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DRUG TESTING
IN THE LAST FEW YEARS, drug testing has spread like a virus. A few years ago, it was possible for a general criminal defense attorney to stay abreast of most issues related to drug testing, today, however, the field has expanded into its own specialty. At both the federal and state levels, there are numerous laws and regulations controlling drug testing and an increasing number of court decisions interpreting those laws and regulations. It is, therefore, simply impossible to give a complete rundown of all drug testing laws and regulations within the space of this book. Therefore, this chapter will cover only the most important drug testing issues affecting marijuana users. Readers interested in learning more about drug testing are encouraged to read Kevin Geese’s "Drug Testing Legal Manual," an up-to-date and reliable source for information about the legal aspects of drug testing. Also don't miss Ronin Press' Drug Testing at Work, by Beverly Potter and Sebastian Orfali.

Urine Tests
Of the methods currently used to test for drugs, the most widely used is urine testing. It's not only easy, cheap, and quick, but (with the exception of hair testing) provides the farthest look backward in time. These factors also account for why 95% of pre-employment drug testing is via urine tests.

Urine tests do not show whether or not a person has marijuana in their urine. Instead, a urine test can only determine whether or not a sample of urine contains marijuana metabolites. Marijuana metabolites are what remain after the body physiologically processes marijuana.

Metabolites do not appear in urine immediately after marijuana is smoked. It takes time for the body to metabolize marijuana. As a result, cannabinoids (one kind of marijuana metabolite) can occur in urine at any time from 3 days to 27 days after marijuana is ingested. Since metabolites do not appear immediately, urine tests are unable to indicate whether a person was impaired or high when the sample was taken. Indeed, because the metabolites aren't yet in the urine it is possible for an irregular marijuana smoker to pass a urine test while high. A regular smoker, on the other hand, could test positive for the presence of metabolites even though he has not smoked for several weeks. Also, since the rate of metabolism is not constant among all people, two people who smoke an identical amount of marijuana at the very same time are likely to produce marijuana metabolites at different rates, and hence test differently.

The concentration of marijuana metabolites in a person's urine varies even over the course of a single day. For this reason, most urine tests seek a sample from the first urination of the day—the time when the maximum amount of metabolites is likely to be present. Scientific studies have shown that because the concentration of marijuana metabolites can change on an hourly basis, it is possible for a person who smokes on Sunday night to test positive in his first urination on Monday morning, negative in another urination at midday on Monday, and then positive on Monday night once the metabolites have had a chance to build up again.

In addition to the variations caused by differing metabolic rates, urine tests can be unreliable for a number of other reasons. Legal substances can cross-react to cause false positives. Human error, including improper handling of the urine sample, can contaminate the sample and cause incorrect results. In one study, the Center for Disease Control secretly sent a drug-laced urine sample as well as a clean control sample to thirteen different urine testing companies. Errors ranged from five percent in some labs to one hundred percent in others! The researchers at CDC concluded that only one of the thirteen companies was competent.

The American Medical Association's Council on Scientific Affairs has estimated that cannabinoids are detectable in urine up to 3 days after a single use of marijuana, up to 10 days after a daily marijuana user quits smoking, and up to 27 days after a "chronic" marijuana user quits smoking. Another scientific test found that a drug-free male who eats a single marijuana brownie will excrete marijuana metabolites in his urine for up to fourteen days.

Creating False Negatives
For our purposes, a "false negative" drug test is one which indicates mistakenly that a person has not used marijuana when in fact the person has. In other words, a false negative test pronounces a "guilty" person "innocent." Rumors abound on how to cause false negatives in urine tests. Many companies are making money from teas and other drinks that they claim can defeat a urine test.

