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Medical Marijuana: Schwarzenegger Vetoes Employment Rights Bill

California Gov. Arnold Schwarzenegger Wednesday vetoed a bill that would have protected medical marijuana patients from being fired from their jobs for testing positive for pot on a drug test.

The bill, AB 2279, authored by marijuana-friendly Assemblyman Mark Leno (D-San Francisco), would have overturned a January California Supreme Court ruling that allowed employees to fire or otherwise punish employees who legally use medical marijuana under state law. Under the Leno bill, only people in safety-related or law enforcement positions could have been fired.

In that January ruling, the Supreme Court held that the state's Compassionate Use Act did exempt patients and caregivers from being prosecuted by the state, but was not intended to stop employers from firing workers for violating federal drug laws.

Schwarzenegger sang from the same hymnal in his veto message. "I am concerned with interference in employment decisions as they relate to marijuana use," the governor wrote. "Employment protection was not a goal of the initiative as passed by voters in 1996."

But medical marijuana supporters who spoke to the San Francisco Chronicle after the veto announcement begged to differ. "The intent of Prop. 215 was to treat marijuana like other legal pharmaceutical drugs," said Dale Gieringer, a coauthor of the ballot measure and California coordinator of the National Organization for the Reform of Marijuana Laws.

Leno told the local newspaper he was not surprised by the veto, given the Chamber of Commerce's opposition to the bill. He said the court majority and the governor apparently presumed that "the voters who supported Prop. 215 in 1996 intended that only those medical marijuana patients who are unemployed could make use of (the law)."

Search and Seizure: Florida Defense Attorneys Challenge Drug Dog "Hits"

Defense attorneys in Florida's Sarasota and Manatee counties are challenging the reliability of drug dog "hits" in drug possession and trafficking cases. So far, the tactic has produced mixed results.

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drug dog
Drug-sniffing dogs are increasingly used in traffic stops. Thanks to the US Supreme Court, which bizarrely ruled that a drug dog search is not a search, no search warrant or probable cause is needed for police to sic the dogs on unwary travelers. Controlled by a police handler, the drug dogs typically circle the vehicle once or twice and "alert" their handlers if they smell drugs. That "alert" then constitutes probable cause for a warrantless search of the vehicle.

But some drug dogs are just too good to be believed. In one case reported by the Tampa Tribune, a now-retired drug dog named Talon "alerted" on every single vehicle he sniffed during a four-month period -- even though drugs were found in less than half of them.

Such results call into question the dog's reliability and can result in a successful motion to suppress the evidence in drug cases, usually leading to the dismissal of charges. That's what happened in a recent Manatee County case. Circuit Judge Johnes Riva said in a ruling the dog's record of false "hits" gave her no choice but to throw out the evidence in a drug case.

But another drug dog, Zuul, who belongs to the Sarasota County Sheriff's Office, fared better in court recently. Even though, like Talon, Zuul "hit" on almost every car he sniffed even though no drugs were found in half of them, Sarasota County Circuit Court Judge Charles Roberts ruled that his nose was reliable enough to justify searching vehicles. Roberts bought prosecutors' and deputies' arguments that in every case where Zuul "alerted," either drugs were found or people in the vehicle admitted to using or possessing drugs in the recent past. That ruling has set up an appeal that could be headed for the Florida Supreme Court.

That set well with the Sarasota Sheriff's Office, which, along with other law enforcement entities, worried that Riva's earlier ruling against Talon would set a trend in case law. More rulings like Riva's would be "catastrophic to the way we've been doing business," said sheriff's office Sgt. Brian Olree, who oversees the K-9 division.

Now, local defense attorneys are checking the reliability of at least three other local drug dogs. "I don't think any of the dogs the Sarasota sheriff's office uses are qualified to detect drugs to get probable cause for searches," Assistant Public Defender Mark Adams told the Tribune.

