‘False positives’ drug testing scandal emerges in New Orleans

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By the standards of the rest of Louisiana, New Orleans is a fairly liberal place. But judges in Orleans Parish Criminal District Court may be punishing people — with fines, increased bonds or even jail time — based on a flawed drug testing program, according to a new report by a local watchdog group.

The report, released this month by Court Watch NOLA, found that the parish drug-testing lab does not follow “best practices,” failing to adequately confirm results and avoid false positives. Yet the court’s reliance on these dubious tests “appears to be a common occurrence.” Court Watch charged that sanctions meted out by judges based on positive results are “inappropriate, inconsistent, and inequitable.”

“That’s the reason why we ask that judges really consider, in an individual capacity, whether drug testing is really meeting the needs that they feel are a priority in individual cases,” Court Watch director Simone Levine said in an interview with The Lens, an area investigative journal. “What are those needs? Is it making us safer to drug test people?”

While the report does not specify if any particular substances were returning more false positives than others, Louisiana courts do test for cannabis use when drug testing.

Jailed for False Positives?

National standards call for court-ordered drug tests to be carried out in two steps — initial screening and confirmation. But in New Orleans, the court’s lab does not confirm initial positive results with a second test using an alternative method. Nationally, confirmation tests are typically done with a process known as gas or liquid chromatography-mass spectrometry (LC-MS/MS). But according to Court Watch, “the Lab lacks any equipment capable of performing definitive drug tests such as LC-MS/MS and there is no indication that drug testing samples are sent off-site to confirm presumptively positive test-results.”

Instead, the lab’s own policy manual describes the confirmation step as re-testing the same sample, with the same method — contrary to the accepted norm.

In a review of 11 cases in which defendants were held in contempt for a positive test result, Court Watch found nine in which there was no record of any confirmation test at all. In the remaining two cases, records showed the lab re-tested using a second sample, which the report describes as “contrary to scientific best practices, which require confirmation using a different testing method on the same sample.”

Court Watch found at least 77 cases in which defendants were held in contempt and sanctioned for a positive drug test in 2018. Of these, 59 spent time behind bars as a result, for an average of 18 days.

Meanwhile, Use of Drug Tests Widens

The investigation comes at a somewhat ironic time, with legislation related to the drug testing issue under review by lawmakers in the statehouse in Baton Rouge.

The House Transportation Committee last week advanced a bill that would mandate drug testing in any road incident involving serious bodily injury or death. Louisiana’s current law allows for post-accident drug testing only when there is an on-site fatality, as Shreveport’s KTAL explains. The proposed bill would expand the existing law. It is dubbed “Katie Bug’s Law,” after 4-year-old Katie Grantham of Bossier Parish, who was killed by a motorist in 2017. Katie’s mother, Morgan Grantham, suspected the motorist was impaired by drugs, but he was not tested by police because Katie did not die at the scene.

The issue of road carnage is of course an extremely pressing one. But if drug testing standards are as poor in the rest of the state as they appear to be in Orleans Parish, that is certainly a question that needs to be addressed before any expansion of such testing is instated. 

Furthermore, it is to be assumed that cannabis is to be included in such testing — despite the fact that the entire question of “marijuana-impaired driving” is widely misunderstood. Traces of THC stay in the system for weeks after the effects of cannabis have worn off. And cannabis does not impair driving nearly as dramatically or uniformly as alcohol. A recent study found that, contrary to prohibitionist assumptions, cannabis legalization has not been linked to an increase in traffic deaths.

Legalization Bid Killed in Louisiana

It also doesn’t look like the pressure on cannabis is going to be lifted in Louisiana any time soon. On May 29, two cannabis legalization bills — HB509 and HB564 — were defeated in committee. Too predictably, Democrats voted for, and Republicans against. House Bill 509 would have allowed adult possession of up to one ounce of cannabis, and instructed the state Department of Agriculture & Forestry and the Board of Pharmacy to issue licenses for production and sale. House Bill 564 was essentially similar, but would have given authority for retail licenses to the Office of Alcohol & Tobacco Control.

While Louisiana sheriffs and district attorneys spoke against the measures, among those speaking for them was Kevin Caldwell, founder and president of Commonsense NOLA. Even after their defeat, Caldwell struck an optimistic and determined tone. “We will eventually prevail,” he told the Big Easy news site.

There is little breathing room for cannabis in Louisiana outside of the both very limited and unconscionably delayed medical program. The state continues to have some of the harshest cannabis laws in the country — although New Orleans and Baton Rouge have, at least, started to de-emphasize enforcement of these laws in local policing.

Legislation now pending on Capitol Hill would rein in drug testing — protecting the jobs of federal employees who test positive for cannabis in states where such use is now legal. It looks like Louisiana residents will be very lucky if this is to be a concern for them any time soon.

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