Drug Testing in Hair

Pascal Kintz

• Publisher: CRC Press
• Year: 2020
• ISBN:
  9781000142266
• Edition: 1
• Topic: Law
• Subtopic: Forensic Science
• Index: Law

Drug Testing in Hair is the first book on this timely and controversial topic. The book's purpose is to validate hair testing as an accepted form of evidence for use in courts and elsewhere, such as the military and the workplace. This volume presents the most recent experiments and clinical applications to provide missing information and insight into the unanswered questions of hair testing.Active researchers working in hair testing have contributed chapters to this book. New data, never before published, are incorporated into the text, so the reader receives cutting-edge information from experts in the field. This is must-have information on everything you need to know about drug testing in hair.

Chapter 1

TECHNICAL AND LEGAL ASPECTS OF DRUGS OF ABUSE TESTING IN HAIR

Marilyn A. Huestis

CONTENTS

I.	Introduction
II.	Common Law System and Admissibility of Evidence
III.	Drug Hair Test Results in the American Courts
	A. Criminal Cases
	B. Military Court-Martials
	C. Child Custody and Adoption Cases
	D. Probation Revocation Proceedings
	E. Unemployment Compensation Cases
	F. Preemployment Testing
	G. Exclusion of Evidence
IV.	Analytical Methods
V.	Interpretation of Hair Test Data
VI.	Society of Forensic Toxicologists (SOFT) Consensus Statements
VII.	Summary
References

I. INTRODUCTION

Analysis of human hair is purported to provide evidence of the use or lack of use of drugs of abuse. According to some investigators, the extent and timing of drug exposure may also be estimated. Hair test results for drugs of abuse have recently been entered more frequently as evidence in the U.S. courts and have generated much interest and controversy in the forensic toxicology community. Toxicologists agree that no single technique or specimen can provide answers to all toxicological questions. More information is obtained with a variety of analytical approaches and different biological specimens. Hair analysis offers a unique perspective on human drug use by providing a wider window of drug detection, and may offer advantages over other drug testing methods in differentiating the source of some drug exposures, i.e., heroin vs. poppy seed exposure in positive opiate cases. It also may be more difficult to evade drug detection in a hair test, as compared to a urine test, due to an inability to dilute the sample by ingesting large quantities of liquids.

In forensic toxicology, the strengths and weaknesses of each method must be characterized to determine the scientific and legal defensibility of test results. Although hair test methods utilize well-defined analytical techniques, this fact alone does not imply forensic acceptability. Method validation requires an objective demonstration of the accuracy, precision, sensitivity, and specificity of an assay. Toxicologists continue to disagree on whether or not some of these fundamental factors have been adequately evaluated. Another factor is the lack of proficiency testing and inspection programs to objectively appraise assay and laboratory performance. An even more difficult and challenging task may be the resolution of questions that impact the interpretation of hair test results, including minimum detectable concentrations for drug exposure, the time course of appearance of drugs in hair, the presence or absence of dose-response relationships, the stability of drugs in hair and effects of hair treatments, the appropriate analytical cutoff concentrations, the possible racial or sex biases in drug detection, and the recognition of contamination of hair from external sources of exposure. The results of tests for drugs in hair have been submitted as evidence in recent cases in the American courts. These cases illustrate the potential value of hair drug test results, and also some of the objections to the use of hair test programs. Forensic toxicologists must be prepared to critically examine and employ this new source of information regarding human drug use.

II. COMMON LAW SYSTEM AND ADMISSIBILITY OF EVIDENCE

The common law system of the U.S. is based mainly on court decisions and legal precedents, rather than on legislative acts. Judges are given the power to make law through their decisions and opinions. In addition, the U.S. Constitution serves to protect the rights and liberties of American citizens and serves as the final arbitrator on this type of issue. An individual is presumed to be innocent until proven guilty beyond a reasonable doubt in matters of public law and innocent unless otherwise proven guilty by the preponderance of evidence in matters of civil law. But just as we confront disparate interpretations of scientific data, conflicting interpretations of the laws and of the meaning of the Constitution are apparent.

Until recently, the standard of admissibility of scientific evidence into American courts was based on a decision put forth in 1923 in U.S. v Frye which required that a scientific principle or discovery, the technique used for applying the scientific principle, and the specific application on which the expert testimony is to be base to be sufficiently established to have gained general acceptance.¹ This decision of the Court of Appeals for the District of Columbia ruled on the admissibility of evidence from a systolic blood pressure deception test, a precursor to the polygraph machine or lie detector test. The Frye opinion stated that it was difficult to determine when a scientific principle or discovery crossed the line between the experimental and demonstrable stages. “Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”¹ The Federal Rules of Evidence were adopted in 1975 and aimed to balance the relevance, reliability, and helpfulness of evidence against the likelihood of waste of time, confusion, and prejudice.² Rule 702 Testimony by Experts in the Federal Rules of Evidence is more liberal than the Frye standard and states that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.” Despite the enactment of the new rules, the Frye standard remained the predominant determining factor on the admissibility of evidence until the U.S. Supreme Court’s decision in Daubert v Merrell Dow in 1993.³ In this case, pregnant women who had been prescribed Bendectin^®, an anti-nausea medication, contended that the drug may have produced birth defects in their children. None of the company’s scientific studies demonstrated a cause and effect relationship between birth defects and drug exposure. The plaintiff’s scientific data were not admitted under the Frye rule due to the criteria for general acceptance. The U.S. Supreme Court ruled that the Federal Rules of Evidence supersede the Frye standard in determining the validity of scientific evidence. “General acceptance” is not required for admissibility. The evidence must be grounded in the method and procedures of science and must be relevant to the case at issue. Furthermore, test results from any method submitted as evidence in court will be subject to review of the specimen collection, handling, and testing procedures to evaluate data reliability. It is clear that in the future judges will have more latitude in deciding what evidence to hear. The relaxation of the requirements for admissibility of evidence will most likely result in an increase in the submission of hair test results in the courts and an increased debate among expert toxicology witnesses in the interpretation of these data.

