four key issues for court- directed drug testing by: paul l. cary toxicology laboratory university...
TRANSCRIPT
Four Key Issues for Court-Directed Drug
Testing
By: Paul L. CaryBy: Paul L. Cary
Toxicology LaboratoryToxicology Laboratory
University of MissouriUniversity of Missouri
The law is not black and white and neither is science.““. . there is a substantial gap . . there is a substantial gap between the between the questions that the legal community questions that the legal community would like would like to have answered by drug testing to have answered by drug testing and the answers and the answers that the scientific community is that the scientific community is able to provide. able to provide. The real danger lies in the legal The real danger lies in the legal community’s failure to “mind the community’s failure to “mind the gap” by drawing unwarranted gap” by drawing unwarranted inferences from drug testing inferences from drug testing results.” results.”
Four Key Issues interpreting urine drug testing interpreting urine drug testing resultsresults
eliminating the use of urine drug eliminating the use of urine drug levels in court proceedingslevels in court proceedings
establishing a pragmatic establishing a pragmatic cannabinoid detection windowcannabinoid detection window
monitoring alcohol abstinence monitoring alcohol abstinence using EtG determinationsusing EtG determinations
Interpretation ofUrine Drug Test
Results
Negative or None Detected Results
indicates that no drugs or breakdown indicates that no drugs or breakdown products (metabolites), tested for, products (metabolites), tested for, were detected in the sample testedwere detected in the sample tested
no such thing as “zero” tolerance or no such thing as “zero” tolerance or “drug free”“drug free”
negative does not mean NO drugs present negative does not mean NO drugs present
Negative/None Detected Interpretation
client is not using a drug that can be detected by the test client is not using a drug that can be detected by the test
Other possible explanationsOther possible explanations client not using enough drugclient not using enough drug client’s drug use is too infrequentclient’s drug use is too infrequent collection too long after drug usecollection too long after drug use urine is tamperedurine is tampered test being used not sensitive enoughtest being used not sensitive enough client using drug not on testing listclient using drug not on testing list
Negative/None Detected Interpretation
nono need to second-guess every “negative” result need to second-guess every “negative” result notnot suggesting withholding positive reinforcement & suggesting withholding positive reinforcement & rewards for positive behaviorsrewards for positive behaviors
drug testing is a monitoring tool drug testing is a monitoring tool assess none detected drug testing results in the context assess none detected drug testing results in the context of your client’s overall program compliance (or non-of your client’s overall program compliance (or non-compliance) and their life’s skills success (or lack compliance) and their life’s skills success (or lack thereof)thereof)
Positive Test Result Interpretation
indicates that drug(s) or breakdown products indicates that drug(s) or breakdown products (metabolites), tested for, were detected in (metabolites), tested for, were detected in the sample testedthe sample tested
drug presence is above the “cutoff” leveldrug presence is above the “cutoff” level greatest confidence achieved with greatest confidence achieved with confirmationconfirmation
ALWAYS confirm positive results in original ALWAYS confirm positive results in original samplesample
What is a “cutoff” level ? a drug concentration, a drug concentration, administrativelyadministratively established for a drug test that allows the established for a drug test that allows the test to distinguish between negative and test to distinguish between negative and positive sample - “threshold”positive sample - “threshold”
cutoffs are not designed to frustrate CJ cutoffs are not designed to frustrate CJ professionalsprofessionals
cutoffs provide important safeguards:cutoffs provide important safeguards: scientific purposes (detection accuracy)scientific purposes (detection accuracy) legal protections (evidentiary admissibility)legal protections (evidentiary admissibility)
