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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.

http://stopthedrugwar.org/files/driving.jpg
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."

Drug Testing Advocate Gets Busted For Drugs

A dimebag of heroin - $10
A urine test - $30
A drug testing advocate busted for heroin distribution – priceless hilarious

NORWALK, Ohio — A northern Ohio woman who encouraged Norwalk school board members to start drug testing students has been indicted on charges of heroin trafficking.

Police in Norwalk say Stephanie Broz admitted to them that her advocacy of drug testing was to take attention away from her. Norwalk Detective Todd Temple says she told police it was a scam.

Broz also faces a charge of possession of heroin.

Police arrested her in early June during a traffic stop. Officers say they found her with a large amount of heroin. [Columbus Dispatch]

Of course, it's tempting to now suggest that this is just the tip of the iceberg, that proponents of drug testing around the country are all a bunch of closeted crooks and perverts diverting attention from their own misdeeds by calling on us to collect bodily fluids from children. I bet at least one person won't even read this whole post before ironically suggesting in the comment section that we start drug testing the drug testers.

Yet, it makes no more sense to arbitrarily scrutinize them than anyone else. Few crimes they commit could do more harm than the one taking place before our eyes: stealing money from our children's education to be spent on worthless programs that don't effectively prove or disprove drug use and encourage use of more-dangerous less-detectible drugs.

Drug testing is generally only effective against marijuana anyway, so dealers of cocaine, heroin, and meth have every reason to support it.

Drug Prohibition: No Clue in the Texas Legislature

If drug reform is making any headway in the Lone Star State (and it is), there was little sign of it Wednesday at an Austin hearing of the state Senate Criminal Justice Committee. The committee is charged with examining current drug laws to see which are working and which are not and trying to come up with more effective drug policies.

With Mexican drug trafficking organizations sending billions of dollars worth of drugs across the border each year, much of it through Texas, state and local law enforcement agencies have been cooperating with federal agents to try to crack down on the trade. But it hasn't seemed to have had any impact, and that was a frustration for Sen. John Whitmire (D-Houston).

"It don't affect the price of it at all, which means it ain't made a dent. Still huge amounts are getting through," he said in remarks reported by Austin TV station KVUE. "If you know where it's coming from, why can't you do more about it?" he asked plaintively.

Whitmire's ignorance of the laws of supply and demand when it comes to drug prohibition is apparently equaled only by his ignorance of the US Constitution, and particularly the Fourth Amendment. At least, that's what his next comment suggested.

"If in fact so much of the narcotics is just coming up and down our highways and the main roads out of Mexico, why don't we just pull over more trucks?" Whitmire said. "It would be fun to try. I like that, zero tolerance."

Of course, every vehicle entering the US from Mexico must go through US Customs at the border. And then there's the Border Patrol checkpoints on highways leading north from the border. And then there's the saturation level patrols of those highways (although, to be fair, Texas cops are as interested in cars heading south as those heading north, because while the latter may contain drugs, the former may contain cash). But none of that is enough for Whitmire. Nor does it cause him to question his premises.

It looks like it will be business as usual in the drug war in Texas.

Drug Testing Pregnant Women Produces False Positives (And Kills Babies)

A major and underappreciated problem with drug testing is that the stupid tests don’t even work. They say people took drugs when they didn’t. The problem is particularly apparent in the case of pregnant women who are frequently targeted for drug screening, but whose changing body chemistry throws off the results:

Hospitals' initial urine- screening drug tests on pregnant women can produce a high rate of false positives - particularly for methamphetamine and opiates - because they are technically complex and interpretation of the results can be difficult, some experts say.

Tests for methamphetamine are wrong an average of 26 percent - and possibly up to 70 percent - of the time, according to studies by the University of Kansas Medical Center, U.S. Substance Abuse and Mental Health Services Administration and the American Association for Clinical Chemistry. [DailyNews]

Of course, drug policy and science cannot coexist harmoniously, thus babies are taken from mothers who test positive, even though the tests are constantly wrong. In one tragic case, a child died in foster care after being wrongly separated from her mother:

Growing up in Los Angeles County's foster care system, Elizabeth Espinoza is sure of one thing: A baby needs its mother.

Espinoza, who was separated from her own mother when she was young because of neglect, also had her newborn baby taken by the foster-care system when she tested positive for marijuana and cocaine at the hospital after giving birth.