The scientific literature, however, indicates that the simplest way to create a false negative is to avoid giving a sample of the first urination of the day, and instead give a sample from an afternoon urination. Studies have shown that when this technique is combined with drinking lots of fluids, the concentration of marijuana metabolites in urine can be reduced to below the test's cutoff point, thereby causing a negative reading. Some people have followed a routine of voiding their bladders on the morning of the test, and then drinking a large volume of various liquids in the intervening hours before giving their urine sample. Drinking a wide variety of liquids, such as coffee, tea, juice, and plain water, is preferable to simply drinking straight water because the various fluids add some color to the urine. Clear urine is an indication of "water-loading." Other people, who prefer to drink straight water, take a B-complex vitamin to add some color o their urine.
Some people advocate the adding of adulterants to the urine sample. Tests lave shown that adding such common substances as Visine, vinegar, or table salt; o a urine sample can cause a false negative. Adulterating a urine sample is risky business, however, because the risk of detection is high. Similarly, all urine tests tactics for preventing or detecting attempts by people to dilute their urine. Most well-conducted urine tests place bluing agents in the toilet tanks to prevent dilution of urine samples. Exclusion from the testing area of all other water sources is also common. Well-conducted tests will take the temperature of a urine sample within four minutes of its collection and will reject a sample that is not within an established temperature range. In addition, many tests require the person to remove any unnecessary outer garments that could conceal substances used to adulterate or dilute a sample. Likewise, purses and brief cases are generally excluded from the collection area. Even if one succeeds at adulterating or diluting a sample, most of today's urine tests will uncover the adulteration. In some states, such as Florida and Texas, it is a crime to attempt to defraud a drug test.

False Positives
In contrast to false negatives, a false positive occurs when a drug test pronounces an "innocent" person "guilty." Prior to 1986, false positives often occurred because the standard urine test commonly mistook ibuprofen for a marijuana metabolite. However, this problem was, for all practical purposes, solved in 1986 when most urine tests switched to using a different enzyme.

Although it probably won't do any good under the new tests, it is always important to list on the pretest form any ibuprofen, or naproxen drugs you may be taking. Those drugs are found in such brand name products as Advil, Motrin, and Nuprin.

Finally, while it is technically not a "false positive," it is possible for urine to test positive when a nonsmoker has been in the room while others smoked marijuana. While secondhand smoke generally only reaches sub threshold levels, there are cases where it has caused false positives.

Blood Testing
Your blood transports the psychoactive constituents of marijuana to your brain. If you feel high, you can be sure that a blood test will be positive. Within twenty-four hours after smoking, it is unlikely that a standard blood test would reveal marijuana metabolites. A blood test is the best test to take if you haven't smoked for at least 24 hours. It's the worst test to take if you're high.

Hair Testing
While currently one of the least-used drug testing methods, the use of hairtestis seems to be on the rise. One advantage of hair testing is that drug metabolites ia the hair are very "stable", which means that they remain in the hair in their original molecular form for a very long time. As an executive from one of the hair testing companies put it, "we literally have little tape recorders coming out of our heads." In fact, marijuana metabolites remain in the hair for as long as the hair exists! Recently, in fact, anthropologists used hair testing on 500 year old corpses tci determine what, if any, drugs the people ingested while alive.

There are, however, several problems that make hair testing currently extremely unreliable. A sloppily-cleaned hair sample, for example, can contaminated with airborne drugs. Since most marijuana is smoked, it is r unusual for a non-marijuana user to test positive simply because he was in t room while others smoked. For this reason and others, the PDA has called hail testing for drugs "an unproved procedure unsupported by the scientific literature," and the National Institute on Drug Abuse has refused to certify any hair-testing labs for drug testing of federal employees.

"Possession" Of Marijuana Based On A Positive Drug Test
As the use of drug testing has expanded, the question has arisen as to whether at not a person can be convicted of the crime of possession of marijuana based solely on positive drug test results. Obviously, if courts begin upholding possession! convictions based solely on positive drug tests, possession convictions would skyrocket overnight. Since this has only recently become an issue, few courts have had to deal with it. To date, however, courts in Indiana, Minnesota and Kansas, have reached the sensible conclusion that without more evidence, a positive drug test is not enough to prove, beyond a reasonable doubt, that the person was in possession of marijuana. The courts have reached this conclusion based on different rationales.

