WHEN THE TEST FAILS

Discrepancy Between Testimony And Lab Reports In The Drowning Of Irish
Student Katharine Kinsella In Hyannis Calls The Reliability Of Drug Testing
Into Question

HYANNIS - Several people allege they saw a man smoking marijuana, yet he
passes a drug test the next day.

How can both things be true?

What's more believable, eyewitness accounts or scientific tests done in a
government-certified laboratory?

Just over 80 percent of America's large companies use drug testing for
their employees, and the practice is especially prevalent in the fields of
transportation and public safety. The rate of positive test results is
dropping, mostly because of the decline in drug use, but the reliability of
the tests has been called into question by scientific and legal authorities.

Testing is not always just a matter of positive or negative results.

Those concerns, and the gap between what people say they saw and what was
revealed in drug tests required by federal law, are only making the mystery
surrounding the death of Catherine Kinsella a little murkier.

The 20-year-old Irish college student fell from the Sea Genie II cruise
boat July 22 and drowned. Within days of Kinsella's death, four other
passengers claimed that Sea Genie II crew members were smoking marijuana
and drinking during the fatal cruise, which may have impaired their ability
to rescue Kinsella as she floundered in the waters of Hyannis Harbor.

Drug and alcohol tests for the crew, mandated by federal regulations in the
case of such a fatality, were taken just the next day, and came back negative.

But during sworn testimony last month at a town hearing in a related matter
on the case, 20-year-old Falmouth resident David Crosbie said he not only
bought marijuana for Sea Genie II helmsman Cord Shore of Hyannis, but
smoked it with him during the cruise.

Crosbie also said he is a recovering addict who was using drugs heavily
last summer, and that he drank five beers during the cruise.

The Coast Guard has identified Cord Shore as one of three crewmen on the
Sea Genie II that night, along with his father, Joseph Shore, and Lower
Cape resident Robert Harris.

Now another witness has come forward to allege he saw Cord Shore smoking
marijuana two days before the fatal cruise.

Jack Curry, who lives next to Shore on Scudder Avenue, said he saw Shore
and three or four other men passing around what appeared to be a marijuana
cigarette in the late afternoon.

"They were standing around drinking beer and smoking a joint," said Curry,
62, a retired building inspector. "It's been going on for years."

Curry said he complained to police twice a few hours later about loud noise
from the Shore house.

Police records corroborate Curry's claim, and show that police also
responded to complaints about Shore's residence at 180 Scudder Ave. on
seven other occasions from August 2000 to October 2001.

Curry's assertion about Shore allegedly smoking marijuana two days before
the July 22 cruise does not mean that Shore would have gotten to the boat
intoxicated, since the drug's effects would have worn off by then.

But combined with the assertions of Crosbie and the four other passengers,
it does cast doubt on the validity of drug tests taken by Sea Genie II
crewmen the day after Kinsella drowned.

A person smoking marijuana two days before a drug test, and on the night
before, should almost certainly test positive for the drug, according to
Robert Franey of Cotuit, owner of the Cape-based drug testing company
Franey Medical Labs for 23 years.

"There's no question that it should show up in the urine," Franey said. "If
you have someone who has smoked a joint, you are going to be able to
measure it in the urine within four hours."

The presence of so-called metabolites in a person's urine or blood can be
detected for weeks after ingestion, Franey said.

The metabolites are byproduct substances created in the body's
metabolization of the active ingredients in marijuana and other drugs.

Repeated attempts to contact Cord Shore for comment were unsuccessful.
Joseph Shore, reached at his off-season residence in Newton, declined to
comment. Robert Harris could not be located.

Testing rises along with criticism

The extent to which drug tests reliably measure and deter drug use has been
hotly debated for years.

At the time of President Reagan's push for "drug-free federal workplaces"
in 1987, only 21 percent of large U.S. companies had drug- testing
programs, according to the American Management Association.

By 1996, the percentage had grown to 81 percent. The aviation industry
alone spends an estimated $14 million annually to test its employees.

By some measures, testing appears to have helped reduce drug use in the
workplace.

SmithKline Beecham Clinical Laboratories, a large testing lab, reported
that positive test results dropped from 18 percent in 1987 to 5 percent in
1997.

But testing in the 1980s was largely "for cause," when a suspicion of drug
use existed. As testing became more common, the pool of workers tested
increased, thereby pushing down positive test results.

The downward trend also reflected a drop in drug use that began in the
early 1980s, according to the American Civil Liberties Union, prior to
workplace testing taking hold.

While Franey and other drug-testing professionals are convinced that
testing leads to safer and more productive workplaces, critics are not so sure.

In September 1999, the ACLU published "Drug Testing: A Bad Investment," a
harshly critical 28-page report.

In 1990, the report's authors wrote, the federal government spent $11.7
million to test specific workers in 38 federal agencies.

"Out of nearly 29,000 tests given, only 153 (.5 percent) were positive,"
the report states. "The cost of finding a single drug user was therefore
estimated to be $77,000."

Estimates of lost productivity from drug use, with little empirical
evidence to support them, have risen wildly from $33 billion in 1980 to
$100 billion three years ago.

Beating the tests

Complicating efforts to ferret out workplace drug use are the growing ways
that drug users employ to beat drug tests.

