Title: Integrating Drug Testing Into A Pretrial Services System: 1999 Update. Series: Monograph Author: BJA Published: Bureau of Justice Assistance, July 1999 Subject: Pretrial services, drug testing, and drug courts 126 pages 277,000 bytes ------------------------------- Figures, charts, forms, and tables are not included in this ASCII plain-text file. To view this document in its entirety, download the Adobe Acrobat graphic file available from this Web site or order a print copy from BJA at 800-688-4252 or from NCJRS at 800-851-3420 (877-712-9279 for TTY users). ------------------------------- U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance Integrating Drug Testing Into A Pretrial Services System: 1999 Update Monograph ------------------------------- U.S. Department of Justice Office of Justice Programs 810 Seventh Street NW. Washington, DC 20531 Janet Reno Attorney General Raymond C. Fisher Associate Attorney General Laurie Robinson Assistant Attorney General Noel Brennan Deputy Assistant Attorney General Nancy E. Gist Director, Bureau of Justice Assistance Office of Justice Programs World Wide Web Home Page http://www.ojp.usdoj.gov Bureau of Justice Assistance World Wide Web Home Page http://www.ojp.usdoj.gov/BJA For grant and funding information contact U.S. Department of Justice Response Center 1-800-421-6770 This document was prepared by the Pretrial Services Resource Center, under grant number 97-DD-BX-0009, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. ------------------------------- The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. ------------------------------- Bureau of Justice Assistance Integrating Drug Testing Into a Pretrial Services System: 1999 Update Monograph July 1999 NCJ 176340 ------------------------------- Foreword This document is an updated version of a 1992 monograph describing how to integrate drug testing into a jurisdiction's pretrial services system. The original document was prepared before the advance of several technological developments in drug testing, including the expansion of hand-held devices to test for drug use and the introduction of the sweat patch. These two new approaches to drug testing, plus other approaches that are on the horizon, are described in this monograph. The original document was based on the pretrial drug testing experiences of six local jurisdictions that received federal funding to implement pretrial drug testing demonstration projects. The first of these testing programs, the District of Columbia Pretrial Services Agency, was funded by the National Institute of Justice in 1984 and continues its testing with local funding. The other programs--in Pima and Maricopa Counties, Arizona; Prince Georges County, Maryland; Multnomah County, Oregon; and Milwaukee County, Wisconsin--funded by the Bureau of Justice Assistance between 1987 and 1991, continue to test but in a much more limited manner. In the past 2 years, in response to an initiative by President Clinton to expand the use of pretrial drug testing, 24 federal district courts began testing defendants in a project called Operation Drug Test. The practices of these federal pretrial programs are examined in this document. This report includes the latest information on two problems that are of great concern to programs that test urine for drug use--flushing the system through fluid loading and specimen adulteration. Both have the capacity to mask drug use, and sophisticated means to detect them have been developed. In addition, this document describes an innovative paperless chain of custody process that the District of Columbia Pretrial Services Agency has developed and installed. The process, which is fully automated, greatly minimizes the chances of a break in chain of custody caused by human error. Since the 1992 document was published, the highest courts in both California and the District of Columbia have issued important rulings on pretrial drug testing, both of which uphold the constitutionality of imposing drug testing as a condition of pretrial release. These rulings are incorporated into the discussion of legal issues. This document also includes a new chapter on the costs of pretrial drug testing. The chapter is an update of a separate monograph, published in 1989. Finally, the document contains an updated bibliography that has been annotated. A major development in the criminal justice system's approach to addressing illegal drug use since the publication of the 1992 document has been the tremendous expansion of drug courts. An estimated 325 drug courts are operational or in the planning stages nationwide. Drug testing is a major component of the drug court program, and pretrial programs have played a major role in many of these jurisdictions by performing functions such as identifying eligible candidates and supervising them while they are in the program. This monograph should be of great use to pretrial agencies that are testing as part of a drug court program. Nancy E. Gist Director Contents Executive Summary Integrating Drug Testing Into the Court Process --Gaining Support From System Representatives --Integrating Drug Testing Into the Risk Assessment Process --Integrating Drug Testing Into the Supervised --Release Process Operational Issues --Chain of Custody --Testing of Specimens --Confidentiality Management Issues --Staffing --Information System --Procedures Manual --Estimating Costs of Testing Legal Issues Introduction Program Goals and Objectives How This Monograph Is Organized Part One Integrating Drug Testing Into the Court Process Chapter 1 Gaining Support From Criminal Justice System Representatives Identifying System Representatives Identifying and Addressing Representatives' Concerns Memorandum of Understanding: Purpose and Parties --Memorandum Agreements Regarding Duties of the Parties --Memorandum Agreements on Release of Information Maintaining Support and Updating the Memorandum of Understanding Summary of Major Points Chapter 2 Integrating Drug Testing Into the Risk Assessment Process Preinitial Appearance Testing Postinitial Appearance Testing Performance Measures --Preinitial Appearance Testing --Postinitial Appearance Testing Summary of Major Points Chapter 3 Integrating Drug Testing Into the Supervised Release Process Traditional Conditions of Pretrial Release Drug Testing as a Release Condition Testing Schedule and Frequency With Urine Testing --Regular Scheduling System --Irregular Scheduling System --Frequency Testing Schedule and Frequency With Sweat Patch Imposing Sanctions for Testing Violations Performance Measures Summary of Major Points Part Two Operational Issues Chapter 4 Chain of Custody Urine Collection Facilities --Incustody Testing --Noncustody Testing Defendant Identification Urine Specimen Collection --Incustody Testing --Noncustody Testing Ensuring the Integrity of Urine Specimens --Flushing --Adulteration and Substitution Specimen Collection Using Sweat Patch Specimen Handling and Storage --Labeling --Daily Log --Transportation to the Testing Site Testing and Specimen Disposal Management Challenges Related to Chain of Custody Performance Measures Summary of Major Points Chapter 5 Testing of Specimens Review of Drug Testing Methodologies and Terminology --Methodologies --Technologies --Interpretation of Results --Setting for Testing --Quality Control Approaches to Testing Choosing a Technology Choosing a Testing Approach Choosing a Testing Facility Comparative Advantages of Testing Approaches --Advantages of an Inhouse, Analyzer-Based Facility --Advantages of Inhouse Hand-Held Devices --Advantages of a Contracted Laboratory --Advantages of the Sweat Patch Implementing Testing in an Inhouse Facility --Completing the Agreement With the Vendor --Renovating the Facility --Hiring and Training Staff --Establishing Quality Control Procedures --Implementing Confirmation Procedures Implementing Testing in a Contracted Laboratory --Developing a Request for Proposals --Reviewing Applications --Selecting a Laboratory --Negotiating Terms of the Contract With Selected Laboratory Performance Measures Summary of Major Points Chapter 6 Confidentiality Federal Confidentiality Guidelines State and Local Confidentiality Guidelines Release of Information Defendant's Consent for Information Disclosure Security of Records Performance Measures Summary of Major Points Part Three Management Issues Chapter 7 Staffing Staff Positions and Duties Recruiting and Hiring Staff for an Inhouse Testing Program Training, Certification, Compensation, and Turnover Performance Measures Summary of Major Points Chapter 8 Information System Capabilities of an Information System Types of Information Systems --Manual Systems --Automated Systems Choosing an Information System Processing Drug Testing Program Information --Test Results --Initial Release Records Tracking Defendants Placed Into Pretrial Drug Monitoring Drafting Violation Notices, Status Reports, and Operational Reports --Status Reports --Violation Reports Evaluating the Drug Testing Program and the Drug Testing Condition Issues in Information Processing --Ensuring Information Flow and Integrity --Ensuring Confidentiality Performance Measures Summary of Major Points Chapter 9 Procedures Manual Writing the Manual Sections of the Manual Updating the Procedures Manual Summary of Major Points Chapter 10 Costs of Pretrial Drug Testing Testing Approach Confirmation Testing Specimen Collection Costs Point of Testing and Target Population Drug Screen Frequency of Testing Compliance and Sanction Policies Other Factors Affecting Costs --Rate of Drug Abuse Within Target Population --Average Length of Time Target Population Is Under Supervision --Information System Costs Summary of Major Points Part Four Legal Issues Chapter 11 Legal Considerations in Pretrial Drug Testing General Fourth Amendment Issues --Preinitial Appearance Drug Testing --Pretrial Drug Monitoring --Reasonableness of the Testing Method: Determining the Testing Population Due Process --Substantive Due Process: Chain of Custody and Urine Collection --Procedural Due Process: Chain of Custody and Reporting Violations of the Drug Testing Condition --Reliability of Testing Technology: Reporting Violations of the Drug Testing Condition Equal Protection Consent Meeting Legal Requirements Summary of Major Points Annotated Bibliography Appendix A Current Pretrial Drug Testing Applications Notes Sources for Further Information Exhibits Exhibit 3-1 Irregular Testing Schedule Exhibit 3-2 Examples of Testing Schedules Exhibit 3-3 Program Responses to Positive Results Exhibit 4-1 Sample Label Exhibit 4-2 Sample Collection Witness Log Exhibit 4-3 Sample Specimen Transfer Log Exhibit 4-4 Chain of Custody Checklist Exhibit 5-1 Interpretation of Results Exhibit 5-2 SAMSHA Guidelines on Cutoff Levels Exhibit 5-3 Approximate Duration of Detectability of Selected Drugs in Urine Exhibit 5-4 Advantages of Testing Approaches Exhibit 5-5 Sample Laboratory Inspection Sheet Exhibit 6-1 Sample Consent Form Exhibit 8-1 Sample Test Result Screen Exhibit 8-2 Completed Initial Test Result Screen Exhibit 8-3 Sample Drug Testing Log Exhibit 8-4 Sample Violation Report Exhibit 8-5 Checklist for Assessing Information-Processing Needs Exhibit 10-1 Comparison of Costs of Testing Approaches for a Five-Drug Screen Exhibit 11-1 Sample of a Written Explanation Executive Summary The goal of a pretrial drug testing program is to reduce the risk of failure to appear and rearrests among drug-using pretrial defendants by identifying and monitoring drug use. The objectives of pretrial drug testing--the means of achieving this goal--are to maximize the number of identified drug users released to pretrial supervision by offering courts valid alternatives to detention or unsupervised release, to reduce the level of drug use by monitored defendants, and to separate defendants in need of drug treatment from those who can control drug use through monitoring alone. Integrating Drug Testing Into the Court Process Gaining Support From System Representatives Successful pretrial drug testing programs need the support of the major agencies in the local criminal justice system. These agencies must agree with the goal of the drug testing program and acknowledge their duties within the program's framework. To gain system support, program administrators must identify the important system representatives and their duties regarding pretrial drug testing, address the concerns of these representatives, draft a Memorandum of Understanding (MOU) outlining the representatives' duties, and maintain strong support for pretrial drug testing among the representatives. Integrating Drug Testing Into the Risk Assessment Process Pretrial programs must assess the risk of defendants failing to appear in court or presenting a danger to the community if released. This assessment involves gathering information about each defendant and then extrapolating risk factors from that information. Drug testing as a risk assessment tool has been applied at two different points, before the initial bond hearing and after the hearing. When applied before the initial hearing, specimens are collected from the defendant shortly after arrest but before the appearance in court, and the test results are incorporated into other information (such as criminal history, ties with the community, and other drug use information) in making a bond recommendation to the court. When applied after the bond hearing, specimens are collected again from the defendant (after release) by the court to determine whether testing and treatment should be part of the defendant's pretrial supervision. Together with other information about drug use obtained during the pretrial investigation, drug test results can be an effective tool in verifying a defendant's current level of drug use. Integrating Drug Testing Into the Supervised Release Process A pretrial supervised release program involves program staff monitoring defendants who have been released on the promise to abide by certain conditions. The conditions should be related to risks of failing to appear at scheduled court hearings or presenting a danger to the community. The supervision of those conditions should be geared toward minimizing those risks. These same goals of minimizing identified risks should apply when integrating drug testing into a supervised release program. Drug testing as part of a supervised pretrial release program is frequently referred to as pretrial drug monitoring and typically involves requiring defendants to submit specimens on a periodic basis. Program staff note whether defendants report as scheduled and the test results. Staff members counsel defendants who test positive or who are otherwise not complying. They then impose or recommend sanctions. Sanctions may include an increase in supervision, referral to treatment, or notification to the court that the defendant has failed to comply with program requirements. When testing urine for drug use, drug testing appointments can be set on a regular schedule, with defendants advised of the next appointment in advance, or scheduled irregularly, with defendants receiving very short notice to report for testing. Guidelines must be established and consistently followed for responding to violations of the testing condition. In addition to testing urine specimens, technology is now available to test perspiration specimens, collected through the use of a sweat patch. The patch can detect drug use that has occurred during the time that the patch is applied, which usually lasts from 1 to 2 weeks. Program staff can apply and remove the patch, but it must be sent to the manufacturer for testing. Operational Issues Chain of Custody Chain of custody refers to procedures that: o Govern the collection, handling, storage, testing, and