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1. Massachusetts Supreme Court to hear student 5th Amendment right to remain silent case
2. Maastricht bans tourists from coffee shops
3. Missoula overrides citizen initiative making marijuana the lowest enforcement priority

Daily Toker Tunes

• Roots Monday: Blind Lemon Jefferson – “Easy Rider Blues”

Government at Work

• Ed Docter from Montana Cannabis Industries Association on referendum on SB 423

Radical Rant

• Lessons we can learn from Part I of Ken Burns’ Prohibition documentary on PBS

Before…

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With apologies to Keith Olbermann…

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Wow!  I just received a fax from McGraw Hill, the people who make college textbooks, among other publishing.  They happened on a piece I wrote for The Oregon Herald on 4/20/2005 (just two weeks before I met Madeline Martinez and started my career in marijuana law reform) entitled “Drug Testing Does No Good” and are asking my permission to reprint it in a college textbook entitled “Taking Sides: Clashing Views in Management” that will be published in August.  Yours truly even receives a fee!  For something I wrote and forgot about four years ago!  (Ain’t the intertubes wonderful?)

Here it is for your reading pleasure…

Recently, an RV manufacturing plant in Goshen, Indiana, made headlines because they had drug tested all 120 of their employees and found that nearly a third of them tested positive for some illicit substance.

What caused the company to drug test all of their employees? Was there a rash of accidents? Had productivity dropped significantly? Were there increasing incidents of absenteeism and illness? Did a supervisor notice any drug use occurring at the plant, or notice an employee obviously under the influence of drugs?

No. The only reason the plant spent the time, effort, and money to test their employees was due to a police tip that there was a drug problem at the plant. In other words, there was no reason for the company to believe they had a drug problem.

You would think that running a manufacturing plant with one third of your employees working under the influence would lead to some obvious problems. You’d be right. The problem is that a positive drug test does not indicate that a person is under the influence of drugs. It only indicates that a person has done drugs in the past.

The methods of drug testing have evolved over the past decade. Once, businesses, schools, and government could only test a person’s urine. These tests are so easily defeated that the tests only detect whether you’re too dumb to fool the test. But new methods of testing the blood, saliva, and hair have made fooling a drug test much harder.

With the urine test, evidence of past use of cocaine, amphetamines, and other hard drugs can be detected for up to 48 hours after use. Thus, a worker testing positive for these drugs could have ingested these substances on a Friday evening and be completely sober for work on Monday. Likewise, a person seeking a new job need only abstain from these substances for three days.

Ironically, the one drug with the lowest potential for abuse and harm, marijuana, remains detectable in a person’s urine for 14 to 45 days. It is odd to consider that for two employees passing a urine test, one may have been abstaining from smoking pot all of last month while the other may have been smoking crack all of last month up until three days ago.

The newer testing does a better job of detecting drug use; some tests can indicate the use of any illicit substance for up to three months prior to the test. However, all that means is that problem drug users who wish to go straight and re-enter the workforce have a longer wait before they can apply for work. Without gainful employment, how much harder is it for a recovering addict to stay sober?

There must be a good reason for American businesses spending up to $1 billion dollars per year on drug testing. One of the usual reasons for this expenditure is workforce productivity.

However, when independent researchers analyzed the statistics on drug testing and productivity, they found some surprising results. According to The Committee on Drug Use in the Workplace (CDUW) assembled by the government’s own National Institute of Drug Abuse, “The empirical results suggest that drug testing programs do not succeed in improving productivity. Surprisingly, companies adopting drug testing programs are found to exhibit lower levels of productivity than their counterparts that do not.”

How could a company actually lose productivity by drug testing workers? CDUW suggests four possible reasons:

1) Drug testing is expensive. Tests cost around $50 per worker. A congressional committee estimated that the cost of each positive result in government testing was $77,000 because the positive rate was only 0.5%. Then there’s the costs of administration, medical review, follow-up tests for positive results, treatment or discipline for the worker, or searching, hiring, and training a new worker.

2) Drug testing lowers employee morale. An overwhelming majority of workers find drug testing to be an invasion of privacy. They consider drug testing unfair when it is only detecting prior use, not current impairment. They find it profoundly unfair that these tests do not consider the abuse of alcohol, which is a more significant factor in workplace safety and productivity. The lowered morale causes employees to show less loyalty to a company, not work as hard, and good workers may seek other jobs with non-drug testing firms.

3) Drug use may actually increase productivity for some people. The CDUW found that moderate use of drugs or alcohol had either a positive effect or no effect on worker productivity. Numerous studies have found that moderate marijuana use actually increased productivity. Furthermore, marijuana users who are treating pain, cancer, AIDS, multiple sclerosis, glaucoma, arthritis, migraines, or even depression are much more productive than they would be without treatment.

