Drug Testing

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Public Benefits Drug Test Bill Advances in Kansas

The Kansas Senate Thursday approved a bill requiring welfare and unemployment benefits recipients to undergo drug tests if there is "reasonable suspicion" they are using drugs. But the definition of "reasonable suspicion" includes having worked in a field where drug testing is prevalent.

Democratic legislators successfully amended the bill so that its provisions also include lawmakers.

The Republican-backed bill, Senate Bill 149, passed on a 31-8 vote, largely along party lines.

According to the bill, reasonable suspicion may be arrived at, but is not limited to, "an applicant's or recipient's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating unlawful use."

People who fail the drug test would lose benefits until they complete drug treatment and job training programs.

Republicans argued that the bill would help people with addictions kick their habit and prevent state tax dollars from being spent on drugs. But according to a legislative fiscal analysis, the bill would create "a net fiscal effect of increased expenditures of $1,095,468 in FY 2014" and create no net benefit to state coffers in years after that.

The bill now goes before the state House.

Wichita, KS
United States

Federal Appeals Court Blocks Florida Welfare Drug Test Law

The 11th Circuit Court of Appeals in Atlanta Tuesday upheld a preliminary injunction blocking Florida's 2011 law requiring welfare applicants to take and pass a drug test. The court held that mandatory, suspicionless drug testing violated the Fourth Amendment's proscription against warrantless searches and seizures.

The decision came in Lebron v. Secretary, Florida Department of Children and Families, in which Navy veteran, single father, and university student Luis LeBron applied for Temporary Assistance for Needy Families (TANF) funds, but refused to be drug tested. His challenge to the law led to a federal district court's preliminary injunction halting the implementation of the law. The 11th Circuit's ruling Tuesday upheld the preliminary injunction.

Federal courts have generally found random, suspicionless drug testing to be a violation of the Fourth Amendment, but have carved out two "special needs" exceptions: for public safety (allowing testing of pilots, truck  drivers, and police doing drug enforcement) and children (allowing testing of students involved in athletic or extracurricular activities). The 11th Circuit held that the Florida law did not fall within those exceptions.

The state of Florida "presented no empirical evidence to bolster its special needs argument that suspicionless drug testing of TANF applicants is in any way warranted," the court held. "There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment."

"Today, the 11th Circuit Court of Appeals, in affirming a preliminary injunction halting Florida's law mandating suspicionless drug testing of TANF applicants, set important precedent, which will hopefully curtail other states from following in Florida's stampede over individuals' Fourth Amendment rights, said Shawn Heller, a co-counsel on the case. "As Judge Jordan succinctly stated in his concurrence, 'constitutionally speaking, the state's position is simply a bridge too far.'" (Heller first joined the case while on staff at the Florida Justice Institute, which argued the case as co-counsel to the ACLU of Florida.)

"The 11th Circuit's decision deals a devastating blow to any state's attempt to impose suspicionless drug testing as a condition of receiving governmental benefits," said Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, which had filed an amicus brief in the case. "We hope that lawmakers will choose to honor the constitution rather than scapegoat poor people in efforts to address perceived drug problems."

In that amicus brief, the Drug Policy Alliance was joined by the American Academy of Addiction Psychiatry, Physicians and Lawyers for National Drug Policy, the Legal Action Center, Center for Juvenile and Criminal Justice, National Employment Law Project, Child Welfare Organizing Project, and National Advocates for Pregnant Women.

The brief argued that Florida’s drug testing scheme does not achieve any of its purported goals of protecting the well-being of children, promoting the employability of person on public assistance and assuring fiscal integrity, and does not pass the "special needs" test that is required to justify otherwise unconstitutional searches by government officials.

The ruling comes as public benefits drug testing measures continue to be introduced -- and sometimes advanced -- in states across the country. Some of those bills attempt to overcome the Fourth Amendment obstacles cited by the appeals court here by attempting to set up a "reasonable suspicion" assessment before mandating drug testing.

Atlanta , GA
United States

Indiana House Approves Welfare Drug Test Bill

The Republican-controlled Indiana House voted overwhelmingly Monday to approve a "reasonable suspicion" drug testing bill for welfare recipients. House Bill 1483 advanced to the state Senate on a 78-17 vote.

The bill would require all adult recipients of Temporary Aid for Needy Families (TANF) benefits to undergo an assessment to see if there is "reasonable suspicion" that they might be using illicit drugs. Recipients who are deemed "suspicious" would then go into a pool for random drug testing, with half of the pool members being subjected to drug testing.

People who fail the drug test would lose their benefits unless they enrolled in a drug treatment program and produced negative results on future drug tests. Repeated positive drug tests could result in the permanent loss of benefits.

The bill defines "reasonable suspicion" as having been charged with a drug offense, having previously presented positive drug test results, or having been assessed as a likely drug user by the Substance Abuse Subtle Screening Inventory test, a commercial test that claims a 90% accuracy rate.

The House approved the bill despite a legislative staff financial analysis that showed the state would spend $2.7 million on the program to possibly the save the state $1.5 million in denied benefits. That means the state would lose $1.2 million next year if the bill were to become law.