disposal of a urine specimen to ensure a correct match to the person providing it. o Safeguard against tampering with or substitution of a specimen. o Document that these steps have been carried out. Chain of custody procedures should describe in detail the means of: o Establishing the identity of the person being tested. o Observing the voiding of the specimen. o Labeling the specimen. o Completing a collection witness log. o Transporting the specimen to the testing facility. o Testing and disposing of the specimen. Testing of Specimens Program administrators should have a basic knowledge of the technical aspects of testing specimens for drugs of abuse. Urine testing can be conducted either by using an analyzer-based technology, with testing done at an inhouse testing facility or private laboratory, or with disposable hand-held testing devices. Inhouse testing, whether it uses an analyzer or hand-held devices, offers the advantage of timelier processing and simplified chain of custody procedures by technicians who are trained and certified by the testing equipment manufacturer. Outside laboratories offer the advantage of trained, experienced technicians and a staff supervisor who is a toxicologist. Testing can also be conducted through the use of the sweat patch. The advantages and disadvantages to each approach should be weighed in light of the pretrial program's resources and needs. Confidentiality Maintaining confidentiality means limiting access to test results and other program information concerning the defendant. Confidentiality also requires limiting the use of such information to agencies and persons with accepted access for accepted purposes. Under limited circumstances, programs can release information to other parties, but only to carry out a specific duty involving the defendant. Release of information to anyone other than the parties to the MOU requires the defendant's written consent and a legitimate reason for requesting the information. Programs should have written procedures for releasing information. Drug testing programs that receive federal assistance, such as federal funding or exemptions from federal taxes, must conform to confidentiality guidelines outlined in 42 CFR Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records: Final Rule. All drug testing programs must conform to applicable state and local guidelines, which can be more restrictive than the federal rule. Management Issues Staffing A pretrial drug testing program requires staff to collect specimens properly, observe chain of custody requirements, test specimens, process program information, and supervise defendants ordered into supervised testing. Any staff who test specimens must receive proper training. Supervisors should train collection and data entry staff. When using analyzer-based instruments, testing technicians should be trained and certified by the testing equipment manufacturer. Information System Drug testing requires an information system for recording program information, reporting information to other parties, monitoring defendants in drug testing, and protecting the confidentiality of results. This information system should provide program administrators with the means to organize, research, and control the operations of the drug testing program. Procedures Manual A procedures manual describes the testing program's policies and procedures. It serves as a training guide for new employees and a reference source for current staff and persons outside the program. The manual should note which staff or unit is responsible for carrying out each function. It should be written so that it is easily understood by persons unfamiliar with the program. Sections should be brief, with technical terms explained, and should be organized according to the sequence of a defendant's progress through the program. Sections of the manual should include the dates procedures went into effect. The manual should also accommodate changes in program procedures and should be updated whenever procedures change. Updates should note the staff affected by the change and any new forms or computer entries required. Estimating Costs of Testing Different cost factors come into play with each approach to testing (namely, testing inhouse with an analyzer-based facility, testing inhouse with hand-held devices, contracting with a private laboratory, or testing with the sweat patch). The inhouse analyzer-based facility should be able to test a specimen for five drugs at an average cost of $5. This figure does not include many one-time and ongoing costs, such as purchase or lease of the analyzer, maintenance contracts on the analyzer, facility renovation, staff time, specimen collection supplies, or confirmation costs. The average cost per five-drug panel using hand-held devices inhouse should range between $12 and $20, depending on the device. This price does not include the costs for collection supplies, staff time to collect and test the specimens, or confirmation costs. Using a local certified private laboratory is the most expensive approach--an average of $100 for a five-drug screen--but the price includes gas chromatography/mass spectrometry, the best method for confirmation testing. Sending specimens to a private laboratory costs an average of $10 per five-drug screen, which does not include expenses for specimen collection, shipping, and confirmation. Testing with the sweat patch costs $23 for five drugs, which includes the cost of the patch itself, plus shipping and testing expenses. Confirmation costs are not included. Legal Issues Drug testing has been found to constitute a search under the fourth amendment, and courts have ruled that drug testing complies with substantive due process when collection and testing procedures are reasonable. Courts have also ruled that drug testing can be imposed as a condition of release. Before undertaking drug testing, program administrators are advised to consult their jurisdiction's attorney for an opinion. Introduction Historically, pretrial programs have obtained information about drug use during interviews of defendants, believing that such information is very useful to judicial officers in setting conditions of release. The introduction of onsite testing has provided the opportunity to supplement this interview information with an accurate and objective measure of recent drug use. The District of Columbia Pretrial Services Agency was the first to take advantage of this opportunity by implementing an onsite pretrial testing program in 1984 with initial funding from the National Institute of Justice (NIJ). The two main aspects of this program were: o Testing defendants before their initial bail-setting appearance and incorporating the test results into the assessment of risk presented to the judicial officer at the bail hearing (preinitial appearance testing). o Testing defendants identified as drug users on a regular basis during pretrial supervision (pretrial drug monitoring). Two assumptions underlay this approach. First, knowledge of a defendant's drug use at the time of arrest--obtained through a drug test--would provide an important predictor of pretrial misconduct. Second, monitoring of use through testing during the pretrial period, coupled with sanctions, would be an effective means of reducing risks of pretrial misconduct. Based on the success of the D.C. testing project, the Bureau of Justice Assistance (BJA) provided funding from 1987 to 1991 to five jurisdictions--Pima and Maricopa Counties, Arizona; Prince Georges County, Maryland; Multnomah County, Oregon; and Milwaukee County, Wisconsin--to establish pretrial drug testing demonstration projects. These projects were designed to replicate the D.C. testing model, incorporating both preinitial appearance testing and pretrial drug monitoring. Several of these jurisdictions set up their own onsite testing facilities, while others contracted with outside laboratories. Under the Anti-Drug Abuse Act of 1988 (PL 100-690), Congress also mandated pretrial drug testing in eight selected federal court districts (Arkansas Eastern, Florida Middle, Michigan Eastern, Minnesota, Nevada, New York Southern, North Dakota, and Texas Western) as a 2-year demonstration project. In a subsequent report, the Administrative Office of the United States Courts advocated expanding pretrial drug testing to all federal court districts.[1] On December 18, 1995, President Bill Clinton directed Attorney General Janet Reno to develop and implement a universal policy providing for the drug testing of all federal arrestees before the decision is made to release them into the community pending trial. He also directed the Attorney General to take steps to encourage states to adopt and implement the policy. The President's rationale for developing a universal policy was that "[t]oo often, the same criminal drug users cycle through the court, corrections, and probation systems still hooked on drugs and still committing crimes to support their habit." The criminal justice system should react, he said, "at the earliest possible stage in a person's interaction with the criminal justice system--following arrest."[2] As a step toward activating the directive at the federal level, in 1996 the Attorney General reached agreement with the federal courts to implement pretrial drug testing in 24 of the 94 federal districts. This initiative was called Operation Drug Test. To begin the policy's implementation at the state level, Congress increased funding for the Byrne Formula Grant program in FY 1997 by $25 million specifically to encourage state and local jurisdictions to support effective drug testing initiatives at all stages of the criminal justice process, beginning with the pretrial stage. The D.C. program defined pretrial drug testing as a combination of preinitial appearance screening and pretrial drug monitoring. Preinitial appearance testing occurs before the initial bond hearing, and a pretrial program uses test results to help formulate a recommendation for pretrial release or detention. Pretrial drug monitoring is drug testing ordered as a condition of pretrial release. The experiences of the replication programs show that preinitial appearance testing and pretrial drug monitoring are distinct and independent components, each tied to a basic role of a pretrial program: o Identifying potential risks of pretrial failure (preinitial appearance testing). o Controlling risk through conditional release (pretrial drug monitoring). The most critical element of pretrial drug testing is the existence of a pretrial services program (or comparable agency or agencies to provide such services). The pretrial services program provides to the court, before the initial bond hearing, verified community ties and criminal history information on defendants; the program also supervises pretrial defendants. The agency responsible for the pretrial services program should identify drug-using defendants before the initial bond hearing, integrate drug testing into the current supervised pretrial release scheme, and oversee the drug testing and supervision functions.[3] BJA has highlighted the importance of pretrial programs for effective pretrial drug monitoring: Formal pretrial services agencies provide an extremely valuable service to prosecutors and the courts by conducting a thorough risk assessment, recommending pretrial disposition, and performing intensive monitoring of the arrestee. Such agencies are critical in effectively administering pretrial drug testing, meeting special needs of the criminal justice system in response to drug abusing offenders[,] . . . and serving as coordinator between the system and various programs that fall in the category of intermediate sanctions.[4] Program Goals and Objectives The goals of a pretrial drug testing program should be grounded in the goals or mission statement of the pretrial services program and augment the services that the program furnishes to the criminal justice system, such as gathering information on the defendant, preparing a report assessing the likelihood of failure to appear or rearrest, recommending appropriate options for conditional release, and supervising conditions of pretrial release and reporting violations to the court.[5] A pretrial drug testing program's objectives should be specific, measurable, and consistent with the following pretrial program objectives: o Developing options that permit judicial officers to maximize the rate of nonfinancial release. o Minimizing failures to appear in court and the potential danger to the community posed by the release of certain defendants. o Reducing inequities in the pretrial services system. This monograph suggests that the goal of pretrial drug testing is to reduce the risk of failure to appear and rearrests among drug-using pretrial defendants by identifying and monitoring drug use. The objectives of pretrial drug testing are to maximize the number of identified drug users released on pretrial supervision by offering courts valid alternatives to detention or unsupervised release; reduce the level of drug use by monitored defendants; and separate defendants in need of drug treatment from those who can control drug use through monitoring. This monograph seeks to provide criminal justice professionals-- specifically pretrial services program administrators--with a reference document to assist them in implementing a pretrial drug testing program in their jurisdictions. As an update of a 1992 document, it reflects recent developments in drug testing technology as well as additional drug testing experience. How This Monograph Is Organized The information presented in this monograph is based on experiences of federal and local pilot and demonstration pretrial drug testing sites. Their experiences show that certain elements are critical for success. These elements fall under four major categories: o Integrating drug testing into the court process. o Operational issues. o Management issues. o Legal issues. Chapters in the monograph are grouped under these categories and describe how pretrial agencies incorporating drug testing into their programs can deal with these issues. Each chapter ends with a summary of the key points covered. Part One Integrating Drug Testing Into the Court Process Chapter 1 Gaining Support From Criminal Justice Representatives Successful pretrial drug testing programs require the support of major agencies in the local criminal justice system. These agencies must agree with the goals of the drug testing program and acknowledge and agree to perform their duties related to drug testing. Support must come externally (from other criminal justice agencies) and internally (from existing pretrial program staff). To gain system support, program administrators must: o Identify the important system representatives and define their duties related to pretrial drug testing. o Identify and address these representatives' concerns. o Draft Memorandums of Understanding (MOUs) outlining the duties of the system representatives. o Maintain strong support for pretrial drug testing among these representatives. Identifying System Representatives Major system representatives are the heads of criminal justice agencies that perform a function under drug testing or whose support is crucial to the drug testing program's success. These representatives usually come from several agencies, and each plays a distinct, specific role. The local court orders defendants into the drug testing program. Judges should agree to follow program guidelines when ordering defendants into drug testing and to use program information only to set conditions of pretrial release and sanctions for violating pretrial release conditions. The local prosecutor should agree not to use program information