Legal: Chemical Testing Following Serious Marine Acccident

Monday, July 07, 2003

Alcohol and drugs too frequently play a major role in maritime accidents. Subsequent to these accidents there are multiple problems involved in the collecting of specimens for testing the presence of alcohol or drugs in an individual's body. The Coast Guard has proposed several changes in the procedure for collecting those specimens. These proposed requirements would help to better understand and eventually avoid problems like the infamous Exxon Valdez accident of 1989, where the captain's blood alcohol content was .061% when finally taken eleven hours after the ship ran aground. Alcohol was also alleged to be a factor in the sinking of the Cape Fear off the coast of New England in 1999. On the night the Cape Fear sunk the Coast Guard had multiple opportunities to make sure the surviving members of the crew were tested for drugs and alcohol. By the time they were tested, three hours later, the captain and first mate had already consumed multiple beers, which eliminated the probative value of the tests. In order for the tests to be of value and accurately reflect the condition of the person during the accident, they must be taken before the chemicals leave the person's system or they have the opportunity to consume drugs or alcohol after the accident.

Pursuant to Public Law 105-383 of 1998, Congress added a section which required the Coast Guard to establish procedures for alcohol testing subsequent to a serious marine accident, or SMI. An SMI would include events such as an accident involving death, severe injury, damage to property in excess of $100, 000, loss of the vessel, discharge of 10,000 gallons of oil, or the discharge of a reportable amount of hazardous substance. The Coast Guard's regulations regarding chemical testing can be found at Title 46, Code of Federal Regulations, Volume 1, Part 1 thru 40. The docket number for the proposed changes to the current requirements is USCG-2001-8773. The Coast Guard has proposed several changes to the current requirements which would establish definite time requirements for testing and expand the current requirements for commercial vessels to have testing equipment on board. The current requirements only mandate that marine employers take all practicable steps after a serious marine accident to ensure that chemical testing in completed, but do not specify a specific time frame for testing. With alcohol testing, time is of the essence, and without prompt testing it is unlikely to determine the presence of alcohol in an individuals system.

In response to the problem of rapid dissipation of alcohol in the system the Coast Guard has proposed requiring commercial vessel employers to conduct alcohol testing within two hours after an accident. Testing for drugs would be required to be administered as soon as possible after the accident, but no more than thirty-two hours following the accident. An exception to this rule would be if there was a safety concern which required the attention of the crew member in question.

Perhaps the most controversial of the Coast Guard's proposed amendments to the Regulation is the requirement of all marine employers to have adequate alcohol testing devices on board their vessels. The most likely objection to this amendment would be the increased costs to the employer in complying with the regulation. Currently, only vessels certified for unrestricted ocean routes and all vessels certified for restricted overseas routes are required to have on board a breath testing device. According to the regulatory analysis performed in response to the proposed changes, the average cost to marine employers to purchase the required testing devices would be approximately $97.00 for saliva testing equipment and $393.00 for the more advanced breath testing machines. Despite the cost this proposed requirement would assist the employer in complying with the two hour testing window, as proposed by the Coast Guard. Employers would be permitted to determine on their own which method of collecting specimens they chose to follow, either breath or saliva. However, the current requirements for drug testing kits would remain unchanged.

Generally, the statute as proposed by the Coast Guard would require marine employers to ensure that the chemical testing is promptly done. First, the alcohol testing must be performed on each individual who is directly involved in the SMI. This testing must be must be completed within the two hour window. The only exception to the two-hour rule would be if there was a safety concern related to the accident. In the event of a safety concern the testing must be completed as soon as the concern is remedied, but no later than eight hours. If for some reason that the testing is not completed within the required time, the employer must document the reasons for failure to comply. Any testing conducted by the Coast Guard or local law enforcement would satisfy the employer's duty to secure chemical specimens.

A law enforcement officer may determine that additional individuals are directly involved in the SMI and require testing of those individuals. The proposed changes would further prohibit an individual from consuming alcoholic beverages for eight hours following a SMI, or until such time that chemical testing is complete. It is the responsibility of the individuals directly involved in the accident to submit to chemical testing when directed by their employer or law enforcement. If the individual refuses to comply, he shall be removed from his duties that affect the safe operation of the vessel as soon as possible. No individual may be compelled to submit to chemical testing. However, refusal is a violation of the statute and the individual may be subject to suspension and/or institution of administrative proceedings.

Employers and employees should familiarize themselves with the Coast Guard's requirements for chemical testing pursuant to the Regulation. It is essential for employers and employees alike to be familiar with the requirements of the act in order to ensure proper compliance. Familiarity is the only way to fully understand everyone's rights and obligations. A further consideration is that a submission or refusal to submit to chemical tests will likely play a role in any subsequent civil, criminal or administrative proceedings. There is no indication when these proposed changes may take affect. However, check with the Coast Guard's website at www.uscg.mil for updates regarding the proposed changes.

About the Authors

James Nader is a partner and Joseph A. Poblick is an associate with the law firm of Lobman, Carnahan, Batt, Angelle & Nader in New Orleans, La. Mr. Nader's trial practice over the last eighteen years has included Admiralty and Maritime Law, an area in which he is an adjunct professor at Tulane University. Mr. Poblick's primary practice areas include admiralty, maritime law, and insurance defense. For more information on the firm, please see it's Website at www.lcba-law.com, or contact them at 400 Poydras St., Suite 2300, New Orleans, LA 70130, phone (504) 586-9292.**

**This article is for general information and educational purposes only, and should not be construed as legal advice. The authors are available to discuss any specific questions or concerns regarding any issues related to this article.

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