Test on Trial
In January 1998, Hank S. stood before a Los Angeles federal judge, facing the possibility of prison for failing an allegedly faulty drug test.
The matter at issue was whether Hank, who does not want his real name published, had violated the terms of the probation he was put on after getting busted for marking cards in a Washington casino. As a former cocaine abuser, Hank, 56, was required to wear a new type of drug-testing device, a patch that monitors sweat for traces of illegal substances. One day in October 1997, the patch said Hank had been doing cocaine. Hank swore he had not; he had clean urine and hair tests, and letters from his drug counselors attesting that he was staying straight, to prove it. The patch, Hank insisted, must have made a mistake.
"I was scared shitless," he says. His wife needed a liver transplant at the time, and if Hank was sent to prison, he would lose his salesmans job and she would lose his insurance coverage. And when he got out, well, "Theres not a great market out there for unemployed 56-year-olds," he says.
To determine whether it was possible for the patch to have made such a mistake, the judge heard from a single expert witness: Neil Fortner, vice president of laboratory operations for the company that manufactures the patch. No way, said Fortner. And Hank lost his case.
Its hardly surprising that a guy in Hanks shoes would deny using drugs, but in his case and dozens of others like it, theres reason to believe it was the patch, not him, that wasnt telling the truth. In recent years, the patch has been slapped on thousands of people in Southern California and around the country by a lengthening list of criminal-justice agencies and courts. Its findings can determine everything from whether a drug addict gets extra counseling to whether a mother in family court loses her children. But despite the potentially life-altering power of its readings, a growing body of evidence indicates that the patch is prone to mistakes.
The Band-Aid-like patch was introduced with a $1.5 million marketing effort in the mid-1990s by PharmChem, a major Silicon Valleybased drug-testing company. Worn on the upper arm or back, it offers several advantages over conventional urine testing. A urine test will only detect drug use within the previous 72 hours; the patch, however, can be left on for up to two weeks, a constant chemical sentinel. Its also much harder to deceive than urine tests, which can be fooled by drug users who drink enough water to dilute their pee, or who manage to tamper with the sample itself. (In one memorable recent effort, a Texas heroin addict was caught trying to squirt a sample out of a fake penis.)
The patch was purchased in July by drug courts in Inglewood and El Monte. The Orange County Probation Department has used it since 1996, as has Anaheim-based Sentencing Concepts, a private incarceration and drug-rehab outfit that also re-sells the patch nationwide. The device is also stuck on some 5,000 federal probationers and parolees across the country, and many more people under the supervision of correctional agencies and courts from Northern California to Massachusetts.
"We find it very useful," says Bill Daniel, director of adult field services for the Orange County Probation Department, which currently patches about 300 drug offenders. "Its a reminder to parolees that they cant slip up, even if theyre outside our supervision for a few days."
The patchs critics, however, claim that it has a serious flaw: a propensity to indicate its wearers have taken drugs when, in fact, they havent. Defense attorneys in Northern California have compiled a list of dozens of people who, like Hank, came up with dirty patch results but clean urine and/or hair tests. Several court challenges have so far failed to prove the patchs fallibility, but compelling new evidence currently being introduced in another federal probationers case in Nevada may change that. New scientific research points to flaws in the patch that could result in false-positive readings. Moreover, Neil Fortner, the expert who has played a key role in convincing courts across the country that the patch is trustworthy, appears himself to have trouble telling the truth.
Fortner, 44, holds well over $100,000 worth of PharmChem stock options giving him an obvious interest in the success of his employers products. By his own count, he has testified in "most" of the two-dozen-odd court challenges to the patchs accuracy sometimes as the only expert witness.
Bahia Wilson, who oversees Sentencing Concepts patch-sales arm, says she has "no doubt whatsoever" that the device is reliable. What makes her so sure? Primarily, Neil Fortners word, she says. "He is extremely credible," says Wilson. "His résumé and credentials are beyond reproach."
In fact, Fortners credentials and credibility are eminently reproachable. In Hanks case and many others, Fortner testified under oath that he has nearly completed a doctoral degree in neurochemistry at Cleveland State and San Francisco State universities. But in letters sent early this year to Nevada federal public defenders, officials at both universities declare that Fortner has never been enrolled in any of their doctoral programs. Cleveland State doesnt even have a neurochemistry Ph.D. program. The closest Fortner got to a doctorate was starting a masters program, which he has yet to finish, at Cleveland State in the late 80s.
Fortner declined comment, saying it "wouldnt be prudent" to discuss matters in an ongoing case.
Questioning Fortners credibility alone, of course, doesnt prove that the patch doesnt work. It has been cleared by the Food and Drug Administration, and outside experts have vouched for it. They include one of Americas 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 dont 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 drugs traces fade away before he fills the next cup a few days later. But the ever-vigilant patch would record the drugs 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 wearers 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 theres 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 elses secondhand meth-smoke could trigger a false-positive.
Sheryl Woodhall figures one of those possibilities happened to her. Shes 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 wasnt 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. Hanks 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 its 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. "Thats where the big money is."
"Until they settle all the doubts that have been raised," says Hanks lawyer, deputy federal Public Defender Guy Iversen, "they should cease using it altogether."
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