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Drug Testing by EdPDLaw
On the collection of specimens, after a series of errors in the Chain of Custody, the Gonsalves Court finds:
"Though none of these factors standing alone would suffice to convince this court that tampering could have occurred, when taken in concert, they strongly suggest that IA does not take its responsibility seriously enough.
When a small group of people is entrusted with a great responsibility, and has the power and means to potentially end a fellow officer's career though their actions would be illegal, they owe that officer the highest duty of care, and are bound to exercise their utmost vigilance to ensure that the process and trust is kept safe.
They need not negate all possibility of tampering, but they must ensure, at the very least, that all samples are collected properly and transported to the Lab, that the chain of custody is maintained, and that all paperwork tracking the specimen from collection to the Lab is completed competently." Honorable CARIDAD F. RIGO, ALJ... Gonsalves v. Juvenile Justice Commission, CSV08601-02, OAL/NJ handed down August 15, 2005
There is no dispute that testing in this area is necessary in the law enforcement community. This article does not dispute that necessity nor does it condone the use of illegal drugs by members of the law enforcement community.
This article is written to protect the rights of law enforcement officers who are subjected to these test as a form of harassment by their Departments, and, to assure that the testing procedures are fair and the results are accurate. This is a very intrusive test which results, can and have, abruptly ended many law enforcement careers. It is for this reason that every precaution should be taken to ensure that the test is administered fairly and that the results are, without a doubt, accurate and conclusive. There can be no room for error or false positives in this area.
A law enforcement officer does not have the right to refuse a test under any circumstances whatsoever and to do so would be career suicide. If you refuse to submit to a drug test you are admitting drug use. Your name will be submitted to the Central Drug Registry, you will be fired and barred from future employment as a law enforcement officer. When ordered to submit to a drug test the officer shall and will submit to the testing regardless of the circumstances.
The officer should REQUEST TO HAVE HIS UNION REPRESENTATIVE PRESENT at the time the sample is taken and that a "SPLIT SPECIMEN" be taken. This means that the officer will give two samples, one for the Department's testing purposes and one for a licensed independent lab of his choice to conduct the testing.
Once the test is completed, the officer's attorney has numerous ways to challenge the validity of the test. The following procedures will be called into question to determine the validity of the test:
Testing is given as:
PreEmployment Screening:
Applicants may be required to submit a urine specimen at anytime prior to employment.
Law Enforcement Trainees:
In New Jersey, as in most states, trainees are required to submit one or more urine specimens for testing while they attend the basic training course. They may also be required to submit a urine specimen if "reasonable suspicion" exists to suspect they are illegally using drugs. Authority falls under the Police Training Commission.
Random Testing:
Random selection is the method of selection wherein each and every member of the Department, regardless of rank or assignment has an equal chance of being selected for testing.
This allows for the testing of an officer if there is "reasonable suspicion" to believe the officer is using drugs illegally. This can only be authorized by the County Prosecutor or Chief Executive Officer (CEO) of the officer's agency, i.e Chief of Police. A written report, detailing the "reasonable suspicion" is to be submitted to the proper authority PRIOR to the order for the testing unless there are emergent circumstances.
Keep in mind that "reasonable suspicion" is not the same as "probable cause" and the criteria is not as great. However, there are certain guidelines for establishing "reasonable suspicion", read Allen v. County of Passaic, 219 N.J. Super 352 (Law.Div. 1986) for a better idea.
Fitness for Duty Exam
Testing in connection with this exam is not covered by the Attorney General's office and may be confidential under the ADA or other acts.
Agency Policy & Procedure:
Each Department must have Policy & Procedure in place regarding drug testing. Make sure you know what yours is AHEAD of time. Your agency should make you sign off on it when you receive it.
Random testing cannot be conducted until 60 days after the proper Policy & Procedure has been set in place. (New Jersey, check your State's Guidelines).
