Tag: drug testing

SCOTUS Case Involving Cannabis Fraud Highlights the Illogic of Federal Drug Testing Mandates

The U.S. Supreme Court last week considered a case involving a trucker, Douglas Horn, who lost his job because he tested positive for THC after consuming a CBD tincture that was advertised as completely free of that psychoactive compound. Horn sued the companies that made and marketed the tincture under the Racketeer Influenced and Corruption Organizations (RICO) Act, arguing that he was “injured in his business or property by reason of” the defendants’ mail and wire fraud.

The issue in Medical Marijuana Inc. v. Horn is whether the economic losses that Horn suffered fit that statutory language, as the U.S. Court of Appeals for the 2nd Circuit held last year. But the case also highlights the weak scientific basis for the federally mandated drug test that Horn failed, which reflects the ongoing conflict between state and federal marijuana laws.

In 2012, Horn bought Dixie X CBD Dew Drops 500 mg Tincture to treat the pain and inflammation caused by hip and shoulder injuries he had suffered in a truck accident. Since he was well aware that testing positive for marijuana would endanger his job, he investigated the product to make sure it did not contain any federally illegal substances. He says he was reassured by Dixie’s claim that its CBD extract was made from hemp containing less than 0.3 percent THC (the federal limit) and that, after processing, it contained “0.00 THC.”

According to a High Times article that Horn cited in his 2015 RICO lawsuit, the tincture was produced via “a proprietary extraction process” from “a strain of high-CBD hemp grown in a secret, foreign location.” The article said the resulting tincture “contains 0% THC and up to 500 mg of CBD.” Tripp Keber, Dixie’s managing director, averred that “we are importing industrial hemp” that is “below federal guidelines for THC, which is 0.3%,” and “extracting the CBD.” Keber said Dixie had “meticulously reviewed state and federal statutes,” and “we do not believe we are operating in conflict with any federal law as it’s related to the Dixie X (hemp-derived) products.”

Keber offered similar assurances in several YouTube videos, saying those products were “THC free” and contained “no THC.” Just to make sure, Horn says in a Supreme Court  brief, he contacted a customer service representative, who “confirmed that Dixie X contained ‘zero percent THC.'”

Based on those assurances, Horn’s brief says, he “purchased and consumed Dixie X in
September 2012.” A few weeks later, he was dismayed to learn that he had tested positive for marijuana in “a routine random drug screening.” As a result, “his employer immediately fired him.” He “lost his career and income,” which meant “financial ruin” for his family.

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Trump Throws Down the Gauntlet: Demands Biden Prove His Fitness with Pre-Debate Drug Test

President Donald Trump has thrown down the gauntlet, demanding that Joe Biden undergo a drug test before their upcoming debate.

Trump’s challenge came during his speech at the GOP’s annual Lincoln Reagan dinner event in St. Paul, Minnesota, which he attended after celebrating his son Barron’s high school graduation.

At the GOP´s annual Lincoln Reagan dinner event in St. Paul, Minnesota, Trump didn’t mince words as he called into question Biden’s performance during the State of the Union address in March.

“I just wanna debate this guy, but you know – and I’m gonna demand a drug test too, by the way,” Trump said.

“I am. No, I really am. I don’t want him coming in like the State of the Union. He was high as a kite,” Trump added.

The former president went on to criticize Biden’s performance during the State of the Union, stating that Biden appeared “jacked up” at the beginning but was “fading fast” by the end.

“We’re gonna demand a drug test… He’s going to be so jacked up for those, you watch.”

“I don’t know what he’s using, but that was not, hey, he was higher than a kite, and by the way it was the worst address I’ve ever seen,” Trump said.

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Record Number Of Truck Drivers Refuse To Take Drug Tests As More States Legalize Marijuana

As more states legalize marijuana, a new federal report shows that the number of positive drug tests among commercial drivers fell last year compared to the year before, dropping from 57,597 in 2022 to 54,464 in 2023. At the same time, however, the number of drivers who refused to be screened at all also increased by 39 percent.

The record-high number of refusals comes as the transportation industry faces a nationwide shortage of drivers, which some trade groups have said has only been made worse by drug testing policies that risk flagging drivers even when they’re not impaired on the job.

The rise in refusals meant that even though there were fewer positive tests overall in 2023, the total number of recorded drug violations among truckers actually rose slightly—to 68,229 in 2023 compared to 67,775 a year earlier.

“The overall rise in drug violations in 2023, even though there are fewer positive tests, is attributed to a nearly 40% increase in reported drug test refusals—9,214 in 2022 versus 12,804 in 2023,” the Federal Motor Carrier Safety Administration (FMCSA), which produced the new report, told the trade publication Transport Topics.

