DRUG TEST NATION

Get A Whiff Of The New Pot-Sniffing Technologies, Coming To A Highway Near You

One look at the Cozart RapiScan, a self-proclaimed complete "on-site
oral fluid drugs of abuse diagnostic system," and it's obvious: This
isn't your parents' drug test. Gone are the golden days of the plastic
collection cup. The Cozart saliva testing system comes in a spiffy
silver suitcase and consists of an oral fluid collection swab, a
disposable test cartridge, its own handheld digital computer, and a
portable printer "for a permanent record of test results."

The official U.S. distributor of the RapiScan, The Dominion
Diagnostics Corporation, was one of many hi-tech exhibitors hawking
their wares in Tampa last spring at a meeting of corporate drug
testers, toxicologists and law enforcement officers, sponsored, in
part, by the Office of National Drug Control Policy (a.k.a. the Drug
Czar's office). But this White House backed gathering was no trade
show. The purpose of this symposium-and the intent of the bodily fluid
snoopers in attendance-was to call for an unprecedented,
government-mandated expansion of both drug testing and the application
of new drug screening technology-and not just for those within the
workplace. And the pee police may be close to getting their wish.

Random drug testing in the workplace rose to prominence in the
mid-to-late 1980s, embodying the zeitgeist of the nation's "War on
Drugs" fervor. In 1986 President Ronald Reagan signed Executive Order
12564, requiring federal employees to be drug free on and off the job.
Four years later the U.S. Supreme Court ruled 5-4 in the case National
Treasury Employees Union v. Von Raab that suspicionless employee drug
testing does not violate the Constitution's Fourth Amendment
protections against unreasonable searches. These executive and
judicial moves paved the way for the unprecedented growth of workplace
drug testing within the public and private sector. By 1991, 62 percent
of large U.S. companies were forcing their employees to "drop trou" as
a condition of employment-a figure that in recent years has dropped
slightly, but still stands at roughly 50 percent. Of the nation's
approximately 1.6 million federal workers, some 400,000 may now
undergo some form of drug screening.

Not surprisingly, this surge in the number of Americans peeing on
demand has coincided with an explosion of alternative drug testing
technology. In recent years, firms touting unconventional drug screens
of citizens' hair, sweat, and saliva have emerged, each proclaiming
its state-of-the-art gadgetry to be the heir apparent to the piss cup.
For the most part, however, employers have been unconvinced. Despite
promises of the tests' purported "increased sensitivity" and "less
intrusive nature," federal and private employers have generally been
unwilling to rely on such Brave New World methods, virtually all of
which remain largely unproved by the scientific literature and lack
approval from the Food and Drug Association.

Thanks to the work of groups like DATIA, the Drug & Alcohol Testing
Industries Association, things are about to change.

According to its website, DATIA is "a 1,200-member national trade
association representing the full spectrum of alcohol and drug testing
service agents, including laboratories, collection sites, ... and
[drug] testing device manufacturers." In layman's terms, it's the
lobbying arm for the drug testing industry.

DATIA's mission includes "working closely with key policy makers in
federal agencies and in Congress to ensure that the interests of the
industry are heard." Recently, the group's chief focus has been to
push the U.S. Department of Health and Human Services to amend the
federal workplace guidelines so that federal agencies can conduct drug
screenings of employees' hair, sweat, and saliva. (Existing federal
regulations mandate drug testing programs rely on urine screens only.)

Such a change, DATIA hopes, might finally kick-start private employers
to use alternative specimen technology. It would also financially
benefit several of the organization's members, many of whom have a
significant financial stake in the expanded use of alternative drug
screening methods.

Last April, the government finally granted DATIA's wish, proposing to
overhaul the feds' drug testing regulations to encourage agencies to
use alternative testing methods. Ironically, the proposal came at a
time when positive drug tests among federal employees are at record
lows. (Of those federal employees tested for drugs last year, only 532
peed positive, at a staggering cost to taxpayers of $11,466 per
positive test result.)

Meanwhile, the agency backing the plan, the Department of Health and
Human Services' Substance Abuse and Mental Health Services
Administration (SAMHSA), has criticized the new technologies as
seriously flawed. According to SAMHSA's April 2004 "Proposed Revisions
to Mandatory Guidelines for Workplace Drug Testing," hair testing,
saliva testing, and sweat patch testing all have significant
limitations.