Defense attorney Liane McCurry, who first successfully challenged Talon's drug-sniffing acumen, told the Tribune she expects to see more challenges to drug dogs' reliability. "I think every attorney should do that," she said.

Feature: Number of Schools Embracing Random Drug Testing on the Rise -- So is Opposition

Emboldened by a pair of US Supreme Court decisions and spurred by the Bush administration's push to expand drug testing of students, an increasing number of school districts across the country are embracing drug testing as a drug abuse prevention measure. While the Office of National Drug Control Policy (ONDCP, the drug czar's office) and anti-drug activists applaud the trend, the resort to random drug testing of junior and senior high school students has also sparked a counter-movement that tries to persuade schools to instead embrace drug prevention strategies that do not treat students as guilty until proven innocent.

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Allie Brody
In Vernonia in 1995 and Earls in 2002, the Supreme Court okayed the random drug testing of student athletes and students involved in extracurricular activities, respectively. Beginning in 2004, the Bush administration and drug czar John Walters began a push to get schools to create drug testing programs, seeding them with millions of dollars in federal grant money.

While earlier statistics on the number of schools resorting to student drug testing are hard to come by, the National Association of School Boards told the Chronicle that year that it thought the top-end figure stood at about 5%. Federal estimates at that time, put the number of schools doing random drug testing at somewhere between 500 and 2,000, or a top-end figure of about 3.5%.

"We don't take a specific position on drug testing, but we wrote briefs in support of the districts in the Supreme Court cases," said Lisa Sawyer, senior staff attorney for the National Association of School Boards. "That's because we believe in local control. We like the idea that school districts have the ability to drug test if they choose."

But by the time the Centers for Disease Control published the results of its school survey in October 2007, it reported the number of schools with random drug testing programs was 4,200. That is about 7% of the nation's 59,000 junior and senior high schools.

The Student Drug Testing Coalition, an off-shoot of the Drug-Free Projects Coalition, which advocates for increased random drug tests of students, put the number even higher in a May 2008 report. According to the coalition, some 14% of school districts had random drug testing policies during the 2004-2005 school year.

The coalition also reported that the number of school districts resorting to random drug tests is increasing by about 100 per year, or 1% annually. That number is difficult to verify, but a Google News or similar search for "student drug testing" will show that the issue is being debated by school boards across the country every week.

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drug testing lab
"When the Bush administration started pushing for testing after the Earls decision, schools didn't know about that policy, and the administration has had some success in convincing some districts this is a good policy to try," said Jennifer Kern, youth policy manager for the Drug Policy Alliance, which, along with groups such as Students for Sensible Drug Policy (SSDP), the ACLU Drug Law Reform Project, and NORML, is leading the charge against student drug testing. "Although they have not had much success convincing the public health and educational community this is the way to go, they have been barnstorming the country, and some districts have gone for it."

Since 2004, the drug czar's office has organized student drug testing "summits" around the country to push more districts to embrace testing and to sweeten the pot by aiding them to apply for federal student drug testing grants. They had been occurring at a rate of about four a year, but this year that number has jumped to eight, with two set next month for Omaha, Nebraska, and Albany, New York.

As at past summits, the opposition will be in Omaha and Albany, said Kern. "We'll be doing what we did in the past, getting people to come out, providing materials, talking to educators, who we've found to be quite receptive to our message," she said. "Hopefully, this is the drug czar's last hurrah," she said, with an eye on the November elections.

"At past summits, most attendees were undecided about school drug testing," said SSDP executive director Kris Krane. "They wanted to hear the government's pitch and find out how to apply for grant money, but we found them generally very receptive to our points of view. We stuck to our specific concerns about drug testing, and our message was generally well-received."

Opponents of student drug testing aren't limited to reform organizations. Not surprisingly, high school students themselves and their parents form another bloc where opposition can and does emerge. Kern reported being contacted by numerous students and parents as drug testing becomes an issue in their communities.

