Test on Trial

Fortner declined comment, saying it "wouldn’t be prudent" to discuss matters in an ongoing case.

Questioning Fortner’s credibility alone, of course, doesn’t prove that the patch doesn’t work. It has been cleared by the Food and Drug Administration, and outside experts have vouched for it. They include one of America’s most prominent toxicologists, Dr. Edward Cone of the National Institute on Drug Abuse, who testified that the patch has been investigated by a number of agencies around the world, "and generally they find that the sweat patch is a very good means of detecting drugs."

The many clean-urine/dirty-sweat cases don’t necessarily prove anything, either. Since urine tests cover only a short period of time, it is theoretically possible for someone to take a pee test in the morning, get high that afternoon and have the drug’s traces fade away before he fills the next cup a few days later. But the ever-vigilant patch would record the drug’s presence.

No one denies that the patch detects drugs — the problem is, it may detect them too well. New research supports patch critics’ claim that in some cases, patches are picking up drugs that their wearers did not ingest. Preliminary results of research currently under way at the Naval Research Laboratory in Washington, D.C., indicate that the patch can be permeated from the outside — for instance, by minute traces of drugs that can linger indefinitely in upholstery, clothing or money. The study also finds that the isopropyl alcohol swabbed on the skin before the patch is applied does not remove all traces of drugs, meaning that tiny quantities of drugs on a wearer’s arm before the patch was applied can trigger a false positive. These are significant risks, since it takes only a tiny amount of a drug — 10-millionths of a gram — to trigger a positive.

PharmChem also has not conducted studies on how long methamphetamine is stored in the body, meaning there’s a chance that traces of drugs taken long before the patch was put on could be excreted onto it. Nor are there studies on whether passive exposure to methamphetamine — for instance, by inhaling someone else’s secondhand meth-smoke — could trigger a false-positive.

Sheryl Woodhall figures one of those possibilities happened to her. She’s one of at least half a dozen Northern California parents who have lost their children because of questionable patch tests. Thanks to her admitted drug use, the local child-welfare authorities required her to submit to regular drug testing. Over a period of a couple of months last year, she had consistently clean urine tests, but several dirty patches. "I swear on my life I wasn’t using anything," says Woodhall. But later, she says, she discovered that her boyfriend was; somehow, she thinks, meth traces at his place or on his body infected her patch. Her two youngest children are now in foster care.

Hank was luckier. Instead of jail, the judge just ordered more conditions added to his parole. Hank’s not wearing the patch anymore. He says his parole officer lost faith in it after he had Hank wear two patches simultaneously — and saw them come up with conflicting results. (The parole officer refused comment.) But someday, Hank may just have to wear the patch again for a different reason: PharmChem is seeking federal approval to market it for workplace drug-testing. "We believe it could have wide use once it’s approved for the private market," says PharmChem CEO Joseph Halligan.

That, suggests Nevada federal Public Defender Franny Forsman, is why the company is so eager to see it validated in the criminal courts. "PharmChem wants to use our clients as a steppingstone to the private-employer market," says Forsman. "That’s where the big money is."

"Until they settle all the doubts that have been raised," says Hank’s lawyer, deputy federal Public Defender Guy Iversen, "they should cease using it altogether."