The Nuts and Bolts of Drug Testing

Part 2

Best practices for drug testing require frequent, random, long term, and comprehensive testing. This makes it more difficult for participants to use alcohol and other drugs between tests[1] and ultimately, more likely for success in a Treatment Court program.

Frequent Testing

The use of most illegal and addictive drugs, depending upon the assay, (analysis of a sample to determine the presence, absence, or quantity of one or more drugs) can be discovered during a 24 to 72 hours period. Therefore, testing less than twice a week creates a gap that allows participants to use without being detected.[2] Studies have established that courts that test more frequently reduce recidivism by 38 percent.[3]

Treatment Courts that test participants two or more times per week throughout the entire program produce significantly greater benefits including higher graduation rates and lower recidivism rates,[4] and participants report that drug testing is one of the strongest factors in keeping them from using.[5]

Random Testing

Not only must the drug testing be frequent, it must be random. This helps to ensure an effective drug testing program.[6] Being random includes testing on weekends and holidays with the probability of being tested on weekends and holidays the same as being tested during the weekdays.[7] For an accurate test, participants must provide a specimen no later than eight hours after being notified.[8] But for drug tests with short windows of detection, like oral fluid tests, the participant must provide a sample within four hours of notification.[9]

Long Term Testing

Next, drug testing should start upon entry into the program and continue with no interruptions until the day of graduation. Drug testing should be the last thing reduced or stopped in a program, as it is the most objective measure to ensure participants remain drug free. Participants have reported that long term testing helps them remain drug free.[10] The research also supports long term testing of participants to be successful in the program.

Comprehensive Testing

Finally, when testing, you should test for the full range of substances that are most likely to be used by your Treatment Court participants or in your community. However, new substances of abuse are constantly being sought out by offenders in order to use without detection, therefore occasionally test for a wider range of potential drugs of abuse. That will aid you in keeping ahead of your participants and possibly determine what new substance(s) might be emerging.[11]

Effective alcohol and other drug testing provides the only objective measure of treatment effectiveness that Court staff have in assessing participant progress; everything else is opinion. The results of these tests provide the basis for the underlying pillars for participant success. If alcohol and other drug testing is not being conducted in accordance with existing best practices, then the integrity and success of your program could be at stake.

Top Ten Drug Testing Tips

Click here to get JSI’s publication on the Top Ten Drug Testing Tips for Implementation and Top Ten Drug Testing Tips for Observing Drug Testing.

Drug Testing Nuts and Bolts – Parts One and Three

To listen to Part One on the Nuts and Bolts of Drug Testing, click

The Nuts and Bolts of Drug Testing – Part 2 - Justice Speaks Podcast

Best practices for drug testing require frequent, random, long term, and comprehensive testing.  This makes it more difficult for participants to use alcohol and other drugs between tests[1] and ultimately, more likely for success in a Treatment Court program.

Best practices for drug testing require frequent, random, long term, and comprehensive testing.

Frequent Testing

The use of most illegal and addictive drugs, depending upon the assay, (analysis of a sample to determine the presence, absence, or quantity of one or more drugs) can be discovered during a 24 to 72 hours period. Therefore, testing less than twice a week creates a gap that allows participants to use without being detected.[2]  Studies have established that courts that test more frequently reduce recidivism by 38 percent.[3]

Treatment Courts that test participants two or more times per week throughout the entire program produce significantly greater benefits including higher graduation rates and lower recidivism rates,[4] and participants report that drug testing is one of the strongest factors in keeping them from using.[5]

Random Testing

Not only must the drug testing be frequent, it must be random. This helps to ensure an effective drug testing program.[6]  Being random includes testing on weekends and holidays with the probability of being tested on weekends and holidays the same as being tested during the weekdays.[7]  For an accurate test, participants must provide a specimen no later than eight hours after being notified.[8] But for drug tests with short windows of detection, like oral fluid tests, the participant must provide a sample within four hours of notification.[9]

Test for the full range of substances that are most likely to be used by your Treatment Court participants.