Just three months later, the baby, Gerardo, died when his foster mother strapped him into a car seat, took him to a neighbor's home and left him in the car seat on a bed, according to a lawsuit filed against the county's Department of Children and Family Services seeking unspecified damages. [DailyNews]

I hope I'm not being generous, but I really think almost anyone would agree that this is just sickening and horrible. The press coverage will hopefully initiate progress towards cleaning up the procedures that contributed to this travesty. I will hold out hope that common sense can prevail over the mindlessness of taking children from their parents based on evidence that is proven to be wrong up to 70% of the time, particularly now that the alternatives we have available for those children have been demonstrated to be fatally inadequate.

But there is also a larger lesson here that must not escape our attention. Think for a moment about how many women have already been falsely accused under this wildly unjust policy. Think about the social consequences of tearing families apart based on deeply flawed science in a criminal justice system that strikes without hesitation but drags its heels when it comes to righting such ubiquitous wrongs. Ask yourself, also, how such a policy was ever implemented in the first place, doomed as it was to destroy innocent families so capriciously.

Once again, we are faced with a monumental travesty, grand in scope, yet remarkably simple in origin; we should protect unborn children from drug-using mothers. We've wreaked unimaginable and undue suffering upon innocent parents and children in pursuit of the noblest of ideals. That, unfortunately, is the story of most aspects of our drug policy when they receive appropriate scrutiny. The totality of such repeated travesties forms a terrifying mosaic, the true, yet largely untold story of how our drug policies destroy innocent lives each and every day in ways we might never expect.

It is precisely because the idea to protect babies from drugs is such a no-brainer that a plan was drafted with no brains.

They're Drug Testing Our Sewage

I'll spare you the excrement jokes and just let this idea speak for itself:
Environmental scientists are beginning to use an unsavory new tool -- raw sewage -- to paint an accurate portrait of drug abuse in communities. Like one big, citywide urinalysis, tests at municipal sewage plants in many areas of the United States and Europe, including Los Angeles County, have detected illicit drugs such as cocaine, methamphetamine, heroin and marijuana.

Law enforcement officials have long sought a way to come up with reliable and verifiable calculations of narcotics use, to identify new trends and formulate policies. Surveys, the backbone of drug-use estimates, are only as reliable as the people who answer them. But sewage does not lie. [Los Angeles Times]

Admittedly, assuming the methodology is sound, this appears to be a breakthrough technique for obtaining accurate drug use demographics. And it's already beginning to cast doubt on existing data, not surprisingly to the effect of indicating that drug use has been widely underreported:

The scientists were even able to use sewage to estimate individual use and weekly trends. For instance, they estimated that people in Milan used twice as much cocaine, about 35 grams per person per year, than Italy's government surveys had suggested.

That's kind of neat, I suppose, that they can figure out stuff like that. But ya know what? If our drug policy weren't a raging nightmare, drug testing raw sewage wouldn’t be even remotely necessary. Seriously, the moment the government finds itself digging around in our sewage to figure out what drugs we take, it becomes completely clear that we've screwed up our approach to drugs beyond belief. It shouldn’t even be necessary to formulate arguments as to why this is not the behavior of a healthy society. I mean, really. They're drug testing sewage. What's wrong with them?

All of this is symbolic of the utter lack of information and knowledge about drug use that we've achieved in the course of our abundantly destructive attempts to control this very behavior. Nothing could be easier than determining down to the bottle or butt exactly how many Heinekens™ or Newport Lights™ are consumed by the population, but in order to study marijuana use, we must collect frothing f#%king sewage into test tubes, mix in some noxious chemicals, and run the results through some mindbendingly complex algorithm?

Clueless and reeking of poo, the champions of our failed drug control crusade stand before us straight-faced and swear that everything is going according to plan.

Drug Tests Are Useless Devices That Don’t Even Work at Detecting Drugs

The Drug Czar's blog was very excited on Friday. Why? Because a school in Florida drug tested 120 students and all of them passed!

"It worked out very positively," [the principal] said this afternoon. "We did not have a single student test positive, out of 120 students we tested."

Random meant random, she said. Tests were done unannounced at different times during different days of the week. Some students were tested more than once, just because of the randomness of it all, she said. [Tampa Bay Online]
Admittedly, a random sample of 120 students testing negative for drugs is a surprising result. So surprising, in fact, that one begins to wonder how the hell it happened. Well the answer is simple: according to Tampa Bay Online, they used saliva tests, which are practically useless.

Via wikipedia, here are the estimated detection times for saliva drug testing:

So, basically, all 120 of these students could have been smoking hash and crack all night on Friday and still passed their drug tests on Monday when they got to school. I'm not saying that's what happened. I'm just saying that testing students' saliva doesn't prove whether or not they use drugs. That's not how it works, and any newspaper article purporting to celebrate the effectiveness of such a program ought to disclose that fact, lest it should become yet another arm in the Drug Czar's nationwide campaign to randomly collect bodily fluids from our children.

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