TEST ON TRIAL

DRUG-TESTING PATCH IS SUSPECT, AS IS ITS MAIN PROPONENT

In January 1998, Hank S. stood before a Los Angeles federal judge, facing
the possibility of prison for failing an allegedly faulty drug test.

The matter at issue was whether Hank, who does not want his real name
published, had violated the terms of the probation he was put on after
getting busted for marking cards in a Washington casino. As a former
cocaine abuser, Hank, 56, was required to wear a new type of drug-testing
device, a patch that monitors sweat for traces of illegal substances. One
day in October 1997, the patch said Hank had been doing cocaine. Hank swore
he had not; he had clean urine and hair tests, and letters from his drug
counselors attesting that he was staying straight, to prove it. The patch,
Hank insisted, must have made a mistake.

"I was scared shitless," he says. His wife needed a liver transplant at the
time, and if Hank was sent to prison, he would lose his salesman’s job and
she would lose his insurance coverage. And when he got out, well, "There’s
not a great market out there for unemployed 56-year-olds," he says.

To determine whether it was possible for the patch to have made such a
mistake, the judge heard from a single expert witness: Neil Fortner, vice
president of laboratory operations for the company that manufactures the
patch. No way, said Fortner. And Hank lost his case.

It’s hardly surprising that a guy in Hank’s shoes would deny using drugs,
but in his case and dozens of others like it, there’s reason to believe it
was the patch, not him, that wasn’t telling the truth. In recent years, the
patch has been slapped on thousands of people in Southern California and
around the country by a lengthening list of criminal-justice agencies and
courts. Its findings can determine everything from whether a drug addict
gets extra counseling to whether a mother in family court loses her
children. But despite the potentially life-altering power of its readings,
a growing body of evidence indicates that the patch is prone to mistakes.

The Band-Aid-like patch was introduced with a $1.5 million marketing effort
in the mid-1990s by PharmChem, a major Silicon Valley-based drug-testing
company. Worn on the upper arm or back, it offers several advantages over
conventional urine testing. A urine test will only detect drug use within
the previous 72 hours; the patch, however, can be left on for up to two
weeks, a constant chemical sentinel. It’s also much harder to deceive than
urine tests, which can be fooled by drug users who drink enough water to
dilute their pee, or who manage to tamper with the sample itself. (In one
memorable recent effort, a Texas heroin addict was caught trying to squirt
a sample out of a fake penis.)

The patch was purchased in July by drug courts in Inglewood and El Monte.
The Orange County Probation Department has used it since 1996, as has
Anaheim-based Sentencing Concepts, a private incarceration and drug-rehab
outfit that also re-sells the patch nationwide. The device is also stuck on
some 5,000 federal probationers and parolees across the country, and many
more people under the supervision of correctional agencies and courts from
Northern California to Massachusetts.

"We find it very useful," says Bill Daniel, director of adult field
services for the Orange County Probation Department, which currently
patches about 300 drug offenders. "It’s a reminder to parolees that they
can’t slip up, even if they’re outside our supervision for a few days."

The patch’s critics, however, claim that it has a serious flaw: a
propensity to indicate its wearers have taken drugs when, in fact, they
haven’t. Defense attorneys in Northern California have compiled a list of
dozens of people who, like Hank, came up with dirty patch results but clean
urine and/or hair tests. Several court challenges have so far failed to
prove the patch’s fallibility, but compelling new evidence currently being
introduced in another federal probationer’s case in Nevada may change that.
New scientific research points to flaws in the patch that could result in
false-positive readings. Moreover, Neil Fortner, the expert who has played
a key role in convincing courts across the country that the patch is
trustworthy, appears himself to have trouble telling the truth.

Fortner, 44, holds well over $100,000 worth of PharmChem stock options --
giving him an obvious interest in the success of his employer’s products.
By his own count, he has testified in "most" of the two-dozen-odd court
challenges to the patch’s accuracy -- sometimes as the only expert witness.