Long Term Testing

Next, drug testing should start upon entry into the program and continue with no interruptions until the day of graduation.  Drug testing should be the last thing reduced or stopped in a program, as it is the most objective measure to ensure participants remain drug free. Participants have reported that long term testing helps them remain drug free.[10] The research also supports long term testing of participants to be successful in the program.

Comprehensive Testing

Finally, when testing, you should test for the full range of substances that are most likely to be used by your Treatment Court participants or in your community. However, new substances of abuse are constantly being sought out by offenders in order to use without detection, therefore occasionally test for a wider range of potential drugs of abuse.  That will aid you in keeping ahead of your participants and possibly determine what new substance(s) might be emerging.[11]

Effective alcohol and other drug testing provides the only objective measure of treatment effectiveness that Court staff have in assessing participant progress; everything else is opinion. The results of these tests provide the basis for the underlying pillars for participant success. If alcohol and other drug testing is not being conducted in accordance with existing best practices, then the integrity and success of your program could be at stake.

Top Ten Drug Testing Tips

Click here to get JSI's publication on the Top Ten Drug Testing Tips for Implementation and Top Ten Drug Testing Tips for Observing Drug Testing.

Drug Testing Nuts and Bolts – Part One

To listen to Part One on the Nuts and Bolts of Drug Testing, click here.

Footnotes:

[1] Ibid

[2]Crosby, R., Carlson, G., Specker., Simulation of Drug Use and Urine Screen Patterns, Journal of Addictive Diseases, Vol. 22(3) (2003); DuPont, R., Griffin, D., Siskin, B., Shiraki, S., Katze, E.,

Tough on Crime is Not Smart on Crime

Republicans, Democrats, Libertarians, liberals and conservatives, there was support from both the right and the left to dismantle the “war on drugs” and reduce mass incarceration.  For a number of years, citizens have rejected the politicians’ shibboleth of “tough on crime.”  Public opinion polls supported treatment over incarceration, particularly for non-violent crimes.  Prisons were closing, more emphasis was being placed on prisoner re-entry and minimum mandatory sentences, controversial for years, were being seen as unfair, ineffective and too costly. Elimination of mandatory minimums alone led to a 14% decline in total Federal prison population.[i]  Energy Secretary Rick Perry changed Texas’ harsh sentencing laws when he was governor as did other “red states.”

Initiatives like Drug Treatment Courts and other problem-solving courts were being funded by the federal and state governments with increases in levels of funding each year.  Then Jefferson Beauregard Sessions III was appointed Attorney General. Or, as The New York Times’ headline said, “Unity Was Emerging on Sentencing.  Then Came Jeff Sessions.”[ii]

The AG’s confirmation vote (52-47) “came after 30 hours of debate from Democrats and a stunning fight between liberal Sen. Elizabeth Warren and Senate Republicans which ended in her being forced to sit down after she was accused of impugning Sessions.”[iii]

During the hearings Sen. Warren was prevented from reading a 1986 letter from Coretta Scott King opposing Sessions’ confirmation as a Federal judge.  King’s letter said, “I believe his confirmation would have a devastating effect on not only the judicial system in Alabama, but also on the progress we have made toward fulfilling my husband’s dream.”  For that, and other reasons, he did not become a judge some 30 years ago.

There has been much speculation about what this change in Attorneys General might mean for drug policy.  One of the first hints of a modification came soon after his nomination when Sessions said, “Good people don’t smoke marijuana.”[iv]  Given his long-term opposition to legalization of marijuana, this was not surprising.

New Policy Announcement

What did catch people off guard, however, was Sessions’ announcement in mid-May ordering deputy attorneys general to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger mandatory minimum sentencing.[v]  By contrast, former Attorney General Eric Holder “instructed prosecutors dealing with drug cases to consider whether the most severe punishment available was fair and proportional” before charging.[vi]  If the minimum mandatory sentence was not sought, this could simply mean that the amount of drug was not included in the indictment.  Therefore, judges were not hamstrung when sentencing and a more just result was available.  Holder never dictated that the minimum should be the standard; rather he just asked charging Deputies to consider sentencing when making a charging decision.  Kevin Sharp is a former federal judge from Tennessee who said he was forced to sentence a low-level drug dealer to life in prison.  “Under no circumstances was this sentence justice.  We ruined his life.”  He has become an advocate for sentencing reform.[vii]

Tough on Crime is not Smart on Crime - Justice Speaks Podcast

The shibboleth “Tough on Crime” is one politicians find quite appealing.  The problem is that being tough--without being smart and effective—makes the community less safe and also costs money better spent on other services that have been squeezed dry by the global financial crisis. 