to determine guilt in a pending case or to file new charges. The local public defender or defense bar may enter early agreements with the pretrial drug testing program to help preclude future challenges to the program. The sheriff or jail administrator must give specimen collectors access to arrestees. In addition, existing pretrial program staff must be kept informed and, when appropriate, involved in planning the new drug testing program. Other representatives might include contracted laboratories, treatment facilities, funding sources and funding approval agencies, and other drug testing programs. Contracted laboratories, if used, must agree to follow proper chain of custody procedures when collecting and testing specimens. They must also agree to test specimens using scientifically approved technology, deliver test results to the pretrial program promptly, and release test results information only to the pretrial program. Programs may use treatment facilities to reserve beds for defendants requesting or ordered into drug treatment. Treatment facilities must agree to release defendant compliance information only to the pretrial program. Programs may be dependent on funding sources and funding approval agencies. Programs need to identify the agencies that are funding pretrial drug testing and their attitudes about pretrial drug testing. Specifically, what does the funding agent hope to gain from drug testing? Does the agent want to determine the existence of a drug abuse problem in the arrest population or to allocate available treatment resources more efficiently? Finally, other drug testing programs--such as a drug court in the jurisdiction--may feel encroached upon by a pretrial drug testing program. Pretrial program administrators should determine if other agencies are involved in similar testing efforts and explain the pretrial drug testing program to them. Identifying and Addressing Representatives' Concerns At the outset, pretrial program administrators should notify system representatives of the pretrial program's intent to explore the feasibility of pretrial drug testing. The notice should state why the program is considering drug testing (for instance, it was ordered by the chief judge or local executive or it is part of a state drug control strategy), how the program will be structured, and what duties system representatives may be asked to perform. Program administrators should then address any concerns that arise. This may involve drafting policies for specific concerns. For example, the Prince Georges County program developed separate policies for defendants charged with violent offenses when setting up its testing program. Administrators took this step because the local prosecutor feared the program would supervise possibly dangerous felons. The Multnomah County program's policy included several penalties short of a request for revocation of release for defendants found violating the drug-free condition of their release; this helped allay the local sheriff's concern that all defendants violating the drug condition would have their bonds revoked, thus adding to jail overcrowding. Certain agencies might be cautious of supporting drug testing if the local public defender opposes it and threatens legal action. In several federal Operation Drug Test districts, the public defender expressed concerns about testing all arrestees prior to the initial appearance, as was originally planned. As a result, 6 of the 24 districts opted to have the initial test take place immediately after the release of the arrestee. Program administrators should be prepared to respond quickly to a public defender's questions about pretrial drug testing. Specifically, they should be prepared to address how the drug testing program respects defendants' privacy and due process rights and how it restricts the use of program information. Once a groundwork of support has been laid, the agreements reached should be documented through the MOU. Memorandum of Understanding: Purpose and Parties The MOU is a formal agreement that defines the duties of each party involved in a drug testing program. Parties enter into the MOU before the drug testing program begins so that the duties of each party are clearly stated. In addition to the pretrial program staff, these parties include the local judiciary, prosecutor, public defender, contracted laboratory, and, if applicable, the sheriff or jail administrator and local law enforcement officials. Other departments, such as probation, should be involved if they perform a duty under drug testing or receive drug test information. The MOU includes only the general duties of each party, not specific procedures that might change frequently. Examples of general duties are agreeing to collect specimens from arrestees, reporting test results information to the court and other parties, and monitoring defendants placed into drug testing programs. The MOU also should describe the pretrial program's general policy on the release of information and the limits on parties' use of program information. Usually, the local court agrees to use drug testing information only to set bond or in hearings on condition violation, and the local prosecutor agrees not to consider test information in regard to the question of guilt. If the program is of limited duration, the MOU's foreword includes the time that it is in effect. All parties, except the public defender, should sign the MOU to demonstrate their agreement to the duties assigned to them and to the pretrial drug testing program's general operations. Memorandum Agreements Regarding Duties of the Parties The following examples illustrate MOU provisions. The pretrial drug testing program agrees to: o Target defendants for preinitial appearance testing and recommend defendants for pretrial drug monitoring. If the pretrial program does preinitial appearance testing, it decides which defendants are asked to submit a specimen. If the program does not perform preinitial appearance testing, it describes the method used to recommend testing as a release condition (see chapter 2, Integrating Drug Testing Into the Risk Assessment Process). o Monitor defendants who the court orders into pretrial drug monitoring and notify the court of test results. The MOU should give a general description of the frequency of testing and should identify sanctions available for violations of the testing condition. These measures should start with internal penalties (within program) for initial violations and increase to formal sanctions for repeated or serious violations. The most severe should be a request for bond revocation (see chapter 3, Integrating Drug Testing Into the Supervised Release Process). o Refer defendants to treatment programs. Programs should assess the treatment needs of defendants placed in pretrial drug monitoring and offer treatment as an option for supervised defendants. The pretrial program or the outside laboratory used for testing agrees to: o Follow proper chain of custody requirements when collecting and testing specimens. The program or laboratory should follow approved guidelines for collecting, transporting, and testing specimens (see chapter 4, Chain of Custody). o Follow proper protocol when conducting tests. If testing is done on instrument-based analyzers, the program or laboratory should follow the analyzer manufacturer's protocol for calibrating, operating, and maintaining the testing equipment. If testing is done with hand-held devices, testers must follow every instruction specified by the manufacturer (see chapter 5, Testing of Specimens). o Provide test results to the pretrial program in a timely manner and release test information only to the pretrial program. Contracted laboratories should deliver preinitial appearance test results to the pretrial program in time for initial court appearance and supervised testing results within 24 hours. With the exception of research studies, contracted laboratories should never release test information to parties other than the pretrial program (see chapter 6, Confidentiality).[6] o Retest or confirm initial positive results before reporting them and confirm disputed specimens. The pretrial program or laboratory should, at minimum, retest initial positive specimens using the same technology. The program or laboratory should also confirm, using an alternative technology, any specimens disputed by a defendant or used in a condition violation hearing (see chapter 5, Testing of Specimens). The prosecutor agrees not to use test results to determine guilt in the pending case or to file new charges. This conforms to federal rules on the confidentiality of drug test information forbidding agencies from using such information in drug programs and state bail statutes prohibiting the use of pretrial program information on the question of guilt, such as the bail statute for Washington, D.C. (see chapter 6, Confidentiality).[7] The court agrees to use test results to determine pretrial release, to decide sanctions for violation of pretrial release, and to modify bond. Courts should also consider a defendant's compliance to the drug testing condition at sentencing. The sheriff or head of the local jail agrees to give specimen collectors access to incarcerated defendants. The public defender (or local defense bar), if included in the MOU, agrees to the general goals of the drug testing program and the stipulations for access to program information. The public defender (or local defense bar) usually does not play a role in pretrial drug testing, but programs may include this system representative in the MOU. Probation departments agree to use drug test information only for presentence investigations and to fashion appropriate drug monitoring or treatment supervision.[8] Treatment facilities agree to inform the pretrial program of the defendant's compliance and to give the program access to the defendant's treatment records for the pending case. Treatment facilities that perform drug testing may also agree to test defendants regularly and submit the results to the pretrial program. Memorandum Agreements on Release of Information The MOU should include a general outline of the pretrial drug testing program's policy on release of information, which describes when and to whom the program will release information without a consent form signed by the defendant. Generally, programs should: o Give test results to the court, prosecutor, and defense attorney at initial appearance and when asking for bond modification. Programs also may give these parties results at each scheduled court appearance. o Give a defendant's attorney open access to test information, with the understanding that the attorney will only use it in the pending case. Programs also should send defense attorneys copies of violation requests and dates for violation hearings whenever programs send copies to the court and prosecutor. o Give test information to prosecutors after each positive test, provided that the prosecutor agrees to use the information only to request changes in bond. o Give information to probation departments only for presentence investigations. o Release information to other agencies or in other circumstances only with a consent form signed by the defendant. Maintaining Support and Updating the Memorandum of Understanding A program should update its MOU whenever the duties of a party change or when another party is added. For minor revisions (changing or adding to the duties of one party, for example), programs can draft an addendum to all parties explaining the change or addition. When adding a party to the MOU, the addendum should include the duties of the party, an indication of when the new party will receive test information, and a space for the new party's signature. An enclosed letter could explain the change or addition and the reasons for it and advise parties to contact the pretrial program if they do not approve of the change. Programs making major changes to the MOU (such as changing basic policies or the duties of more than one party) should rewrite the document and circulate it for signatures. Summary of Major Points o Successful pretrial drug testing programs must have the support of major agencies in the local criminal justice system, including local court representatives, the local prosecutor, the public defender or local defense bar, and the sheriff or jail administrator. Other important representatives include the laboratory used to test specimens, local treatment facilities, funding sources, and programs with similar testing grants. o Program administrators should notify system representatives of the pretrial program's intent to explore pretrial drug testing. The notice should state generally why the program is considering drug testing, how testing will be structured, and what duties system representatives may be asked to perform. The notice also should solicit general opinions on pretrial drug testing. o Program administrators should address concerns that arise and consider drafting policies addressing specific concerns or forming advisory boards to discuss program procedures and any implementation problems that occur. o The MOU is a formal agreement among the parties involved in pretrial drug testing. It outlines the duties of each party and describes the pretrial drug testing program's general policy on release of information, including the boundaries for each party's use of test information. o Parties to an MOU are the pretrial program, the contracted laboratory (if used), the local judiciary, the prosecutor, the public defender, and the sheriff or jail administrator. Probation and other departments are parties to the MOU if they perform a drug testing function or receive program information. o Under the MOU, the pretrial program agrees to target defendants for testing and to submit results to court for bond hearings or bond review hearings. The program or its contracted laboratory agrees to perform specimen collection and testing under acceptable protocol. The court and prosecutor agree not to use test results on the question of guilt or to file new charges. The sheriff or jail administrator agrees to allow the pretrial program or laboratory access to defendants for testing. o Generally, programs give test results to the court, prosecutor, and defense attorney at initial appearance and when asking for bond modification. A program may inform the prosecutor that a defendant tested positive on certain dates, provided that the prosecutor agrees to use the information only to move for bond modification. o Release of information not described in the MOU or to parties not mentioned in the MOU requires a consent form signed by the defendant. Chapter 2 Integrating Drug Testing Into the Risk Assessment Process Pretrial programs assess the risks of individual defendants failing to appear in court or presenting a danger to the community if released. This assessment involves gathering information about each defendant and then extrapolating risk factors from that information. Information is typically gathered by interviewing the defendant, interviewing reference persons to verify the information provided by the defendant, and checking various criminal justice information systems to establish criminal history. Drug use information, which is one factor that is often examined in the risk assessment process, has traditionally been obtained through interviews with the defendant and reference persons, discussions with probation or parole officers, or completion of a criminal history check. Although useful in identifying drug use, these traditional means of gathering drug use information have limitations. The interview with the defendant may reveal a detailed history of drug use, but the defendant may not be candid about