When Allentown High School in Allentown, New Jersey, instituted a drug testing program, it did so in the face of student and parent opposition, and that opposition hasn't ended. Allie Brody, a senior at Allentown High, is taking a stand against student drug testing -- and it's costing her. Carrying a 3.96 Grade Point Average, Brody is a member of the National Honor Society. Last year, she was in the school travel club, founded the school philosophy club, and helped out on the school musical, among other extracurricular activities. This year, she can't do any of that because she refused to sign a consent form for drug testing.

"Drug testing goes very strongly against my principles. It is taking the choice about what happens to my body out of my parents' hands. That's not the school's responsibility, and I'm not willing to give it to them," she said Wednesday.

"Now I can't participate in extracurricular activities, I've been removed as vice-president of the French Honor Society, and my National Honor Society membership is in question," she said matter-of-factly. "I have to park off campus. This may even affect where I can go to college," the honor student said. "I'm making a personal statement about drug testing and I hope colleges will understand. If they don't, I don't think that's the kind of place I would want to attend anyway."

Brody and other students worked to stop the board from establishing the drug testing policy, to no avail, she said. "My friend Brendan Benedict [cofounder with Brody of Students Morally Against Drug Testing (SMART)] and I got a lot of students to come out, and my parents have been really supportive, and we've gotten a lot of support from the community. I tried to stop it by attending board meetings, but it was like the board had made up its mind before we even heard about it, and I didn't have a vote on the board."

Kern and other reformers are determined to provide whatever assistance they can to students, parents, and educators opposed to student drug testing. They have prepared a kit to prepare people attending the drug czar's summits, they have created the Safety 1st web site with alternative approaches to drug testing, and even a "Drug Testing Invades My Privacy" Facebook page. (You must log in to Facebook to view it.)

They can also point interested parties to New Mexico, where the Drug Policy Alliance has received a grant to do youth substance abuse education. The New Mexico office has just produced a new video about meth and materials for training educators.

While some of the opposition to student drug testing is moral or philosophical, opponents also cite various studies showing that drug testing has no impact on student drug use rates or even that it has a negative impact. A 2003 study headed by University of Michigan researcher Lloyd Johnston of Monitoring the Future fame put it this way:

"Drug testing still is found not to be associated with students' reported illicit drug use -- even random testing that potentially subjects the entire student body. Testing was not found to have significant association with the prevalence of drug use among the entire student body nor the prevalence of use among experienced marijuana users. Analyses of male high school athletes found that drug testing of athletes in the school was not associated with any appreciably different levels of marijuana or other illicit drug use."

On the other hand, the drug czar's student drug testing web site and the Student Drug Testing Coalition's drug testing effectiveness web page offer up additional studies that attempt to rebut or refute Johnston's and similar findings.

But it's not just about student drug testing's much-debated effectiveness; it's also about how schools view their students and vice versa, said SSDP's Krane.

"School drug testing really breaks down the trust between students and teachers, counselors, and administrators," he said. "If they do have a substance abuse problem, they need to see authority figures as people they can trust, not as people constantly viewing them as suspects. Drug testing tells these kids they're guilty until proven innocent," Krane continued.

"If we only drug test students in athletics and extracurricular activities, and they might be experimenting or smoking a little pot, we're actually driving them away from participating in those activities. Is that what we want?" Krane asked rhetorically. "I think these kinds of policies actually create more drug abuse among young people."

While the battle is being fought district by district across the country, reform organizations are also keeping an eye on the prize in Washington, where Congress must decide whether to continue funding the Bush administration's drug testing grant program. While no further action is expected this year, activists are planning ahead.

School drug testing politics on Capitol Hill is done for this year, Krane, whose organization has fought student drug testing for years. "There is nothing to be done legislatively for the rest of the year," he said. "It looked like the ONDCP grants would be cut, the Senate version did cut it, but in the end, the Congress merged everything into an omnibus spending bill and they just re-upped at last year's spending levels."

