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Dole test is used often in drug cases

A New York Drug Lawyer said that, respondents appeal from an order of the Supreme Court, entered on July 7, 1986, which enjoined them from implementing New York City Police Department Interim Order No. 36 which was issued on or about June 2, 1986. Said Order No. 36 would require current and future members of the Organized Crime Control Bureau (OCCB) to submit to random drug testing without reasonable suspicion.

A New York Criminal Lawyer said that, Interim Order No. 36 would require any police officer assigned to the OCCB to submit to drug testing at any time and without the normal requirement of a showing of reasonable suspicion of drug use. Specifically, Interim Order No. 36 requires the following: (1) All applicants for assignment to the OCCB would be required to submit to drug testing as a condition of such assignment. (2) Members submitting applications would be required to sign a form stating that they understand that drug testing is a part of the application process and a condition for continued assignment to the OCCB. Initial screening or testing could occur any time after the assignment and subsequent testing could occur periodically. (3) Members already assigned to the OCCB would be required to sign a form stating that they understand that drug screening is a condition of continued assignment to the OCCB. They would be subject to periodic testing as long as they are assigned to the OCCB. If a current member refused to sign the form, he or she would be immediately transferred from the OCCB. (4) Any applicant or member of the OCCB who, having signed the form, later refused to undergo testing would be suspended and the refusal would be grounds for dismissal from the Police Department.

A Lawyer said that, the petitioners do not object to drug screening in order to be assigned to the OCCB, nor do they object to drug crime testing as a part of an annual physical exam. They claim, however, that to require members of the police department who are assigned to the OCCB to undergo random drug testing without reasonable suspicion is a violation of their rights under the Fourth Amendment to the Constitution of the United States and Article 1, ยง 12 of the Constitution of the State of New York.

The issue in this case is whether Interim Order No. 36 violative of the Constitution.
the court affirms the grant of the permanent injunction because (1) reasonable suspicion is required before the members of the OCCB can be required to submit to random drug testing, (2) the recent decision in the 1987 case , requires the voiding of Interim Order No. 36 and (3) elementary protections of privacy and individual rights are absent from the order.

A number of cases have held that reasonable suspicion is required before urine testing of members of a police department can be ordered. The Court concludes that it is not constitutionally permissible to do away with a requirement of reasonable suspicion where drug crime testing can be a part of an annual physical examination and drug testing is required prior to entry to the OCCB.

In determining that reasonable suspicion, rather than probable cause, must exist to justify the search, the court reasoned that teachers have a diminished expectation of privacy since the government is entitled to inquire into their physical fitness to perform as teachers. The school district conceded that it did not have reasonable suspicion to believe that all or any of its probationary teachers were drug abusers. It did, however, argue that reasonable suspicion is not required when a public employer decides to test all employees in a particular category for potential drug abuse. It attempted to draw an analogy to random searches at police check points. While acknowledging that the courts have sanctioned certain types of random searches when the privacy interests are minimal, the government’s interest is substantial, and safeguards are provided to insure that an individual’s reasonable expectation of privacy is not subjected to unregulated discretion, the court noted that the test failed these requirements.
In addition to the absence of reasonable suspicion as a condition for drug testing, there is a third reason why Interim Order No. 36 is invalid. That reason is the total absence of safeguards and protection for privacy in the Order. This becomes clear when Interim Order No. 36 is compared with Interim Order No. 13, promulgated by the New York City Police Department on or about February 19, 1985.

Interim Order No. 13, which was in effect at the time of the promulgation of Interim Order No. 36 and which continues in effect today, mandates drug testing where there is reasonable cause to believe that any police officer is wrongfully using drugs. The Order also contains a number of safeguards to protect the individual affected. Specifically, Interim Order No. 13 states the following: (1) It is a mandate of the police department that its members not engage in illegal drug crime usage. (2) A Dole Test will be utilized by the Police Department “to detect the presence of drugs in the urine of members of the service suspected of illegal drug usage.” A Dole Test will be administered “when there is a reasonable basis to believe that an individual member of the service (uniformed or civilian) is wrongfully using drugs.” When there is a reasonable basis to suspect drug usage, the member of the Police Department must take a Dole Test as directed. Refusal would result in suspension and subsequent charges.
The safeguards of Interim Order No. 13 for a member of the Department suspected of drug usage are present in every phase of the investigation, to wit: (1) If a member of the service “has reasonable basis” to believe that another member of the service is illegally using drugs, he or she must notify the commanding officer or duty captain, who, in turn, must notify the Internal Affairs Division, Action Desk and comply with any instructions received. Where the observations of a member of the service formed the basis for the belief that another member is using drugs, two supervisors must observe the suspected drug abuser. (2) The supervisory officer assigned to conduct the investigation must prepare a case folder and document all aspects of the investigation. (3) A Dole Test is administered only after the investigating supervisor has conferred with and obtained the approval of an attorney in the Department Advocate’s Office. (4) The Dole Test is administered by the Health Services Division and certain information (including the name of the attorney in the Department Advocate’s Office, a name of the witness to the test and the results of the test) must be recorded in a Dole Test Log. (5) Where the Dole Test does not indicate the presence of a narcotic substance or marijuana possession, the investigator’s case file is sealed. (6) Where the Dole Test is negative, any reference to the Dole Test is expunged from the member’s record.

The fact that the safeguards which are so much a part of Interim Order No. 13 are totally absent from Interim Order No. 36 is a further ground for annulling the latter Order. Members of the service who have given no reasonable indication of drug usage are unfairly lumped with those reasonably suspected of drug usage. Moreover, Order No. 36 contains no safeguards whatsoever to insure the integrity of the testing procedures. It is insufficient for the respondents to attempt to persuade the court by means of affidavits that proper procedures will be used when those procedures are not provided for in the order itself. A police officer who has volunteered for and been given one of the most difficult assignments in the Department should not be “rewarded” by diminished constitutional protection.

For the foregoing reasons, the order and judgment of the Supreme Court, New York County, entered July 7, 1986, which granted the petition to the extent of annulling and permanently enjoining respondents from implementing Interim Order No. 36, insofar as it requires present and future members of the Organized Crime Control Bureau to submit to urinalysis testing periodically, on a random basis, is affirmed, without costs and without disbursements.

It is not constitutionally permissible to do away with a requirement of reasonable suspicion where drug crime testing can be a part of an annual physical examination and drug testing is required prior to entry to the OCCB. If you have doubts regarding the validity of a law or order, seek the legal advice of a New York Criminal Attorney and/or New York Drug Attorney at Stephen Bilkis and Associates.

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