"There seems to be no limit to the imaginative methods used by some drug
users to avoid detection," wrote author Jacques Normand in his 1994 book,
"Under the Influence? Drugs and the American Workplace."

The current issue of High Times magazine, a publication aimed at illicit
drug users, provides several examples of products sold for drug users who
may face testing.

They include the "Whizzinator 5000," a $149 "undetectable! foolproof! and
re-usable!" prosthetic penis in five "natural, lifelike skin tones."

Substitute urine is placed in the device's 4-ounce vinyl bag, with its
"organic heat pads" to simulate urine's presumed body temperature.

An ad for the Web site www.PassTheDrugTest.com, aimed at drug users with
"high toxin levels," offers $30 vials of adulterants to alter drug tests,
do-it-yourself tests for $30 and "masking shampoo" at $35 for those who
must provide hair samples.

Procedures and precautions

With a fatal marine accident such as Kinsella's drowning, strict federal
guidelines imposed by the Department of Transportation are in effect for
each stage of drug testing.

The guidelines call for strict conditions in place at medical offices where
samples are gathered.

At the TRU-MED offices in Hyannis for example, those being tested must
provide a photo identification to the receptionist and the "collector"
performing the test, according to Mark Byrnes, a TRU-MED medical assistant.

A separate restroom is used for urine tests, with no running water and hand
towels. The water in the toilet is dyed blue or black to discourage
tampering with samples.

The sample is tested within four minutes for temperature, and must fall
within a range of 90 to 100 degrees Fahrenheit.

"If someone provided a urine sample where there was no temperature, they
would be asked to stay and the next time they went to the restroom they
would be observed," Byrnes said.

A person appearing for testing intoxicated would also trigger the
requirement for direct observation, but "it doesn't happen very
frequently," Byrnes said.

The carefully marked sample, signed off by both the person being tested and
the collector, is then sent to a federally certified out- of-state
laboratory for testing.

"We're not in the business of testing urine, we just collect it," Byrnes said.

A strict "chain of custody" must be maintained for the testing process to
withstand possible scrutiny in court.

Once at the lab, the sample is searched for evidence of five drugs -
marijuana, cocaine, heroin or other opiates, amphetamines and PCP.

That the three Sea Genie II crewmen provided urine samples alone, according
to the Coast Guard, and not blood as well, is not that unusual.

Nearly all drug testing in the U.S. - 95 percent - comes via urine samples.
Blood and hair samples comprise the remaining 5 percent.

More than two outcomes

Perhaps surprisingly, federal regulations don't call for just test results
- - pass or fail - but several possible outcomes and numerous combinations
between them.

A "negative" test result is one that can occur, where no traces of drugs
are found. But another possible outcome is "negative-dilute."

"When they say 'dilute,' usually that means that the urine was, in laymen's
terms, very watery," said Franey, most likely from copious consumption of
water, juice or other fluids.

Such an outcome does not always mean that a person will fail a drug test,
but "I would be very suspicious of what happened," Franey said.

Robert Bianchi, the attorney for Sea Genie II owner Michael Wyman, said the
test results for all three crewmen came back "negative," not
"negative-dilute." Bianchi said lawyers for the crew, whom he declined to
name, refused to allow the release of drug test documentation to
substantiate the results of the testing.

But had the Sea Genie II crew members failed the tests, Bianchi said,
Joseph Shore would have lost his license and the two others would have not
been allowed to return to work on the boat. He said the Shores, and perhaps
Harris, but he was not certain, were back to work on the Sea Genie "within
a couple of weeks."

Another test result category is known as substitute.

"One of the most common things is to smuggle someone else's urine," said
Ray Tamasi, CEO of the Gosnold treatment center in Falmouth.

Subjects for testing have been known to smuggle in their children's urine
and, in some cases, even that of pets.

The drug screening performed at Gosnold is less elaborate than the drug
testing done off site, with a small, chemically treated panel dipped in a
urine sample and the results shown within minutes.

If screening comes back with a positive result, "we send it to be further
tested" at Franey's laboratory, Tamasi said.

Occasionally a "very exotic explanation" accompanies a positive screening,
Tamasi said, but more often the person admits to a slip.

"Dealing with this illness is very challenging both for the clinicians and
the patient," Tamasi said. "The best of intentions to be clean and sober
sometimes suffer under the compulsion to use drugs."

Then there are the nightmare situations when those not using drugs fail the
test - a "false positive" - and others who are users emerge triumphantly
with "false negatives."

According to the Forensic Drug Abuse Advisor, over-the-counter
decongestants may trigger positive tests for amphetamines, as will common
brands like Sudafed and the Vicks inhaler.

A prescription for codeine produces the same metabolite as heroin, and so
will a poppyseed bagel, but at a very low level.

Until testing procedures were changed in 1986, common drugstore products
containing ibuprofen such as Advil would trigger a positive result for
marijuana.

Another potential problem with urine tests is that they measure past use,
not if a person is intoxicated when the test is taken.

"It cannot be overemphasized that without confirmatory testing and careful
medical review, treating the results of urine drug screening as evidence of
drug use is unacceptable and scientifically indefensible," stated a
National Academy of Sciences report on drug testing.

But drug testing is not about to fade from the workplace and pending court
cases will decide the extent to which public schools can impose it.

"It's a violation of people's rights, but the overwhelming factor is the
safety of the public," Franey said.