The Policy & Procedure must include:
A. Each and every sworn member of the Department;
B. The method utilized to select the candidates for testing must assure that each member has an equal chance of being selected;
C. Specify either the number of members to be tested or the percentage of members;
D. It must afford the members being tested the option of having a union representative present.
Each Department shall appoint a monitor to oversee the collection of the samples, the monitor should be of the same sex as the officer tested.
Forms shall be filled out PRIOR to the collection of the specimen. The forms are:
Form A - is the Applicant Consent Form to be filled out by an applicant for employment.
Form B - is the Medical History Form which is filled out by the sworn officer being tested. It details his/her medical history and states what drugs the officer has ingested for the past 14 days. This is very important as drugs can interact and produce false positives. List everything you can think of, including any vitamins or supplements that you may take.
Form C - is the Police Trainee Form to be filled out by officers at the Academy.
Form D - is the Central Drug Registry Form which reports results to the central registry.
* The officer's social security number should be used in place of his name on all forms and specimens to protect his identity.
All samples are to be collected in State approved containers and processed according with State Lab Policy & Procedures.
The monitor should not view the officer while voiding unless he/she has submitted a written report detailing why they feel this is necessary.
The officer may be detained and offered fluids if he/she is unable to provide a sufficient amount of urine to be tested.
The officer may give a "split specimen" which is two specimens. The first specimen shall be processed by the Department or Agency and the 2nd sample will be held in evidence by the Department.
Upon the receipt of a positive result for illegal drug use from the first sample, the 2nd sample will, at the request of the officer, be sent to an independent lab of the officer's choosing, for testing. The lab must be state certified and they must pick up the sample to assure the chain of evidence.
In New Jersey, the sample is retained for a period of 60 days, after which the sample is discarded. ALWAYS GIVE A SECOND SAMPLE AND ALLOW YOUR ATTORNEY TO DECIDE WHAT SHOULD BE DONE WITH IT.
5. CHAIN OF EVIDENCE
Specimens are to be delivered to the State Police Lab within one day of collection or refrigerated until delivery. Delivery may be by a law enforcement officer or commercial courier.
6. METHOD USED FOR TESTING
All specimens will undergo the fluorescence polarization immunoassay analysis.
The positive tests will then undergo the gas chromatography/mass spectrophotometry for confirmation.
If still positive, a lab officer will compare the results against the Medical History submitted by the officer for drugs that may mimic a false positive. The lab officer may request additional information.
Results are to be supplied to the submitting Department/Agency within 15 days.
As you can see, once you have submitted to the test there are numerous different ways that your attorney can challenge a positive result. You must submit to the test.
4th Amendment Violation:
PBA Local 318 v. Township of Washington, 850 F2d 133 (3rd Cir. 1988)
FOP Lodge 12 v. City of Newark, 216 N.J. Super 461 (App. Div. 1987)
Capua v. City of Plainfield, 643 F.Supp. 1507 (DNJ 1086)
Reasonable Suspicion
Allen v. County of Passaic, 219 N.J. Super 352 (Law.Div. 1986)
Random Testing
NJ Transit PBA Local 304 v. NJ Transit Corporation, 151 NJ 531 (1997)
Refusal to Submit to Drug Test
Rawlings v. City of Jersey City Police Department, 133 NJ 182 (1983)
Tampering with Evidence/ Chain of Custody
Gonsalves v. Juvenile Justice Commission, CSV08601-02, OAL/NJ
SCO Buffa v. Dept. of Corrections, CSV6435-02 OAL/NJ
In re Lalama, 343 N.J. Super 560 (App. Div. 2001)
Donor Notification Form/Central Drug Registry Reporting
CO Lt. McWherter v. Mid-State Correctional Facility, Dept. of Corrections, CVS8030-00 OAL/NJ
Paul Tamburelli v. Hudson County Police Department, CSV3023-97 OAL/NJ
Guidelines
Mandatory Guidelines for Federal Workplace Drug Testing Programs
NJ Division of Criminal Justice Drug Testing Manual
NJ Attorney General Drug Testing Policy
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.