and Strategies Childrens Law Institute, Albuquerque, New Mexico - PowerPoint PPT Presentation

Case Plan Drug Testing: Myths, Best Practices, and Strategies Children’s Law Institute, Albuquerque, New Mexico January 13, 2017

Presenters Jennifer Olson , Attorney, Respondents’ Contract Counsel, Solo Practitioner, Farmington Robert Retherford , Attorney, Senior Children’s Court Attorney, former Respondent’s Counsel Children, Youth, and Families Department, Farmington Ron O. Smock , President, Independent Drug Testing and Forensic Services, Albuquerque

Goals & Agenda  Case Management & Best Practices: Questions  Rumors, Myths & Misconceptions  Scientific Perspective  Legal Perspective & Best Practices  Case Management & Best Practices: Responses Please write questions on the paper we’ve handed out

Case Management Perspective  When should drug testing be a part of a case plan?  Which tests are available, which tests should the Department request, and how frequently should tests be requested?  How do you work with parents to engage them in substance abuse testing/treatment?  How do you address issues of a parent’s access to testing because of location/transportation challenges?  How do you address issues of prescription medications and medical marijuana use?

Rumors & Myths  Adulterants  Cross reactivity  Myths of testing positive  Prescription drugs  “Internal possession”

Collection Procedures  Identification  Date/Time of Collection  Medications  Chain of Custody  Handling of Evidence

Collections  Observed vs. non-observed  Temperature  Sealing of samples  Shipping criteria for samples

Detection Methods & Times  Urine  Saliva  Hair  Blood

Time Line for Drugs of Abuse Testing Urine Hair Saliva Alcohol - one ounce per hour Alcohol via ETG Testing Amphetamine Cocaine Opiate 3-5 days THC rare/occassional user THC recreational user THC Moderate user THC chronic (daily) user 30 day segment 60 day segment 90 day segment Detection from 15 minutes on Up to 3 days for most drugs except THC which can only be detected for a matter of hours 0 1 2 3 4 5 10 28 60 90 120 APPROXIMATE DAYS of DETECTION

AMPHETAMINES 48 hours 500-2000 ng/ml BARBITURATES [Secobarbital] 24 hours 200-1000 ng/ml [Phenobarbital] 2-3 weeks BENZODIAZEPINES 3 days/single dose 200-1000 ng/ml MARIJUANA light smoker 24 hours-5 DAYS 25-150 ng/ml moderate smoker 5-10 DAYS heavy smoker 28-30 DAYS COCAINE 2-4 days 300-3000 ng/ml METHADONE 3 days 300-1000 ng/ml OPIATES 3-5 days 300-1000 ng/ml PHENCYCLIDINE 8 days 25-100 ng/ml PROPOXYPHENE 6-48 hours 300-1000 ng/ml ALCOHOL 0.01 gm % Eliminated at approx. 1 oz per hour. 1 oz of alcohol = 1 can of beer, 1 1/2 glasses of wine, 1 shot of liquor. To convert urine to approximate blood alcohol, divide by 1.3. NOTE: 1000 ng/ml (nanograms/milliliter) = 1.0 mcg/ml (micrograms/milliliter) 0.1 gm% (grams percent) = 100 mg/dl (milligrams/desiliter) Legal alcohol limit in New Mexico = .08 mg% for adults, .02 gm% for minors ETG 5 DAYS HALLUCINOGENS 24 HOURS 500 ng/ml LSD 24 HOURS 0.3 ng/ml INHALANTS 12-24 HOURS parts per million METHYL ETHYL KETONE, TOLUENE, XYLENE, DICHLOROMETHANE DRUG INDUCED ASSAULT 12-24 HOURS [6-12 HOURS RECOMMENDED]

KNOW WHAT DRUGS ARE DETECTED, Page 1 ALCOHOL = ethanol or ethyl alcohol AMPHETAMINES = amphetamine , meth , & high concentrations of OTC cold/ allergy meds containing ephedrine , pseudoephedrine , & phenylpropanolamine BARBITURATES = butalbital, butabarbital, pentobarbital, phenobarbital , & secobarbital BENZODIAZEPINES = diazepam ( Valium ), chlordiazepoxide ( Librium ), oxazepam ( Serax ), and other tranquilizers CANNABINOIDS = carboxy-THC , the major metabolite of marijuana & hashish COCAINE = benzoylecognine (major metabolite of cocaine) & cocaine METHADONE = methadone & its metabolites OPIATES = morphine , morphine glucuronide (major metabolite of morphine), codeine, heroin, hydromorphone ( Dilaudid ), hydrocodone (Lortab), oxycodone ( Percodan ) PROPOXYPHENE = propoxyphene & norpropoxyphene ( Darvon, Darvon-N, Darvocet ) PHENCYCLIDINE = PCP ( Angel Dust )