A Kansas case held that the presence of a drug in a person's blood is circumstantial evidence that the person possessed the drug previously, but it is insufficient to establish the crime of possession because the test does not prove the knowledge element (see Chapter 1) of the crime. In contrast, a Minnesota! court reasoned that the positive test did not establish the "dominion and control" element of a possession offense, explaining, "[t]he usual and ordinary meaning of the term 'possession' does not include substances injected into the body and! assimilated into the system. After a controlled substance is within a person's| system the power to exercise dominion and control necessary to establish possession no longer exists . . . ." (State v. Lewis [1986] MinnApp. 1986) 39 N.W.2d 212.) Another argument for rejecting a positive drug test as sufficiently evidence for a possession conviction is that the laws prohibit possession off marijuana," and, as mentioned above, the substances found in drug tests are not marijuana, but rather the metabolites of marijuana. The primary metabolite, 9-arboxy-THC, is inert, meaning that it is not psychoactive.

Some states consider a positive drug test circumstantial evidence of prior drug use, and will consider it in conjunction with other evidence of possession. ; or example, a possession conviction was upheld in Maryland based on a positive Drug test and statements by the defendant that he used drugs. New Mexico also considers a drug test in conjunction with other evidence sufficient for a possession conviction.

Drug Tests While on Probation Or Parole
^s a condition of parole or probation, all states as well as the federal government enquire that the parolee or probationer "obey all laws," including, of course, the anti-marijuana laws. The primary means of enforcing this condition is drug testing. Such tests are generally scheduled in advance. However, in many states he testing can be conducted without notice whenever the probation or parole officer so chooses.

Because the standard of proof at probation and parole revocation hearings is much lower than the "beyond a reasonable doubt" standard required for criminal: conviction, most states will permit the revocation of parole or probation based on itching more than a positive test for marijuana.

Employment Drug Testing
\s part and parcel of the "War on Drugs," many public and private employers are >beginning to test their employees, and potential employees, for use of marijuana tend other drugs. At the time of this writing, more than 20 million people are subject to drug testing, including most police officers, military personnel, defense; contractors, transportation workers, and nearly half the employees who work for -fortune 500 companies.
Your rights with regard to drug testing at work depend primarily upon whether you're employed by the government (or in an industry or profession hats heavily regulated by the government) or privately employed.

Government Employees
In a relatively recent case, the United States Supreme Court established a scheme for deciding the constitutionality of mandatory drug testing of government employees. The Court held that this issue must be decided by applying a balancing: est. in which a court must weigh the government’s interest or purpose in requiring: he drug tests against the employees' reasonable expectation of privacy. The drug test will be legal if the Court concludes that the government's interest outweighed the employees'. When the Court wrote its opinion, it was clear from the outset that employees have a very reasonable expectation privacy regarding their own I fluids. Given this clear and strong expectation of privacy, the Court concluded that drug tests of government employees are only constitutional, and hence leg if the government can show a truly compelling interest in requiring an employ to submit to a drug test.

The case itself involved a federal regulation requiring mandatory blood; urine tests of privately employed railroad employees who were involved in t accidents. The federal government argued that the railroads are private originations and that therefore their actions are not regulated by the Constitution. J opposition, the employees argued that the railroad industry was so heavily regulated by the government that the companies, in effect, act as the agents of to government. The Court agreed with the employees, finding that the private railroad companies have to follow so many government regulations that the practically function as an arm of the government. Accordingly, the Court took that the railroad employees are subject to the Fourth Amendment, and hence £ mandatory drug testing must to comply with the Constitution.

The Court then explained, however, that the government has a compelling interest in promoting the safety of rail travel that permits the government I prohibit railroad employees from using drugs while on duty. Therefore, the Co concluded, the mandatory drug tests are necessary to ensure that rail employees abide by the no-drugs rule. The Court also explained that no search warrants are required to conduct the tests because such a procedure would hinder the program's effectiveness.

