“Trust the science.” Remember that tiresome line from the days of COVID hysteria?
There’s no denying that it was effective. People really do trust anything that appears scientific—especially when presented by someone wearing glasses and a lab coat.
Forensic drug and alcohol screenings are no different.
When a prosecutor or a probation officer presents a “positive” drug or alcohol screen to the judge, he’s usually inclined to simply “trust the science” and conclude that the defendant violated his pretrial release conditions or terms of probation.
This can, and often does, result in the defendant getting locked up. (See my posts on bail revocation and probation detention/violation hearings.)
Consequently, defendants accused of failing a drug or alcohol screen must be ready to dispute the “science” of results however they can.
First, learn the basics about the screening that was used. What is its error rate? If it’s an alcohol breath test, what is its acceptable threshold? If it’s a drug screen, what is its cut-off level? Is there a screening manual? Was the manual followed? What prescription drugs or over-the-counter medications could have caused a false-positive result?
Next, seriously consider hiring an expert on drug analysis or toxicology. They can scrutinize the screening results and provide live testimony to the court or prepare a written affidavit which you can use as part of your defense. If you’re indigent, your attorney can file a motion with the court requesting funds for such an expert. Those who are not deemed “indigent” will need to pay out-of-pocket. Toxicologists aren’t cheap. But they may be necessary to help keep you out of jail.
Finally, realize that most pretrial and probation screenings are just that—screenings. They are not conclusive test results. Sometimes you need to read the screening’s fine print to understand this. As I write this post, for example, I have a stack of screenings on my desk for an upcoming probation violation hearing. The documents look official and highly scientific. They are filled with numbers, scientific terms and units of measurement. At the very bottom of each page, however, is a “clarification statement” which plainly says that the results should not be used in judicial proceedings until more thorough and accurate testing can be done.
One last point, beating “positive” drug and alcohol screenings is very much a numbers game. If you’ve failed a couple tests, you have a good chance of persuading the judge that the screenings can’t be trusted for one reason or another. On the other hand, if you’ve failed over and over again, your chances of invalidating the screens are slim to none.