SOLICITOR'S DRUG PATCH FACES COURT TEST

A drug program designed to help offenders kick the habit and avoid jail
relies on a drug test that some participants contend is faulty and could
wrongly send them to prison for up to 10 years. Two men and a woman who
pleaded guilty to drug charges in order to join the Drug Court program face
termination in part, they say, because a Band-Aid-like testing device
called the "sweat patch" falsely showed they had used drugs.

A judge has heard testimony about the patch's reliability and will make a
decision on whether the three can remain in the program. Both sides say the
decision could spell the end of the program.

Thirteenth Circuit Solicitor Bob Ariail, who runs the Drug Court, said that
while there could be an occasional false-positive, the program is fair
because it provides the same opportunities to everyone.

"This is a program that serves criminals," he said. "These people are
criminals first and drug addicts second. Therefore, when they go into the
program they do so through the grace of the solicitor's office and in my
view they will follow whatever rules the program or the solicitor's office
deems appropriate."

Ariail said that given the nature of the program, it takes more than one
false positive to be expelled.

"A false positive is never going to get anyone kicked out," he said. "It's
going to have to be a multiplicity of events."

Neil Fortner, vice president of lab operations for PharmChem, makers of the
PharmChek Patch, said their patches have been the subject of many court
cases at the federal, state and local levels. "It has been widely upheld,"
he said.

Betty Strom, deputy assistant solicitor, said her office has full
confidence in the sweat patch and uses other drug tests as well.

"I don't think there's any test that is absolutely 100 percent fool-proof,
but we are confident in the reliability of the sweat patch," she said. "We
don't believe it is subject to contamination as the defense lawyers have
claimed."

Defendants calling for repeated hearings could undermine the program's
authority, she said, and even cause its demise.

"Hearings like this could potentially end the program," she said.

Ken Gibson, attorney for 37-year-old Cedric Perkins, said continuing use of
the patch could discourage people from volunteering for the program.

"Its integrity and very existence is at risk," he said. "A lot of people,
when they go into this program, take a huge risk. And I think it's highly
unlikely anyone will take the risk if they could end up going to jail for
an extended period of time even if they did everything right."

Drug Court, an 18-month treatment-based program, offers some defendants
accused of drug-related crimes a second chance, Strom said.

The defendants must plead guilty to all charges against them and be
sentenced. The charges are suspended and hang over the defendant as
incentive to complete the program.

Drug Court has used the patch since October 2002, Strom said. Everyone in
the program uses it unless they can prove ahead of time they have an
allergic reaction, she said.

Participants put it on their arm or back and wear it for seven to 14 days.
The patch is then taken off and sent to a lab, which tests for drugs
including cocaine, heroin, methamphetamines and marijuana, she said.

Strom said even though the patch and testing can cost twice as much as
urine testing, it's advantageous because it tests for a longer period of
time than the urine test, which has a range of about 48 to 72 hours. It's
also more convenient.

She said it takes just a few minutes to apply, allowing the person to go
about their lives. "Their daily routines aren't interrupted as often," she
said.

Since Greenville County Drug Court started using the patch, 910 sweat
patches have been applied and 57 have registered positive, Strom said.

Of the 57 positive tests, four people didn't later admit to the test or the
results weren't confirmed by another test, she said. Three of those four
people are contesting the sweat patch. A fourth person is a fugitive, she said.

While Gibson declined to allow his client to talk while the case was still
under the judge's consideration, Perkins' mother, Carolyn, says Drug Court
rescued her son from a 15-year drug habit.

She said it helped him stay sober for the last year. She believed him when
he called her earlier this year from jail, swearing he didn't violate the
program's conditions.

"This was the first time he asked for help," she said.

Attorneys for the three, however, say participants who test positive are
strongly encouraged to admit to using drugs or face termination for not
being honest, a cornerstone of the program.

"They're told to be truthful or face the consequences," said Jim Bannister,
attorney for one of the three. "The consequences of being truthful are
being kicked out of the drug court program."

Circuit Judge Charles Simmons decided to have a termination hearing for the
three defendants to hear evidence regarding the reliability of the patch.

Attorneys for the three called Dr. David Kidwell, a research scientist with
the Naval Research Laboratory in Washington, D.C., to testify as a private
citizen about his findings about the patch.

Kidwell said testing shows drugs are very difficult to remove from a user's
skin and could show up on the patch if their skin hasn't been cleansed
well, even if they've not used drugs for a while.

He said addicts who are now clean but still live in an environment
surrounded by drugs are subject to having drugs make contact with the
patch. He said the drugs can easily seep through from the outside.

Paul L. Cary, director of the Toxicology & Drug Monitoring Laboratory at
the University of Missouri Health Care, testified on behalf of the
Solicitor's Office.

He said no human endeavor is fail-safe, but the sweat patch is accepted by
the majority of experts in the scientific community as an accurate and
reliable method to test for drug use.

Experts say they don't agree on an accuracy rate for the sweat patch, and
that's why the courts have had to become involved.

"That's the question the court is really trying to answer," Cary said.

Kidwell said he doesn't recommend a drug court program stop using the
sweat-patch, but he does want results verified with a urine test.

Strom said that if a person used drugs on the first day he puts on the
patch it wouldn't show up on a urine test done two weeks later.

Gibson said he doesn't think that ensuring there are no false positives is
a priority of the Solicitor's Office.

"I think they're sort of willing to take the risk that some people who have
not in fact used drugs but come up positive on this sweat patch are going
to get kicked out of the program," he said. "I think they're OK with that."

Strom said allowing the participants to change the rules of the program
could ultimately undermine it.

"These people voluntarily go into this program," she said. "If the person
doesn't think we're doing what we should be doing, they don't have to come
into the program."

Perkins praised the program for helping her son. She said, though, that she
hopes they stop using the sweat patch.

"It is too unreliable to be relied on to take people's lives away from
them," she said.

Staff Writer Andy Paras covers crime and courts. He can be reached at 298-4220.