Case Plan Drug Testing:
Myths, Best Practices, and Strategies
Children’s Law Institute, Albuquerque, New Mexico
January 13, 2017
Presenters
Jennifer Olson, Attorney,
Respondents’ Contract Counsel, Solo Practitioner, Farmington
Robert Retherford, Attorney,
Senior Children’s Court Attorney, former Respondent’s Counsel
Children, Youth, and Families Department, Farmington
Ron O. Smock, President,
Independent Drug Testing and Forensic
Services, Albuquerque
Goals & Agenda
Case Management & Best Practices: Questions
Rumors, Myths & Misconceptions
Scientific Perspective
Legal Perspective & Best Practices
Case Management & Best Practices: Responses
Please write questions on the paper we’ve handed out
Case Management Perspective
When should drug testing be a part of a case plan?
Which tests are available, which tests should the
Department request, and how frequently should
tests be requested?
How do you work with parents to engage them in
substance abuse testing/treatment?
How do you address issues of a parent’s access to
testing because of location/transportation
challenges?
How do you address issues of prescription
medications and medical marijuana use?
Rumors & Myths
Adulterants
Cross reactivity
Myths of testing positive
Prescription drugs
“Internal possession”
Collection Procedures
Identification
Date/Time of Collection
Medications
Chain of Custody
Handling of Evidence
Urine
Hair
Saliva
Alcohol - one ounce per hour
Alcohol via ETG Testing
Amphetamine
Cocaine
Opiate 3-5 days
THC rare/occassional user
THC recreational user
THC Moderate user
THC chronic (daily) user
Detection from 15 minutes on
Up to 3 days for most drugs except THC which can only be detected for a matter of hours
0 1 2 3 4 5 10 28 60 90 120
90 day segment
Time Line for Drugs of Abuse Testing
APPROXIMATE DAYS of DETECTION
30 day segment 60 day segment
AMPHETAMINES 48 hours 500-2000 ng/ml
BARBITURATES [Secobarbital] 24 hours 200-1000 ng/ml
[Phenobarbital] 2-3 weeks
BENZODIAZEPINES 3 days/single dose 200-1000 ng/ml
MARIJUANA light smoker 24 hours-5 DAYS 25-150 ng/ml
moderate smoker 5-10 DAYS
heavy smoker 28-30 DAYS
COCAINE 2-4 days 300-3000 ng/ml
METHADONE 3 days 300-1000 ng/ml
OPIATES 3-5 days 300-1000 ng/ml
PHENCYCLIDINE 8 days 25-100 ng/ml
PROPOXYPHENE 6-48 hours 300-1000 ng/ml
ALCOHOL 0.01 gm % Eliminated at approx. 1 oz per hour. 1 oz of alcohol = 1 can of beer, 1 1/2 glasses of wine, 1 shot of liquor. To convert
urine to approximate blood alcohol, divide by 1.3. NOTE: 1000 ng/ml (nanograms/milliliter) = 1.0 mcg/ml
(micrograms/milliliter) 0.1 gm% (grams percent) = 100 mg/dl (milligrams/desiliter) Legal alcohol limit in New Mexico = .08 mg% for adults, .02 gm% for minors
ETG 5 DAYS
HALLUCINOGENS 24 HOURS 500 ng/ml
LSD 24 HOURS 0.3 ng/ml
INHALANTS 12-24 HOURS parts per million
METHYL ETHYL KETONE, TOLUENE, XYLENE, DICHLOROMETHANE
DRUG INDUCED ASSAULT 12-24 HOURS [6-12 HOURS RECOMMENDED]
ALCOHOL = ethanol or ethyl alcohol
AMPHETAMINES = amphetamine, meth, & high concentrations of OTC cold/ allergy
meds containing ephedrine, pseudoephedrine, & phenylpropanolamine
BARBITURATES = butalbital, butabarbital, pentobarbital, phenobarbital, & secobarbital
BENZODIAZEPINES = diazepam (Valium), chlordiazepoxide (Librium), oxazepam
(Serax), and other tranquilizers
CANNABINOIDS = carboxy-THC, the major metabolite of marijuana & hashish
COCAINE = benzoylecognine (major metabolite of cocaine) & cocaine
METHADONE = methadone & its metabolites