4) Drug testing may lead marijuana smokers (by far the largest segment of the drug using population) to using harder drugs. Since most workplaces still choose the cheaper urine testing over the other tests, marijuana smokers may instead use harder drugs or alcohol, all of which are flushed quickly from the system. Marijuana’s low addictiveness allows a casual user to remain healthy and productive, while the high addictiveness of the harder drugs make it more likely for the person to slip from casual use to the severe abuse that causes the illness, absenteeism, safety risks, and low productivity the drug tests were meant to alleviate in the first place.

Another excuse offered for drug testing is workplace safety. We don’t want to have drug-impaired workers operating heavy machinery, public transportation, or any other industry where safety is of paramount concern. Of course, this reasoning falls flat when we recall that drug testing does not detect impairment. But perhaps one could assume that someone who has used drugs in the past may be more likely to use them on the job and endanger fellow employees and the public.

Unfortunately, the data do not support that assumption. Many companies have used some form of impairment testing, a system that does not test for drugs, but rather hand-eye coordination, concentration, and reaction times. Those companies that have used these systems have found that severe fatigue and illness, not drug or alcohol use, are the most common causes of workplace accidents.

One added advantage of these tests is that they do reduce the level of workplace accidents. Workers are much more accepting of impairment tests, as they do not violate privacy and are perceived to be fairer than drug testing. Plus, the impairment tests are much cheaper to administer and they actually detect the problem that drug testing does not — worker impairment.

The final nail in the coffin of any workplace drug testing argument is the fact that casual drug users (once per week or less) are just as likely to find employment and hold down a job as their non-drug using counterparts. Our drug testing regime has not kept casual drug users out of the workplace at all, and those users are not adversely affecting productivity, safety, or their own career goals.

Businesses and government aren’t the only entities routinely testing for drugs. Our schools are now testing our children for evidence of illicit drug use. In a series of controversial rulings, the Supreme Court has steadily added to the number of our children being drug tested.

First they allowed students to be tested for cause; if a student was suspected of using or possessing drugs on campus, he or she could be tested. Next they ruled that students involved with extracurricular athletics could be tested randomly, citing the need for safety in potentially dangerous sports activities.

Most recently, the justices have decided that students in any extracurricular activity, from band to chess club, could be tested randomly. Justice Clarence Thomas expressed the opinion of the slim 5-4 majority stating that children involved in after-school activities voluntarily give up some of their rights to privacy.

Many of the same issues of safety and productivity are raised in support of drug testing students, and they are met with the same evidence found in the workplace: no significant differences in accidents or performance are found between schools that drug test and those that do not, nor between students who pass drug tests and those who fail.

However, with the student population there are other arguments that are stated: we need to send a message to students that drug use will not be tolerated and we need to provide incentives for students stop using drugs.

This argument also falls flat when confronted with the evidence. A federally-funded study in 2003 of over 76,000 students in almost 900 schools found no correlation between drug testing and student drug use. Kids were just as likely to use drugs at the drug testing schools as the non-drug testing schools.

Moreover, just as workplace drug testing has the unintended consequence of lowering morale and productivity, school drug testing has its unintended consequences. Kids who might be falling in with the wrong crowd are discouraged from joining the after-school sports or clubs that would provide a healthier environment. Kids already enrolled in extra-curricular activities must sacrifice their privacy and discover that their word and their achievements are not trusted.

Of course, like workplace drug testing, there’s the added expense of operating such a program, a cost that weighs heavily against chronically insufficient school budgets. The cost of one positive drug test result could have bought new instruments for the band, computers for the classroom, or equipment for the team.

Further compounding the futility of all drug testing is the fact that there is no perfect drug test. Every test gives a significant amount of false-positives and false-negatives. Many common over-the-counter medications can show up as an illicit drug. Cold tablets containing pseudoephedrine may be detected as amphetamines (speed). Cold remedies with dextromethorphan can register positive for opiates (heroin). Naproxen/ibuprofen-based pain relievers give positives for cannabis (marijuana). Nasal sprays sometimes indicate for MDMA (ecstasy).

Even some common foods can cause a failed drug test. Poppy seeds that you ingest from muffins or bagels can register as heroin. Large amounts of riboflavin (vitamin B-2) and perfectly legal (and incredibly healthy) hemp seed oil can register as marijuana.

Then of course there are many prescription drugs that can lead to a false positive. Amoxicillin, the antibiotic most prescribed for those allergic to penicillin, can show up as cocaine. Many asthma medications register as ecstasy or amphetamines. Even in the absence of these pharmaceuticals, some medical conditions can register a false positive. Kidney infection, liver disease, and diabetes can all lead to false positives for cocaine, ecstasy, opiates, or amphetamines.

Worst of all, you may fail a drug test through no fault of your own. A small fraction of people excrete larger amounts of certain enzymes in their urine that may produce a false positive. One researcher hypothesizes that the higher levels of melanin (the pigment producing cell) found in darker-skinned people may lead to positives for marijuana, because melanin and THC metabolites share a similar molecular structure.