"What we would like to see is a prohibition on using federal money to fund these student drug testing programs because funds under the Safe and Drug-Free Schools Act must go to programs that are evidence-based, and student drug testing is not evidence-based," said Kern. "But realistically, we can try to cut funding for the program and the drug czar's road trips to promote this."

Much depends on how the November election turns out, Kern said. "If we get a new drug czar who takes a public health approach to these issues, there is a really good chance of curtailing this ideologically-based federal push. There is already a lot of resistance at the state and local level because random suspicionless student drug testing goes against many best practices in prevention, school environment, and relationships and trust between students and teachers."

Search and Seizure: Feds Must Get Warrant Before Scouring Cell Phone Location Records, Federal District Court Judge Rules

In the first opinion by a federal court on the issue, a federal judge ruled September 10 that the government must obtain a warrant based on probable cause before ordering a wireless service provider to turn over records showing where customers used their cell phones. The case involved a drug trafficking investigation, but could begin to establish a broader standard for such records requests, which are becoming more routine as more and more people carry cell phones that reveal their locations.

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cell phone tower
Judge Terrence McVerry of the Western District of Pennsylvania rejected the government's argument that historical cell phone tower location data did not require probable cause. In so doing, he upheld an earlier ruling by US Magistrate Judge Lisa Pupo Lenihan, who had ruled in February that whether historical or real-time, government orders to wireless operators to hand over such data required a warrant based on probable cause.

The federal government had requested an order directing Sprint Spectrum to provide historical cell phone data including cell tower location information, call times, and durations. But Magistrate Judge Lenihan ruled that the information sought was "extraordinarily personal and potentially sensitive... (and) particularly vulnerable to abuse."

On appeal, the government argued that such records are no different from routine transaction records, such as credit card purchase records, and do not require a warrant. "For instance, records of past credit card transactions will often serve to place a person at a given location at a specific time, yet under established Fourth Amendment law they enjoy no Fourth Amendment protection," US Attorney Mary Beth Buchanan said in a brief asking the district court to overturn Lenihan's ruling.

But District Judge McVerry wasn't buying that argument, and now the Justice Department must decide whether it will appeal the decision.

Privacy and civil liberties advocates welcomed the ruling. "People place a certain privacy value on their movements," ACLU attorney Catherine Crump told the Washington Post. "Whether it's their movements yesterday or their movements today, it's the same."

"This is a great ruling for location privacy and for people who think the government should have probable cause before they track you," said Jennifer Granick, an attorney with the Electronic Frontier Foundation, which filed a friend of the court brief in the case. "Most people don't think that somebody could go back in time and find out where I was or who I was talking to or who was nearby at that same time. This is sensitive information, and there should be good reason before the government gets it."

Happy Constitution Day!

In honor of Constitution Day, Pete Guither has some sarcastic observations regarding how tragically far removed we are from the freedoms promised us in that great document. It’s true, but I also think it’s terribly important that we understand how to use the rights we still have. So I thought everyone would enjoy these 4th Amendment success stories I’ve been compiling over at Flex Your Rights:
I was driving from New York to D.C., and I was pulled over going through Baltimore. The officer asked if I knew why he pulled me over. Having recently seen Busted, I made it a point to say, "I don't know," instead of "speeding." He said he wasn't going to write me a ticket, but wanted to search the car because they "were seeing a lot of drugs going through the area." I told him I was in a hurry and really didn't feel it was necessary. He tried to get all buddy-buddy and make it seem like I should "just help him out." He said his boss really wanted them to be checking cars, so he'd "really appreciate it." At this point, I said I did not wish to consent to a search and asked if I was free to go. He said "yes" and I drove off.

Mason T.
Denver, CO

We had a Know Your Rights training (and showed Busted) for the American Indian Community at the IndianWorks community center. One woman who attended told us that her son and his friends were being harassed by a police officer assigned to his high school. The officer stopped them repeatedly when they hung out after school and constantly demanded to search their bags. Although her son was not at the training, she was eager to show him the information and she went home and ordered Busted off the website.

