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Hair Drug Test - Unused Trial Brief

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  • Hair Drug Test - Unused Trial Brief

    A little over a year ago, while in the midst of a civil custody case
    against the government of Missouri, despite years of clean urine test
    results, I incurred a false positive hair test for drugs. I began
    writing a Trial Brief on the subject of hair testing for drugs
    preparatory to fighting this element of the case. The brief turned out
    to not be needed because the court declared the test results
    inadmissible as evidence. So I never finished writing the Trial Brief.
    (I eventually lost the case on other grounds, by the way.)

    Anyway, my research, although incomplete and unpolished, may be helpful
    to somebody else. I'm posting what I finished, a rough draft of the
    Trial Brief. If you can use it, modify it to suit your purposes.

    And I'll always be willing to answer any questions regarding this

    _What follows is NOT in final presentable form_.

    * ROUGH DRAFT * Not a completed work * ROUGH DRAFT *


    + Introduction
    [I briefly described the case and the reason for the brief.]

    + Issue
    Are the results from hair drug tests used in this case reliable in
    determining cocaine use?

    + Argument


    The reported inventor of the technique to find cocaine in hair, Dr
    Svetla Balabanova, reported that in 1992 that she had found cocaine in
    the hair of three-thousand-year-old Egyptian mummies that were in German
    museum. The find was remarkable because the plant that yields cocaine
    only grows in the New World, and pre-Columbian trans-oceanic trade had
    never been recorded in history. Her reports sounded convincing though.
    She said she was mystified at first, repeated her tests, and had other
    labs do confirmation tests. Her procedure was to first do an immunoassay
    and to follow it up with "chromatography/mass spectrometry". Discovery
    Channel ran a piece on her work in 1996 and so did BBC. All major news
    outlets also carried the story. Balabanova was famous - for fifteen

    Most of the mass-media accepted her work without question, and carried
    articles with such titles as "Pharos on Crack" and "The Stoned Age".
    The focus of the articles (other than to sensationalize) was to try to
    explain the fact that cocaine was found. Some suggested a trans-Pacific
    trade route via the Silk Road through China. Some speculated about
    unknown extinct plants that might have contained cocaine. Some disputed
    the idea that cocaine was available in ancient Egypt and focused on the
    possibility the mummies weren't genuine or that contamination was
    responsible. The common perception was that laboratory tests don't lie,
    so the cocaine must have come from somewhere.

    Nonetheless, the scientific community wasn't persuaded. Dr Sandy Knapp
    of the Natural History Museum, London, expressed a polite view:

    "Finding cocaine in these Egyptian mummies - botanically speaking - is
    almost impossible. I mean, there is always a chance that there might be
    some sort of plant there, but I think there is some sort of mistake.
    There is something wrong there. I can't explain it from a plant point of
    view at all."

    Other people, like columnist Cecil Adams, were less charitable:

    ".right now the general feeling is that it's not the ancient Egyptians
    who were on drugs."

    Before Balabanova faded back into the woodwork, she found yet more
    cocaine in other mummies, some of them a millennium more recent than her
    previous group, and some of them were from as far away from China. But
    no other published researchers were ever able to duplicate Balabanova's
    discoveries. Consequently, mainstream historians disregarded the
    discoveries, and the tenets of history regarding early trans-oceanic
    trade remained unchanged.

    Nonetheless, many books and articles (particularly those from the
    pro-cocaine camp) written since Balabanova's announcements continue cite
    the discovery as if it were fact. It's an engaging story, and the
    concept of the Egyptian rulers using cocaine is appealing. But there's
    something else that makes this story acceptable to many: it's the
    misguided perception that laboratory tests are infallible and reports of
    these tests are made by scientists - impartial truth tellers. Many
    simply say something like, "laboratory results have shown".

    There's a misguided perception in most of us that laboratory tests are
    infallible, and we also believe a reporter of such tests is
    automatically credible. Science has had amazing, even mystical,
    accomplishments. Science is impartial. We equate laboratories with
    science. Thus, hair tests tell the truth. are In our minds there is
    something capturing about concept of hair holding hidden information,
    and also in our minds, there is an almost religious regard for
    laboratory work. Laboratory work is presumably science, and science
    deserves respect. But the essence of science is to not have blind faith.

    New technologies often masquerade as science, but until they've earned
    their stripes by proving themselves under scrutiny and debate, they
    cannot be deemed true science. The burden here is solidly on the
    affirmative: hair tests must demonstrate their reliability before the
    courts, or anybody for that matter, can accept them.

    Confusion with Other Tests

    Hair testing for drugs should not be confused with other kinds of tests
    that have a more established record of reliability.

    Hair testing for particular DNA, despite using the same sampling
    material as a hair test for drugs, is altogether different. For one
    thing, the analyte in the actual detection phase of the test is present
    in millions of times the quantity as would be the analyte in a drug

    Hair drug testing should not be equated with urine drug testing either.
    Urine tests, although still not perfect, have several advantages in
    terms of reliability:

    ? The mechanism of drug deposition in urine is reasonably understood.
    With hair it is not clear if the blood, sweat, or sebum is the
    depositing medium.