“Drug test refusals include employer reported refusals like failing to show up for a random test, or leaving a test collection facility after a test has begun but before it’s complete,” added FMCSA, an arm of the U.S. Department of Transportation.

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Kentucky prison officers accused of forcing inmates to drink urine or be tased upon failed drug test

A lawsuit filed on behalf of seven inmates at the Eastern Kentucky Correctional Complex claims they were forced to either drink their own urine or be tased after failing a drug test while in custody.

And Department of Corrections spokeswoman Lisa Lamb acknowledged in a statement that some employees have been fired and disciplined in other ways.

“This incident was thoroughly investigated and multiple disciplinary actions were taken including employee terminations,” she said. “As of now, the Department of Corrections has not been served with the lawsuit and cannot provide further comment.”

She would not discuss details of the disciplinary action or terminations, including the results of the investigation. 

WDRB News has requested the investigation and disciplinary action taken through the Kentucky open records law. 

In a June 6th memo to Randy White, deputy commissioner of the Department of Corrections, an investigator said the findings substantiated that staffers were tasing inmates who failed drug test. 

“This determination is based on the preponderance of evidence,” according to an investigative memo obtained by WDRB. “This evidence includes video footage, staff and inmate witness statements , electronic Taser evidence log … and inconsistencies in suspect interviews.” 

The lawsuit, filed Tuesday in U.S. District Court’s Eastern District in Ashland, claims four correctional officers told the inmates who failed drug tests “they would be able to ‘throw away’ their urine sample if they chose to be subjected to electrocution by taser or to drink their own urine.”

However, the suit also claims the seven inmates were “forced” to either be tased or drink their urine.

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New Jersey Bill Would Force Drivers Suspected Of Being High On Marijuana To Provide A Blood Sample To Police

Cannabis experts are concerned about a lawmaker’s attempt to require motorists suspected of driving under the influence of marijuana to provide a blood sample to police.

Critics of the recently introduced bill say it would not only give police more power that would likely be wielded disproportionately against people of color, but they also argue the testing methods called for in the bill don’t even work.

Joshua Bachner, a cannabis attorney at law firm Mandelbaum Barrett, criticized the move as an example of government overreach.

“The state should develop—and there’s many of us in the state happy to coordinate with them—a comprehensive, reliable method for determining impairment,” he said. “But these piecemeal approaches are only going to cause a lot of victimization, frankly, for those who are falsely accused.”

Under current law, anyone in New Jersey who drives is consenting to provide a breath sample if police believe they are driving drunk—it’s called “implied consent.” The new bill would expand that to include a blood test and apply to any narcotic, hallucinogenic or other drug. Someone would be deemed under the influence of marijuana if they test positive for 3 nanograms or more of THC—the chemical that gets cannabis users high.

The push to expand implied consent laws to apply to drivers suspected of marijuana use comes two years after New Jersey’s recreational marijuana market launched, and as legal cannabis becomes more prevalent nationwide.

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New South Dakota Law Removes Workplace Protections For Medical Marijuana Patients In Safety-Sensitive Jobs

South Dakota’s Gov. Kristi Noem (R) signed a bill into law this week that would roll back employment protections medical marijuana patients slightly, allowing employers to take action against people who test positive for THC if they work in a safety-sensitive position.

The bill, SB 12, also clarifies that discipline or termination for violating a drug-free workplace policy is not grounds for an employment discrimination or wrongful termination claim.

The change adds clear boundaries to the state’s workplace drug law, which says that “a registered qualifying patient who uses cannabis for a medical purpose shall be afforded all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication.”

SB 12‘s adoption means that’s no longer the case for safety-sensitive workers, which include positions like pilots, construction workers, healthcare professionals, teachers, nursing home employees, truck drivers and others.

While state law already contains a provision specifying that no employer is required to “allow any employee to work while under the influence of cannabis,” testing positive for THC or its metabolites does not mean that a person is impaired on the job, as evidence can be detectible in a person’s bloodstream for days or weeks after consuming marijuana.

On one hand, the change brings South Dakota in line with other states that have established anti-discrimination protections for workers who use marijuana but excluded safety-sensitive positions. On the other hand, the move to limit workplace protections around cannabis rather expand them makes South Dakota an outlier relative to recent trends.

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Guilty Until Proven Innocent: Field Drug Tests and Wrongful Convictions

This report provides the first-ever comprehensive analysis of presumptive drug field test usage across law enforcement agencies in the United States. Inexpensive and fast, these tests have become a tool of choice for law enforcement agencies. Unfortunately, they are notoriously imprecise and are known to produce “false positives,” leading to frequent wrongful arrests and wrongful convictions.