Indianapolis, IN
United States

North Dakota Welfare Drug Testing Bill Defeated

A bill that would have required welfare recipients to undergo drug testing died Friday in the North Dakota House. It was defeated soundly on a 72-19 vote.

North Dakota becomes the second state to kill welfare drug test bills this year. A similar bill in Virginia was defeated earlier this month.

The North Dakota bill, House Bill 1385, originally would have required all welfare applicants to undergo mandatory, suspicionless drug testing at their own expense as part of the application process. Those who failed the drug test would have lost benefits for one year, or six months if they completed drug treatment and passed a drug test. The bill was amended in committee to require drug tests of applicants only upon "reasonable suspicion."

Mandatory suspicionless drug test bills have become law in Florida and Georgia, but have been blocked or put on hold by legal challenges. Federal courts have repeatedly held that a drug test constitutes a search under the meaning of the Fourth Amendment, and a search requires either a warrant or probable cause. Some states have sought to address that legal problem by calling for an initial assessment to see if there was evidence that would support a drug test, as North Dakota legislators did in committee.

But that was not enough to keep the bill alive. It was opposed by state social services officials, who said it was probably unconstitutional and unfairly targeted the poor. Legislators also balked at the potential costs, which a legislative fiscal analysis put at $595,000 in program costs for the first two years, as well as $125,000 in anticipated legal costs.

The state only has 1,800 participants in the Temporary Assistance to Needy Families program, and 45% of those are children.

Bismarck, ND
United States

West Virginia Bill Would Drug Test Teens for Driver Licenses

A bill introduced Tuesday in the West Virginia House of Delegates would require prospective teen drivers to pass three separate drug tests before receiving a full drivers' license. It's only the latest drug testing proposal to emerge at the statehouse in Charleston this year.

teen driving lesson
Introduced by Del. Joe Ellington (R-Mercer), House Bill 2528 would require teens to "pass a drug test designed to detect illegal consumption of controlled substances" before getting a learner's permit, before getting an intermediate license, and before getting a full license.

"So the goal was: they really want to get that driver's license -- their incentive would be to not use anything and maybe not bow down to peer pressure to succumb to drug use," Ellington explained to WSAZ News Channel 3 in Charleston Tuesday night.

Ellington, an obstetrician, is the minority chair of the Health Committee and member of the Roads and Transportation Committee, where the bill has been referred.

Charleston has been a hotbed of drug testing fever in recent years, which have repeatedly seen bills introduced that would require drug testing of welfare recipients. There's another one this year, as well as bills that would expand drug testing of coal miners and require health care providers to release drug testing records of minors to their parents.

It's not just Republicans at the statehouse. Last year, Gov. Earl Ray Tomblin (D) issued an executive order requiring participants in the state's job training programs to undergo mandatory, suspicionless drug testing.

The enthusiasm for drug testing in Charleston remains despite the sobering results of Tomblin's job trainee drug testing. The first six months of testing resulted in just five failed tests out of 562.

Charleston, WV
United States

AZ Court Says You Don't Have to Be High to Get a DUI

An Arizona appeals court has ruled that marijuana users don't need to be actually impaired to be successfully prosecuted for driving under the influence. The ruling came Tuesday in the case of a man who tested positive for an inactive marijuana metabolite that remains in the body for weeks after the high from smoking marijuana has worn off.

The ruling in Arizona v. Shilgevorkyan overturned a decision by a superior court judge who said that it didn't make sense to prosecute people for driving under the influence if they're not actually under the influence.

The ruling turned on a close reading of legislative intent in writing the state's DUID law. The legislation specified the presence of "the metabolite" of THC, and Shilgevorkyan had argued that lawmakers meant "hydroxy-THC, the metabolite which would indicate current impairment, not carboxy-THC, an inactive metabolite that indicates only usage some time in the past.

The appeals court disagreed, citing its decisions on earlier challenges to the DUID. "The legislature intended to create a 'per se prohibition' and a 'flat ban on driving with any proscribed drug in one's system," the court noted. "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Because the law was drafted to protect public safety, the appeals court said, it should be interpreted broadly to include inactive as well as active compounds.

But Superior Court Commissioner Myra Harris, who had ruled on Shilgevorkyan's behalf, warned in her earlier opinion that the appeals court's interpretation of the law would result in people, including out of state medical marijuana patients, being charged with DUI when they are not impaired.

"Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona," Harris said in her 2012 ruling upholding the dismissal. "It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier."

Shilgevorkyan's attorney said he plans to appeal to the state Supreme Court.

Phoenix, AZ
United States

New Jersey Supreme Court Protects Rights in Pregnancy Case

The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.

Trenton, NJ
United States

Virginia Welfare Drug Testing Bill Defeated

A bill backed by Republicans that would have required drug screening and testing of welfare recipients died Monday in the Virginia Senate. The measure failed by one vote in the evenly divided Senate when one Republican didn't vote.

