Willful Negligence: Bexar probation still not providing confirmation to identify false-positive drug tests

Bexar County probation director Bill Fitzgerald continues to defiantly refuse to allow confirmation tests for probationers' urinalysis screenings, reports the San Antonio Current, which observes that, "By any measure, the department today is a house on fire and the only ones who can intervene, Bexar County’s local judges, have chosen to remain silent." After the agency earlier this year switched to a private treatment provider with laxer testing standards:

One 20-year employee, who asked not to be identified for fear of retaliation, said she’d never seen such an explosion of obviously bad data — or such a poor administrative response to a critical situation. “I’ve never worked for an administration that didn’t care [if] false positives were occurring,” she said. “And then, to cover it up … as if they weren’t occurring.”

Fitzgerald's policy change to privatize drug testing services and disallow confirmation tests has already led the department to accuse demonstrably innocent people of drug use while on probation, the Current reports. By contrast, confirmation is routinely offered by probation departments in other large Texas counties.

Skirmishes over the contract with Treatment Associates have also drawn renewed attention to the department’s drug-testing policies in general. Shutting down the department’s old drug lab isn’t the only change five-year veteran Fitzgerald has made during his tenure. He also ended the department’s practice of seeking confirmation tests for any dubious or disputed test results.

While former adult-probation director Caesar Garcia agreed that the department’s in-house drug-testing operations had received some black marks in the past, he said confirmation tests were performed when probation officers requested them. It’s an assertion backed by several officers interviewed for this article but strenuously denied by two-year employee Cline, who did not work with Garcia during his 25-year reign as director.

The probation department relies on “dip” tests for proof of drug use. Dip tests consist essentially of dropping a sensitized paper into the pee cup and waiting for the appearance of positive lines, not unlike many home-pregnancy tests. ...

Austin defense attorney and UT Criminal Defense Clinic lecturer Richard Segura said the dip-test technology doesn’t fly in court.

“Normally, if the client doesn’t admit to it, there’s no way in hell they’re going to ever be able to prove that case up,” he said. “The probation officer’s not a chemist, and the test isn’t scientifically validated. It’s not even admissible.”

Most officers use the tests to confront their clients and angle for a confession. Many defense attorneys even take the findings at face value and try to work plea deals based on their results. Certainly, they are accurate the majority of the time. But they fail enough that any time a result leads officers to seek to revoke a client’s probation, all other major cities in the state surveyed for this story offer confirmation tests. Probationers in Bexar County, however, aren’t even told they have the right to take a more conclusive test.

“No,” one Bexar County officer told the Current. “That information is not being offered.”

Though it's not the kind of thing the state's various law-school based innocence clinics work on, this is as much an innocence issue as the guys getting out of prison after decades based on DNA evidence, though typically the wrongful punishment isn't nearly as severe. If you're accused by a false positive and the department knows that routinely happens but refuses to order confirmation before taking action based on a dip test, to me that's willful negligence - particularly given that they fired the whistleblower who complained.

Current writer Greg Harman posted an audio file of his interview with Kathleen Cline from the Bexar probation department, so you can hear the full thing if you'd like. At the tail end, I was flattered to hear Cline advise Harman to "get on Grits for Breakfast and do a little research"; nice to know Grits is where primary sources send reporters for their information! ;)

Finally, Harman compiled an interesting sidebar listing things that can cause a false positive in unconfirmed "dip test" urinalyses:

So-called “false positives” can come from a variety of factors. Here is just a sample.

Marijuana? Other candidates may be Dronabinol, Advil, Motrin, Midol, Excedrin, Aleve, Phenergan, niacin, hempseed oil, or a kidney infection. Being dark-complected can also put you at higher risk of a positive test, as the body flushes excess skin pigmentation, or melanin (which resembles stoner construct THC), from the system.

Amphetamines? Check those cold meds: ephedrine, pseudoephedrine, propylephedrine, basically the whole damn cold cabinet … Robitussin Cold and Flu, NyQuil, Vicks NyQuil, nasal sprays such as Afrin, asthma meds like Primatine tablets, and a range of prescription drugs.

Opiates? Not just poppyseed muffins; Tylenol with codeine, most prescription pain meds, cough suppressants with dexotromethorphan (DXM), NyQuil, or kidney or liver disease.

Cocaine? Popular antibiotic amoxicillin, tonic water, diabetes, and kidney and liver disease.

LSD? Watch out for migraine medications, including Egotamine, Ergostat, Cafergot, Wigraine, and Imitrex, among others.