After finding that the testing passed muster under the Fourth Amendmendment the Court next addressed the issue of whether some indication that an employement is using drugs should be required before an employee can be forced to submit t a drug test. To resolve this question, the Court again resorted to a balancing I The Court weighed the railroad employees' expectation of privacy against! government's interest in maintaining safe rail travel. The Court concluded the safe rail travel was extremely important and that the industry has always 1 subject to extreme regulation. Therefore, the Court concluded, an employee < be forced to take a drug test even without any indication that the employee us drugs.

Subsequent federal cases have upheld random drug testing of probation officers, law-enforcement personnel, military personnel, air-traffic controllers, pilots, aircraft mechanics and attendants, school-bus drivers, nuclear-power| plant workers, and racehorse jockeys. Fortunately, many state courts have interpreted their own state constitutions as giving employees greater protection than that offered by the federal constitution. In many such states, a state employement cannot be drug tested without at least a reasonable suspicion that he is using drug on the job.

Drug Testing of Private Employees
Is explained in earlier chapters, the United States Constitution provides you with reflections only against actions by the government or its agents; so a private) tenpin is rarely restrained by constitutional protections against unusual searches id seizures. However, many states are now enacting legislation controlling drug slog at work and some slates go\e pro ate employee’s fatty extolment. For example, a Connecticut \aw, s\m\\at to those of many other states that an employee can be forced to take a drug test only if there is reasonable suspicion that the employee is under the influence of drugs at work and that the suspected drug use is adversely affecting his job performance. In addition, in order for the company to take a personnel action against the employee, a positive test must be confirmed by two additional tests. Moreover, persons applying for work in Connecticut can be subjected to drug testing as part of the application process only if they are given prior written notification of the test and are provided a copy of any positive results. Most importantly, in Connecticut, any positive test results are considered confidential and cannot be used in a criminal proceeding.

The Drug-Free Workplace Act of 1988
In 1988, Congress passed what is commonly known as "The Drug-Free Workplace Act." This law applies to private companies that receive federal contracts worth $25,000 or more. The Act requires these companies to create and publicize an "antidrug" policy and to create a "drug-free awareness program." In addition, employees of such companies must be notified that they must report any workplace drug offenses that result in their conviction.

What to Expect If You're Urine-Tested at Work
The exact procedures used in employee drug testing will depend on your state, your occupation, and your employer. Usually you can expect roughly the following procedure.
Often drug tests are performed not by the company itself but by an independent company hired for this purpose. Accordingly, the people conducting the test have never met the employees and hence will require that you provide proof of your identity. This is to prevent employees from secretly sending other drug-free people to take the test in their place. Therefore, the testing company will require some form of photo identification.
Once sufficient evidence of your identity has been presented, the tester will give you a questionnaire form asking if you have taken any legal drugs (over-the-counter or prescription) within the last thirty days. (If you answer that you have taken a prescription drug, the tester will usually require that you to present them with the prescription or the bottle itself.) The tester asks this question because, as mentioned earlier, some of the older testing commonly returned false positive results for marijuana cannabinoids when the person had recently taken Ibuprofen.

It is also possible for other legal drugs to cause false positives, so be sure and any and all medications you may be taking.

Once the questionnaire has been completed, the next step is obtaining 1 sample. Almost all employee drug testing is performed by way of a urine sample Usually you are allowed to urinate in private, without the tester observing I actual act of urination. However, in some states and with some employers, urine sample will be produced under the watchful eye of an observer. Beware t if you're permitted to urinate in private, the testers will usually place a blue coloring agent in the toilet to prevent you from diluting your urine sample I fresh water from the toilet.

Once you have filled your container, you will probably be asked to sign small label to be placed on the container and then to hand it to the tester. The tee will first look at the sample for any obvious indication that you have attempt to dilute it. Next, the tester will take your sample's temperature to make sure it’s within the temperature range of liquids that have recently emerged from a Hun body. If everything looks legitimate, your sample will then be taken to I laboratory for the actual drug analysis. Usually you will learn of the results will two weeks.