OPIATES = morphine, morphine glucuronide (major metabolite of morphine), codeine,
heroin, hydromorphone (Dilaudid), hydrocodone (Lortab), oxycodone (Percodan)
PROPOXYPHENE = propoxyphene & norpropoxyphene (Darvon, Darvon-N, Darvocet)
PHENCYCLIDINE = PCP (Angel Dust)
KNOW WHAT DRUGS ARE DETECTED, Page 1
HALLUCINOGENS:
D-LYSERGIC ACID DIETHYLAMIDE: Known as LSD, acid, blotter
PSILOCYBIN: Known as mushrooms, caps, magic mushrooms, shrooms
PHENCYCLIDINE: Known as PCP, Angel Dust
METHYLENEDIOXYAMPHETAMINE: Known as MDA, ADAM
N-METHYL-METHYLENEDIOXYAMPHETAMINE: Known as MDMA, XTACY, XTC
METHYLENEDIOXYETHAMPHETAMINE: Known as MDE, EVE
MESCALINE: Known as peyote, chocolate mesc
INHALANTS: ACETONE, BENZENE, CHLOROFORM, ETHANOL, ETHYL ACETATE,
ISOPROPANOL, METHYL ETHYL KETONE, TOLUENE, XYLENE, DICHLOROMETHANE
DRUG INDUCED ASSAULT PANEL:
ROHYPNOL: (Flunitrazepam) Known as Roofies, KETAMINE, GHB and ANALOGUES:(Gamma-hydroxybutyrate) Known as Blue Thunder
KNOW WHAT DRUGS ARE DETECTED, Page 2
Interpretations of Results
Biological samples
Metabolic pathways
Screening vs. Confirmations
Prescription drugs
Understanding CreatinineCreatinine (“kre-at-tin-in”):
An orange colored substance produced by the body as a waste product –
responsible for the yellow coloration in urine.
Creatinine is produced and excreted at a fairly constant rate, so metabolism can
be measured to look at the function of the liver and kidneys.
The normal rate of creatinine is around 100 mg/dl on a random urine sample.
Creatinine measurement is used to identify flushing or tampering with the sample.
Any sample below 20 mg/dl indicates dilution.
Many common drugs of abuse are water soluble and can be artificially flushed
from the system.
Large amounts of fluids taken in a short period of time can just pass through the
body, by-passing normal bodily functions where drugs may be detectable.
Samples below 20 mg/dl are considered adulterated. They should be rejected
and recollected.
Creatinine also helps to identify specimens that have been submitted that are not
actual urine samples.
Legal Perspective: Caselaw on
Drug Testing
Routinely admitted… but be careful to have the right witness. (More later)
“Drug possession and use may be relevant to a parent's ability to care for a child. See generally State ex rel. CYFD v. Amanda H., 2007–NMCA–029, ¶¶ 26–27, 141 N.M. 299, 154 P.3d 674.” In re Montoya, 2011-NMSC-42, 30, 150 N.M. 731, 266 P.3d 11 (N.M., 2011)
At TPR, CYFD needs to present evidence that a substance abuse problem persists and is among the causes and conditions that are unlikely to change in the foreseeable future. See State v. Alfonso M.-E. (In re Uriah F.-M.), 366 P.3d 282, 296, 2016 -NMCA- 21 (N.M. App., 2015)
Potential Effects on Drug Testing
of the new BIA Guidelines on ICWA
“…substance abuse…does not by itself meet the standard of evidence” needed for TPR or foster-care placement. BIA: Quick Reference Sheet for State Agency Personnel in Involuntary Proceedings
To order foster placement or TPR, evidence must show a causal relationship between conditions in the home & the likelihood of serious emotional/physical damage to a child. §23.121(c)
At the Custody hearing: How can testing help arguments for and against “imminent physical damage or harm”? 23.113(b)(1)
After the Custody hearing: How can testing affect the ongoing evaluation of whether removal is still needed to avoid “imminent physical damage or harm”?