current and prior use. An examination of the complete criminal record may reflect a lengthy list of drug offenses, but many drug-using arrestees may not have such records. A discussion with the defendant's references or probation or parole officers may provide insight into the defendant's drug use; however, sometimes even these persons may be unaware of the extent of the defendant's drug problem. Drug testing provides another means of obtaining drug use information. Testing provides an objective, scientific measurement of a defendant's recent use of drugs. Testing compensates for many of the limitations associated with traditional means of gathering drug use information; it does not depend upon the defendant's truthfulness, the criminal record's reflection of use, or the knowledgeability of references or probation or parole officers regarding use. However, a drug test is not an absolute means of measuring drug use and is subject to its own limitations. As discussed fully in chapter 5, Testing of Specimens, a drug test result tells only whether a detectable level of a drug for which a test was run was found in the specimen provided. Because all elements of gathering information have limitations, the best course is to use a combination of all of them. Drug testing as a risk assessment tool has been applied at two different points. Specimens are collected before the initial bond hearing to incorporate the test results into other information (such as community ties, criminal history, and other drug use information) in making a recommendation to the court. Specimens can also be collected after the initial bond hearing from defendants who have been ordered released and for whom no other indicator of drug use is present. The purpose is to determine whether testing or treatment should be a condition of release. This testing should not be confused with pretrial drug monitoring, discussed in chapter 3, Integrating Drug Testing Into the Supervised Release Process, in which defendants are monitored to ensure they remain drug free while on release awaiting trial. Preinitial Appearance Testing Two issues must be addressed when testing is done before the initial appearance. The first involves the population targeted for testing, and the second involves the integration of test results into the recommendation scheme. Several possibilities are available when selecting the population to be targeted for testing. Program administrators can decide to target all those for whom a risk assessment is being conducted. If the program currently interviews, investigates, and provides a risk assessment on all new arrestees--misdemean-ants and felons alike--a decision may be reached to add testing to that information-gathering process. Another option is to target a subset of the entire population, for example, targeting only those charged with felonies. The decision about who should be tested is likely driven by availability of resources. Therefore, a jurisdiction may decide to preserve its testing resources by using this information-gathering technique only for those charged with felonies. The population targeted, however, should not exceed the population for which interviews, investigations, and risk assessments are conducted. A variety of recommendation schemes exist in pretrial services programs. Some are objective systems, using point scales or bail guidelines, in which the defendant's score or point total guides the recommendation. Some are strictly subjective, in which an experienced staff person makes a recommendation based on an examination of all the information. Some schemes combine features of both. Whatever scheme a program uses, test results should be considered as important as other drug use information, such as admission of current drug use, current drug charges, or prior drug convictions. All information about drug use is needed to determine a defendant's drug history accurately and should be weighted equally in the scheme. Postinitial Appearance Testing Six of the twenty-four federal Operation Drug Test sites conduct a drug test immediately after the defendant has been released from court. In addition, several local pretrial drug testing demonstration programs, which began operations by testing arrestees before the initial appearance, later delayed the initial drug test until after the court had decided on release or detention. A program that adopts the postinitial appearance testing approach must determine who among those released will be targeted for testing. In the six federal Operation Drug Test jurisdictions where the first test is conducted after the initial appearance, any released defendants who have indicators of drug use (such as a self-report, history of drug offenses, or current charge) would have drug testing as a condition of release. Those who have none of these indicators would be asked to submit a specimen upon release. If the result is positive, the release conditions would be modified to require drug testing as a condition of release. If the result is negative, the defendant would have no testing requirement as a release condition. Performance Measures Program administrators should continually review how test results are being integrated into the risk assessment process. Particular emphasis should be placed on maintaining the traditional means of gathering drug use information: self-admission by defendant, record of prior or current drug offenses, and reports from probation or parole officers. For example, if the rate of admitted drug use by defendants has decreased since the introduction of drug testing, this may indicate that interviewers are placing less emphasis on obtaining a thorough interview because they know that the test can be used as a backup. Any sign that program staff are placing less emphasis on using traditional sources of obtaining drug use information should be addressed immediately. Administrators can review a number of factors to measure the performance of drug testing as a risk assessment tool. Preinitial Appearance Testing To be a useful preinitial appearance risk assessment tool, the test results must be available to the court at the initial appearance. If the program is unable to collect specimens from a sufficient number of defendants before the initial appearance, the goal of integrating drug test results into the initial release decision process cannot be achieved. Program administrators should keep monthly statistics on the percentage of cases in which test results were not available at the initial hearing. This figure should be broken down by: o Percentage of cases in which a defendant refused to submit a specimen. o Percentage of cases in which a specimen was not collected for reasons other than defendant refusal, such as inability to approach the defendant before the start of court. o Percentage of cases in which specimens were collected but not tested in time for the initial court hearing. Program administrators may find that in the first few months of operation, as staff are still becoming accustomed to approaching defendants about submitting to drug testing and to delivering results in time for court, the percentage of cases for which results are available may be low. For example, the Multnomah County program initially collected specimens from only 40 percent of eligible defendants. The Maricopa County program initially experienced a 54-percent refusal rate and made available only 60 percent of collected test results in time for the initial court appearance. By gathering data on the reasons for the absence of results in the remaining cases, administrators can focus their efforts on where the problems lie. If large percentages of defendants are refusing to submit specimens, then administrators should look at how staff are approaching defendants and explaining the purposes of the test. If more than 10 percent of the target population is not being approached by program staff at all, the reasons for this should be explored as well. Program administrators should determine if the testing program is slowing down the initial appearance hearing. If the court is being delayed because results are not available, the court can pressure the program to speed up the process or simply convene and conduct the initial hearings without the test results, thereby preventing the program from achieving its goals. Program administrators should examine whether the court has been using the test results in setting conditions of release or detention. If judges are not ordering either drug testing or drug treatment as a condition of release for a significant number of defendants who have tested positive and been released, the results cannot be having an impact on judicial decisionmaking. Postinitial Appearance Testing For testing to be useful in postinitial appearance risk assessment, defendants must submit specimens upon release. Defendants may promise in court to report immediately to the pretrial services program for the initial test, but if they do not report, or if they report but for some reason do not submit specimens, the second phase of the risk assessment has not been completed. Program administrators should keep monthly statistics on the percentage of cases in which defendants did not submit to the postinitial appearance test, and they should review the procedures used to track those cases. Summary of Major Points o Traditionally, drug use information has been gathered through interviews with arrestees, contact with reference persons and probation or parole officers, and a review of the criminal history. Drug use information can also be obtained through drug testing, which provides an objective, scientific measurement of a defendant's drug use. o Drug testing for risk assessment purposes can take place before the initial appearance in court or immediately after the initial appearance. If it takes place before, the test results can be used with other information in making a recommendation to the court. If it takes place after the initial bond hearing, the purpose of the testing is to determine whether testing or treatment should be a condition of release. Chapter 3 Integrating Drug Testing Into the Supervised Release Process In general, a pretrial supervised release program involves the monitoring by program staff of defendants who have been released on their promises to abide by certain conditions. The conditions should be related to the risks of each defendant failing to appear at scheduled court hearings and presenting a danger to the community. The supervision of those conditions should be geared toward minimizing those risks. The same goals of minimizing identified risks should apply when integrating drug testing into a supervised release program. Drug testing as part of a supervised release program typically involves the following: o Defendants are required to report for submission of a urine specimen periodically. o Program staff monitor compliance with the drug testing condition, noting the test results and whether defendants reported as scheduled. o Staff counsel defendants who are testing positive or otherwise not complying and, using established guidelines, recommend or impose sanctions. o Sanctions may include an increase in supervision, referral to treatment, or notification to the court that the defendant has failed to comply with program requirements. The degree of defendant supervision afforded by drug testing is different from that provided by traditional types of conditions associated with pretrial supervision programs. To better understand how to take those differences into account when integrating drug testing into a pretrial supervision program, it may be helpful to review traditional supervision. Traditional Conditions of Pretrial Release The conditions set by the court and supervised by pretrial services agencies generally fall into four categories of conditions: status quo, restrictive, contact, and problem-oriented. Action by the court on violations of these types of conditions varies depending on the jurisdiction and the judge, as well as on the condition involved. A violation of a drug treatment referral may be viewed as more serious than failure to report for a job counseling appointment. Status quo conditions. The defendant is required to maintain residence, employment, or school status. In many pretrial services programs, the status quo conditions are passively supervised at best. Program staff may check periodically to make sure that defendants have maintained their residence, employment, or school status. Often a change in status may come to light only when defendants call attention to themselves by being rearrested or by missing a court appearance. Even then, little action is taken if these types of conditions are violated. The court is not likely to revoke the release of a defendant simply for moving to a different residence or changing jobs. Restrictive conditions. The defendant is required to remain in the jurisdiction or to stay away from the complainant or certain areas. Usually, restrictive conditions are also passively supervised. If defendants leave the jurisdiction or enter a restricted area, supervising staff may not find out. If defendants approach the complainant, this fact remains unknown unless the complainant reports it--although a violation of this type of condition is more likely to provoke a response from the court, particularly in cases involving domestic violence. Contact conditions. The defendant is required to report periodically by telephone or in person to the pretrial services or other supervising agency. Contact conditions can be supervised either passively or actively. In jurisdictions where the number of defendants required to report to the agency is higher than the agency can actively manage or where the agency does not place high priority on the supervision of this condition, defendants who are delinquent in their reporting may go undetected. In these jurisdictions, the events that trigger a detection of reporting delinquency are usually failure to appear for a court appearance or rearrest on a new charge. These events occur too late for a court's response to have any meaningful effect. Jurisdictions that actively supervise a contact condition know when defendants fail to report and take steps to bring them back into reporting compliance. When these efforts fail, the court is notified and the agency may recommend a hearing to determine whether release should be revoked. If the defendant appears at that hearing, it becomes difficult to establish that the defendant presents a risk of failing to appear in court as the defendant's very presence rebuts the argument that an appearance risk exists. Therefore, the court may be reluctant to impose sanctions. Problem-oriented conditions. The defendant is required to enroll in substance abuse or mental health treatment, vocational counseling, or another type of program to address an identified risk. Problem-oriented conditions are the most likely to be supervised actively by program staff. In doing so, program staff refer defendants to treatment or counseling centers and regularly check with officials of those centers on the status of those referred. Some supervised release programs merely refer defendants to these centers and assume that all is well unless the center reports otherwise. Drug Testing as a Release Condition Drug testing introduces a new feature to pretrial supervision--monitoring the use of illegal drugs of defendants on release. As noted, the status quo and restrictive conditions are not easily monitored. With a contact or a drug treatment condition, defendants must only appear at a specified location a certain number of times per week. For the remainder of time, their activities are unsupervised. With drug testing, however, defendants using drugs