measured in ng/mL = ppbmeasured in ng/mL = ppb
Typical Cutoff Levelsscreening &
confirmation amphetamines *amphetamines * 1000 ng/mL1000 ng/mL 500 ng/mL500 ng/mL benzodiazepinesbenzodiazepines 300 ng/mL300 ng/mL variablevariable cannabinoids * cannabinoids * 20 & 50 ng/mL20 & 50 ng/mL 15 ng/mL15 ng/mL cocaine (crack)*cocaine (crack)* 300 ng/mL300 ng/mL 150 ng/mL150 ng/mL opiates (heroin) *opiates (heroin) * 300/2000 ng/mL 300/2000 ng/mL variablevariable phencyclidine (Pphencyclidine (PCP) * CP) * 25 ng/mL25 ng/mL 25 25 ng/mLng/mL
alcoholalcohol 20 mg/dL20 mg/dL 10 mg/dL10 mg/dL
* SAMHSA (formerly NIDA) drugs* SAMHSA (formerly NIDA) drugs
No such thing as “zero tolerance” testing drug tests not capable of testing to “0” ng/mLdrug tests not capable of testing to “0” ng/mL each drug & each drug & each drug testeach drug test has a limit of detection has a limit of detection drug courts urged to utilize “standardized” cutoffsdrug courts urged to utilize “standardized” cutoffs
potential hazards of a “zero-tolerance” approach potential hazards of a “zero-tolerance” approach (use of non-traditional cutoffs)(use of non-traditional cutoffs) testing accuracy (increase in false-positives)testing accuracy (increase in false-positives) court’s justification for abnormally low cutoffscourt’s justification for abnormally low cutoffs can/will your laboratory “defend” low cutoffscan/will your laboratory “defend” low cutoffs increased challenges/scrutiny to positive resultsincreased challenges/scrutiny to positive results lowered cutoffs may include “inadvertent” lowered cutoffs may include “inadvertent” exposuresexposures
Isn’t any amount of drug in a client’s system a violation? punishment model vs. therapeutic punishment model vs. therapeutic model model
drug testing results (which form drug testing results (which form the foundation for incentives & the foundation for incentives & sanctions) need to be sanctions) need to be scientifically accurate & legally scientifically accurate & legally defensibledefensible
protection of client rights & the protection of client rights & the courtcourt
Exceptional (lowered) cutoffs in an effort to “catch” covert client drug use: provides only a marginal increase provides only a marginal increase in drug detection in drug detection
opens your court to increased opens your court to increased scrutiny associated with potential scrutiny associated with potential false positives and resulting false positives and resulting inappropriate sanctionsinappropriate sanctions
it’s all about credibilityit’s all about credibility it’s all about confidenceit’s all about confidence
The Issue of UrineDrug
Concentrations
Drug Tests are Qualitative
screening/monitoring drug tests screening/monitoring drug tests are designed to determine the are designed to determine the presence or absence of drugs - presence or absence of drugs - NOT their concentrationNOT their concentration
drug tests are NOT quantitativedrug tests are NOT quantitative
Drug concentrations or levels associated with urine testing are, for the most part, USELESS !
cocaine metabolitecocaine metabolite 517 ng/mL517 ng/mL opiates opiates negativenegative cannabinoids cannabinoids negativenegative amphetamines amphetamines negativenegative
The Twins
A B
200 mg Wonderbarb@ 8:00 AM
Collect urine 8:00 PM12 hours later
The Twins - urine drug test results
A BWonderbarb = 638 ng/mL Wonderbarb = 3172 ng/mL
The Twins - urine drug test results
A B
physiological make up
exact amount drug consumed
exact time of ingestion
exact time between drug exposure and urine collection
AND YET . . . . .
The Twins - urine drug test results
A BWonderbarb = 638 ng/mL Wonderbarb = 3172 ng/mL
Twin B’s urine drug level is 5 times higher
than Twin A
Are any of the following questions being asked in your court?
How positive is he/she?How positive is he/she? Are his/her levels increasing or decreasing?Are his/her levels increasing or decreasing? Is that a high level?Is that a high level? Is he/she almost negative?Is he/she almost negative? Is this level from new drug use or continued Is this level from new drug use or continued elimination from prior usage?elimination from prior usage?
