Posted on Fri, Oct. 19, 2007

There's a lot at stake in drug tests, and they're not perfect

By Mary Meehan

MMEEHAN1@HERALD-LEADER.COM

Every week, the freedom, family unity and financial security of thousands of Kentuckians hinge on what happens when chemicals come into contact with urine for a drug test.

And, as drug courts roll out to all Kentucky counties this year, more people will be affected.

In Fayette County, Lexington's Community Alternative Programs, or CAPs, processes a weekly average of 975 drug screens to detect substances ranging from alcohol to OxyContin and marijuana. That's a 23 percent increase from last year.

Although a linchpin of judicial oversight, drug testing presents many challenges.

First, there is not a single, all-encompassing drug test. Different entities — probation, drug court, family court — can screen for different drugs, said Capt. Darin Kelly, a spokesman for the Fayette County Detention Center, which operates CAPs. Screening for all known abused drugs is too costly, Kelly said.

But even within one entity, such as drug court, the tests can vary from judge to judge and county to county.

Judge Mary Noble founded Fayette County Drug Court. She said that during her nearly 10 years serving drug court, she would routinely adjust her test to keep participants on their toes or to respond to a spike in usage of previously unused drugs.

That can set up a situation in which two people abusing the same drug in the same system could have very different outcomes. One could go to prison. One could avoid consequences.

Connie Payne, general manager of Kentucky Drug Court, said legal precedent protects drug courts from legal challenges of drug tests on constitutional grounds. As a voluntary diversion program, drug court is a privilege, not a right. That makes it difficult to mount legal challenges over inconsistent testing.

Drug court does have standards, but as with any large system, problems occur. For example, Payne said, all samples for drug court tests should be witnessed. A tester must watch the stream of urine leave the body.

But the rule was not always applied at CAPs. Before CAPs moved into a different building in 2005, drug court samples weren't witnessed. Kelly said that's because the old CAPs bathrooms were too small. Payne said drug court officials didn't know that samples weren't being witnessed, and that once they found out, they asked CAPS to adhere to its contract.

Now a CAPs officer witnesses when every sample is provided, Kelly said, and mirrors have been put up on both sides of the toilet so the officers can see from all sides.

The testing office also dealt with a scandal in February 2006, when officer Jason T. Darrell was arrested for accepting bribes to alter urine samples. Darrell was sentenced to five years in prison in August 2006. He was granted shock probation, which means he was released from prison early, in February. Jail officials have said Darrell was an isolated case of misconduct — no other jail employees were involved.

In Fayette County, drug court participants face a 10-day jail sentence for every "dirty," or positive drug test, and beating the test can sometimes be an abuser's main focus.

"Addicts will not tell you the truth — at least not in the early stages of their program. ... They will use, and they will use, and they will try to keep you from knowing it because they are great manipulators. It's part of the addictive personality," said Noble, who now serves on the Kentucky Supreme Court.

One addict suggested to Noble that he might have tested positive for marijuana because he had sex with his girlfriend, who had smoked pot.

People who are determined to cheat can sometimes find a way. They will use other people's urine; they will try to flush the drug by drinking large amounts of water; they will use masking agents.

The business of avoiding a positive drug test is a huge industry. Everything from herbal supplements to freeze-dried urine to a prosthetic penis known as the Whizzinator is sold on the Internet.

As drug courts move across Kentucky this year, each new testing center will have a male and a female on the staff to witness and administer tests, Payne said. They will be trained by the company that provides the testing equipment and chemicals, she said. The state does not require standard certification for drug testers. Most drug courts will use a stick test — a specially treated strip is dipped in urine to detect drugs.

Such tests can be very accurate in detecting some substances, such as marijuana. But they're less accurate with others, such as methamphetamines, said Dr. Robert Swotinsky, who has written four books on drug testing.

Rules for drug testing vary from state to state. Swotinsky said some of the best standards for drug testing have been created by the U.S. Department of Transportation. All truckers, commercially licensed drivers and transportation workers must submit to these tests, he said. Under DOT testing, samples are sent to a federally certified lab, and positive tests are reviewed by a medical review officer, usually a physician. The DOT test costs about the same as the stick tests, he said.

As drug court expands in Kentucky, the issue of testing will need to be monitored, said Karyn Hascal, deputy director of Kentucky's Office of Drug Control Policy.

"There are inconsistencies," said Hascal. But, she said, "in terms of a statewide drug court system, we are an infant."