while on release and out of the view of supervising officials stand a better chance of being detected when they violate their release condition. This is especially true when using the sweat patch, which detects drug use during the period that it is worn, usually a period of 1 to 2 weeks. Drug testing is similar to electronic monitoring in that it extends the reach of supervision beyond that provided through traditional conditions. This extended reach brings with it implications that program administrators should keep in mind when planning for integrating drug testing into supervised release. In jurisdictions that have adopted drug testing, judges have responded in unprecedented fashion to violations of the condition. Given this interest among the judges, programs in these jurisdictions have had to ensure that resources were available to supervise the drug testing condition actively, to respond in a timely fashion to any infractions, and to alert the court when violations occurred. Testing Schedule and Frequency With Urine Testing Scheduling for a urine drug testing appointment differs from scheduling for a typical contact-related condition. A contact-related condition is usually imposed to ensure that defendants keep in touch periodically with court officials so that no confusion occurs regarding the next court date. Programs, therefore, tend to provide defendants latitude on when to report. Defendants may be instructed to report in person once a week, but it may not matter to the program staff which day of the week it is. In scheduling a drug testing appointment, however, such latitude cannot be granted. A defendant could assess the likelihood of drug use being detected on a given day. If detection were likely on that day, the defendant could simply wait until the next day to report. Drug testing appointments can be set on a regular fixed schedule or on an irregular schedule. Regular Scheduling System Under a system of regular scheduling, defendants know their next scheduled test date in advance because the appointment is on a fixed day or days each week, for example, a Wednesday. The defendant is advised of this upon admission to the testing program and receives written notification as well. Each Wednesday when the defendant reports, he or she is given written notice of the date of the next appointment--the following Wednesday. A defendant missing an appointment is already on notice that the next test is scheduled for the following Wednesday. A regular scheduling system makes it easier for defendants to keep track of their appointments and more difficult for them to claim confusion about the date as an excuse for not reporting. A fixed schedule also enables defendants with jobs or other responsibilities to avoid scheduling conflicts. A regular scheduling system may also be easier for the program to administer. Since each defendant is assigned a fixed day or days each week to report, the staff can easily track compliance. The disadvantage of regular scheduling is that defendants can plan their drug use around their drug testing appointments. Irregular Scheduling System Under an irregular scheduling system, the testing program devises procedures to ensure that the testing dates occur irregularly so that defendants cannot anticipate the next test date. The program also notifies defendants when to report for a test. Various means can be used to establish an irregular testing schedule. Exhibit 3-1 illustrates an irregular system for defendants who are required to report once a week to submit a specimen. In this example, a defendant is assigned a color corresponding to the day of the week that he or she was enrolled in the testing program. The color does not appear on the same day of the week over the 5-week period. Some programs may opt to have the same color appear on the same day of the week for successive weeks so that defendants will not think that because they were tested on Monday one week they will not be tested on Monday the next week. Other programs establish a random scheduling system in which the color code or other means of designating each defendant is randomly selected. Notifying defendants of their next appointment with an irregular system is more cumbersome than with a regular scheduling system. Programs should decide how much notice to give defendants that a test is scheduled and how to provide that notice. Ideally, defendants should be instructed to report for testing within hours of the notification or at least before the end of that day. However, to give defendants some chance to make arrangements for their jobs, child care, or other factors, it may be necessary to provide a day's notice for tests. Defendants can receive notification of the day of testing by two means. One involves placing the burden of notification on the program, and the other places the burden on the defendants. Under the first method, program staff are responsible for calling all defendants who are due to report. The burden on staff can be lessened through the use of automated dialing systems in which recorded messages are telephoned to defendants who are due to report. Such a system is in place in the Prince Georges County pretrial services program. Under the second method, defendants are typically required to call the program every day to see if their assigned color is scheduled--an approach currently used at several federal Operation Drug Test sites. Placing the burden of daily calling on defendants may result in higher rates of noncompliance as many defendants fail to call every day. Although an irregular scheduling system has the advantage of keeping defendants at a greater risk of being detected if they use drugs, administration of this system is more difficult than a regular system. Defendants also must deal with greater difficulties regarding scheduling conflicts. Frequency Establishing the frequency for testing appointments is a policy decision made by program administrators with input from other system representatives. The frequency favored by many jurisdictions that have used pretrial drug monitoring is once a week. With the retention rate of most drugs of abuse averaging about 48 to 72 hours (see chapter 5, Testing of Specimens, for a list a retention rates), it is also true that testing once a week may allow some defendants to escape detection. When once-a-week testing is combined with an irregular schedule, this possibility is lessened. This approach is used in the federal pretrial program in Arkansas, where defendants are tested once a week on a regular basis and then called in for unscheduled tests twice a month. Still, weekly testing using either type of schedule identifies defendants with severe drug problems. Testing twice a week is certainly more effective, and three times a week virtually ensures that any drug use would be detected, provided that the appointments fall at appropriate intervals over the week. However, this scheduling becomes difficult to manage with an irregular system. When testing more than once a week, the program must take into account that the same ingestion of a drug that led to a positive result on Monday may lead to a positive result on Wednesday. For this reason, testing more than three times a week is redundant. The frequency of testing may be decided by the availability of testing resources. Having defendants report three times a week instead of once means three times as many tests must be conducted. Staff and other resources must be sufficient to meet this demand. Exhibit 3-2 shows the testing schedule and frequency of several federal and local pretrial drug testing programs. Testing Schedule and Frequency With Sweat Patch The sweat patch is still not commonly used in pretrial settings, but many probation and parole departments at federal, state, and local levels have been using it. The patch can test for the presence of five drugs--amphetamines, cocaine, marijuana, opiates, and phencyclidine (PCP)--ingested at any time while the patch is being worn. Thus, the "window of detectability" using the sweat patch is open longer than with a urine test. Theoretically, testing when using the patch does not need to be as frequent. Imposing Sanctions for Testing Violations For each defendant who is scheduled to report for a drug testing appointment, one of six outcomes occurs. The defendant may: o Fail to report. o Be granted an excuse not to report. o Report and refuse to submit a urine specimen. o Report and be unable to submit a urine specimen. o Report and test negative. o Report and test positive. The outcome for each defendant on each appointment must be accurately recorded and must be reviewed by staff to decide if the specific outcome warrants any action by the program. Technically, a violation of a drug testing condition occurs if the defendant: o Fails to report for a testing appointment. o Reports but refuses or is unable to provide a specimen. o Tests positive for drug use. In addition, when the sweat patch is being used, a violation occurs if evidence of tampering with the patch is present. Violations of a drug testing condition and the responses of the program to the violations present several difficult issues that must be addressed during planning. For instance, if the defendant reports for all scheduled testing appointments and submits a specimen on each occasion but the test result is always positive, is this a less serious infraction than if the defendant did not report at all? The answer to this question involves making policy decisions after consulting with judges, prosecutors, and defense attorneys (see chapter 1, Gaining Support From Criminal Justice System Representatives). Sanctions against a defendant for violating release conditions can be designed to escalate, with several intervening steps in which an attempt is made to reestablish compliance, before a reconsideration of release by the court is sought. A policy of escalating measures is normally accompanied by a policy of deescalating (reduced) measures. Defendants who, because of an earlier lack of compliance, received more intensive reporting or testing requirements can be moved back into the normal reporting schedule after a period of compliance under the more intensive requirements. Notification to the court of a defendant's compliance with a drug testing condition need not be limited to instances of violations. Judges may find it useful to receive full compliance reports regularly on all defendants. For instance, the District of Columbia Pretrial Services Agency submits to the court a computer-generated report on compliance with the drug testing condition before each defendant's scheduled appearance. Judges may then respond to defendants who are in violation and encourage those who are doing well or at least making an effort to stop using drugs. The regular reporting of drug test results and the use of the results by the court either to punish by imposing sanctions or to encourage is a critical feature of drug courts. Program administrators should develop a policy of amending the conditions of release for defendants who are in full compliance with the testing condition. For instance, if the defendant reports for every appointment, tests negative each time, and is in compliance with all other release conditions, scaling back the frequency of testing may be appropriate. Alternatively, a defendant in good compliance can be placed on an irregular testing schedule, with testing conducted once or twice a month. Exhibit 3-3 shows the responses of several pretrial programs when defendants continue to test positive. Performance Measures Program administrators have several means of evaluating the effectiveness of their procedures, beginning with a review of the compliance rate of defendants with drug testing requirements. Failing to report for the intake appointment or missing testing appointments is not unusual for some defendants. If large percentages of defendants are failing to report for testing appointments, the reason may be due to the program's operation: the hours or the location may be inconvenient, or the instructions given to defendants about their testing appointments or the consequences for failing to abide by release conditions may not be clear. Program administrators should also check that the guidelines for handling noncompliance are being followed by staff, that the sanctions for violating conditions are being imposed in the timeframe specified by the guidelines, and that the court is being notified of alleged violations in a timely fashion. Periodic reviews of a sample of cases may be helpful in determining these things. Mistakes by staff are inevitable, especially in the first several months of operation. Encountering instances in which defendants were given the wrong date to appear for a testing appointment or erroneous information was provided to the court is not unusual. Program administrators should make clear to staff that any mistakes discovered should immediately be reported to the appropriate program supervisor. In addition to notifying the court if any misinformation was released, the supervisor should investigate and analyze the mistake to determine whether a flaw in the procedures or a shortcoming in staff training was responsible and then take corrective action accordingly. Summary of Major Points o Drug testing as a condition of supervised release is different from traditional types of release conditions. This method offers a means of supervising drug use of defendants while they are out of the view of supervising officials. o Drug testing appointments can be set on a regular schedule, with defendants advised of the next appointment in advance, or on an irregular schedule, with defendants receiving very short notice to report for testing. o Several options are available for setting the frequency of testing appointments. o Monitoring a drug testing condition requires active supervision by the pretrial services program. o Guidelines must be established and consistently followed for responding to violations of the testing condition. Part Two Operational Issues Chapter 4 Chain of Custody The phrase "chain of custody" encompasses the procedures that govern: o The collection, handling, storage, testing, and disposal of a specimen in a manner that ensures that the specimen is correctly matched to the person who provided it and that the specimen has not been tampered with or substituted. o The documentation that indicates that these procedures have been carried out in each case to provide evidence of a correct match. Strict adherence by staff to all chain of custody procedures is important for three reasons, all of which are related to quality control. First, adherence ensures that the person being tested does not tamper with the specimen. Given the subject's interest in producing a specimen that tests negative for drug use, various efforts at subterfuge may be employed. Second, it must be established that a particular result was obtained from a specimen provided by a particular defendant. Any breaks in the chain can cast doubt on the result. Third, a regular review of the chain of custody documents by program supervisors can be an effective means of early detection of common errors by staff in specimen collection and handling. Urine Collection Facilities The availability, location, and specifications of facilities used to collect specimens have chain of custody implications. Ideal facilities may not be available in a courthouse, jail, or other government or private building where collection takes place. Moreover, given the expenses associated with installing plumbing and lavatory fixtures, constructing a collection facility in these structures is often not possible. Program administrators may therefore be forced to look elsewhere. Incustody Testing When defendants