Three Strikes

California, for example, enacted the toughest “three strikes” law in the United States.  Not only did juvenile offenses count as strikes but the third strike could be a conviction of any felony.  For instance, a 17-year-old who stole bicycles from two attached garages and at age 18 stole a candy bar could be sentenced to life in prison.  How could that be?  Felony strikes under that state’s law included not only violent crimes but “serious” offenses as well such as residential burglaries. Once convicted of a theft crime for which jail time was imposed, any future theft can be charged as a felony.  Thus, the juvenile convictions for two residential burglaries, serious felonies that were strikes, and the theft of the candy bar was a felony so the Three Strikes law applied.

The current criminal justice system of “catch and release” is expensive and ineffective.

The California Supreme Court upheld such sentences for an offender who stole a slice of pizza and another who stole a DVD as the third strike.  It was a distraught father whose daughter was murdered by a recent parolee who led the fight to enact the Three Strikes law.  He also led the fight to modify it last year when he learned of the incredible human and economic cost the law had brought. Even the prison guards’ union supported the modification.

When prisons became so overcrowded in California that inmates were triple bunked in cafeterias, lawsuits challenging such conditions were brought against the authorities. Another major lawsuit challenged the lack of mental health treatment in custody. Thirty percent of California’s prison population of 119,542 has a mental illness.[1]Despite spending upwards of $8.6 billion on prisons every year, the lack of services got so bad that two years ago the U.S. Supreme Court, hardly a bastion of soft-on-crime adherents, found the inhumane conditions constituted “cruel and unusual punishment” in violation of the 8th Amendment of the U.S. Constitution.    The District Court judge’s order requiring better services and the release of 30,000 prisons to ease overcrowding must be complied with by December 2013.  Failure to do so will subject the governor and other authorities “individually and collectively” to a finding of contempt of court.[2]

Incarceration is a temporary fix

The current criminal justice system of “catch and release” is expensive and ineffective.  While incarceration temporarily contains the problem it does not act as a general deterrent nor does it guarantee a crime free life for those who experience it.

There are many strategies to address this problem from reduction of the prison population through community corrections to justice reinvestment initiatives. It is clear that people who end up in prison have social deficits that must be addressed if there is a hope of keeping them out of custody. 

Most Effect Criminal Justice Initiative

A judge is the team leader.

The most effective criminal justice initiative in decades, drug treatment courts (DTC), began in Florida. A drug treatment court focuses on the alcohol and other drug dependence that acts as a catalyst for crime.  The offender is offered the opportunity to participate in substance abuse treatment instead of going to prison.  Over 30 years of research has shown that drug treatment courts not only reduce crime by as much as 35% but cost less than traditional court processes as well. The drug treatment court judge is the head of a team consisting of the prosecutor, defense counsel,

The Drug Recognition Expert: Combating Drugged-Driving and More

By: Thomas Page, Drug Recognition Expert Emeritus

The Drug Recognition Expert (DRE) program, procedure, and police officers constitute a systems approach to identifying, apprehending, and prosecuting the individual who drives while under the influence of a drug or drugs.  The program and procedures were initially developed in the mid-1980s by Los Angeles, California, Police Department (LAPD) traffic enforcement officers.  A primary impetus for the development of the DRE was the recognition that drugs, in addition to, or other than alcohol, impaired many drivers.

Drug Recognition Expert officers, commonly referred to as DREs, have specialized training and develop skills in observing, documenting, and interpreting clinical and behavioral signs and symptoms of drug influence. In many United States courts the DRE officer is allowed to state an expert opinion about an individual’s ability to safely operate a vehicle. In February of 2017, the Supreme Court of Canada ruled that a DRE’s testimony could be introduced in court without a challenge to the DRE’s qualifications as an “expert.” Further, the DRE officer may be allowed to state an opinion as to the specific drug or drugs, based on categories, that the person is impaired by.