Legal Issues with Tests
Admission of drug test results in Abuse
and Neglect proceedings
Impact of admission of drug tests
throughout case on termination of
parental rights proceedings
Admission of Drug Tests in
Abuse & Neglect Proceedings
Hearings that do not apply the Rules of Evidence:
Custody Hearings
Judicial Review Hearings
Permanency Hearings (even when addressing change of plan)
DRUG TESTS ADMITTED THROUGH:
Caseworker testimony
Substance abuse provider testimony
Client admission
In-court testing
Admission of Drug Tests in
Abuse & Neglect Proceedings Hearings that do apply the Rules of Evidence:
Adjudication
Termination of Parental Rights
Any hearings that are NOT exempted from the Rules of Evidence, such as Guardianships, Orders to Show Cause, etc.
DRUG TESTS ADMITTED THROUGH:
Business record exception (Rule 11-802(6) NMRA 2015):
Made at or near the time by – or from information transmitted by – someone with knowledge;
Kept in the course of a regularly conducted activity of a business, institution, organization, occupation, or calling, whether or not for profit;
Making the record was a regular practice of that activity; and
Conditions are shown by the testimony of the custodian
Expert testimony
Client admission
Admission of Evidence
Through An Expert
(Summary of materials from NITA,
the National Institute for Trial Advocacy)
INTRODUCE the expert
QUALIFY the expert (credentials/experience/education)
TENDER the expert (“with a flourish”)
ASK for the expert’s OPINION
ELICIT the expert’s BASIS for the opinion
ELICIT the DIFFERENCES between your expert & the
opponent’s expert
CROSS-EXAMINATION
Impact of Admission of Drug Tests
on Future Proceedings, page 1
The issue of the relationship between contested
permanency/COP and TPR hearings
Even when the Rules of Evidence do not apply, consider
the application of DUE PROCESS requirements.
“[P]ermanency hearings determine the direction of the
proceedings and can increase the risk that the natural
family will be destroyed.” State ex rel. CYFD v. Maria C.,
2004-NMCA-83, ¶32.
Proceedings must be conducted with “scrupulous
fairness” to the parents when seeking to sever the legal
relationship of parent and child. State ex rel. CYFD v.
Mafin M., 2003 NMSC-015, ¶18.
NMSA 1978, § 32A-4-25.1– Requires opportunity to
present evidence and to cross-examine witnesses at
permanency hearing.
Impact of Admission of Drug Tests
on Future Proceedings, page 2
The issue of “unringing the bell” at TPR
State of N.M., ex rel. CYFD v. Brandy S., 2007-NMCA-135, 142 N.M. 705, 168 P.3d 1129
Mother argued the lower court committed “structural error” by taking judicial notice of hearings that occurred before the TPR hearing. Court found no evidence of improper reliance but cautioned lower courts to specify what is being judicially noticed.
MAKE DUE PROCESS ARGUMENTS AT SIGNIFICANT HEARINGS.
BE CAREFUL WHAT IS BEING JUDICIALLY NOTICED.
Drug Issues & Client Competency
How do you handle a parent who wants to stipulate
but may be under the influence?
When should a parent get a GAL?
Who should bring up the issue of a GAL?
Responses to Case Management
Perspective, page 1
When should drug testing be a part of a case plan?
Which tests are available, which tests should the
Department request, and how frequently should
tests be requested?
How do you work with parents to engage them in
substance abuse testing/treatment?
Responses to Case Management
Perspective, page 2
How do you address issues of a parent’s
access to testing because of
location/transportation challenges?
How do you address issues of prescription
medications and medical marijuana use?