Drug and Alcohol Testing
Drug and alcohol testing are a subject most of the population is familiar with today. Employment can often hinge on a positive or negative test result. Within the media, we have heard about failed drug tests by famous athletes or celebrities, and it makes the news. We see examples in movies and on T.V. where someone is confronted by their employer with a plastic cup in a bag for a urine sample. Frequently seen, blood is drawn, hair samples are taken, or fingernails are cut and sent to labs for establishing the presence or absence of illegal substances. Regardless of the method, it has become commonplace in today’s society. More than likely we, or someone close to us, has had to take a drug or alcohol test for one reason or the other.
It is an unfortunate fact that drug and alcohol testing has become one of the more frequent practices in divorce cases, mostly used as a factor in determining conservatorship and possession and access issues to prove or disprove drug and alcohol usage and allegations of substance abuse. New types of testing have been developed to help determine what a person may be using illegally. In family law, drug and alcohol testing can be used by both parties involved. Admission of drug or alcohol abuse is difficult to come by voluntarily, and testing can become a valuable truth serum. If you are a divorcee’ and are subject to testing, or want your spouse tested as evidence in your case, you need an experienced family law attorney representing you and your family to evaluate what your specific situation requires.
DRUG TESTING is not as simple as it appears on the surface. There are many nuances and variables, and they must be known and understood to know exactly what a drug test means or does not mean. Some of the most common tests and their applications include:
- Saliva & Urine Instant Drug Testing Kits: Oral fluid testing is becoming more popular but must be used for the right circumstances. Two types of oral fluid testing exist. One is an instant test providing results within a few minutes. This is a screen only and should always be sent to the lab for a confirmation test. The window of detection is usually less than 24 hours.
- Urine Testing: Urine is the most common sample type used to detect drugs. It can test a broader range of legal and illegal drugs compared to other types of samples. The detection window is usually a few days to a week with some prescriptions up to several weeks. Marijuana has a greater window of detection up to 30 to 40 days for chronic users and occasionally longer. It is the best type of test to detect very recent drug use and for random testing.
- Hair Testing: It is not a “hair follicle test.” The hair is cut as close as possible to the scalp with the follicle remaining under the scalp. “Hair test” accurately describes the test being performed. Drugs are captured in the core of the hair as blood passes through the hair follicle. The standard test from head hair covers a 90-day window of drug use. The most recent two weeks is eliminated since the hair is growing from follicle to above the scalp plus the thickness of the scissors. During the collection of the sample, the hair is cut as close as possible to the scalp or body. It takes multiple uses to test positive in the hair under normal drug use. A one-time use of the average amount of drug will not normally be above the cutoff level.
- Nail Testing: Nail testing is relatively new in drug testing but is rapidly becoming the preferred test over hair. The detection of a drug in nails is accurate just as it in hair. The window of detection is 3 to 5 months for fingers and 8 to 12 months for toenails but varies based on the rate of growth of the nail. Like hair, fingernails and toenails are composed of a hard protein called keratin. Drugs are incorporated into nails from the bloodstream and remain locked in the nail as it grows. Nails grow in both length and thickness. Drugs enter the nail from the base (cuticle end) as the keratin is formed and via the nail bed that extends under the full length of the nail.
ALCOHOL TESTING can be just as complicated and serves many purposes in family law. Frequently used types of alcohol testing in family law include:
- Urine: The presence of EtG and EtS in urine indicates that ethanol was ingested. Ethyl Glucuronide (EtG) and Ethyl Sulfate (EtS) are a direct metabolite of alcohol (ethanol). EtG/EtS has emerged as the marker of choice for alcohol due to the advances in technologies. Its presence in urine may be used to detect recent alcohol consumption, even after ethanol is no longer measurable using the older methods. The presence of EtG/EtS in urine is a definitive indicator that alcohol was ingested. Other types of alcohol, such a stearyl, acetyl and dodecanol, metabolizes differently and will not cause a positive result on an EtG/EtS test.
- Hair & Nails: EtG alcohol testing is now being performed in hair and nails to indicate if binge or chronic drinking has occurred in the previous 3 months. This test will not pick up casual drinking. The individual must be a chronic/binge drinker to get above the cutoff level. Binge drinking is normally defined as 4 or more drinks within a two-hour period for females and 5 or more drinks for males.
- Blood: Phosphatidylethanol (PEth) is a relatively new test for the drug testing industry to detect moderate to chronic alcohol consumption. Five blood spots are collected from the tip of a finger eliminating the need for a blood draw. It is a fast and convenient way to test for alcohol. The test can differentiate between incidental exposure (hand sanitizer use, etc.) and the consumption of alcohol. The window of detection is 2-3 weeks.
- Breath Testing: SOBERLINK is a handheld breath analyzer that remotely monitors a person’s blood alcohol content (BAC). Within seconds and from any location, a subject’s BAC, digital photograph of the person, GPS location and the time of the report are compiled and sent to a secure monitoring website and within two minutes the BAC result is transmitted by text and/or email to the ex-spouse, attorney or any party designated to receive the test results. The mobile device is practical, convenient and eliminates the need for the person to travel to a drug testing facility to give a urine sample and then wait 2-3 days before the results of the tests are back from the lab. The devices are compact and claim to travel easily with the individual anywhere in the US and overseas. It allows the individual to prove compliance and abstinence while maintaining their dignity and quality of life.
In some cases, there will be testimony from an expert regarding the test results. This is frequently conducted in termination cases where there is a higher standard to get test results in evidence. Expert testimony may also be necessary to explain the testing results. The testimony and evidence of the expert must be shown to be relevant and reliable.
REFUSAL TO TEST
If a party refuses to participate in testing during the case, this does not necessarily mean that there is no evidence of illegal drug usage by that party. The court may infer illegal drug usage by a party’s refusal to take a drug test. The Court may also infer illegal drug usage by shaving of head hair or body hair in order to avoid being tested.
If exposed or subject to drug and or alcohol testing ordered by the Court as part of a family law case, seek counsel from a family law professional trusted by North Texas residents. Mark L. Scroggins is a board-certified family law attorney with over 25 years of legal expertise. Scroggins Law Group has 3 DFW area offices, proudly serving Dallas, Denton, and Collin counties. Find us online at www.scrogginslawgroup.com or call to set up a confidential consultation today. 214-469-3100.
The examples referenced in this discussion are all forensic tests, therefore HIPAA regulations do not apply. A forensic test means testing is looking for evidence of the drug and drug metabolites in the specimen to be tested.