Although jurisdictions frequently define “under the influence” differently, generically under the influence means that a person’s ability to safely operate a vehicle has been decreased as a result of the presence of a drug(s). Thus, driving while fatigued is not “under the influence,” whereas driving after taking a sleep-inducing medication can be, if the driver is impaired.

Classically, a different officer, an arresting officer, who has determined at roadside that a driver is impaired, requests the DRE and that drugs may be responsible (in total or in part) for the individual’s impairment. The arresting officer will typically have administered the Standardized Field Sobriety Test battery to the individual as part of a pre-arrest screening process. Usually, the DRE is requested to assist in the investigation subsequent to an alcohol-breath test.  Simply, the person may appear to be more impaired than the alcohol reading accounts for.

The Drug Recognition Expert Procedure

The DRE is responsible for making three determinations: (1) that the person is in fact impaired and that the impairment is not consistent with the alcohol reading, if any; (2) determine if the impairment may be caused by a medical condition, that may require assessment or treatment; (3) determine the category (or categories) of substances responsible for the impairment.

In order to reach these three determinations, the DRE utilizes a 12-step procedure, sometimes (inaccurately) called a “protocol,” administered in a controlled environment such as a police station, which results in an opinion. If the opinion is that the person was under the influence at the time of driving, the individual is usually required to provide a blood sample that a toxicology laboratory tests for certain drugs and/or metabolites.  The prosecutor may delay a prosecution decision until the laboratory results have returned.

Briefly, the DRE 12-step procedure begins and ends with toxicology. The first step is a breath test for alcohol. The last step is the analysis of the biological specimen, usually blood, for drugs.  Steps two through eleven include an assessment of the individual’s vital signs, including blood pressure, pulse rate (taken three times during the assessment), and body temperature. In addition, DREs assess the person’s pupil sizes in various light levels, reaction to light, as well as assessing the person for Horizontal Gaze Nystagmus (HGN). HGN, which is a gaze-evoked jerky movement of the eyeball, is caused by a number of different drugs, primarily alcohol and other Central Nervous System Depressants.

Drug Recognition Experts: Combating Drugged-Driving and More - Justice Speaks Podcast

By: Thomas Page, Drug Recognition Expert Emeritus

The Drug Recognition Expert (DRE) program, procedure, and police officers constitute a systems approach to identifying, apprehending, and prosecuting the individual who drives while under the influence of a drug or drugs.  The program and procedures were initially developed in the mid-1980s by Los Angeles, California, Police Department (LAPD) traffic enforcement officers.  A primary impetus for the development of the DRE was the recognition that drugs, in addition to, or other than alcohol, impaired many drivers.

Drug Recognition Expert officers have specialized training

Drug Recognition Expert officers, commonly referred to as DREs, have specialized training and develop skills in observing, documenting, and interpreting clinical and behavioral signs and symptoms of drug influence. In many United States courts the DRE officer is allowed to state an expert opinion about an individual's ability to safely operate a vehicle. In February of 2017, the Supreme Court of Canada ruled that a DRE’s testimony could be introduced in court without a challenge to the DRE’s qualifications as an “expert.” Further, the DRE officer may be allowed to state an opinion as to the specific drug or drugs, based on categories, that the person is impaired by.  

Although jurisdictions frequently define “under the influence” differently, generically under the influence means that a person’s ability to safely operate a vehicle has been decreased as a result of the presence of a drug(s). Thus, driving while fatigued is not “under the influence,” whereas driving after taking a sleep-inducing medication can be, if the driver is impaired.

Classically, a different officer, an arresting officer, who has determined at roadside that a driver is impaired, requests the DRE and that drugs may be responsible (in total or in part) for the individual’s impairment. The arresting officer will typically have administered the Standardized Field Sobriety Test battery to the individual as part of a pre-arrest screening process. Usually, the DRE is requested to assist in the investigation subsequent to an alcohol-breath test.  Simply, the person may appear to be more impaired than the alcohol reading accounts for.

