unreliable. As to the refrigerator see 49 CFR § 40.25, which details the requirement of secure storage while 

awaiting transportation to the testing laboratory including refrigeration. Mr. Doyle was unfamiliar with this 

requirement. 

Decision and Order - 4 
believe Respondent's testimony that he placed his specimen cup on the counter among 

other things on that counter. I am also persuaded that Doyle's compliance with collection 

procedures mandated by the DOT regulations is cavalier, inconsistent and non-compliant. 

I cannot find reliable and substantial evidence that Respondent's specimen is the same 

one ultimately transported to the laboratory for testing 

I conclude Mr. Westgate's specimen cup was placed on the collection site's 

counter. The counter was cluttered with other items and as Mr. Westgate testified likely 

had other specimen containers on it as well. Whether these containers were of the type 

used in the drug testing process or used for other medical testing purposes is ambiguous. 

In any event, the Coast Guard's Investigating Officer (IO) argues that Mr. 

Westgate's testimony in this important respect is mere speculation without substantiation. 

The IO also says Mr. Castillo's "testimony provides evidence about the collection 

procedures, which fills in the details confirming the validity of Mr. Westgate's drug test." 

See Coast Guard Rebuttal to Respondent's Closing Argument at page 13. 

As I have related above, I do not agree with the IO in that respect. As I have 

discussed, Mr. Castillo's testimony actually contradicts that of Mr. Doyle. 

Moreover, the IO's argument fails to understand that Respondent's testimony is 

entitled to as much consideration as that of any other witness. No more and no less. The 

IO has neither supplied to me any support, nor have I found any in the record, that Mr. 

Westgate's testimony is speculative. To the contrary, Mr. Westgate's testimony relates 

what he actually observed not what he thought took place. Additionally, the IO has not 

pointed to any evidence in the record, which would support a finding that Mr. Westgate's 

observations were either manufactured or fictional. I also have found none. 

From all of this, I have considerable doubt concerning the integrity of the chain of 

custody. In sum, I find after consideration ofthe entire record, and the credibility of the 

witnesses, there is insufficient substantial, probative and reliable evidence, which leaves 

me with the firm conclusion that Respondent is the person tested for dangerous drugs. 

CONCLUSION 

The Coast Guard must establish the first element of a prima facie case by showing 

from substantial, reliable and probative evidence, that the Respondent was in fact the 

person tested for a dangerous drug. I have weighed the testimony of the respective 

witnesses, particularly Respondent, Carlos Castillo and Gerrard Doyle and examined the 

principal documents including the custody and control form and must conclude the Coast 

Guard has failed to prove by substantial, reliable and probative evidence the first element 

of a prima facie case. I have considerable doubt that Respondent was the person tested 

and it was his urine specimen found positive for tetrahydrocmminabionl. See CDOA 

2421 (RADAR) and 2319 (PAVEIC). 

Decision and Order - 5 
The custody and control form identification data was not filled out in the presence 

and with the assistance of the donor-respondent. I do not find where he was asked for his 

identification to be certain he was the same person on the custody and control form that 

was used. The collection cup was not taken from a sealed kit in the presence of the 

Respondent and given to him for use. This omission corrupts the identity of the cup so 

that it is peculiarly identified with the donor-respondent. Instead a generic cup is waiting 

for Respondent on the toilet stool in the lavatory. When Respondent finishes filling the 

collection cup it is returned by him to the counter and placed among other similar cups on 

the counter. Its integrity is then compromised. Its peculiar identification with Respondent 

is lost. I am unable to find any evidence that the collection site person, Gerrard Doyle, 

picked up the cup peculiarly associated with Respondent and poured the contents into a 

specimen bottle which was sealed in the presence of Respondent. Respondent's 

testimony describing these events is credible and believable. Mr. Doyle's testimony as I 

have noted is not credible or reliable. Mr. Doyle's compliance with the procedures 

mandated by the DOT rules has been less than scrupulous. At a minimum it is most 

irregular. 

For these reasons I find the first element of a presumptive case is not proven. 

It is therefore unnecessary to address the remaining points and authorities 

presented by the Coast Guard and the Respondent. 

The complaint of the Coast Guard is dismissed. 

IT IS SO ORDERED. 

Dated: November 15, 2001 

~ Edwin M Bladen 

Administrative Law Judge 

CERTIFICATE OF MAILING 

I hereby certify that I have sent the attached Decision and Order to the following 

persons as indicated: 

Mr. Ron Kinsey 

Telefax: 206-217-6213 

ALJ Docketing Center - telefax 

Dated: November 15, 2001. 

Decision and Order - 6 

Mr. Eric Dickman 

Telefax: 206-246-0088 

-/Ut~ fl~<z~--o:-~ Mary Pirfeerst 

Legal Assistant to Administrative 

Law Judge