What is his/her baseline THC level?What is his/her baseline THC level? Does that level indicate relapse?Does that level indicate relapse? Why is his/her level not going down? (or Why is his/her level not going down? (or up?)up?)
Urine drug concentrations are of little or no interpretative value. The utilization of urine drug test levels by drug courts generally produces interpretations that are inappropriate, factually unsupportable and without a scientific foundation. Worst of all for the court system, these urine drug level interpretations have no forensic merit.
THE ISSUE
Where do urine drug levels come from?
screening drug testing cutoff
20 ng/mL
higher drug levellower drug level
POSITIVE RESULTNEGATIVE RESULT
Scientific Rationale
Technical IssuesTechnical Issues testing not lineartesting not linear tests measure total drug tests measure total drug concentrationsconcentrations
PhysiologicalPhysiological variability of urine outputvariability of urine output differential elimination of drug differential elimination of drug componentscomponents
“Expected Values:
When the test is used as a qualitative assay, the amount of drugs and metabolites detected by the assay in any given specimen cannot be estimated. The assay results distinguish between positive and negative specimens only.”
THIS ?does 219 mean new use?
639 is really high for THC, isn’t it?
432 indicates he going up, right?
115 is down from yesterday, probably continued elimination?
is 22 above the cutoff?
don’t we need to considerrelapse at 57?
307 – well she’s almost negative, correct?
I think 1200 is a new record, isn’t it?
515 is much higher thanlast week, right?
OR THIS ?Negative or Positive
Advantages of Eliminating Drug Levels court decisions have a strong scientific basis court decisions have a strong scientific basis & forensically sound& forensically sound
no longer attempt to interpret data that is no longer attempt to interpret data that is not interpretablenot interpretable
greater confidence in decision making processgreater confidence in decision making process removes ambiguity associated with removes ambiguity associated with manipulating numbers that few in drug court manipulating numbers that few in drug court are trained to doare trained to do
adds additional fairness/equity in sanctions & adds additional fairness/equity in sanctions & rewards processrewards process
Final Thought:However well-intentioned, the use of urine drug testing levels cannot be supported by the science and represents an adjudication practice that is not forensically defensible. An unambiguous and equitable evidentiary foundation that will pass both scientific and legal scrutiny is crucial to the continued success of drug courts (criminal justice).
The Cannabinoid Detection Window
Cannabinoid Detection in Urine Conventional wisdom has led to the common assumption that cannabinoids will remain detectable in urine for 30 days or longer following the use of marijuana.
RESULT: delay of therapeutic intervention hindered timely use of judicial sanctioning
fostered denial of marijuana usage by clients
Perpetuating 30-Plus Day Perpetuating 30-Plus Day AssumptionAssumption Substance abuse treatment literatureSubstance abuse treatment literature that proclaims, “some that proclaims, “some
parts of the body still retain THC even after a couple of parts of the body still retain THC even after a couple of months”. months”.
Drug abuse information targeted toward teensDrug abuse information targeted toward teens “Traces of THC “Traces of THC can be detected by standard urine and blood tests for about 2 can be detected by standard urine and blood tests for about 2 days up to 11 weeks”.days up to 11 weeks”.
Health information websitesHealth information websites that provide the following that provide the following guidance; “At the confirmation level of 15 ng/ml, the frequent guidance; “At the confirmation level of 15 ng/ml, the frequent user will be positive for perhaps as long as 15 weeks.”user will be positive for perhaps as long as 15 weeks.”
And, last but not least Dr. Drew Pinsky (a.k.a. Dr. Drew) who And, last but not least Dr. Drew Pinsky (a.k.a. Dr. Drew) who has been the co-host on the popular call-in radio show has been the co-host on the popular call-in radio show "Loveline" for 17 years who states; “Pot stays in your body, "Loveline" for 17 years who states; “Pot stays in your body, stored in fat tissues, potentially your whole life.”stored in fat tissues, potentially your whole life.”