III. DRUG HAIR TEST RESULTS IN THE AMERICAN COURTS

A. Criminal Cases

The first time that hair drug test data were submitted to an American court proceeding was in May 1982 in the State of Alaska v Richard Gene Majdic.⁴ The court admitted into evidence radioimmunoassay (RIA) test results demonstrating the presence of cocaine in the hair, perspiration, and menstrual stain of an alleged sexual assault victim. These findings were used to implicate cocaine use by the victim, a claim she denied in testimony, but later admitted, according to Dr. F. P. Smith, an expert witness. No confirmatory analyses were performed. Challenges to the testimony included questions as to the specificity of the RIA for cocaine metabolites and the possibility of external drug contamination. The calibrators used to determine the concentration of drug in the sample were not prepared in hair, which may have introduced a matrix effect in the test results.

In 1985 in People v Miel, Martin Miel was charged and convicted of first-degree murder.⁵ The defense introduced hair test results to indicate that a key prosecution witness had lied when he said he was not using drugs at the time of the crime. Also in 1985, Robert Korner was convicted of robbery in People v Korner; however, the defense had submitted hair test results from the accused to prove that he was under the influence of drugs at the time of the crime and therefore could not have formed criminal intent.⁶ In these three cases, positive hair test results were used to demonstrate a prior history of drug use.

In 1987 in State of New Jersey v Samuel L. Davis, the defense was able to obtain a court order forbidding a sexual assault victim from cutting her hair until hair testing could be performed.⁷ The law clerk claimed that she had been raped by an attorney after he spiked her drink with cocaine. In this case, the finding of no cocaine in the hair would be used to refute the woman’s testimony. Minimum detectable drug concentrations in hair have not been clearly established to date; a single drug exposure may not be sufficient to produce a positive drug hair test.

In 1990 in U.S. v Riley,⁸ the district court suppressed evidence seized pursuant to a search warrant. The U.S. Appeal Court reversed the lower court decision and permitted collection and testing of hair for drugs of abuse. Also in 1990, in U.S. v Foote,⁹ the appeal court affirmed the judgment of a district court that denied a motion to require an undercover detective to submit to a hair drug test. The intrusive nature of the “experimental RIA analysis” and the lack of evidence of drug use were the basis for the denial. Hair testing was also denied by the court in People v Thurman in 1990.¹⁰ The defense council had requested the collection and testing of fingernail and hair samples from a police informant to document cocaine use. In 1992 in Maull v Warren,¹¹ a Delaware State Trooper appealed his suspension on drug use charges. He had consented to blood and hair tests for drugs, both of which were found to be negative. These test results were admitted into evidence at the hearing; however, it was noted that during a search of the officer’s home, hypodermic needles and syringes and anabolic steroids were found. In 1993 in Colorado v Allen Thomas,¹² hair testing data were not admitted. The defense counsel wanted to document diminished capacity of the homicide defendant with positive hair test results.

B. Military Court-Martials

In 1987 a marine stationed at Camp Pendleton, CA was acquitted of the wrongful use of cocaine in a military court-martial, U.S. v LCpl Steven M. Piccolo.¹³ A posit...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Preface
• The Editor
• Contributors
• Table of Contents
• Introduction
• Chapter 1 Technical and Legal Aspects of Drugs of Abuse Testing in Hair
• Chapter 2 Environmental Exposure — the Stumbling Block of Hair Testing
• Chapter 3 The Potential for Bias in Hair Testing for Drugs of Abuse
• Chapter 4 The Analytical Tools for Hair Testing
• Chapter 5 Importance of Supercritical Fluid Extraction (SFE) in Hair Analysis
• Chapter 6 Determination of Cocaine and Opioids in Hair
• Chapter 7 Cannabis and Amphetamine Determination in Human Hair
• Chapter 8 Unusual Drugs in Hair
• Chapter 9 Forensic Applications of Hair Analysis
• Chapter 10 Hair Analysis for Organic Analytes: Methodology, Reliability Issues, and Field Studies
• Chapter 11 Clinical Applications of Hair Analysis
• Chapter 12 Drug Analyses in Nonhead Hair
• Index