For every false positive there is a person who has suffered the indignity of the accusation, the suspicion of family, co-workers, and friends, the threat of job loss or school suspension, and the burden of proving themselves innocent of a crime they did not commit. For every false negative there is the time, money, and effort wasted failing to discover someone who is actually using drugs.

But beyond the obvious futility and waste involved, there is one superseding argument against drug testing: it is un-American.

Our Founding Fathers laid out our basic liberties in the Bill of Rights. Drug testing violates at least two of our most sacred liberties.

Our 5th Amendment lays out two basic legal concepts: that we cannot be compelled to testify against ourselves and that we are innocent until proven guilty. Drug testing assumes that you are guilty until your body proves you to be innocent. Being compelled to provide urine, hair, saliva, or blood is a testimony against yourself. The Founders were clearly against compelling the citizenry toward self-incrimination; they had seen the results of tyrants using these techniques throughout history. It’s a shame our courts haven’t been as wise.

Our 4th Amendment is the basis for our right to privacy and freedom from government investigations and seizures without warrant and probable cause. Drug testing is certainly an invasion of privacy; it’s hard to imagine how a stranger watching you urinate isn’t an invasion of privacy. If there is no probable cause to believe you have committed a crime, there is no good reason to seize your bodily fluids.

Sadly, courts have decided that going to work or school is a voluntary activity, that you exchange some of your expectation to privacy in getting a job or an education, and that employers and educators are not the police or government. It’s hard for me to imagine how work or education is truly voluntary; I guess that homelessness and ignorance are a viable choice in their minds; a choice I think would lead to more drug abuse, not less.

For many people, there is no choice but to swallow their pride, surrender their rights, face the embarrassment, risk the false positive, and take the drug test. Almost half of all employers perform some sort of drug testing. The farther down the socio-economic scale, the more likely a worker will face a pre-employment drug test. Around 36% of financial, business, and professional services test their new hires, compared to more than three-fourths of manufacturing and more than 60% of wholesale, retail, and other services. Yet rates of illicit drug use remain fairly constant among all segments of society.

The cash-strapped schools are less likely to be testing for drugs. In 2003, some 19% of schools had drug testing for cause, only 5% tested student-athletes, and only 4% tested participants in all extra-curricular activities. But for the student at these schools, unlike the worker, attendance is compulsory and there aren’t many other options available. Their choices are to either avoid all extracurricular activities (which can be determining factors in college selection and future career) or suffer the same risks and indignities as their parents in the workforce.

Drug testing is but one of the many failures in our government’s war on casual drug users, and its failure to achieve its stated goals is one of the easiest to prove. Fortunately, many companies are coming to recognize this fact — rates of workplace and school drug testing have declined steadily since 1990. But there remains a federal government with a strong inclination toward abrogating the rights of citizens to look “tough on crime”, and many industries that stand to gain from increased drug testing.

Personally, I just try to imagine what possible argument could have convinced hemp farmers Thomas Jefferson and George Washington to pee in a cup in order to get a job.

TRENTON (NJ.com) — The state Supreme Court ruled today that police did not violate the rights of a woman and her passenger when they searched her car during a 2004 traffic stop after she told an officer she had smoked marijuana earlier in the day.

The Bernards Township police officer threatened to search Angela Baum’s car when she could not provide him with a valid driver’s license or registration. Baum admitted there were drugs in the car, according to court documents. The incident occurred on June 4, 2004.

In a 5-2 decision, the court said the officer should have immediately read Baum her Miranda rights, but that his investigation was not “unreasonable” because of the information she had already given him.

“There is nothing … more intrusive than necessary in this stop and in this investigation,” Justice Helen Hoens wrote for the majority.

Both Baum and her passenger, Jermel Moore, were arrested and then read their rights. Police searched the car and found cocaine and more than 50 grams of marijuana.

Imagine an America where every school child is taught the Bill of Rights, especially that part called the 5th Amendment.  Imagine that kids were given lesson on their rights, including the fact that when questioned by a police officer, you have the right to remain silent.  I think in that America, we’d see possession arrests slashed by about half.

If Eighteenth Century colonial writing style is too much to comprehend, how about writing a 21st century equivalent in black marker on the back of your driver’s license?  Just four little letters: STFU!

Seriously, people, if a cop pulls you over and you know you’re being naughty, STFU!  Hand him your license, insurance, and registration and don’t say a damn word!  If he asks why you’re so quiet, shrug your shoulders.  You cannot be any more busted for what you’re being naughty with by being silent.  Being silent doesn’t give them more probable cause to search you.  Refusing a search (directly or by silence when asked to be searched) does not give them more probable cause to search you.  In the end, if they do find out what naughty things you’re doing, your lawyer has many more options to work with, from questioning the probable cause to dismissing the evidence, if you don’t say anything.

Or as my NORML Legal Committee pal John Lucy IV says, “the more you say, the more you pay” him to get you out of your predicament.  STFU!