She called a month later to say that when the officer stopped her son and his friends as they walked home from school and demanded to search their backpacks, her son said, "Officer, am I being detained or am I free to go and I do not consent to a search" all in one sentence. The cop turned red in the face but returned to his squad car, sped off and has not bothered them since. With such great results, the mom has been showing Busted to all of the neighborhood youth.

Michelle G,
Minneapolis, MN

Just two days ago I had an unfortunate run-in with the police. They were already in my house, to respond to an emergency that my friend was having. Due to the nature of his emergency, they requested a search of my house. Immediately, everything from Busted came rushing back. I think the only things I said (and repeated) were "I do not consent to a search", "Are we free to go to the hospital now?" and "I think I need to contact my lawyer." When I said "lawyer" the cop backed off. But I just couldn't believe how astounded he was that I refused the search. He insisted that it meant I had something to hide over and over. And, too, the use of silence really came in handy. I have never been in a situation like that before, especially with the cops already inside my house. So, thanks for Busted. That truly saved me. It was the only thing I thought of the entire interrogation. Things could have turned out differently otherwise.

Stephanie H.
You can read many more of these here.

Europe: Irish Judge Balks at Unquantified Drugged Driving Test

An Irish judge last Friday threw out drugged driving charges against a young driver, saying that a positive result for marijuana in his urine sample was not specific enough to allow him to conclude that the driver was indeed impaired. Judge Kevin Kilrane of the Ballyshannon District Court in Donegal also criticized the Road Safety Medical Bureau for failing to test for the level of drug intoxication in its drug tests.

Peter Gillen was pulled over shortly after 4:00am for driving erratically, and Garda Officer Sean Flynn described him as "very shocked, unsteady, and very agitated" upon being stopped. Gillen tested negative on a breath test for alcohol, but Flynn arrested him on suspicion of drugged driving, and a urine sample Gillen provided soon after came up positive for marijuana.

That wasn't enough for Judge Kilrane to find Gillen guilty of drugged driving, which carries a harsh penalty of an automatic four-year loss of one's drivers' license. The mere presence of marijuana in Gillen's system did not show he was impaired, the judge said.

"The defendant could have been stoned out of his mind or he might have had a trace element only," Kilrane said. "At best, all you have is suspicion, and suspicion is not enough." The evidence was "too thin" to convict he said, as he dismissed the charge.

Kilrane scolded the Road Safety Medical Bureau for only testing for the presence of marijuana and not quantifying the amount present. "It is not the fault of the gardaí," he said. "It is the fault of the bureau that does not give a concentration of drugs."

US states that have "zero tolerance" drugged driving laws operate on the same standard criticized by the Irish jurist. In such jurisdictions, the mere presence of marijuana or its metabolites is sufficient to garner a conviction, without the need to show actual impairment.

Feature: The Drug Checkpoint That Wasn't -- Louisiana Lawmen Play Fast and Loose with the Constitution

In its 2000 decision in Indianapolis v. Edmond, the US Supreme Court held that the city's effort to attack the drug trade by holding a checkpoint to look for drugs was an unconstitutional violation of the Fourth Amendment's protection of the right to be free from unwarranted searches and seizures. But in the years since then, a handful of departments across the county, usually in the South, have brazenly trumpeted their resort to drug checkpoints.

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nighttime driving checkpoint
The latest department to step into the breach was Louisiana's Beauregard Parish Sheriff's Office, which held such a checkpoint last Thursday night near the town of Starks. Following the lead of sheriff's deputies, the local newspaper was all over the story.

"Narcotics checkpoint a success," blared the headline in Monday's Derrider Daily News story on the police action. The article went on to explain how, following complaints of drug dealing in the neighborhood, police decided to take action:

"The Beauregard Parish Sheriff's Office set up a Narcotics Checkpoint Thursday night near Starks, Louisiana," the local paper reported. "Due to several complaints coming from the Fields area, the BPSO put together a joint operation with the help of Sheriff Ricky Moses and the DeRidder city police department. The operations utilized several BPSO deputies as well as the new Drug Interdiction team led by Detectives Dale Sharp and Greg Hill. Seven police units total were used for the operation in addition to four other units performing regular patrols."

