Drug Testing – Use and Defense
State Bar of Texas
2012 Advanced Family Law Course
Seven Tips and Frequently Asked Questions Regarding Drug Testing in Divorce Cases and Other Family Law Cases
- Will I know in advance that the opposing party or opposing attorney is going to ask the judge for me to take a drug test?
The short answer is “no.” In most cases you are entitled to know what the opposing party is asking the judge to do in a particular case. A request for drug testing is an exception to the general rule. If sufficient evidence is presented to cause a judge to believe that illegal drug use is an issue in a case, the judge may order drug testing of one party or both parties without a formal request from either party. The judge also realizes that the element of surprise may be important in asking for a party to be drug tested; therefore, a judge may allow a party to ask another party to be tested without a formal request being filed in advance of the hearing.
- When will I be tested?
In drug testing, a day or an hour may have a significant impact on the test results; therefore, a judge will typically order a party to submit to a drug test within hours of the court hearing. In some cases, the opposing attorney may already have an employee from the testing facility in the courtroom to conduct the drug test in the courthouse immediately after the court hearing.
- What type of test will be ordered?
The type of test ordered by the judge will depend on the allegations in your case, including the type of alleged drug use and the alleged frequency of drug use. In almost all cases a judge will order a urine test. In other cases a judge may order a hair test and/or a nail test. A urine test is usually ordered along with a hair test and/or a nail test.
- How long will the drugs show up on a test?
The window of drug detection may vary by the type of drug, the amount of the drug ingested and the frequency of use.For a urine test, drugs may show up for approximately 3 days. Marijuana may show up for as much as 40 days.For a body hair test, drugs may show up for 7 to 12 months. For a head hair test, drugs may show up for up to approximately 3 months.
For a finger nail test, drugs may show up for approximately 3 to 5 months. For a total nail test, drugs may show up for approximately 8 to 12 months.
- Are the tests accurate?
As a general rule, judges accept drug test results as accurate and reliable.
- Can the other party “beat” a drug test?
Beating a drug test is the same as creating a false negative. (Obtaining a negative drug test when in fact the result should have been positive.) Clipping nails down to the quick, shaving head hair and body hair, drinking a lot of water before a test, adding adulterants to a specimen, and using some else’s urine are just a few ways test subjects have tried to “beat” a drug test. These methods do not work. Clipping nails and shaving head hair and body hair are obvious signs a party is trying to interfere with drug testing efforts. Also, as part of the testing process, a urine specimen will be checked by the testing facility to determine if it is diluted; therefore, drinking a lot of water before the testing will invalidate the test result. The specimen will also be checked for adulterants intended to alter the test results. If adulterants are noted in the specimen, the sample will be rejected. Finally, if the temperature of the specimen is too high (which indicates an effort to artificially warm the specimen) or if the temperature is too low (which indicates that the specimen is not a recent sample) the specimen will be rejected as invalid.Products formulated to beat a hair test such as shampoos and bleaching agent can be purchased over the Internet and at retail. While some products may help someone beat a hair test, products marketed for urine tests or nail tests are less effective. If a urine test is positive for drug use and a hair test is negative for drug use, the inconsistency in the test results and/or drug levels may be an indication to the testing facility and the judge that the specimen has been altered in some way.
- So what should I do if I think I may be drug tested?
Seek the advice of an attorney before you testify in court. If your attorney allows you to answer questions about your drug use, you must tell the truth. Lying in court under oath is perjury and may subject you to criminal penalties and civil sanctions. If you are using illegal drugs – stop. If you need assistance in stopping your drug use, contact your doctor or a mental heath professional for a referral.