in custody are tested, the options for choosing a collection facility are limited. Clearly, a facility must be chosen that is within the perimeter of the custody environment. Even within that environment, the officials in charge of custody (sheriff or correction's department) have security concerns that may further limit the choice. If arrestees are detained in one holding cell while awaiting transfer to the initial court hearing, lavatory facilities are most likely located within that cell. From the standpoint of custody officials, this location is probably the most convenient and secure one in which collection takes place. However, from the standpoint of chain of custody, collection within a large (and often crowded) holding cell is problematic. Staff must either enter the cell or stand outside and attempt to control the movement of other detainees to ensure an unobstructed view of the person submitting. Program administrators must work within these constraints to determine if a suitable location can be found that would allow for the required observation. Noncustody Testing Defendants appearing for monitoring appointments are required to report to a specific location to have their identifications verified. Ideally, the collection facility should be located near the office where this check-in occurs; staff time is not used efficiently if each defendant must be escorted to a rest room in another part of the building. Moreover, the room in which collection takes place must be large enough to accommodate both the defendant and the witness and must afford the witness a vantage point for direct observance of the defendant voiding the specimen. Public rest rooms may meet both proximity and space criteria, as they are usually located near offices and are large enough to accommodate the witness, but they should not be used as collection facilities. In addition to a greater intrusion on the subject's privacy (and the potential legal challenges that may follow), the presence of others in a public rest room may distract the witness, thereby diminishing the witness' ability to observe the voiding of the specimen. If a public rest room must be used, it should be closed to the public during the collection process. Concerns about chain of custody should not be the sole factor in determining the location of the collection facility. Selecting a facility that is not readily accessible to defendants, for instance, would make it difficult for defendants to appear for testing appointments. Defendant Identification Procedures must exist to verify the identity of the person who presents as the subject to be tested. If defendants are tested while they are in custody following arrest, procedures should already exist for establishing positive identification. Typically, once defendants are booked into the jail or lockup facility, a wristband is placed on them or a photograph is taken. If these or other means of identification are not available, staff should interview the defendant and check the information provided (date of birth or Social Security number, for instance) against official records before collecting a specimen. Establishing the identity of defendants not in custody calls for greater caution. These defendants may have had the opportunity to enlist surrogates to report in their place. However, identification can be established in several ways. Checking a driver's license or other photo identification should suffice. Because many defendants may not possess such identification, the program may wish to take its own picture of a defendant upon admission to the program. The program may also obtain a copy of the photograph taken at booking, keeping the photo in the files for retrieval each time the defendant reports. Urine Specimen Collection Once a defendant's identity has been confirmed, staff should prepare a label that will be attached to the specimen container once the urine specimen is collected (see exhibit 4-1). The label can be preprinted, listing the information that should be recorded. Typically, before escorting the defendant to the collection facility, staff should fill in the defendant's name and date of birth on the label. In many jurisdictions, persons arrested are assigned an identification number by the police department, jail, court, or pretrial services program. This number should also be recorded on the label before collection. Program staff must take precautions to ensure that specimens submitted by defendants are not tampered with or substituted. Generally, these precautions involve having program staff observe the defendant voiding the specimen. The observation should be conducted by a witness of the same sex as the defendant. Incustody Testing When observing an arrestee void a specimen while in custody following arrest, staff should be aware that the arrestee did not know that he or she was about to be arrested and therefore lacked opportunity or motive to conceal a substitute urine specimen or adultering chemicals. Moreover, the arrestee undoubtedly had been searched by arresting officials, and any devices that may have been present should have been detected. The witness may therefore need to observe the voiding only to the extent necessary to ensure that dilution with toilet water or soap does not occur. This observation could be accomplished without directly viewing private body parts. Noncustody Testing A defendant reporting for monitoring appointments is aware that he or she will be submitting a specimen and therefore could have concealed a substitute specimen or substances that could interfere with the test. Staff may therefore need to observe the defendant void the specimen more directly. The witness must be able to see the urine leave the defendant's body and enter the specimen container. This requires either physical presence in the rest room or outside viewing through a properly placed window. Ensuring the Integrity of Urine Specimens The integrity of a urine specimen can be compromised by diluting the specimen by drinking large amounts of fluids before the test--often referred to as "flushing" or "water loading"; by introducing adulterating agents to a specimen after it has been voided; or by submitting a substitute specimen. Flushing Various studies have shown that the consumption of 1 to 2 gallons of fluids in the hours before a drug test can reduce the concentration level of a drug found in urine below the drug's cutoff level, producing a false negative result.[9] Tests are available to check for flushing if suspicions exist that this is occurring. One such test examines the level of creatinine in the urine. Creatinine is a substance the body produces in the skeletal muscle and eliminates through kidney functions. Its concentration in urine is affected by fluid intake. If the creatinine level falls below a certain point (approximately 20 milligrams per deciliter), this indicates that the subject recently consumed large amounts of fluids. Another test examines the specific gravity of the specimen. This test is conducted by comparing the weight of a drop of distilled water to the weight of a drop of urine. If the urine weighs below a specified level on a scale, the specimen has been diluted through flushing. Of the two tests, the creatinine test is considered the most accurate indicator of flushing, but the gravity test may be most accessible in pretrial drug testing programs because the instrument to run the test is inexpensive and can be operated by inhouse testing staff. The creatinine test can only be conducted at a medical laboratory.[10] Adulteration and Substitution A common method used to submit a substitute specimen or introduce adulterating substances is to conceal a balloon or other device under the arm with a tube leading to the genital area. Another method includes placing chemical substances under the fingernails and releasing them into the specimen during or immediately following the void. Regarding adulteration, evidence suggests that most of the commonly used adulterating substances have little or no effect in masking drug use.[11] Still, proper chain of custody requires that the testing subject submit an unadulterated specimen. Even with direct observation, it can sometimes be difficult to determine if the defendant has substituted a specimen. One means of checking this is to take the temperature of the specimen, which should measure close to body temperature (98 degrees F or 37 degrees C) if the specimen is freshly voided. Temperature strips for this purpose are available from medical supply companies. Specimen Collection Using Sweat Patch Different chain of custody issues arise when the sweat patch is used in testing. Unlike urine testing, no observation is required for the submission of the specimen; the specimen is submitted continuously while the patch is worn. The patch is typically applied to a subject's upper arm. The area where the patch is to be applied is first cleansed with alcohol to remove skin oils so that the patch will adhere securely. After the skin is allowed to dry for approximately a minute, the patch is removed from its sterile packaging and applied. Each patch has a serial number, which should be recorded on the chain of custody form once the patch is applied. The patch is designed to be worn for a period of up to 7 days and to be tamper-evident, meaning that any effort to remove it prematurely will be apparent. The patch is peeled off and the absorption pad is removed, placed in a shipping bag along with chain of custody forms, and mailed to a laboratory for testing. Specimen Handling and Storage To establish the chain of custody of a urine specimen, documents must account for every individual who handles the specimen. Labeling A mistake made in labeling the specimen is difficult to correct even if all other chain of custody and testing procedures are exactly followed. If the wrong label is placed on a specimen at the point of submission, the wrong result will be attributed to the defendant. If the defendant con-tests the results, the chain of custody and testing documents will provide strong evidence to contradict the defendant. To prevent a challenge regarding the identity of the sample, several general rules should be observed: o The witness should label, observe, and collect one specimen at a time, even in a large holding facility. o The witness should reconfirm the identity of the defendant before labeling. This can be accomplished by asking the defendant to state his or her name and date of birth and checking the response against the information already recorded on the label. o Once identity has been confirmed, the label should be immediately affixed to the side of the container. The label should never be placed on the top of the container because container caps can be switched. o All writing on the label should be in ink that will not run if it becomes wet. Daily Log Because the specimen container and the label attached to it are discarded on completion of testing, a permanent record of the collection must be established. The information should be recorded in a daily log of all specimens collected and should include the name, date of birth, and identification number of the defendant; the date and time the specimen was collected; and the name of the witness. An example of a collection witness log is given in exhibit 4-2. Transportation to the Testing Site The level of difficulty involved in transporting the collected specimen from the collection point to the testing site depends on the distance between the two.[12] If the specimen is collected at the laboratory or in an adjacent office, the chain of custody procedures should be simple. Typically, the person who witnessed the collection will carry the specimen to the designated location in the laboratory. If the specimen is collected at a distant facility, however, more elaborate procedures are necessary. The specimens must be stored because it is impractical to deliver each specimen as submitted. Stored specimens must be kept in a secure setting to prevent access by unauthorized parties. Specimens stored overnight should be refrigerated to prevent possible decomposition of any drug metabolites. Couriers must transport specimens to the testing facility. For each shipment to the facility, records must show how many specimens are being transported, the name of the person acting as courier, the time the specimens left the collection site, the time they arrived at the testing facility, the name of the person at the testing facility who received the specimen package, and a notation by that person of any specimen containers that sustained damage or other irregularities that might be evident. An example of a specimen transfer log appears in exhibit 4-3. Testing and Specimen Disposal The specimen to be tested must be transferred from the container in which it was collected to the receptacle in which it will be tested. Care must be taken to ensure that the specimen remains matched to the person who provided it, especially when numerous specimens are being tested simultaneously. Because the volume of urine required to conduct a test is very small, some urine should remain in the collection container after the desired volume has been transferred to the testing receptacle. The urine remaining in the collection container must be retained in the event that followup testing is required (see chapter 5, Testing of Specimens, for a discussion of followup testing requirements). The unused portion of the specimen should be stored in its original collection container in a refrigerator until it is determined whether a followup test is required. Any specimen requiring storage beyond 24 hours should be frozen. To prevent tampering with stored specimens, the refrigerator and the room in which it is located should be locked when unattended. Distribution of keys should be restricted to authorized personnel. The specimen can be discarded once it is determined that no followup test is required or after followup testing has been completed. The policies for the disposal of specimens must be clear to staff to prevent inadvertent disposal of a specimen that is awaiting followup testing. Management Challenges Related to Chain of Custody The importance of strict adherence to chain of custody procedures cannot be overstated. Failure to comply with procedures could have severe consequences for both the defendant and the program. Given the sensitive and unpleasant nature of observing and handling urine specimens, program supervisors should be watchful for signs of morale or burnout problems among collection staff. Staff with these problems may not be as conscientious in following chain of custody procedures. Exhibit 4-4 provides a checklist of the chain of custody process. A regular review of chain of custody documents provides the program supervisor with an effective means of monitoring staff compliance with chain of custody procedures. If signatures, dates, or other vital information are not properly recorded on the chain of custody forms, staff most likely do not understand the chain of custody procedures, which necessitates retraining. One area within chain of custody is less easily monitored. Program staff observe a defendant submitting a specimen, but no monitoring occurs regarding the staff witness. If the observation by the witness is less direct than specified by the procedures, the defendant is not likely to bring this to the supervisor's attention. Similarly, if the witness does not label the specimen in accordance with procedures, the defendant will probably not complain. The privacy of the interaction between the defendant and the staff witness offers an opportunity for the defendant to bribe the witness into accepting a substitute specimen. This too may go undetected. Preventive measures are probably