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
Time Line for Drugs of Abuse Testing 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 30 day segment 60 day segment 90 day segment 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 APPROXIMATE DAYS of DETECTION
AMPHETAMINES 48 hours 500-2000 ng/ml DRUG INDUCED ASSAULT 12-24 HOURS [6-12 HOURS RECOMMENDED] 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
KNOW WHAT DRUGS ARE DETECTED, Page 1 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 2 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
Testing Methodologies Immunoassay GC/MS On-site Products
Interpretations of Results Biological samples Metabolic pathways Screening vs. Confirmations Prescription drugs
Understanding Creatinine Creatinine ( 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???