By Mike Grosh and Steve Barber
There are essentially three ways a drug or alcohol screen may be introduced into a court action: Ordered by the judge, recommended by the attorney, or voluntary. In any scenario there are a number of technical and procedural options available. Fully understanding the implications of those choices can better enable the attorney to optimize the client’s position relative to the screening. Some questions the attorney must ask are:
- What technology has or will be employed? Will the test be urine, blood, hair, saliva, instant or lab based, confirmed or not confirmed by GCMS.
- What substances have or will be targeted for detection? A screen can be specific to as few as one and as many as there are drugs available. To some degree the technology selected will dictate the substances which can be detected.
- Where has or will the sample be collected? Will it be a facility operated by the court or law enforcement? Will it be provided by a private contractor? Will it be provided by a laboratory at their patient service center?
- Lastly, when will the sample be collected? Is it immediate or in future, on what time table and frequency?
Regardless of the situation strongly advise your client not to try to falsify a screen. All methods of substitution or adulteration of the specimen are unreliable at best. In most cases they are detected and reported even if the screen results are negative. Most judges will interpret reports of tampering as a positive result. In every case abstinence is the best possible strategy.
But let’s take the case of a court ordered screen in a divorce/custody case. The order my be as general as “drug screen” or be specific to the technology and panel. Let’s say your client is being accused of chronic cocaine addiction in a divorce custody proceeding. If the judge orders urine testing you can assume your client will test negative for cocaine if the specimen collection does not take place until at least four days after the order, regardless of the truth or falsity of the accusation, if and only if the client abstains during the interim period If, on the other hand, the judge orders a hair test you can assume your client will test negative for cocaine only if he has abstained for the previous three months, regardless of what he does in the interim.
So what strategies are indicated? Obviously if there has been no cocaine use, none. If however there has been a history of use, guidance to the client to abstain and delay of specimen collection may be a workable strategy. If the attorney is unsure of the client’s history, a drug test for their own purposes may be advised.
The attorney should also be aware of what other substances will be targeted in the screen. Urine is the most flexible screening method and could test for a vast number of street and prescription substances. That said the strategy of guidance and delay may still be effective. If the client has been a chronic user of marijuana however the guidance and delay tactic will only work if the collection can be delayed for four weeks. In many cases the client will be directed to pay for the screen and thus have some input as to the type and timing of that screen. If so, a claim of financial hardship can minimize the scope of testing and influence the selection to the client’s best advantage.
In another scenario in the same divorce custody proceeding, your client suspects the ex-spouse of chronic alcohol abuse. Should you make the recommendation for screening? One thing to consider is the almost certainty that, if ordered for screening, the other party will demand screening of your client as well. Assuming that likelihood is not an issue what specific technology and methodology should be stipulated? Only blood and breath alcohol testing can determine intoxication, and then only for a very short window of detection. Urine and saliva testing can only determine use, not intoxication by or abuse of alcohol. Hair screening will not address the use of alcohol at all. In this case the attorney would be best advised to request a substance abuse assessment, court ordered abstinence and an ongoing program of controlled random screening. If your client is correct in the accusation, the chances are the opposition will not be able to remain abstinent and will therefore eventually trigger a positive result. It would also be advisable, unless obviated by the represented client’s history, to advocate for a technology, such as urine, that will screen for the broadest possible range of substance to circumvent abstinence through substitution.
Shifting gears to the DUI environment, the drug screen dynamics are considerably different. Challenges are a strategy worthy of some consideration.
One of the first considerations is to the technologies employed by the police to ascertain intoxication. Typically a breath alcohol test will be performed directly upon suspicion of intoxication. While no technology is 100% foolproof, the BAT test is generally regarded as sacrosanct by the courts. But what about the administration? Was the officer fully trained? Was the BAT product up to industry standard? When had the product last been calibrated? Such issues are at least worthy of investigation.
In some cases urine testing is being employed to determine intoxication, especially in the Michigan’s “Operating with the Presence of Drugs” law. The attorney should be aware that urine testing can not determine intoxication by any substance, only the presence or absence of the specific metabolite–thus the fact of some consumption at some time within a short timeline prior to the collection. Since the law does not indicate which technologies are to be used, cutoff levels for the metabolite in the specimen which would be required to generate a positive drug screen, or any particular collection procedures, the Attorney can encounter any one of a number of technologies and methodologies. At the onset, the law does not rise to the standards of drug screening regulations set by SAMHSA. In addition, instant tests, or lab tests without GCMS confirmation may be challenged on the question of accuracy. Experts vary but there are indications that both methods may produce as much as five percent false positives.
Clearly, a full understanding of the client’s history and a thorough knowledge of the screening technology to be employed will enable the attorney to best defend against and/or use drug screening as an offensive strategy. The absence of such information will at least reduce the client’s opportunity and at most jeopardize their position.
