|
Step 3: Investigate Legal Issues
Legal issues require research at the local and State levels. The areas discussed in this Bulletin generally prevail, but they may vary according to local and State statutes or regulations and emerging case law. Having the help of legal counsel in drafting and reviewing policies is advised.
Authority To Test
Examine the agency's authority to test early in the development of drug-testing policies. Authority to test generally comes from one or more of the following three sources:
- Statutes. State or local statutes may mandate, permit, or prohibit practices related to substance testing of juveniles. Any such legislation should be cited in the jurisdiction or agency's policies and procedures document. Statutory support for testing is preferred, as it provides the maximum legal protection for agencies and practitioners carrying out the program.
- Court or paroling authority orders. Court or paroling authority orders for adjudicated youth may direct that the youth submit to substance testing. Courts or paroling authorities should impose such a condition where substance testing could facilitate the rehabilitation of the youth or where alcohol or other drug use is related
to the youth's delinquent behavior. (This provision does not apply to preadjudicated youth, whose situation is discussed later.) Although it is preferred that courts or paroling authorities impose conditions for substance testing, they should make those orders flexible enough for the agency or practitioner to determine the frequency of testing.
- Agency policy. All agencies conducting substance testing should have written policies that clearly state the purpose for testing and identify the juveniles who will be subject to testing (e.g., all juveniles, those juveniles with a history of drug use, youth with court orders for testing).
The testing program is most defensible if all three sources of authority are in place. In the absence of statutory authority, both court or paroling authority orders and agency policies are recommended.
TOP
Testing Preadjudicated Youth
Because of their age and status, adjudicated youth's rights are diminished in some respects. Being minors, they cannot vote, drive vehicles, or legally purchase alcohol or tobacco, and as a result of their adjudication, they may lose their freedom or have restrictions placed upon it. However, until youth have been adjudicated, they are entitled to all the rights and protections afforded any youth in the community. Nonetheless, there is a rationale for conducting testing of preadjudicated youth in a detention program, as stated by the American Correctional Association and Institute for Behavior and Health, Inc. (ACA/IBH) project (1991a, p. 1):
|
The issue of constitutionality of urine collection and testing in detention facilities hinges on what use is made of the test results. Test results can be used with confidence as part of a case management plan, just like other information from a medical examination. When an initial health screen reveals evidence of diabetes or a sexually transmitted disease (STD), the detention facility is obligated to devise a plan for treatment. This principle holds for urine test results. On the other hand, if testing is used to file charges and prosecute, there is a potential for legal challenge. |
Agencies should note that statutory authority still is preferable when considering testing of preadjudicated youth. Sometimes laws do not specifically authorize drug testing, but authority may be inferred from other laws. For example, the Code of the District of Columbia contains the following three provisions that are interpreted broadly to allow for urine drug testing of youth in detention (ACA/IBH, 1991b, 1995):
- Physical examinations of youth are permitted. Drug testing is considered within the definition of "physical examinations" allowed by this law (D.C. Code 16-2315).
- A preliminary determination of the need for supervision is mandated (D.C. Superior Court Rules 102 and 103). Because the determination of illegal drug use generally justifies the need for supervision, testing to detect drug use may be viewed as an essential part of the intake process.
- A determination must be made about the necessity of detaining a juvenile for his or her protection or the protection of others. Substance abuse is among the factors considered when assessing the need to keep a youth in detention (D.C. Superior Court Rule 106).
The District of Columbia Superior Court determined these statutory and regulatory provisions were sufficient to enter into a memorandum of understanding that allows for drug testing of preadjudicated youth. Jurisdictions should approach preadjudication testing cautiously and explore jurisdiction-specific laws to determine whether present statutes support preadjudicatory testing (ACA/IBH, 1995).
TOP
Voluntary Testing
Where legislation does not support testing, agencies may elect to make testing voluntary, especially at the preadjudication phase. In a voluntary program, agencies should obtain informed consent from youth (and possibly their parents in some States) before testing. Informed consent includes knowledge of the following:
- Specimen collection process.
- Use that will be made of test results.
- Consequences of testing positive.
- Confidentiality provisions.