the best way to address these problems. Applicants for staff witness positions should be carefully screened to determine conscientiousness, attention to detail, and personal integrity. Once hired, staff should receive extensive training on chain of custody procedures with an emphasis on the importance of following those procedures in every instance. Rotation of staff may prevent morale and burnout problems. Performance Measures The ultimate test of the effectiveness of chain of custody procedures is their acceptance in court. Have any cases occurred in which the court has refrained from imposing sanctions on an allegedly noncompliant defendant because of concerns about the chain of custody procedures in general or in their application in a particular case? If so, officials should review the record from the court hearing and make any necessary adjustments. Summary of Major Points o The facilities in which specimens are collected must meet certain requirements regarding privacy and security. o Adherence by staff to chain of custody procedures is important to ensure that the person being tested does not tamper with the specimen, that documented evidence shows that the particular result was obtained from the specimen provided by the defendant, and that program supervisors can detect, through a review of chain of custody documents, any problems in specimen collection and handling. o Chain of custody procedures should include detailed descriptions of how to identity the person being tested, observation of the voiding of the specimen, proper labeling of the specimen, completion of a collection witness log, transportation of the specimen to the testing facility, and testing and disposal of the specimen. Chapter 5 Testing of Specimens This chapter addresses the tasks involved in testing bodily specimens--primarily urine but also perspiration and hair--for drugs of abuse. The first part presents a review of some of the terminology and methodologies used in drug testing. Next, approaches to testing are considered, followed by discussions about choosing a technology and how to implement a process once decisions have been made. Review of Drug Testing Methodologies and Terminology To make informed decisions, administrators need at least a basic understanding of drug testing technology. This section begins with a review of some of the basic terminology encountered in drug testing. Methodologies The most commonly used drug testing methodologies fall into two categories: immunoassays and chromatography. While possessing some knowledge of the scientific principles underlying these methods to conduct testing and interpret results is important, a general understanding should be sufficient for the purpose of setting up a pretrial drug testing program. If an explanation of the scientific principles is required, such as when a test result is challenged in court, such explanation is better left to the experts. Immunoassays use antibodies to detect the presence of drugs or their metabolites in the specimen. A metabolite is the compound that results after the ingested drug has been metabolized by the body. An antibody is a protein that reacts only with the specific substance or with a group of similar substances it is designed to detect. The substance to which the antibody reacts is an antigen. A tag--a substance that can be identified and measured after the antibody and antigen react--is attached to a sample of the drug being tested. The drug containing the tag is called the tagged antigen. The tagged antigen, the bodily specimen possibly containing the drug in question (untagged antigen), and antibodies that react specifically against the drug are mixed together, and the tagged and untagged antigens compete to react with the antibody. The remaining unused tag is considered an indicator of the presence or absence of drugs. Chromatography involves separating substances in a specimen by extracting them or causing them to attach to some type of material or particle. The separated substances are then identified and measured. Technologies The three techniques that utilize the immunoassays most commonly used in criminal justice settings are the enzyme multiplied immunoassay technique (EMIT), the fluorescence polarization immunoassay (FPIA), and the radioimmunoassay (RIA). Chromatography technologies include gas chromatography (GC) and gas chromatography/mass spectrometry (GC/MS).[13] Immunoassay technologies are the most suitable for use in criminal justice settings. However, RIA is not suitable for onsite testing because the procedure uses radioactive materials that can be handled only by specially trained, licensed technicians and laboratories. Program administrators should contact the manufacturer of each technology for a list of the testing systems that use a specific technology. Interpretation of Results Immunoassays have moderate to good sensitivity and can detect small amounts of a drug in urine. However, specificity--the ability to distinguish a single chemical compound from a closely related or cross-reacting component--depends on the procedure used and the drug being detected. Although immunoassays are designed to identify specific drugs or drug metabolites, the chemical reactions that occur during the test may make it difficult to distinguish a specific drug from other substances, such as prescription drugs with similar chemical properties. As a result, false positives--an indication of the presence of a drug when in fact the drug is not present--can occur. Given this possibility, manufacturers of immunoassays, as well as toxicologists, recommend a followup test, or confirmation, using a method that is more specific to a particular drug or its byproducts, such as a chromatography test.[14] True positive and true negative results are considered accurate. Accuracy refers to the ability of the test to obtain the correct result. To establish the accuracy of each result, however, followup testing on each positive is required. As noted earlier, manufacturers of immunoassay technologies and toxicologists recommend that any positive results be confirmed using an analytically different technology, such as chromatography. However, several courts have examined the issue in various criminal justice settings and have not required confirmation. Many of these courts have accepted retesting of positive specimens a second time using the same technology.[15] The interpretation of drug test results using an immunoassay technique should be straightforward; the result is either positive or negative (exhibit 5-1). These two terms may seem very simple, yet they are often used incorrectly. If a result is positive, it means that a drug or its metabolite (or a closely related, cross-reacting compound) was detected above the test's cutoff level--the value that serves as an administrative breakpoint for labeling a specimen positive or negative. The cutoff level can be set low to be very sensitive (thus minimizing the chance of false negative results); however, the lower the cutoff level, the greater the chance of obtaining false positive results. Setting the cutoff at a high level will increase the chance of obtaining false negative results. The manufacturers of the immunoassay techniques preset the cutoff of the test to a level that places greater emphasis on minimizing the chances of obtaining false positive results. The Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services (HHS) has published mandatory guidelines that specify the policies and procedures to be used by any laboratory to test urine specimens of federal employees (see exhibit 5-2). Even though these guidelines do not apply to testing criminal justice system clients, the specified cutoff levels are nearly the same, with minor exceptions, as the cutoff levels that are preset by the manufacturers of the immunoassays. A positive result does not measure how much of a drug was present, the last time it was used, or the frequency with which it was used. A positive result is not, by itself, an indicator of impairment. A negative result does not necessarily mean that the subject is not a drug user. It only indicates that no substance for which a test was run was detected in the specimen above the test's cutoff level. The subject may have used a drug that was not part of the screen of tests. The drug or its metabolite may have passed through the subject's system before submission of a urine specimen (exhibit 5-3). Perhaps the subject was able to submit a surrogate urine specimen. For these reasons, drug test results should be discussed in terms of the specimen testing positive or negative, rather than the subject being a drug user or a nonuser. In short, a urine test is not an emphatic, absolute measure of whether a person is or is not a user of illegal drugs. However, many regard it as such, and program administrators should correct this misconception when it arises. Setting for Testing A pretrial drug testing program can be established either inhouse by the pretrial services program or by contract with an outside laboratory. With inhouse testing, a facility is set up within the pretrial services program. The pretrial program is responsible for purchasing all testing supplies, hiring and training staff (or arranging for their training by the manufacturers of the testing instruments), collecting specimens, conducting tests, and reporting results. The actual facility is typically located in the jail or at the courthouse, or in proximity to either. With an outside laboratory, the pretrial services program contracts with a laboratory to conduct the testing. The laboratory is responsible for having the testing analyzers and supplies available. The laboratory is also responsible for hiring and training staff or assigning existing staff to the contract. The testing is usually conducted on laboratory premises.[16] The results of the tests are reported directly to the pretrial services program for proper dissemination. Quality Control Quality control refers to procedures put in place to monitor the operations of the laboratory. Quality control procedures should be both internal--that is, monitored by supervisory staff--and external. External quality control involves proficiency testing--that is, comparing the performance and operations of a drug testing laboratory with those of other laboratories. Two types of proficiency testing are used--open and blind. In open proficiency testing, a number of specimens are sent to the laboratory by a sponsoring group on a periodic basis. The laboratory is aware that these are proficiency testing specimens but is not aware of what, if any, substances they may contain. The laboratory tests the specimens and reports the results to the sponsoring group. The results are then compared with results submitted by other laboratories. The laboratory is advised by the sponsoring group how its performance compared with the performance of other laboratories. Blind proficiency testing is identical in nearly all aspects, except that the specimens arrive at the laboratory with no indication that they are proficiency testing specimens. Therefore, laboratory technicians are unaware that the performance of the laboratory is being measured. Approaches to Testing Pretrial drug testing can be accomplished through a variety of options, including: o Setting up an inhouse analyzer-based testing facility. o Testing inhouse with hand-held devices. o Contracting with a local private laboratory. o Sending specimens to a national laboratory. o Testing with the sweat patch. o Some combination of the above. Setting up inhouse analyzer-based testing. A number of analyzers on the market can be used for onsite testing, offering various features to meet the particular needs of a jurisdiction. For example, some analyzers are designed for high-volume testing; some, for rapid reporting of results. Some have the ability to interrupt a batch test to have a single specimen tested immediately. Many can interface with the pretrial agency's information system to provide automated transfer of test results. When space is a problem, models are available that can be placed on a desktop. In many jurisdictions, various criminal justice agencies share an onsite analyzer-based testing facility. For example, the testing may be done by the pretrial services agency, but the agency might also test other populations such as probationers, drug court clients, and work release residents.[17] Testing with hand-held devices. A number of disposable hand-held devices are currently available. Most are very similar both in appearance--about the size and shape of a credit card--and in the procedures required to run a test. A result is obtained by depositing drops of urine into a sample well. The results appear within minutes, usually indicated by a colored line. Several of these devices test for only one drug, whereas others can test for a number of drugs simultaneously. Variations to the design of these devices simplify chain of custody by creating a one-step testing process. For example, at least one vendor has developed a plastic stick that is simply dipped into the urine collection cup, with results then appearing on the stick. One vendor has a device that is both a collection cup and testing device, with the testing strip embedded into the side of the collection cup. Hand-held devices are being used extensively in the federal courts. The Administrative Office of the United States Courts (AOC) has commissioned a study to determine whether the devices meet the accuracy and reliability requirements of the courts. Preliminary results have shown that a number of these devices "showed promise."[18] Testing through a local commercial laboratory. Local commercial laboratories are available in most jurisdictions that are capable of testing for drugs of abuse. When using a commercial laboratory, either specimens can be collected at the site of the pretrial program and then transported to the laboratory or defendants can be instructed to report to the laboratory to submit specimens, which would be collected by laboratory staff. Testing through a national commercial laboratory. For years, many criminal justice agencies that test for drug use have used the testing services of national commercial laboratories. Programs that use this approach collect the specimens and then ship them to the laboratory. Specimen results typically are available within 48 hours. Testing perspiration. The sweat patch is an adhesive strip attached to the skin, usually on the upper arm, of a testing subject. It can remain on the skin for up to 1 week. The patch is tamper-evident, meaning that any effort to remove it will be obvious. As the subject perspires, the sweat is collected by a pad that is part of the patch. Once the patch is removed, the pad is sent for testing at a commercial laboratory using immunoassay technology. The sweat patch currently is being used with urine testing in approximately 40 federal probation agencies. The Administrative Office of the United States Courts has recommended its trial use as a supervision tool in federal pretrial programs. Analyzing hair. Since drugs are absorbed into hair shafts, a history of drug use is produced as each hair strand grows. In 1977, researchers developed the means to detect drug metabolites in hair through radioimmunoassay. Studies have shown hair analysis to be very effective in detecting drug use within 1 week of ingestion. The only limit on the length of time for which past use can be detected is the length of the hair--1 inch of hair can track any drug use within a 60-day period.