Bahia Wilson, who oversees Sentencing Concepts’ patch-sales arm, says she
has "no doubt whatsoever" that the device is reliable. What makes her so
sure? Primarily, Neil Fortner’s word, she says. "He is extremely credible,"
says Wilson. "His resume and credentials are beyond reproach."

In fact, Fortner’s credentials and credibility are eminently reproachable.
In Hank’s case and many others, Fortner testified under oath that he has
nearly completed a doctoral degree in neurochemistry at Cleveland State and
San Francisco State universities. But in letters sent early this year to
Nevada federal public defenders, officials at both universities declare
that Fortner has never been enrolled in any of their doctoral programs.
Cleveland State doesn’t even have a neurochemistry Ph.D. program. The
closest Fortner got to a doctorate was starting a master’s program, which
he has yet to finish, at Cleveland State in the late ’80s.

Fortner declined comment, saying it "wouldn’t be prudent" to discuss
matters in an ongoing case.

Questioning Fortner’s credibility alone, of course, doesn’t prove that the
patch doesn’t work. It has been cleared by the Food and Drug
Administration, and outside experts have vouched for it. They include one
of America’s most prominent toxicologists, Dr. Edward Cone of the National
Institute on Drug Abuse, who testified that the patch has been investigated
by a number of agencies around the world, "and generally they find that the
sweat patch is a very good means of detecting drugs."

The many clean-urine/dirty-sweat cases don’t necessarily prove anything,
either. Since urine tests cover only a short period of time, it is
theoretically possible for someone to take a pee test in the morning, get
high that afternoon and have the drug’s traces fade away before he fills
the next cup a few days later. But the ever-vigilant patch would record the
drug’s presence.

No one denies that the patch detects drugs — the problem is, it may detect
them too well. New research supports patch critics’ claim that in some
cases, patches are picking up drugs that their wearers did not ingest.
Preliminary results of research currently under way at the Naval Research
Laboratory in Washington, D.C., indicate that the patch can be permeated
from the outside — for instance, by minute traces of drugs that can linger
indefinitely in upholstery, clothing or money. The study also finds that
the isopropyl alcohol swabbed on the skin before the patch is applied does
not remove all traces of drugs, meaning that tiny quantities of drugs on a
wearer’s arm before the patch was applied can trigger a false positive.
These are significant risks, since it takes only a tiny amount of a drug --
10-millionths of a gram -- to trigger a positive.

PharmChem also has not conducted studies on how long methamphetamine is
stored in the body, meaning there’s a chance that traces of drugs taken
long before the patch was put on could be excreted onto it. Nor are there
studies on whether passive exposure to methamphetamine -- for instance, by
inhaling someone else’s secondhand meth-smoke — could trigger a
false-positive.

Sheryl Woodhall figures one of those possibilities happened to her. She’s
one of at least half a dozen Northern California parents who have lost
their children because of questionable patch tests. Thanks to her admitted
drug use, the local child-welfare authorities required her to submit to
regular drug testing. Over a period of a couple of months last year, she
had consistently clean urine tests, but several dirty patches. "I swear on
my life I wasn’t using anything," says Woodhall. But later, she says, she
discovered that her boyfriend was; somehow, she thinks, meth traces at his
place or on his body infected her patch. Her two youngest children are now
in foster care.

Hank was luckier. Instead of jail, the judge just ordered more conditions
added to his parole. Hank’s not wearing the patch anymore. He says his
parole officer lost faith in it after he had Hank wear two patches
simultaneously -- and saw them come up with conflicting results. (The
parole officer refused comment.) But someday, Hank may just have to wear
the patch again for a different reason: PharmChem is seeking federal
approval to market it for workplace drug-testing. "We believe it could have
wide use once it’s approved for the private market," says PharmChem CEO
Joseph Halligan.

That, suggests Nevada federal Public Defender Franny Forsman, is why the
company is so eager to see it validated in the criminal courts. "PharmChem
wants to use our clients as a steppingstone to the private-employer
market," says Forsman. "That’s where the big money is."

"Until they settle all the doubts that have been raised," says Hank’s
lawyer, deputy federal Public Defender Guy Iversen, "they should cease
using it altogether."