- Right to legal counsel, if applicable.
This information should be given to youth orally and in writing. Youth should then sign a statement confirming that they understand the information and give their consent to participate in testing. If the testing program is voluntary, youth should not be penalized for refusing to be tested.
TOP
Constitutional Issues Regarding Testing
Challenges to drug testing usually relate to the five constitutional rights discussed below (Del Carmen and Sorensen, 1988):
- Right against unreasonable search and seizure (fourth amendment). Urine testing is equivalent to a search for illicit drugs and includes invasive procedures to collect body fluids. To ensure that it meets this constitutional test, the "search"
must be reasonable and based on a rational belief that it is necessary.
- Right to due process (fifth and fourteenth amendments). Before a youth is deprived of liberty, certain procedures must be followed. Tests must be accurate and meet scientific standards acceptable to courts. A second confirmatory test may be necessary before limiting a youth's freedom. Chain-of-custody procedures involving specimens also are vital. There must be safeguards against the possibility of tampering with the specimen or test results, or they may be invalid for legal use. (Chain-of-custody procedures are discussed later.) Specimens from positive tests should be kept in case of possible legal challenges.
- Right to confrontation and cross-examination (fifth amendment). If the personnel who actually conduct tests are not present to provide testimony, the potential for challenging results on the basis of hearsay evidence exists. These
challenges usually have not succeeded, as courts have allowed exceptions to the hearsay rule. The business records, reliability, and trustworthiness of a laboratory are factors a judge might rely upon when excluding the testimony of staff member(s) who administered the test(s) from the hearsay rule.
- Right to equal protection (fourteenth amendment). Under the Constitution, individuals cannot be treated differently unless such treatment is legally justified. In detecting substance abuse, different treatment is related to alleged
illegal activity rather than to racial, gender, socioeconomic, or other differences. Drug screening is reasonably related to detecting, treating, and preventing substance use and, therefore, is a reasonable requirement.
- Right against self-incrimination (fifth amendment). Defendants are protected against self-incrimination when they give testimony in court. Urinalysis, however, is a form of physical evidence (similar to fingerprinting or appearing in a lineup). Therefore, it is not included in this constitutional protection. Substance testing does not require a youth to confess to drug
use.
TOP
Challenges to Drug Testing
Substantial case law supports substance testing,1 but only a few cases are specifically related to substance testing of juveniles. Those cases are summarized briefly:2
- In re C.J.W., 727 P. 2d 870 (Colo. Ct. App. 1986). A juvenile failed to submit to urine testing, which was a condition of
probation, but she admitted this failure to the probation officer. The court held that hearsay testimony of the probation officer was admissible to establish that the juvenile violated conditions of probation.
- In re Jimi A., 257 Cal. Rptr. 147 (Cal. Ct. App. 1989). A juvenile disturbed the peace and committed a battery on school property. The defendant had a history of admitted substance abuse and had no parental supervision in the evening hours. A condition of probation required the defendant to submit to random drug testing. The court held this condition was appropriate, given the youth's background of substance abuse and lack of parental supervision.
- In the Interest of C.P., 217 (Ga. A.P. 1995 505). A juvenile was adjudicated for violating probation terms imposed for possessing alcohol. She appealed, but the court held that possession of alcohol was a delinquent act and upheld the court-ordered probation.
- ALJ v. State of Wyoming, 836 P. 2d 307 (Wyo. 1992). A youth attended a party during which he pointed a gun at others and was adjudicated for reckless endangerment. He was placed on 3 years' probation and required to submit to random chemical testing, among other things. The youth contested this condition on the grounds that it violated his
right to be free from unreasonable searches and seizures. The court ruled that fourth amendment protections that apply to adult probationers do not necessarily apply to juvenile probationers. They held it was within the court's discretion to allow a probation officer to search a juvenile without reasonably suspecting a probation violation exists. There are differences in the rights of juveniles at the adjudicatory stage (due process and fair treatment) and at the dispositional stage. By statute, Wyoming requires that the court do what is best for public safety, preservation of families, and the welfare of the child. This allows the court to impose conditions for counseling, treatment, or other programs to rectify the problems contributing to delinquency. The appellate court decided these were broad enough to include chemical testing.