Last year, a similar measure ended up with a tied vote in the Senate, allowing Republican Lt. Gov. Bill Bolling to cast a tie-breaking vote and advance the bill to the House. It was then killed in the House.

The measure, Senate Bill 271, introduced by Sen. Charles Carrico (R-Grayson), would have required the state's welfare-to-work program to screen participants "to determine if probable cause exists to believe the participant is using illegal substances" and, if such a determination is made, "a formal substance abuse assessment of the participant, which may include drug testing."

Those who tested positive would have to enter a drug treatment program or lose benefits for a year. Those who refused to be tested would also lose benefits for a year.

Similar legislation is afoot in a number of other states. Some states, like Virginia, have attempted to overcome constitutional problems with suspicionless drug testing by providing for an initial screening to come up with probable cause, but even that fix hasn't managed to overcome political problems in most states.

Opponents of such legislation argue that such programs cost more money than they save, that they are an attack on poor people, and that there is no evidence of widespread drug use among public benefits recipients.

"Why are poor people singled out for testing," asked Sen. Marnie Locke (D-Hampton) before voting against the bill. "Why not legislators or bailed-out CEOs?"

Richmond, VA
United States

Welfare Drug Testing Bill Moving in Virginia

A Republican-backed bill that would subject welfare recipients to drug testing has passed a second committee vote and now heads for the Senate floor. The bill was approved in the Senate Rehabilitation and Social Services Committee earlier this month and passed out of the Senate Finance Committee Tuesday on a 10-5 vote.

The bill, Senate Bill 721, would require all 14,500 participants in the state's welfare-to-work program to undergo preliminary screening to assess their likelihood of drug use. Those flagged as potential drug users would then be tested by the Department of Social Services.

Failing a drug test would result in loss of benefits for a year, as would refusing to take one. But benefits could be reinstated if the person undergoes drug treatment. That provision was added in hopes of making the bill more palatable to the House, where a similar measure died last year.

"It's been toned down quite a bit from the original thing. "If there's welfare recipients using, we can help them with their addiction," said Sen. Frank Wagner (R-Virginia Beach) who sits on the Finance Committee. "You're hoping welfare payments are going to support families and not to purchase narcotics," he said in remarks reported by the Washington Examiner.

But opponents of the legislation said drug testing welfare recipients stigmatizes poor people and unfairly targets them while not aiming at other recipients of government largesse, such as students who receive college tuition grants, small businesses that get economic assistance, or legislators who get their paychecks from the state.

"Why are Republicans so suspicious of poor people? It begs the question," said Sen. Louise Lucas (D-Portsmouth). "This is insulting. The fact is, very few of those who qualify for temporary public assistance use illegal drugs."

Virginia is one of at least a dozen states where bills mandating drug testing for public benefits recipients have been filed so far this year. That number is likely to increase as the legislative season gears up. Last year, about two dozen such bills were filed, but only one in Georgia passed.

Florida had passed a welfare drug testing bill in 2011, but it has been put on hold by a federal court judge while she considers whether to rule it unconstitutional as a suspicionless search under the Fourth Amendment. Georgia, too, has put its bill on hold pending that decision.

The Virginia bill, however, seeks to avoid that constitutional problem by adding the preliminary step of screening in order to have a "reasonable suspicion" as the basis for the drug testing.

Richmond, VA
United States

Florida Must Pay Attorney Fees in Employee Drug Test Lawsuit

A federal judge has ordered the state of Florida to pay more than $190,000 in attorneys' fees in a case challenging an executive order ordering suspicionless drug testing of state employees issued last year by Gov. Rick Scott (R). Those taxpayer funds have now been lost to Scott's chimeric crusade to impose drug testing on various fronts.

http://www.stopthedrugwar.org/files/rick-scott-200px.jpg
Gov. Scott's controversial lawmaking has already cost Florida a million in legal fees.
Last Friday, US District Court Judge Ursula Ungaro ordered the state to pay attorneys' fees to the American Federation of State, County, and Municipal Employees (AFSCME) Local 79, which filed suit to block the executive order in May 2011. The union is the plaintiff in the suit challenging Scott's ability to randomly test workers in state agencies.

A report by the Orlando Sentinel found that the state has now incurred over a million dollars in legal bills for controversial legislation pushed by the governor.

Judge Ungaro had ruled that Scott's executive order was unconstitutional back in April, saying the governor did not show a "compelling need" to impose drug testing. Scott has appealed to the 11th US Circuit Court of Appeals.

Scott's drug testing plan has never been implemented except among some employees of the Department of Corrections. He put it on hold because of the legal challenge.

Another of Scott's pet projects, the mandatory suspicionless drug testing of welfare applicants and recipients has also been so far stymied in the federal courts. In that case, a federal judge issued a temporary injunction blocking implementation amid strong hints she would eventually rule that the practice was unconstitutional.

Meanwhile, despite the legal roadblocks -- and financial costs to taxpayers of fighting them -- Scott and the legislature last year passed another bill, House Bill 1205, which would allow, but not require, state agencies to conduct random suspicionless drug testing of state workers. That law, too, is on hold as it faces challenges in the federal courts.

FL
United States

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