When I was a law student, I took a class on environmental law. One of the subjects I was interested in was contamination by secondary exposure. Direct exposure is obvious and often quantifiable. Indirect or secondary exposure – in the form of things like acid rain or second-hand smoke – was more complex and harder to quantify and prove. I was also fascinated by the possibility of false positive and false negative results from the testing methods available at the time. These tests were being used to fight coal-fired power plants and to hold cigarette manufacturers liable for the lung cancer of non-smokers. They were also being used to ferret out pot smokers and recreational users of certain prescription medications.
It was 1988. The Reagans were in the White House. Nancy’s “Just Say No” campaign was wildly popular among people who had no clue about how teenagers test boundaries. That year saw a wave of employers demanding that their employees take drug tests either before beginning employment, after an accident, or randomly. Aside from the 4th Amendment issues (which only applied to the government employers), dissenters raised objections to false positive test results that could damage not only someone’s career but their reputations and future employability. Being a child of the 70’s and 80’s, I was at least passingly familiar with the concept of the “contact high.” Could a person’s off-duty social associations cause him to lose his job? I decided to investigate the matter.
I researched the science, not just the law. I learned that something as ordinary as a poppy seed bagel or over-the-counter antihistamines could skew test results. There was no way to differentiate between someone who had ingested the substance illicitly or simply gone to a concert and been assigned a seat near people who were smoking weed. The science could test for the presence of the chemicals, but could not say how they had gotten into the person’s body or whether the person was feeling the effects of the substance at the time of testing.
Five years later I had a very active family law practice. I handled quite a few employment law cases, too. Drug testing came up over and over again. Knowing what I did, I discouraged clients from attacking each other for drug use unless it was seriously interfering with parenting responsibilities – and not just because of the false positives and false negatives. Usually if one parent partakes, the other parent will have been exposed, if they didn’t themselves indulge. The employment cases were the worst, though.
All it took was an accident that was someone else’s fault to trigger a drug test under most employers’ policies. I remember a truck driver who hired me who said yes, for the first time in 20 years he had smoked a joint at his college reunion a few days before the accident. He wasn’t high when it happened, but lost a $70,000/year job when a woman driving another vehicle ran a stop sign. He swerved to miss her and ended up in a ditch. He was fired because of the drug test, not because of the accident.
I remember the 60+ year old woman who was told she had failed a pre-employment drug test. This woman had been out of work for more than a year because the plant where she had worked closed. She had had to give up her home of 40 years and move in with her daughter. She was looking forward to independence again. Our investigation revealed that the test samples had probably been switched accidently, either at the lab or by whoever had collected the samples. A long-haired hippie-type person had the job she had applied for, and in a fit of profiling she just knew he was actually the one with the drugs in his system. Her preacher, though, in whom she had confided the devastating test results, had condemned her and was counseling her to get help for her non-existent addiction. She was humiliated and literally sick over it.
By 2000, there were lots of products on the market specifically marketed to people who needed to beat a drug test. Substance abuse was an issue in at least half of the custody cases I tried, and maybe more. Every single client – and every single opposing party – knew about these products. They weren’t 100% reliable, but I didn’t have any clients who submitted to a drug test without using the products if there was time for them to do so. Those who I knew used drugs were made aware that in-court testing was a possibility. While I couldn’t tell them to destroy the evidence, I could tell them to be ready to be tested. With a few exceptions, they were all smart enough to take steps.
Then there was the grandmother who was suing for custody of her badly neglected grandchildren. She didn’t use drugs. She was asking for custody because her daughter and son in law did, and because of their drug use they didn’t take care of their children adequately. She had asked for drug testing knowing that she would pass easily and that the parents would fail any drug test they were ordered to take. The judge ordered everyone to be tested. The grandmother had gone to a James Taylor concert at Alltell Arena and breathed in that second-hand marijuana smoke. Her grandchildren ended up in foster care.
Then came hair follicle testing. Follicle testing was more foolproof and harder to beat, the testing centers and manufacturers claimed. It wasn’t long before the shampoos and rinses were marketed in the same places as those flushing solutions. “You cannot beat a hair test,” one site still boasts. It’s wrong. Even if the test shows positive, it doesn’t explain how the substance got there.
It made me think of the rumor I had heard back in the 1980’s when cocaine use was rampant in the United States. It was said that traces of cocaine could be found on nearly every American $100 in circulation. Partiers would roll the bill into a straw and snort the powder through it. This level of contamination is still the case, and the bills don’t even have to be used directly with the cocaine. They can get contaminated inside currency-counting machines at the bank. Imagine handling one of those bank-contaminated bills that you just withdrew to pay your lawyer, them smoothing a stray strand of hair. Then imagine that you are sent directly for a drug test, and despite the fact that you have never in your life even seen cocaine, much less used it, your drug test comes back positive for the drug. It doesn’t have to be in your system to count. It just has to be in your hair. And once again, you are placed in the position of having to explain how it got there, and proving the negative of the drug use that you are now presumed to engage in.
With the announcement from the American Chemical Society last week that steps taken to remove secondary contamination from hair being drug tested actually washes cocaine into the hair shaft, the most reliable of these unreliable tests just became even less reliable.
Science gives us a lot, but it is not a panacea and never will be. It answers some questions, but answering those tends to lead to more that need to be asked. Whether in the courtroom or just in everyday life, we need to remember to ask those questions that logically come next. Science can then begin investigating them and working to find the answers.
Drug testing is too fallible to be reliable. A positive drug test tells us virtually nothing. It doesn’t prove frequent use or addiction. It doesn’t prove use at all – and it never has.
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