The checkpoint resulted in three arrests for marijuana and hydrocodone possession, a quarter pound of marijuana being tossed from an unknown vehicle's window, and a number of traffic citations.

"If this really was a drug checkpoint, it is clearly unconstitutional," said Steve Silverman, executive director of the constitutional rights defense group Flex Your Rights. "If people went to court and fought it, the evidence would be dismissed -- unless they consented to a search. The sheriff down there must know checkpoints like this are constitutionally questionable, but they can still ask people to consent, and they know how to phrase that request in such a way that people are likely to consent," he said.

"If they are stopping and searching people without probable cause, that would appear to violate Edmonds, but we don't know for sure that's what they were doing," said Marjorie Esman, head of the ACLU's Louisiana affiliate. "Drug checkpoints are unconstitutional, but these guys sound like they are straight up trying to do one," said Esman.

While the Supreme Court has held drug checkpoints to be unconstitutional, it has allowed the use of checkpoints whose primary purpose is protecting certain safety-related governmental interests. Thus sobriety checkpoints are lawful, as are checkpoints to check drivers' licenses and motor vehicle registrations, as well as checkpoints designed to search for illegal aliens near the border. This week, the sheriff's office was busy arguing that it wasn't an unconstitutional drug checkpoint after all, merely a safety check.

"They're really safety checkpoints," backpedaled Beauregard Parish Sheriff's Office Chief Deputy Joe Toler. "The newspaper has its own spin on it," he said, adding that the warning signs specified a safety checkpoint, not a drug checkpoint.

The newspaper article certainly did have a spin, but that spin was provided by Beauregard Parish Deputy Dale Sharp, head of the department's new drug interdiction team. "The Narcotics Checkpoint's main objective was to get the narcotics off of the street," the article said before quoting Sharp: "Anything off of the streets is not in the hands of kids or anyone else," Sharp said in the article.

Sharp also bragged that more checkpoints could be coming soon. "Definitely," says Sharp. "As more complaints come in, we will be doing more."

But Chief Deputy Toler was sticking to the official line. "There just happened to be narcotics officers out there, and it just so happened that we did our safety checkpoint in a certain area where they place is known for drug trafficking," he said. "It just so happened they were all in the right place at the right time," he added.

Drivers and vehicles were not searched without consent, Toler said. "Everyone pretty much consents," he said.

"You can still refuse a search at a checkpoint," said Silverman. "They are not constitutionally allowed to search you just because they set up a checkpoint. You can say, 'I know you guys are just doing your job, but I have to go somewhere, am I free to go?' If they search you without probable cause and without your consent and they find something, you'll get arrested, but it's highly likely the charges will be thrown out. If not, it could go all the way to the Supreme Court."

It appears the sheriff's office is playing a pretty transparent game. They set up the checkpoint because of drug traffic complaints, they searched for drugs, and they had drug detection dogs on the scene -- not, presumably, to assist in reading drivers' licenses. But as long as police are careful to say the right things -- "It's a safety checkpoint" -- they can get away with it.

Flex Your Rights' Silverman also pointed out another permutation in law enforcement drug checkpoint tactics: the drug checkpoint that isn't. "If you see a warning that says drug checkpoint ahead, don't throw your stuff out the window, don't exit at the nearest ramp, don't do a sudden u-turn to get away, because it's not a drug checkpoint ahead, but a ruse by police," said Silverman. "The Supreme Court has held that drug checkpoints are an unconstitutional infringement on your Fourth Amendment rights, but that doesn't mean police can't try to fool you. At those fake drug checkpoints, they will have officers waiting to see who throws what out his window, or who suddenly exits to avoid the nonexistent checkpoint, and they will find a reason to stop you."