KNOW WHAT DRUGS ARE DETECTED, Page 2 HALLUCINOGENS: D-LYSERGIC ACID DIETHYLAMIDE : Known as LSD, acid, blotter PSILOCYBIN: Known as mushrooms, caps, magic mushrooms, shrooms PHENCYCLIDINE: Known as PCP, Angel Dust METHYLENEDIOXYAMPHETAMINE: Known as MDA, ADAM N-METHYL-METHYLENEDIOXYAMPHETAMINE: Known as MDMA, XTACY, XTC METHYLENEDIOXYETHAMPHETAMINE: Known as MDE, EVE MESCALINE: Known as peyote, chocolate mesc INHALANTS: ACETONE, BENZENE, CHLOROFORM, ETHANOL, ETHYL ACETATE, ISOPROPANOL, METHYL ETHYL KETONE, TOLUENE, XYLENE, DICHLOROMETHANE DRUG INDUCED ASSAULT PANEL: ROHYPNOL: (Flunitrazepam) Known as Roofies, KETAMINE, GHB and ANALOGUES: (Gamma-hydroxybutyrate) Known as Blue Thunder

Testing Methodologies  Immunoassay  GC/MS  On-site Products

Interpretations of Results  Biological samples  Metabolic pathways  Screening vs. Confirmations  Prescription drugs

Understanding Creatinine Creatinine (“ kre-at-tin- in”) : An orange colored substance produced by the body as a waste product – responsible for the yellow coloration in urine. Creatinine is produced and excreted at a fairly constant rate, so metabolism can be measured to look at the function of the liver and kidneys. The normal rate of creatinine is around 100 mg/dl on a random urine sample. Creatinine measurement is used to identify flushing or tampering with the sample. Any sample below 20 mg/dl indicates dilution. Many common drugs of abuse are water soluble and can be artificially flushed from the system. Large amounts of fluids taken in a short period of time can just pass through the body, by-passing normal bodily functions where drugs may be detectable. Samples below 20 mg/dl are considered adulterated. They should be rejected and recollected. Creatinine also helps to identify specimens that have been submitted that are not actual urine samples.

Legal Perspective: Caselaw on Drug Testing Routinely admitted… but be careful to have the right witness. (More later) “ Drug possession and use may be relevant to a parent's ability to care for a child . See generally State ex rel. CYFD v. Amanda H., 2007 – NMCA – 029, ¶¶ 26 – 27, 141 N.M. 299, 154 P.3d 674.” In re Montoya, 2011-NMSC-42, 30, 150 N.M. 731, 266 P.3d 11 (N.M., 2011) At TPR, CYFD needs to present evidence that a substance abuse problem persists and is among the causes and conditions that are unlikely to change in the foreseeable future . See State v. Alfonso M.-E. (In re Uriah F.-M.), 366 P.3d 282, 296, 2016 - NMCA- 21 (N.M. App., 2015)

Potential Effects on Drug Testing of the new BIA Guidelines on ICWA “…substance abuse… does not by itself meet the standard of evidence” needed for TPR or foster -care placement. BIA: Quick Reference Sheet for State Agency Personnel in Involuntary Proceedings To order foster placement or TPR, evidence must show a causal relationship between conditions in the home & the likelihood of serious emotional/physical damage to a child. §23.121(c) At the Custody hearing : How can testing help arguments for and against “imminent physical damage or harm” ? 23.113(b)(1) After the Custody hearing : How can testing affect the ongoing evaluation of whether removal is still needed to avoid “imminent physical damage or harm”?

Legal Issues with Tests  Admission of drug test results in Abuse and Neglect proceedings  Impact of admission of drug tests throughout case on termination of parental rights proceedings

Admission of Drug Tests in Abuse & Neglect Proceedings  Hearings that do not apply the Rules of Evidence:  Custody Hearings  Judicial Review Hearings  Permanency Hearings (even when addressing change of plan)  DRUG TESTS ADMITTED THROUGH:  Caseworker testimony  Substance abuse provider testimony  Client admission  In-court testing

Admission of Drug Tests in Abuse & Neglect Proceedings Hearings that do apply the Rules of Evidence:  Adjudication  Termination of Parental Rights  Any hearings that are NOT exempted from the Rules of Evidence, such as  Guardianships, Orders to Show Cause, etc. DRUG TESTS ADMITTED THROUGH:   Business record exception (Rule 11-802(6) NMRA 2015):  Made at or near the time by – or from information transmitted by – someone with knowledge;  Kept in the course of a regularly conducted activity of a business, institution, organization, occupation, or calling, whether or not for profit;  Making the record was a regular practice of that activity; and  Conditions are shown by the testimony of the custodian  Expert testimony  Client admission

Admission of Evidence Through An Expert (Summary of materials from NITA, the National Institute for Trial Advocacy)  INTRODUCE the expert  QUALIFY the expert (credentials/experience/education)  TENDER the expert (“with a flourish”)  ASK for the expert’s OPINION  ELICIT the expert’s BASIS for the opinion  ELICIT the DIFFERENCES between your expert & the opponent’s expert  CROSS-EXAMINATION