Oftentimes, before an individual gets arrested for possession of drugs or possession with intent to sell, the arresting officer will conduct a field test of the substance they suspect a controlled substance. The most common field test kits include the “NARK” test kits. These can test for a variety of substances. There are major problems with these test kits, specifically that they quite often produce false positive results. For example, with the “NARK II” test kit, which tests for marijuana, the kit can read a false positive if dark chocolate gets tested. This means that the test could show positive for an illegal substance even when just testing for chocolate. However, you could also reap the benefits of the unreliability of these tests. These field tests may also indicate that no drugs are present when in fact they are.
The courts have and do recognize the problems with these field test kits. Therefore, the results of these field tests alone cannot convict you. Typically, the results of a field test can only establish probable cause. This happens when testified in conjunction with other evidence (i.e. the officer’s training and experience or subsequent testimony of a state toxicologist). In State vs. Williams, 169 Conn. 322 (1975), our Supreme Court held that a police office could testify as to the purpose and results of field tests if there is subsequent testimony of a toxicologist confirming the results of the field test. While this is not a bright-line rule, it certainly prevents the state from relying field tests that are generally unreliable.
Blood and Urine Tests
Generally, the presence of drugs in a blood or urine test is not evidence of possession. In order to establish possession, the state must prove actual possession or construction possession. Having drugs in your system is not actual or constructive possession. Nor is it, by itself, proof of present or past possession. However, oftentimes police officers will still try to obtain blood or urine tests as part of their investigation into other crimes, or possession crimes, in order to obtain circumstantial evidence. These tests, as with the field tests, have many problems. There are a number of procedures and protocols that must get followed in order for them to be admissible and the Connecticut General Statutes provides for these regulations. Refer to Conn. Gen. Stat. §§ 14-227a-3b and 14-227a-9b.
Under Connecticut law, an employer may give either current or prospective employees drug tests in very narrow situations. An employer can determine an employee’s eligibility for a promotion on the basis of a drug test if the employer gives the employee a urine test using reliable methodology and if it is a positive test, the results must be confirmed by a separate and independent test. (See: Conn. Gen. Stat. § 31-51u). An employer may give a prospective employee a drug test if the following conditions get met:
(1) the prospective employee gets notified in writing of the drug test at the time of their or application for the position, (2) the first test is a urine test using reliable methodology and if that test is a positive, it is confirm by a second, independent test, and (3) the prospective employee is provided with the results of the test. (See: Conn. Gen. Stat. § 31-51v). The results of this test must remain confidential. Also, during either of these two types of tests, the employer cannot observe the employee or potential employee, and the results of any of these types of tests are inadmissible in any criminal proceeding. (See: Conn. Gen. Stat. § 31-51w).
An employer may give an employee a random drug test if the employer has “reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance.” (See: Conn. Gen. Stat. § 31-51x). An employer does not need reasonable suspicion to require a drug test of an employee if any of the following conditions exist. (1) Federal law allows for the tests for that occupation, (2) the occupation is designated as high-risk or safety-sensitive occupation, (3) the employee operates a school bus, or (4) the testing is part of an employee assistance program in which the employee voluntarily participates.
High Risk, Safety Sensitive Occupations
The designation of an occupation as a “high-risk” or “safety-sensitive” occupation results from either a request by an employer, or as a result an investigation by the Department of Labor. If the employer requests this designation for the purposes of insisting random drug testing, then the Department of Labor will conduct an investigation. (See: Conn. Agencies Regs. § 31-51x-4).
According to the Conn. Agencies Regs. § 31-51x-1, an occupation which: “(1) presents a clearly significant life threatening danger to the employed so occupied, their fellow employees, or the general public and is performed in a manner or place inherent with or inseparable from such danger; (2) requires the exercise of discriminating judgment or high degree of care and caution; and (3) is separate from the ability to discern impaired or enhanced performance by direct supervision and is not reasonably subject to other valid and available means of observation and evaluation which would preclude the necessity of random urinalysis.” The Commissioner is required to maintain a list of designated occupations is provided following which, and is published by the Department of Labor.
Federal laws that allow for drug testing, will also allow for drug testing in Connecticut. The most widely applicable law requires drug tests for commercial drivers. Under 49 U.S.C. § 31306, the Secretary of Transportation can require drug testing for drivers of commercial motor vehicles in the following situations: (1) pre employment, (2) under reasonable suspicion by an employer, (3) randomly, or (4) post accident investigation. The Secretary of Transportation can also require periodic recurring testing of drivers as well under this statute. Conn. Gen. Stat. § 14-276a(d) mirrors the federal statute, further codifying the requirements that commercial drivers submit to random testing.
Under Conn. Gen. Stat. § 14-276a(d) and Conn. Gen. Stat. § 31-51x(b), school bus drivers are also subject to random tests. A school bus driver is also designated as a “high-risk or safety-sensitive” occupation, thereby making it very difficult to challenge any requirements of employment as a school bus driver to take random urine drug tests.