So, driving public, if you see a large warning sign that screams "Drug Checkpoint Ahead!" it is either a ruse or an unconstitutional law enforcement activity. But if you run across a sign that warns "Safety Checkpoint Ahead!" know that it is just as likely that police are looking for drugs in the guise of public safety as they are for expired drivers' licenses.

Europe: French Police Start Saliva-Testing Drivers for Drugs

French Interior Minister Michèle Alliot-Marie went to the French Riviera town of Antibes on Monday to give a public kick-off to a new French campaign to crack down on drugged drivers. In the new campaign, some 50,000 drug screening kits will be handed out across France.

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With the saliva tests, drivers are asked to spit on a stick, which is then dipped in a chemical substance to test for the presence of marijuana, ecstasy, cocaine, heroin, or amphetamines. If no drugs are present, a red line appears on the stick after a few moments. If drugs are detected, the stick stays white.

Any positive result must be followed up with a blood test to ensure that other medications are not creating a false positive. The consequences for a drugged driving conviction are steep: a maximum fine of about $6,700 and up to two years in jail.

The tests are not supposed to detect cannabis use for more than a few hours after smoking, but three of the first 10 tests tried at Antibes came back positive for marijuana. At least one of the drivers protested in vain that the last time he had smoked was three days earlier.

The saliva tests, similar to those used in South Australia, should save hundreds of lives a year, French officials said. A 2005 French study suggested that smoking marijuana doubled the risk of a fatal accident. When smoking was mixed with drinking, the risk increased 15-fold. The study claimed marijuana caused 230 highway deaths a year in France.

Not everyone agrees with the French position on marijuana and driving, including some of the leading experts in the field. Last October, 11 of them urged polities to reject zero tolerance impaired driving laws with respect to marijuana. Such laws are not evidence-based and could snare marijuana users who are not impaired, they said. Of course, if all else fails, police could just test for actual impairment, whatever the cause.

Drug Testing: Hawaii Teachers Back Away from Random Testing Provisions of New Contract

The Hawaii State Teachers Association (HSTA) and the administration of Republican Gov. Linda Lingle are locked in battle over whether the teachers will honor provisions of a contract signed last year that requires random drug testing of teachers. Although the union membership approved the contract in a vote last year, the union is now balking at what it says are constitutionally questionable drug testing provisions.

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drug testing lab
Under the contract, which teachers agreed to in June 2007, random drug testing of the state's 13,500 teachers was to have begun by June 30. That didn't happen. The HSTA first balked at the cost of the program -- estimated at $500,000 a year -- then, when presented with a less ambitious plan that would subject one or two percent of teachers to random drug tests each year instead of the 25% originally envisioned, said it now objected to random drug testing of teachers.

HSTA officials said last week that they had not understood the legal issues surrounding random drug testing when they negotiated the contract last year. "Today, both parties know much more about the legal issues surrounding drug testing that were not known at the time of the initial agreement," said HSTA executive director Mike McCartney in a July 17 letter to Department of Education superintendent Pat Hamamoto. "We cannot knowingly agree to procedures that violate the state and federal constitutions. Any agreement of this type would subject the state and all of us to unnecessary litigation," McCartney wrote.

The Lingle admistration called foul, with Gov. Lingle herself issuing a statement the next day saying: "HSTA leaders have made a mockery of the collective bargaining process."

That same day, the state filed a complaint against the HSTA with the Hawaii Labor Relations Board. But the HSTA wasn't backing down.

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Volcano National Park, Hawaii Island
This week, HSTA head Roger Takabayashi suggested a compromise: The union would not object to "random" testing of certain groups of teachers, perhaps those who had a pattern of absences of DUI convictions, he said.

"You can randomly test pools of people if you have reason to test them," said Takabayashi told the Honolulu Advertiser this week. "But if you take 100 people and you test them for no reason at all, then that would be against each individual's constitutional rights."

