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.
Requirements for Blood Collection
(1) Blood shall get withdrawn by a person licensed to practice medicine and surgery in this state, a phlebotomist. The definitions for this comes from subdivision (12) of section 14-227a-1b of the Regulations of Connecticut State Agencies. A qualified laboratory technician, an emergency medical technician II, a registered nurse or such other occupational classification as the commissioner determines may competently and safely withdraw blood for the purposes of sections 14-227a-1b to 14-227a-10b, inclusive, of the Regulations of Connecticut State Agencies.
(2) Blood samples shall be collected using a sterile syringe and hypodermic needle. Other options include equipment of equivalent sterility. The skin at the area of puncture shall get thoroughly cleansed and disinfected. This happens if any solution containing ethyl alcohol shall not get used as a skin antiseptic.
(3) Containers and other equipment for sample collection must preserve the integrity and suitability of the sample. Also, the sample must have protection from the time of collection until analysis. Following collection, the container for each sample shall get sealed and labeled. In addition, only those samples properly sealed shall be analyzed.
Requirements for Urine Testing
(1) The police officer collecting the sample shall monitor the collection of the sample. This ensures that adulteration or misidentification does not occur. Collections shall be monitored by a police officer of the same gender as the individual from whom the sample gets obtained.
(2) Containers and other equipment for sample collection shall be of a type that will preserve the integrity and suitability of the sample from the time of collection until it can get analyzed. Following collection, the container for each sample shall be sealed and labeled. Only those samples properly sealed shall be analyzed.
Requirements for Blood and Urine Tests
(1) No analysis result may be reported or used for the purposes specified in section 14-227a-2b of the Regulations of Connecticut State Agencies, unless the method or methods used to conduct the analysis get approved by the commissioner and such analysis gets performed by an analyst.
(2) In conducting the analysis, the analyst shall use standards and controls approved by the commissioner.
(3) All tests shall be performed in duplicate. Alcohol test results shall be reported to the requesting agency only when the duplicate results correspond to each other within 5% of the mean value. Drug test results shall be reported to the requesting agency only when the duplicate results correspond to each other within 20% of the mean value.
(4) All reports, written and oral, shall indicate the determined or equivalent blood alcohol content in terms of hundredths of a percent. When determinations are made to the nearest thousandth of a percent, results shall be truncated to the first two digits after the decimal point. For example, a determination of 0.149% shall be reported as 0.14%.
Drug Testing at Work
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.
Discuss Drug Tests with a Connecticut Attorney
If you have faced drug and alcohol testing in Connecticut and you need help, contact an attorney.