[19] As with the sweat patch, hair analysis does not present the same privacy issues and concerns about disease transmission as with urinalysis. It also has the advantage of showing drug use over a much longer period of time. Even with these advantages, hair analysis is not widely used in criminal justice settings because it is very expensive and can only be conducted at qualified laboratories. Another obstacle to the expanded use of hair analysis in the criminal justice system is the difficulty presented by persons with very short hair styles.[20] In addition, several issues have yet to be resolved regarding hair analysis. For example, it is not clear whether exposure to smoked drugs by a nonusing testing subject would produce a positive result. It is also not clear whether some types of hair, such as thick hair, retain drugs more than others. Furthermore, some indications exist that certain hair treatments can hide the use of drugs. Choosing a Technology The technologies available for detecting drugs provide options for pretrial program administrators.[21] In choosing among the options, two factors should be considered. Acceptance in the scientific community. The most important factor to consider in selecting the technique is whether it has gained acceptance in the scientific community. Do those who are most qualified to make such determinations, in this case toxicologists, view the technique as a reliable means of detecting the presence of drugs in a bodily specimen? In discussions with manufacturers of these technologies, program administrators should ask to see evidence of scientific acceptance. Admissibility of test results in court. Since drug test results are intended for use by the courts, the judgment of whether results obtained from a certain technique are admissible in court proceedings lies with the court. In making such judgments, the courts determine whether the level of acceptance of the technology within the scientific community is sufficient to allow admissibility. Program administrators should review cases in which the admissibility of test results obtained from those technologies under consideration were challenged in court. Choosing a Testing Approach Once the pretrial services program has determined that the technology has been accepted by the scientific community and the courts, program administrators can look at the variety of testing instruments that use scientifically accepted techniques. The instruments, whether hand-held devices or analyzers, offer different features to meet a variety of needs. Turnaround time. The amount of time it takes to obtain the result from a defendant's specimen can be very important to a pretrial services program. If the program is using test results in formulating recommendations to the court at the initial appearance, the results must be available before that appearance. Even when using the results in the supervision phase, a rapid turnaround time is important as users should be promptly informed of their results. Some testing instruments, especially hand-held devices, are designed to produce results very rapidly. Others may take more time. Volume of testing. Programs with a high volume of testing may find testing analyzers more helpful than hand-held devices because many analyzers are designed to accommodate a high volume of specimens. The program may be required to produce results on a high volume of specimens in rapid fashion. If that is the case, systems are available that can accomplish this. Availability and quality of training. If the pretrial services program contracts with a laboratory to perform testing functions on an analyzer, training by the analyzer's vendor may not be a concern of the administrator. The laboratory itself would be responsible for ascertaining that operators of testing analyzers have received proper training. If inhouse testing is to be conducted using an analyzer, however, the availability and quality of training offered by the vendor is very important. A vendor that does not provide training should not be considered. Training with hand-held devices should be much simpler because the process to test involves only a few steps. Costs. Vendors of analyzers may offer options to lease or purchase the equipment. Program administrators should examine the terms of both lease and purchase agreements and determine which option best meets their needs. Vendors also may offer pricing packages that reduce costs. For instance, one vendor may offer the testing system at no cost if the program commits to purchasing a set amount of supplies. A competing vendor may offer the supplies at no cost if the analyzer is purchased. However, the price of the various instruments should not be the main factor in making a selection. If the cheapest instrument cannot meet the turnaround time and volume needs of the program or is based on a technology that has not gained acceptance in the scientific community, it would be the wrong choice (see chapter 10, Costs of Pretrial Drug Testing). Program administrators should visit other criminal justice drug testing programs, clinical laboratories, hospitals, or other institutions that use the testing instruments under consideration. Seeing the instrument in operation and questioning the operators of the system about their level of satisfaction is very helpful. Choosing a Testing Facility Whether to implement inhouse testing or to contract with an external laboratory may be one of the most difficult decisions faced by a program administrator. Several factors should be considered in making the choice, and the advantages and disadvantages of each approach should be assessed. Existence of state or local regulations governing testing facilities. Many jurisdictions have regulations that require laboratories to meet specified performance standards. Some require licensing or certification. In some jurisdictions, these regulations apply only to laboratories engaged in clinical testing; in others, they may extend to all facilities that test specimens--including those that are set up in criminal justice agencies. Program administrators should identify existing regulations.[22] Availability of an external laboratory. Program administrators should determine whether laboratories in the area meet applicable regulatory requirements and are willing to consider contracting with the pretrial services program. The Yellow Pages of the telephone book, under the heading of Laboratories/Medical, should have a listing of laboratories that test for drugs. These laboratories should be contacted. Local programs may exist that are not necessarily medical laboratories but that currently provide testing services for other parts of the criminal justice system. For instance, Treatment Accountability for Safer Communities (TASC) programs perform this service in many jurisdictions for probationers. Criminal justice system representatives should therefore be consulted to see if other programs test criminal justice clients. Availability of suitable space to locate inhouse analyzer-based facility. Difficulties are often encountered in trying to set up an inhouse testing facility in either the jail or courthouse or any other public building. Space of any kind can be difficult to secure in such a building. Space that meets, or that can be renovated to meet, the requirements of a testing facility may not be available. The area that houses a testing facility must be secure against unauthorized access and be large enough to accommodate the testing analyzer that will be used. The analyzer may require special plumbing or electrical hookups; therefore, such modifications to the space should be anticipated. Since testing supplies and chemicals can be affected by temperatures above or below a room temperature range of 68 degrees to 77 degrees Fahrenheit, a room that is not climate controlled would not be suitable. It would be convenient, although not necessary, if the area where defendants report for testing, and where they actually submit specimens, is adjacent to the testing facility. This would simplify chain of custody procedures (see chapter 4, Chain of Custody). Availability of staff for inhouse laboratory. The pretrial services agency's personnel who are assigned or hired to operate testing analyzers require specialized knowledge beyond that normally required to complete traditional pretrial services functions. Program administrators are responsible for recruiting, hiring, training, and supervising these staff members. Some administrators may conclude that these responsibilities are beyond those with which they want to be involved. They may therefore select a contract laboratory. Turnaround time. An efficiently managed inhouse testing facility using hand-held devices or an appropriate analyzer should be able to meet turnaround time requirements. A contract laboratory may be able to meet the requirements also. Once a turnaround time is established, program administrators can check with available laboratories to see which ones can meet the required time. Costs. Cost factors depend on the testing approach. If testing functions are contracted out to a laboratory, the pretrial program is not responsible for purchasing analyzers and supplies, hiring testing staff, and making renovations to testing facilities. However, the pretrial program pays the laboratory for the use of instruments, supplies, staff, and other general costs associated with the laboratory's overhead (see chapter 10, Costs of Pretrial Drug Testing). Chain of custody concerns. Chapter 4 describes acceptable chain of custody procedures. Chain of custody might be simpler when using inhouse testing, especially if the testing is done with hand-held devices. However, procedures can be developed for transporting specimens from the collection point to the laboratory. Plans under each option should be drawn up and compared. Comparative Advantages of Testing Approaches Once factors regarding selection have been examined, program administrators must determine which approaches remain viable options. Perhaps no laboratories are available that meet the program's turnaround time needs. Maybe no space is suitable for an inhouse, analyzer-based facility. Ideally, several options will remain open, and, if so, program administrators should then weigh the advantages and disadvantages of each (see exhibit 5-4). Given the differences among jurisdictions, each listed advantage may not hold true in every instance in every jurisdiction. Advantages of an Inhouse, Analyzer-Based Facility Generally, such a facility should be able to process the testing of specimens more rapidly than an outside laboratory. This is especially true when the testing facility is located near the collection site and when the facility is responsible for testing only specimens collected from the pretrial population. The contract laboratory would no doubt be responsible for providing results to other clients, and this could slow down the processing of the specimens for the pretrial program. Chain of custody is simplified if the specimens do not leave the building in which they were collected. It is also simplified if custody of the specimens is not transferred from the pretrial program to the laboratory. When the pretrial program has sole custody of a specimen, program administrators can be more confident that chain of custody procedures are not compromised. Once a specimen leaves the custody of the pretrial program, the program loses some control over how that specimen is handled. An inhouse facility may also provide the pretrial program with greater confidence about the release of information. Because all test results would be under the sole control of the pretrial services program until dissemination to appropriate officials, less danger exists for an inadvertent release to an unauthorized party. Advantages of Inhouse Hand-Held Devices Hand-held devices have become very popular in criminal justice agencies given their portability, ability to provide rapid results, and ease of operation. Since they require no machinery to maintain and calibrate, these devices can be used by criminal justice officers with no formal training in drug testing. Furthermore, the device does not need to be refrigerated before use, as is the case with reagents used on analyzers. Another attraction of these devices is that they simplify the chain of custody of a specimen. For example, with these devices, the same officer who witnessed the collection of the specimen can also test it--and the test can be done in the presence of the person who submitted the specimen. With analyzer-based testing, the specimen is usually collected by one person, taken to the testing facility (which can require transporting it outside the building, especially when using a commercial laboratory) possibly by another individual, and then tested by yet one more individual. Advantages of a Contracted Laboratory A contracted laboratory is likely to be staffed by trained technicians with experience in testing specimens. The laboratory usually employs a staff toxicologist who supervises the technicians. This toxicologist may also be able to testify in court, if necessary, on the laboratory procedures used to obtain a test result. A laboratory that has been in operation for some time has established a track record of its performance. Program administrators can interview former or current clients of the laboratory to get an impression of its services. Program administrators can tour the laboratory to inspect the facility and check procedures. A contract laboratory, especially a large one, is likely to have the resources to handle exigencies, such as instrument failure or staff turnover. An inhouse facility that has purchased one testing instrument may face problems if the instrument breaks down. Likewise, an inhouse facility with two trained operators may be seriously understaffed if one leaves. Advantages of the Sweat Patch The sweat patch has certain advantages over urinalysis. Drugs typically can be detected in urine for 48 to 72 hours, depending on the drug; however, any drug use that occurs while the patch is worn can be detected. In addition, testing with the patch does not involve the degree of intrusiveness that occurs when observing the submission of a urine specimen. Unlike urinalysis, which requires the handling of urine specimens, testing with the sweat patch raises few concerns about disease transmission. Implementing Testing in an Inhouse Facility The tasks involved in setting up an inhouse testing facility include completing an agreement with the vendor of the selected testing analyzer or hand-held devices, renovating the space selected, hiring and training staff, establishing quality control procedures, and implementing procedures for confirmation of positive results. Completing the Agreement With the Vendor Before placing the order for the testing analyzer or hand-held devices, program administrators should verify that the terms of the agreement with the vendor are clear. If an analyzer is purchased, the administrator should review the warranty with the vendor. Many vendors offer maintenance contracts on analyzers after the warranty period expires. These contracts can cost thousands of dollars, and programs could face unexpected maintenance costs when their warranty expires. Program administrators should discuss with the vendors at the time of purchase the costs associated with maintenance contracts. An analyzer used to test urine specimens, like any other equipment, is subject to occasional failure. Problems can often be resolved by program staff if they receive telephone instructions from technical representatives of the analyzer's manufacturer. In other instances, however, an onsite visit by a technical representative may be required. Whether the analyzer is purchased or leased, program administrators should ensure that an agreement is reached regarding response time for service calls. If the analyzer cannot be fixed onsite and must be shipped out for re