Cannabinoids - Recent/Relevant Research
30+ day detection window often exaggerates 30+ day detection window often exaggerates duration of detection windowduration of detection window
reasonable & pragmatic court guidancereasonable & pragmatic court guidance detection time: at 50 ng/mL cutoffdetection time: at 50 ng/mL cutoff
up to 3 days for single event/occasional useup to 3 days for single event/occasional use up to 10 days for heavy chronic useup to 10 days for heavy chronic use
detection time: at 20 ng/mL cutoffdetection time: at 20 ng/mL cutoff up to 7 days for single event/occasional useup to 7 days for single event/occasional use up to 21 days for heavy chronic useup to 21 days for heavy chronic use
Addressing Imperatives for Cannabinoids acknowledge research reporting prolonged acknowledge research reporting prolonged THC elimination THC elimination
establish a reasonable and pragmatic establish a reasonable and pragmatic detection window guidance for the vast detection window guidance for the vast majority of case adjudicationsmajority of case adjudications
sound judicial practice requires that sound judicial practice requires that court decisions be based upon case-court decisions be based upon case-specific informationspecific information
in unconventional situations that confound in unconventional situations that confound the court, qualified toxicological the court, qualified toxicological assistance should be soughtassistance should be sought
Recent Cannabinoid Use versus Non-recent use (double sanction issue): How do drug courts discriminate between How do drug courts discriminate between new drug exposure and continued new drug exposure and continued elimination from previous (chronic) use ?elimination from previous (chronic) use ? an issue only in first phase of programan issue only in first phase of program only drug that poses concern is only drug that poses concern is cannabinoidscannabinoids
““two negative test” rule – two back-to-two negative test” rule – two back-to-back negative drug tests post clean outback negative drug tests post clean out
Drug Court’s Competing Imperatives
the need for rapid therapeutic the need for rapid therapeutic intervention (sanctioning intervention (sanctioning designed to produce behavioral designed to produce behavioral change) change)
the need to ensure that the the need to ensure that the evidentiary standards, crafted to evidentiary standards, crafted to protect client rights, are protect client rights, are maintainedmaintained
Ethyl Glucuronide (EtG) – New Strategy for Monitoring Alcohol
Abstinence
Alcohol is the most commonly abused substance by drug court clients and the most difficult substance to detect in abstinence monitoring.
Ethyl Glucuronide
O H
O H
C O O H
O
O
O H
E t
Advantages of Ethyl Glucuronide unique biological marker of alcohol unique biological marker of alcohol use (no false positives)use (no false positives)
direct marker indicating recent usedirect marker indicating recent use longer detection window than alcohollonger detection window than alcohol stable in stored specimens (non-stable in stored specimens (non-volatile) volatile)
is not formed by fermentationis not formed by fermentation is not detected in the urine of is not detected in the urine of abstinent subjectsabstinent subjects
Urine EtG Concentrations Following Alcohol Consumption:
one 3.2% beerone 3.2% beer > 3800 ng/mL @ 4 hours > 3800 ng/mL @ 4 hours detection up to 24 hours detection up to 24 hours
(alcohol - 90 minutes)(alcohol - 90 minutes)
three 3.2% beersthree 3.2% beers detection up to 48 hours detection up to 48 hours (alcohol - 3.5 hours)(alcohol - 3.5 hours)
Disadvantages of Ethyl Glucuronide testing available at relatively few testing available at relatively few laboratorieslaboratories
testing somewhat costly ($25.00 price testing somewhat costly ($25.00 price point)point)
introduction of numerous testing introduction of numerous testing approaches besides LC/MS/MSapproaches besides LC/MS/MS
most significant concern – casual, most significant concern – casual, inadvertent, environmental alcohol inadvertent, environmental alcohol exposure causing positive resultsexposure causing positive results
On September 25, 2006 everything changed!