Del Carmen and Sorensen (1988) say conditions of probation, to be valid, must be constitutional, clear, reasonable, and reasonably related to the protection of society or the rehabilitation of the individual. They make the following recommendations for implementing a drug-testing program:
- Impose drug screening only when it is reasonably related to public safety concerns or the rehabilitation of the individual and in such cases where the person's delinquent behavior could be attributed to drug use.
- Determine whether a confirmatory test is required.
- Ensure that those administering drug tests are trained and properly qualified, whether they are agency staff or employees of a laboratory.
- Follow strict chain-of-custody procedures, including sealing, labeling, storing, and documenting the transfer of specimens.
- Save samples with positive results until the time for all possible legal challenges has elapsed.
- Have clearly written policies and procedures for drug screening and for responses to positive findings.
TOP
Confidentiality
Programs implementing substance testing should examine present policies, State and local statutes, and case law on confidentiality to ensure that the program complies with them. Some special considerations apply when substance abuse services are provided. Two Federal laws and several Federal regulations affirm these confidentiality rights (42 U.S.C., 290 dd-3 and ee-3 and 42 CFR Part 2).
|
The Federal confidentiality laws and regulations protect any information about a youth if the youth has applied for or received any alcohol or other drug-related servicesincluding diagnosis, treatment or referral for treatmentfrom a covered program.3 The restrictions on disclosure apply to any information, whether or not recorded, that would identify the youth as an alcohol or
other drug user, either directly or by implication. (Brooks, 1990, p. iv) |
The purpose of the confidentiality laws preventing disclosure of (written or oral) information that would identify a person receiving alcohol or drug treatment is to promote participation in treatment and related programs. Programs should establish policies and procedures for confidentiality. Some of these confidentiality concerns are more likely to apply to treatment providers than to juvenile justice agencies; however, juvenile justice personnel must consider these confidentiality issues and be aware of the restraints under which treatment providers must work.
Policies and procedures about confidentiality for drug testing should address:
- The youth's right to privacy.
- The person(s) to whom and the circumstances under which information may be released.
- The type of information that may and may not be shared.
- The process and forms for obtaining permission to release information.4
- The consequences for unauthorized disclosure of information.
- The precautions to be taken when collecting and aggregating data to ensure the confidentiality of individual youth.
TOP
1. For a review of drug-testing case law, refer to Drug Testing Guidelines and Practices for Juvenile Probation and Parole Agencies,
developed by the American Probation and Parole Association (APPA) and
published by the U.S. Department of Justice, Office of Justice Programs,
Office of Juvenile Justice and Delinquency Prevention, 1992. Summaries of
62 cases are presented and classified for easy reference in this document.
2. Some other recent court challenges to drug testing that are not specific to juvenile offenders include: Alston v. State, 646 So.2d 184 (Fla. Sup. Nov. 1994); Bryant v. State, 622 So.2d 620 (Fla. Dist. App. Aug. 1993); Peterson v. State, 623 So.2d 637 (Fla. Dist. App. Sept. 1993); Stevens v. State, 900 S.W. 2d 348 (Tex. App. July 1995); United States v. Stephens, 65 F.3d 738 (U.S. 8th Cir. Sept. 1995); Garcia v. State, 661 So.2d 1313 (Fla. Dist. A.P. Nov. 1995); United States v. Grandlund, 71 F.3d 507 (U.S. 5th Cir. Dec. 1995); Brock v. State, 667 So.2d 1014 (Fla. Dist. A.P. Feb. 1996).
3. Covered programs include those that are federally
assisted, both directly and indirectly. Indirect forms of Federal aid might include tax-exempt status or funding
from State or local governments that originated with the Federal Government (Brooks, 1990).
4. A sample consent form for release of information and
a statement regarding redisclosure of information may be found in Legal Issues for Alcohol and Other Drug-Use
Prevention and Treatment Programs Serving High-Risk Youth, written by M.K. Brooks and published by the U.S.
Department of Health and Human Services (HHS), Substance Abuse and Mental
Health Services Administration (SAMHSA), Office for Substance Abuse
Prevention, 1990.
|