The DRE Procedure

The DRE is responsible for making three determinations: (1) that the person is in fact impaired and that the impairment is not consistent with the alcohol reading, if any; (2) determine if the impairment may be caused by a medical condition, that may require assessment or treatment; (3) determine the category (or categories) of substances responsible for the impairment.

In order to reach these three determinations, the DRE utilizes a 12-step procedure, sometimes (inaccurately) called a “protocol,” administered in a controlled environment such as a police station, which results in an opinion. If the opinion is that the person was under the influence at the time of driving, the individual is usually required to provide a blood sample that a toxicology laboratory tests for certain drugs and/or metabolites.  The prosecutor may delay a prosecution decision until the laboratory results have returned.  

Briefly, the DRE 12-step procedure begins and ends with toxicology. The first step is a breath test for alcohol. The last step is the analysis of the biological specimen, usually blood, for drugs.  Steps two through eleven include an assessment of the individual’s vital signs, including blood pressure, pulse rate (taken three times during the assessment), and body temperature. In addition, DREs assess the person’s pupil sizes in various light levels, reaction to light, as well as assessing the person for Horizontal Gaze Nystagmus (HGN). HGN, which is a gaze-evoked jerky movement of the eyeball,

Traffic Safety – A Global Epidemic?

How many times do we open the newspaper and read the headlines, “Drunk Driver Kills Pregnant Woman,” or turn on the TV news and hear about a person texting while driving who kills a pedestrian, or listen to the radio and hear the story about a motorcyclist killed in a single vehicle crash because he wasn’t wearing a helmet. We know these stories happen daily in communities across the United States. But interestingly enough, in the U.S. we ignore that these tragedies happen everywhere on the planet. That is why a new website, Justice Speakers International has traffic safety as one of its key global issues.

In this episode of Justice Speaks, JSI Founders David Wallace, Judge Peggy Hora (Ret.) and Judge Brian MacKenzie (Ret.) discuss global traffic safety issues and what needs to be done to save lives.

Decade of Action for Road Safety

Did you know:

* Around the globe 1.24 million people are killed annually in road traffic crashes.

* Between 20 and 50 million people sustain non-fatal injuries annually.

* More than 270,000 pedestrians lose their lives, 22% of all road fatalities. Combine motorcyclists and cyclists with pedestrians and it totals 50% of all annual road annually.

* Road crashes are the leading global cause of death for young people aged 10-24.

* Without action, road traffic crashes are predicted to result in the deaths of approximately 1.9 million people annually by 2020.

 

Recognizing the growing threat, in March 2010 the United Nations proclaimed a Decade of Action for Road Safety (2011–2020), focusing on five “pillars”: Road Safety Management; Safer Roads and Mobility; Safer Vehicles; Safer Road Users; and Post-crash Responses. The Decade, officially launched May 2011 in over 110 countries, aims to save millions of lives by enhancing the safety of roads and vehicles; altering the behavior of road users; and expanding emergency services. Countries are encouraged to implement activities based on the World Report on Road Traffic Injury Prevention, with the goal of stabilizing and then reducing the devastation caused by global traffic crashes.

The call to action by the U.N. has brought country alongside country and agency alongside agency, all focused on finding the path to safer roads, protecting citizens everywhere from the wreckage of crashes. There are promising results thus far. Eighty-eight countries reduced the number of deaths on their roads between 2007 and 2010, before the call to action even occurred. Clearly, improvements are possible. But during that same time, 87 countries saw increases in the number of fatalities. Since 2009, there has been no overall reduction in the number of people killed; however, this is in light of an increase of registered vehicles by 15%. Such an increase implies some global activities had an impact when considered against the expected increase of fatalities.

Other Traffic Safety Topics

The Traffic Safety Guy, JSI Founder David Wallace, continues the discussion covering such topics as distracted driving and cell phones, motorcycle helmets, drink driving and DWI Courts.

The United Nations has called for a Decade of Action; it called us to action to save lives and make a difference. Think how much can be achieved if everyone takes up t...