A pre-emptive voluntary drug screening program may be an effective strategy in driver’s license retention or reinstatement. Typically, an individual convicted of a DUI is ordered into some type of monitoring. Random BAT, breath analyzers attached to a car’s ignition and the ankle bracelet are common. Compliance with these orders is necessary but does not necessarily indicate any serious commitment to sobriety. From the hearing officer’s standpoint, the methods also leave room for doubt. Perhaps the defendant was clever enough to time his drinking so as to not trigger a positive? Perhaps the defendant abstained from alcohol only to replace it with recreational drugs which would not be detected by these methods. As such, the hearing officer is not necessarily compelled by a record of negative results to the court ordered screenings.
A voluntary program can be much more stringent. If, for example, instead of BAT, which only measures intoxication at the time of the test, the defendant could undergo regular random drug screens using specialized alcohol targeting technology which will detect the consumption of alcohol for seventy-two hours prior to sample collection. The random program is designed to generate at least two tests per week. A history of negative results clearly proves total abstinence. To further document commitment, the defendant may also undergo drug screening which tests for ten street and commonly abused prescription drugs on the same random program. The tests would be provided by SAMSHA certified national laboratories using the highest level of technology available. Again, negative results prove total abstinence. If the program is managed by an outside agency which is able to provide certified documentation of the defendant’s record of call compliance, timing compliance and consistent negative results, irrefutable evidence of a complete abstinence and a high level of commitment to sobriety can be presented.
A few key points:
Seek specificity in court orders for drug screening. Where possible, steer court orders in a direction that benefits your client. If your client stopped using drugs one month ago, propose urine or oral fluids testing rather than hair testing, which might still find traces of the drugs in his specimen. If opposing counsel’s client continually comes up with dilute or adulterated drug screen results, consider recommending hair testing as a hard-to-adulterate alternative.
Seek the most reliable form of testing. Avoid “instant” testing where at all possible, and insist on GCMS confirmation for all positives. Push for the use of SAMHSA certified laboratories.
Understand detection windows for all types of drug screens. If you know your client used in the past, you must understand detection times in order to influence the selection of the most appropriate type of screening. Contact forensic laboratories, or Third Party Organizations for assistance in gaining this knowledge, or research on your own. Google is your friend.
Be prepared to challenge questionable results. While rare, false positives are always a possibility, particularly with certain types of tests. For example, the dip test method of “instant” testing calls for judgment and interpretation on the part of the individual doing the results reading. Often this individual may lack training in that interpretation. Further, organizations that use “instant” testing often do so for price savings alone, and consequently avoid sending prospective positive results to a laboratory for GCMS confirmation. Finally, if your client’s results are positive, and if your client continues to deny use, you may want to consider using the services of a Medical Review Officer (MRO). MROs are physicians with additional training and certification in substance abuse, and are the backbone of government testing programs like those of the Department of Transportation (DOT). A MRO looks at all evidence–drug screen result, legally prescribed prescriptions, client and client’s physician’s statements–and then makes a medical determination that may differ from the final test result. In short, to best serve your client: Be informed or secure the support of someone who is informed, about the many nuances of Drug Screening.
Mike Grosh, President, Span Corporation. A nationally recognized leader in the Occupational Health arena, Mike has been a featured presenter at a number of industry conferences including Regional and National meetings of the National Association of Occupational Health Professionals, and Managed Health Resources, Inc. Mike’s publications include, “Self-Referrals: the Other Side of the Story,” Ed Welch on Workers’ Compensation, June 1993, “Seeing the Sales Process Through Snake’s Eyes,” Visions, May – June 1994, “Don’t take a Half-hearted Approach to Commissions–Make your Incentive Program Pay off,” Occupational Health Management, October 1995, Vol 5, No. 10. “How to Pick an Information System–if you Need One,” with Steve Barber, Occupational Health Management, February 1996, Vol 6, No.2, “Change Program to Improve Profitability,”Occupational Health Management, November 1996, Vol 6, No. 11, and, “Turning ‘No’ into ‘Yes:’ Getting Your Software Purchase Approved,” with Steve Barber, Visions, April – May, 1997, Vol 7, No.5, “Drug screening for the courts: the good, the bad and the ugly,” Lawyers Weekly Vol 20 No. 35 July 17, 2006,” has published articles in Visions, Ed Welch on Workers’ Compensation and Work Injury Management Mike is a regular contributing columnist to Occupational Health Management, with bi-monthly columns scheduled throughout 1998-1999. He has served on the editorial board of, OSHA for Healthcare Facilities, Thompson Publishing Company, NY, NY.
© copyright 2008 Span Corporation
Mike Grosh is President, and Steve Barber is Director of Testing Service for Span Corporation, a national provider of drug screen and background investigation Third Party Administration services. Span Corporation headquarters are located at 1505 White St Ann Arbor MI 48103. Mike, Steve and Span Corporation can be reached at 734-623-7726 or SpanAdvantage@spancorp.com. Website URL: http://www.spancorp.com
You have permission to publish this article electronically, in print, in an eBook, in a newsletter, or on your website free of charge, as long as everything including the text below the copyright notice is used and the Website URL link is live. All we ask is that you send us notification of how you are using it.