In the case of hair testing, which detects drug metabolites (inactive
compounds indicative of past drug use) that have passively diffused
from the blood stream to the base of the hair follicle, the agency
warns that both environmental contamination and hair color can
significantly impact the accuracy of the test. "The role of hair color
is... a major concern," SAMHSA says, noting that "data show that
higher concentrations of some drugs are found in dark hair when
compared to blond or red hair." Studies have demonstrated similar
testing inconsistencies when screening for drugs among ethnic
minorities, particularly African Americans.

Environmental contamination-such as a scenario where the individual to
be tested was recently present in a room where others smoked
marijuana-also may negatively affect the accuracy of saliva testing,
SAMHSA says. As a result, the feds are encouraging agencies to also
collect a urine sample "at the same time the oral fluid specimen is
obtained" for confirmation testing-although doing so will more than
double the high costs already associated with specimen collection
while, at the same time, likely yielding confounding results.

Regarding the efficiency of sweat patch testing, SAMHSA notes, "The
Department knows from direct experience ... that some individuals may
not be able to wear the sweat patch for the optimal period of time."

The fact that federal bureaucrats are willing to brush aside such
technological concerns in their rush to break bread with the drug
testing industry is illustrative of the growing political power
wielded by America's bodily fluid inspectors. But for the drug
detection cabal, invasive testing by employers is just the first step.
The next is to extend bodily-fluid-sniffing from the workplace to the
roadways-and enlist the full coercive powers of the state to do so.

For the past several years drug testing superhawk Michael Walsh, a
former Associate Director to the Drug Czar and current president of
the drug testing and lobby organization the Walsh Group, has led the
charge to apply workplace drug testing standards and regulations to
all licensed U.S. drivers. In 2002, Walsh partnered with the White
House to lobby state legislatures to amend their drugged driving laws,
arguing that states should no longer require "impairment" as a
necessary condition for prosecution. Instead, Walsh asserted that
prosecutors simply charge all drivers who test positive for any level
of drugs or drug metabolites as a criminal drugged driver-even if the
motorist is neither under the influence nor impaired to drive!

As a result of Walsh's lobbying efforts, eleven states-Arizona,
Georgia, Illinois, Iowa, Indiana, Michigan, Minnesota, Pennsylvania,
Rhode Island, Utah, and Wisconsin-have now adopted such legislation,
known as "zero tolerance per se" laws. At last spring's conference in
Tampa, Walsh and his peers demanded Congress get into the act and pass
legislation mandating all 50 states to enact models of his zero
tolerance bill. Sure enough, federal politicians are champing at the
bit to do just that.

Less than one month after the Tampa symposium, bi-partisan legislation
was introduced in Congress granting police the power to drug test
drivers and arrest anyone found to have "any detectable amount of a
controlled substance ... present in the person's blood, urine, saliva,
or other bodily substance." Despite the proposal's purposefully
misleading title, H.R. 3922: The Drug Impaired Driving Enforcement
Act, did not, in fact, require motorists to be identifiably impaired
or intoxicated to be criminally charged with the crime of "drugged
driving." Rather, as in the workplace, subjects need only test
positive for inert drug metabolites (which, in the case of marijuana,
may linger in the urine for days or even weeks after smoking) to be
found guilty. Only this time, violators won't be losing their jobs;
they'll be going to jail.

Despite H.R. 3922's sweeping intent to criminalize otherwise
non-criminal behavior (driving while sober), congressional
representatives in the summer of 2004 added the measure to the
transportation reauthorization bill and promptly rubber-stamped it
through the House without so much as a single hearing. However, much
to federal lawmakers' chagrin (and, no doubt, to the disappointment of
many within the drug testing industry as well), the bill eventually
died in conference committee.

That's not to say America's pee police won't be back for another round
this year with new and even more expansive proposals. In Tampa,
attendees contemplated plans to enact random roadside drug testing
checkpoints, while DATIA's legislative agenda for 2005 focuses on
expanding the prevalence of student drug screening. Like it or not,
it's dangerously clear the drug testers will not rest until every
American has submitted to their inspection, and with more and more
politicians in their pockets, they just might succeed.

Paul Armentano is the senior policy analyst for NORML and the NORML
Foundation in Washington, DC. His writing has appeared in The
Washington Post, The Washington Times, The Christian Science Monitor,
Ideas on Liberty, Mises.org, and has been syndicated by United Press
International (UPI).