"They're trying to redefine what random is," complained Jim Halvorson, state deputy attorney general. "The problem with what they are saying is that it doesn't comply with the contract," said Halvorson. "The contract provision says all teachers."

But Takabayashi said the union has been advised by its lawyers that random drug testing of all teachers would violate the Fourth Amendment's proscription on warrantless searches and seizures. "We want to make sure that whatever method is agreed to, it can withstand the constitutional challenge we know we're going to get," Takabayashi said. "For example... we're proposing testing those who have excessive absences. Or maybe those caught for DUI. What I'm telling you is that there needs to be reason for putting them in a pool to be tested. Not just everyone in general."

Hawaii's teachers got themselves into this mess by agreeing to a contract with random drug testing in the first place. Now, the battle is on to see if they can get out of the agreement they signed.

Search and Seizure: Strip Search of School Girl for Ibuprofen Went Too Far, Federal Appeals Court Says

An Arizona school violated the constitutional rights of a 13-year-old school girl when it subjected her to a strip search to see if she was carrying the pain reliever ibuprofen, a narrowly divided federal appeals court ruled last Friday. Lower courts had held that the school did not violate Fourth Amendment strictures against unreasonable searches and seizures because officials have a legitimate interest in protecting students from prescription drugs.

Ibuprofen is available in lower doses as a non-prescription drug and is found in common medications such as Advil and Motrin to treat ailments like cramps and headaches. Higher doses of the drug require a prescription.

The ruling came in Redding v. Stafford Unified School District, in which honor student Savana Redding sued the district over the 2003 search. On the day in question, Safford Middle School Principal Kerry Wilson found two prescription strength ibuprofen tablets in the possession of one of Redding's classmates, who fingered her as the source. After escorting Redding to his office, Wilson informed her of the accusation, which she denied. Redding then agreed to a search of her possessions, which turned up nothing. Wilson then ordered a female administrative assistant to conduct a strip search in the school nurse's office. In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.

"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

For the 9th US Circuit Court of Appeals, the search was not only humiliating, but unconstitutional. "Directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent danger to no one, and which could be handled by keeping her in the principal's office until a parent arrived or simply sending her home, was excessively intrusive," Justice Kim McLane Wardlaw wrote for the 6-5 majority. "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil. We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term 'prescription drugs,' in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs," Wardlaw wrote.

"It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights. More than that: it is a violation of any known principle of human dignity. The self-serving statement of a cornered teenager facing significant punishment does not meet the heavy burden necessary to justify a search accurately described by the 7th Circuit as 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant [and] embarrassing,'" Wardlaw continued. "And all this to find prescription-strength ibuprofen pills. No legal decision cited to us, or that we could find, permitted a strip search to discover substances regularly available over-the-counter at any convenience store throughout the United States."

Not all the justices agreed. In his dissent, Justice Michael Daly Hawkins wrote: "We should resist using our independent judgment to determine what infractions are so harmful as to justify significantly intrusive searches. Seemingly innocuous items can, in the hands of creative adolescents, present serious threats. Admittedly, ibuprofen is one of the mildest drugs children could choose to abuse. But that does not mean it is never harmful."

The ACLU Drug Law Reform Project, whose Adam Wolf, helped argue the case, was pleased. "Students and parents nationwide can breathe a sigh of relief knowing that adolescents cannot be strip searched based on the unsubstantiated accusation of a classmate trying to get out of trouble," said Wolf, co-counsel in the case with the law firms Humphrey & Petersen and McNamara, Goldsmith, Jackson & Macdonald, in a statement greeting the ruling. "This ruling is a victory for our fundamental right to privacy, sending a clear signal that such traumatizing searches have no place in America's schools."

Redding pronounced herself pleased, too. "I took my case to court because I wanted to make sure that school officials wouldn't be able to violate anyone else's rights like this again," she said in the same statement. "This was one of the most traumatic experiences of my life, and I am relieved that a court has finally recognized that the Constitution protects students from being strip searched in schools on the basis of unreliable rumors."

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