Challenging Drug test Results
The very first thing that you need to do if your drug test comes back positive is to ask that it is confirmed. If the confirmatory test also comes back positive then the next thing that you can do is challenge the result and the test procedures. Your challenge could be based on a variety of factors including the reason for the test, the method used in the confirmatory test, other procedure used, or that there was a cress-reactivity that caused the positive result.
Under the Constitution's Fourth Amendment, the government is not allowed to invade on the privacy rights of citizens. This means that there must be "probable cause" in order for a search and seizure to be legal. Under the Fifth Amendment the government is prohibited from forcing you to testify in a way that might involve self-incrimination. The actions of the government are limited by these two Constitutional amendments. The restrictions apply to both government employees and general citizens. This means that there are special protections in place for people employed by the government that would not necessarily apply to people employed in the private sector. One example is that government employers can only conduct a drug test (which is a type of search) when there is "probable cause". If you are employed by the government then your lawyer may wish to challenge the validity of the drug test if he or she believes that there was an absence of "probable cause", which basically means that there was no good reason for making you take the test. These types of challenges have been successful in the past, but they are more likely to succeed when it is a class action. When an individual employee tries to use a constitutional defense in relation to a drug case (especially a random drug test) it can be a very expensive and long process.
If you test positive then you should ask your Union, if you are a union member, for help. Unions have been successful in defending their members throughout the legal proceedings that have been brought for unfair drug testing.
Challenge based on Cross-Reactivity
Drug test results may be challenged based on cross-reactivity. You may be able to argue that there was another substance in your urine sample, for example a prescription or over-the-counter medication, and this was responsible for causing the positive result. Your employer will usually use a more accurate and sophisticated testing method to confirm the initial positive result. These tests are less likely to pick up cross-reactivity and their results are usually thought to be conclusive. The confirmation is usually conducted on the original sample that you gave, but in some circumstances the tested will ask for a fresh sample. If this happens to you then it would be a good idea to stop taking all other substances immediately so that you have an increased chance of removing any traces of drugs from your system.
Challenging a Confirmatory Test
You may wish to argue that the initial urinalysis result was not confirmed using a proper method, or that the test was not carried out according to proper procedures. In these circumstances you could be entitled to sue your employer for negligence. The reason behind a negligence action would be that the employer and the test conductors have a legal obligation to follow the directions set out by the manufacturer of the drug test and to ensure a proper confirmation of the initial results from the screening test. If they fail to satisfy these requirements and as a result you suffer disciplinary action such as loss of work, this can be sufficient to justify a lawsuit.
Challenging the Drug test Procedure
You may also be able to challenge the procedure involved in the drug test. These could include the custody chain, monitoring and so on. You will usually need a lawyer or Union to assist you in making these challenges.
Chain of Custody
The "chain of custody" refers to the way that the urine sample and results are monitored in order to prevent any tampering. The custody chain begins when the urine sample is collected and it continues until the test results are reported to the employer. Various strict procedures are put in place during the chain of custody phase. These include ensuring that the samples are properly sealed, ways that the samples are controlled, transported and received in the laboratory and the supervision of testing in the laboratory. The sample must be signed for by an authorized person at each step of the process. A weakness in the chain of custody may mean that the results can be successfully challenged.
The fact that a urine sample may be used as evidence before the courts means that there are strict standards designed to regulate the way that the samples are collected, handled and analyzed. The collection of urine, saliva or blood for a drug test must be observed. For instance, say that a person has to give a blood sample and this is taken by a doctor. The doctor will then become the first person involved in the custody chain. The legal implications of the chain of custody are rarely understood by doctors. They will generally abide by the standards in place in a clinical laboratory unless they are properly informed of the legal standards. A smart attorney will often be able to challenge this successfully.
The collector of the blood sample is obliged to testify in relation to the procedures around the collections. Similarly, they would have to testify that the container was correctly labeled with the name of the donor and other information that can be used to identify it such as the time, date and type of receptacle used. The custody chain continues throughout the laboratory process until the initial results have been confirmed.
There are several serious errors that can be made involving the way that a sample is documented. When one of these fatal flaws occurs it means that the lab is required to reject the sample. These fatal flaws include:
- The ID numbers on the specimen container and the CCF are not consistent.
- The specimen container is missing an ID number.
- There is not enough urine in the container to perform the lab test.
- The specimen container is missing a label or seal, or the seal is broken or has been tampered with.
- The specimen shows signs that it has been adulterated, for example strange colors, odors or a foreign object.
There may be other errors that are considered fatal flaws where the collector is unable to provide the relevant information to the lab in writing.