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

Collections

Observed vs. non-observed

Temperature

Sealing of samples

Shipping criteria for samples

Detection Methods

& Times

Urine

Saliva

Hair

Blood

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

Testing Methodologies

Immunoassay

GC/MS

On-site Products

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?

MORE QUESTIONS???