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Challenging A Positive Drug Test In A VOP Hearing

Part 1 – The Certification of an Analyst.

Do you face an upcoming violation of probation hearing or a drug court sanction hearing for testing positive? The common tactic is to demand the presence of the analyst and persons in the chain of custody and hope someone doesn’t show up.  For a number of reasons, this tactic is often not effective, but more on that topic in another blog. Here we discuss a different tactic: challenging the sufficiency of an analyst’s certification to admit a drug report in a violation of probation (VOP) hearing.

To start, at a VOP hearing in Maryland, the State ordinarily introduces a laboratory report issued by Phamtech, (not PharmAtech, the international pharmaceutical company). Phamtech is the Department of Public Safety’s (DPS) statewide drug testing contractor.  It operates a high-volume laboratory in California, where it tests over 240,000 human specimens a year for DPS.  Overall, Phamtech processes about 4,000 specimens a day for criminal justice agencies and employers around the country. About 20% of the DPS specimens are reported to be “positive.”

A Phamtech report of a positive test result contains an automated signature of the “analyst,” who turns out to be the laboratory director, (who does not perform the bench work) certifying that Phamtech’s “facilities, personnel and procedures, [are] certified by the Maryland Department of Health and Hygiene-Office of Health Care Quality (DHMH-OHCQ) and [have] been approved by the Maryland Department of Correctional Services to perform laboratory tests.” This certification is required under Maryland’s “notice and demand” statute that provides prosecutors a shortcut to the admission of a drug report without having to produce the analyst as a witness at the VOP hearing.

It works like this. The prosecutor provides you with “notice” i.e., a copy of the certified drug report, which triggers your opportunity to “demand” the presence of the analyst and the persons in the chain of custody for the specimen. If you don’t timely or properly make a “demand” the prosecution can introduce the positive test report at the VOP hearing without testimony from live witnesses so long as the report satisfies the requirements of the “notice and demand” statute for VOP hearings. This statute requires the testing laboratory to be “certified” by the Department of Health and Mental Hygiene (DHMH) and “approved” by DPS, and further, that the chemist or analyst is “qualified” to perform the testing of human specimens under standards issued by DHMH.

Phamtech thus includes in its report the statement that its “facilities, personnel and procedures, [are] certified by the Maryland Department of Health and Hygiene-Office of Health Care Quality (DHMH-OHCQ) and [have] been approved by the Maryland Department of Correctional Services to perform laboratory tests.” (My emphasis).

The problem with this boiler-plate certification however, is that DHMH-OHCQ does not certify laboratories to test human specimens for non-clinical purposes like complying with a probation condition to “abstain from all illegal drugs.” Because detecting past drug use typically does not include medical observations in a clinical setting that a person is presently under the influence of alcohol or drugs, the interpretation of test results can be prone to error—particularly when there is an absence of validation for the level used to report a “positive.”  Heightened standards for quality assurance are therefore necessary to ensure reliability; these standards apply in the context of workplace drug testing.

Also, DHMH-OHCQ standards for clinical laboratories do not regulate the qualifications of chemists or analysts to perform tests of human specimens for the non-clinical purpose of determining whether a person has abstained from unlawful drug use. Although an analyst who is an employee of a law enforcement agency can be “certified” to test controlled dangerous substances, (COMAR 10.10.09.03) the scope of this certification does not include “specimens” of human blood, breath or urine.

The only relevant standards that are issued by DHMH for the testing of blood or urine specimens for the presence of CDS are contained in Health General sec. 17-214, which governs employer drug testing of employees. These standards impose heightened requirements for reliability (because of course, losing one’s job is more serious than a person on probation losing her liberty).  These heightened standards include:

(2) In addition to any other laboratory standards, the regulations shall:

(i) Require that the laboratory comply with the guidelines for laboratory accreditation, if any, as set forth by the College of American Pathologists, the Centers for Medicare and Medicaid Services, or any other government agency or program designated to certify or approve a laboratory that is acceptable to the Secretary;

(ii) Require that a laboratory performing confirmation tests for controlled dangerous substances or alcohol be inspected and accredited in forensic drug analysis by the College of American Pathologists, the Centers for Medicare and Medicaid Services, or any other government agency or program designated to inspect and accredit a laboratory that is acceptable to the Secretary;

(iii) Require that, if the laboratory performs job-related drug testing, the laboratory be a participant in a program of proficiency testing of drug screening conducted by an organization acceptable to the Secretary;

(iv) Require that the laboratory comply with standards regarding cutoff levels for positive testing that are established by the United States Department of Health and Human Services or established by the Secretary as mandatory guidelines for workplace drug testing programs; and

(v) Include procedures for annual recertification and inspection.

Md. Code Ann., Health-Gen. § 17-214 (West). This statute appears to provide the only “certification” relevant to drug testing of a human specimen. Under its contract with DPS however, Phamtech is not required to certify in its reports that it has complied with these heightened standards, including the “cutoff levels for positive testing” established for workplace testing.  Because DPS typically sets the cutoff for a positive at a substantially lower level than the corresponding workplace testing level, in the particular circumstances of an individual case, an effective tactic may be a challenge to the sufficiency of Phamtech’s certification (and hence the admissibility of the report), instead of demanding the presence of the chemist and challenging the weight of the expert’s opinion.

Check back for another blog about directly challenging the reliability and admissibility of drug test results.

Contact RaquinMercer today about a positive drug test result that threatens your probation, participation in a drug court program, or employment.

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