Utilizing a nationwide survey of agencies, the report offers national estimates on the frequency of test usage, finding that each year approximately 773,000 drug-related arrests involve the use of presumptive tests. Although the true error rate of these tests remains unknown, estimates based on the imperfect data that are available suggest that around 30,000 arrests each year involve people who do not possess illegal substances but who are nonetheless falsely implicated by color-based presumptive tests. On a per capita basis, Black Americans experience these erroneous drug arrests at a rate 3x higher than White Americans.

While factors like eyewitness misidentification, false confessions, or prosecutorial misconduct have been previously cited as leading causes of wrongful convictions, these new results indicate that the use of presumptive field tests in drug arrests is one of the largest, if not the largest, known contributing factor to wrongful arrests and convictions in the United States.

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It’s Time To Rethink Termination Of Employees For Positive Marijuana Drug Tests

As a social conservative, alcohol has always been my drug of choice. For me, the odor of marijuana on a city street evokes a discomfiting sense of lawlessness and societal decline. But I remind myself that Carrie Nation, who attacked alcohol-service establishments with a hatchet in the lead-up to prohibition, had the same feelings toward the bourbon I so relish. And so it’s time to bury my own hatchet when it comes to cannabis.

Irrespective of one’s thoughts on marijuana legalization, we have reached a point of no return both in terms of culture and economics. More than 50 percent of Americans live in jurisdictions where recreational marijuana is legal, and 74 percent have access to medical cannabis. Revenue of the U.S. cannabis market will exceed $30 billion in 2023 and will increase at double-digit rates for the foreseeable future. State treasuries hunger for the tax revenue.

Given its legality, given its ubiquity, it is time we stop gratuitously destroying careers based on marijuana tests that say nothing about impairment. The problem is particularly acute in the transportation industry, where employers are compelled by federal law to randomly test employees and remove them from their safety sensitive positions based on positive tests. Frequently, that removal is followed by termination by the employer and license action by the regulating agency.

Driven by my sympathy for the affected individuals, I have handled numerous cases for employees who have lost their jobs due to positive tests. Moreover, most of the cases I have handled have resulted in reinstatement—sometimes due to specimen collection errors, occasionally due to deficient medical review and once due to a laboratory’s failure to properly validate its testing methodology. However, our nation’s marijuana dilemma calls for a broader approach: a change in policy.

It is undisputed that the mandated testing methodologies do not reflect time-specific impairment; however, that limitation has always been met with a collective shrug by regulators. After all, the “prohibited drugs” for which the federal government requires testing are all illegal; therefore, it is considered sufficient that the test confirms that, at some time in the recent past, the employee used the drug.

By contrast, a “positive” test for the legal drug of alcohol has always required proof of current intoxication.

The obvious solution would be to apply the alcohol current intoxication approach to cannabis. The problem is that, currently, there is no reliable test for current marijuana impairment. In response to this dilemma, we have seen a sub rosa movement by certain decision makers and regulators cutting some slack for employees who test positive for marijuana.

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Hospitals Are Still Reporting New Mothers for Neglect Based on Drug Tests Triggered by Poppy Seeds

Before Kate L. gave birth to a baby girl last September, a nurse at New Jersey’s Hackensack University Medical Center collected a urine sample from the soon-to-be mother. Kate thought nothing of it, because she was accustomed to having her urine tested for protein levels during her pregnancy. She had no idea that her urine would be tested for drugs, which resulted in a terrifying, monthslong investigation aimed at determining if she was a fit mother.

Kaitlin K. had a similar experience when she gave birth to a baby boy at Virtua Voorhees Hospital in Camden County, New Jersey, the following month. The immediate culprit in both cases seems to have been a poppy seed bagel that triggered a false positive for opiates. That, in turn, led to state investigations of alleged child neglect. But the real blame, according to complaints filed this month by the American Civil Liberties Union (ACLU) of New Jersey, lies with the hospitals, which it says conducted nonconsensual, medically unnecessary, and woefully inadequate drug tests, then reported the erroneous results to the New Jersey Department of Child Protection and Permanency (DCPP).

The ACLU, which is asking the New Jersey Department of Law and Public Safety’s  Division on Civil Rights to stop that practice and award compensatory damages, argues that a policy of “drug testing perinatal patients on the basis of sex and pregnancy” constitutes illegal discrimination under state law. Whatever the legal merits of that claim, the sneaky, arbitrary, high-handed, and cruel treatment described in the complaints shows what can happen when medical personnel forsake their ethical responsibilities in service of the war on drugs.

“No one should be subjected to unnecessary and nonconsensual drug tests,” says ACLU of New Jersey staff attorney Molly Linhorst. “Our clients are sending a clear message to hospitals that these testing and reporting policies are unacceptable. Discriminatory testing policies like these upend what should be a time of joy for families, and so often subject them to further trauma and unwarranted investigation by the state.”

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