SAMHSA CSAT Advisory (9-25-06)
“Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking. Legal or disciplinary action based solely on a positive EtG, is inappropriate and scientifically unsupportable at this time. These tests should currently be considered as potential valuable clinical tools, but their use in forensic settings is premature.”
Sources of “Incidental” Alcohol Exposure
medications (Nyquil)medications (Nyquil) mouthwashes (Listermint & Cepacol)mouthwashes (Listermint & Cepacol) tincture of gingko biloba (herbal - memory)tincture of gingko biloba (herbal - memory) foods containing alcohol (such as vanilla extract, baked foods containing alcohol (such as vanilla extract, baked Alaska, cherries jubilee, etc.)Alaska, cherries jubilee, etc.)
““non-alcoholic” beers (O’Doul’s)non-alcoholic” beers (O’Doul’s) colognes & body sprayscolognes & body sprays insecticides (DEET)insecticides (DEET) alcohol-based hand sanitizers (Purell)alcohol-based hand sanitizers (Purell)
What prompted SAMHSA Advisory ?
the science of EtG testing - ourthe science of EtG testing - our capabilitycapability to employ highly sensitive testing to employ highly sensitive testing procedures to detect recent ethyl alcohol procedures to detect recent ethyl alcohol exposure - has outpaced ourexposure - has outpaced our abilityability to to appropriately interpret the test results in appropriately interpret the test results in a forensically defensible mannera forensically defensible manner
consumption vs unintended exposureconsumption vs unintended exposure CSAT (National Advisory Council) concluded CSAT (National Advisory Council) concluded that there is inadequate research data that there is inadequate research data about the populations being testedabout the populations being tested
Positive EtG Result (500 ng/mL): a result reported as EtG positive in excess a result reported as EtG positive in excess of the 500 ng/mL cutoff is consistent with of the 500 ng/mL cutoff is consistent with the recent ingestion of alcohol-containing the recent ingestion of alcohol-containing products (1-2 days prior to specimen products (1-2 days prior to specimen collection) by a monitored clientcollection) by a monitored client
studies examining “incidental” exposure studies examining “incidental” exposure widely conclude that results in excess of the widely conclude that results in excess of the 500 ng/mL cutoff are 500 ng/mL cutoff are notnot associated with associated with inadvertent or environment ethanol sources inadvertent or environment ethanol sources
Current State of EtG Testing
my biggest concern is that this my biggest concern is that this advisory will likely render ANY advisory will likely render ANY EtG result as legally EtG result as legally inadmissible (for sanctioning inadmissible (for sanctioning purposes)purposes)
already seen large decrease in already seen large decrease in EtG testing nationallyEtG testing nationally
EtG still valuable for EtG still valuable for therapeutic interventiontherapeutic intervention
Options for Client Sanctioning
positive urine EtG - cutoff of at least positive urine EtG - cutoff of at least 500 ng/mL500 ng/mL
combined withcombined with: : a client admission of use/replasea client admission of use/replase identification of behavioral indicatorsidentification of behavioral indicators
alcohol-related arrest or incidentalcohol-related arrest or incident alcohol-related job actionalcohol-related job action client seen in bar/tavern client seen in bar/tavern
a violation of EtG-specific contracta violation of EtG-specific contract
EtG- Specific Contract:
outlines the behavioral requirements and outlines the behavioral requirements and compliance standards necessary for compliance standards necessary for continued participation in drug courtcontinued participation in drug court
educate, alert and advise drug court educate, alert and advise drug court clients of the potential (incidental) clients of the potential (incidental) sources of alcohol that could produce a sources of alcohol that could produce a positive urine EtG test resultpositive urine EtG test result
listing the numerous commercial products listing the numerous commercial products that contain ethyl alcohol and provides a that contain ethyl alcohol and provides a list of substances to avoid while in a drug list of substances to avoid while in a drug court programcourt program