    ? The analyte, if present, would be there in larger quantities in urine
    than in a hair test.

    ? The sample does not need to be washed. The washing step may introduce
    contamination and is controversial for other reasons.

    ? The probability of environmental contamination is less. Urine comes
    from inside the body.

    ? With urine, there is no cutting step. Hair needs to be chopped into
    small pieces. This is another place where contamination can occur.

    ? There is no liquefaction step. Apparently there are three different
    ways to liquefy hair. Comparative benefits and hazards do not appear to
    be clearly established.

    ? The relationship between levels of detected analytes and usage has not
    been established with hair tests. There have been no large-scale
    controlled dosage studies. Consequently, so-called cutoff levels do not
    have a scientific basis and are not standardized.

    ? With urine testing there is a great deal of experience: the procedure
    is established and is legally certified. Hair tests are not legally
    certified. There is no oversight whatsoever.

    Hair tests for drugs are closely related to hair tests for heavy metals
    (used for nutritional tests or environmental contamination tests). The
    medical establishment currently regards these as unreliable.

    The Uncertainty of Hair Analysis for Trace Metals
    Steven J. Steindel, PhD; Peter J. Howanitz, MD, JAMA Editorial

    Physicians and other health care professionals who are considering
    ordering hair analysis to assess nutritional status or who are basing
    nutritional counseling or therapy on hair analysis results, should
    reconsider this approach unless and until the reliability of hair
    analysis value is established and evidence becomes available that
    clinical recommendations based on hair analysis improve patient

    Reliability Assessments

    Reliability of a test for drugs cannot simply be expressed in a
    percentage number as Ashley Hern used in testimony to describe the
    accuracy of the urine "instant" (a dip test) test he had used. Part of
    Ashley Hern's testimony:

    Question: How accurate is that [dip or instant urine] test?

    Answer: Ashley Hern testified, "Ninety-nine percent accurate."

    All laboratory tests are less than perfect. They produce false positives
    and false negatives, and sometimes tests are not conclusive one way or
    the other.

    A false positive is when the test shows a positive for a drug when no
    drug was present. A clean person getting a positive result would be a
    victim of a false positive.

    A false negative is when the test shows a negative for a drug when the
    drug was actually present. A lucky drug user getting a negative result
    would be getting a false negative.

    An inconclusive result would be perhaps when a test is unreadable or if
    it gave results that were obviously false.

    I offer these descriptions to facilitate the discussion of hair tests. I
    was unable to find any studies of a statistically significant scale
    giving a direct assessment of hair test reliability.


    Hair test are not regulated, certified, nor accredited. There also
    doesn't seem to be independent scientific assessment of their

    Laboratory certification does not in itself guarantee a reliable test,
    but a lack of certification for a lab for a test shows that the test
    hasn't even reached that level of respectability.

    For urine testing, there are two nationally recognized FUDT
    certifications: CAP (College of American Pathologists) and SAMSHA.
    Neither of these agencies give certifications for hair testing. CAP
    currently has nothing to do with hair testing and SAMSHA is in the
    process of developing guidelines.

    If SAMSHA develops guidelines, one of the proposed guidelines certain to
    make it to the final draft is one to require that the test be FDA
    approved. The Quest/AML hair test is not FDA approved.

    Status of SAMHSA certification for hair drug tests

    SAMHSA currently is not certifying laboratories for drug hair tests.
    SAMHSA is developing a draft for guidelines for such testing and is now
    asking for public comment.
    Presently, urine is the only specimen collected for Federally
    regulated Workplace drug testing programs and for most private sector
    programs. Urine drug testing in the Federally regulated Workplace is
    currently recognized as the "Gold Standard" because of its proven
    accuracy, reliability, and fairness. This "Gold Standard" status is
    based on:

    Use of Forensic Custody and Control Procedures from specimen collection
    to the final analytical procedure in the laboratory

    Exhaustive quality assurance procedures for both the initial and
    continuing certification of the laboratories in the National Laboratory
    Certification Program

    Analytical procedures to ensure no false positive results and minimize
    false negative results
    Validity testing

    Review of laboratory positives by a trained Medical Review Officer (MRO)
    for alternative explanations and as another quality assurance reviewer
    of the entire process

    Procedures to ensure confidentiality of the donor throughout the process
    including the reporting of results to the employer

    There are a number of different biological specimens that can be
    collected and tested for drugs, although urine is the only specimen
    collected for Federally regulated Workplace drug testing programs and
    for private sector programs that use the Federal standards. Testing hair
    specimens is becoming more common in some unregulated, private sector
    programs. Oral fluids and sweat are also used in some testing programs
    and non-instrumented, on-site test devices are available for screening
    of both urine and oral fluids.

    Although the technologies of hair, oral fluids, sweat and
    non-instrumented, on-site drug testing are not currently approved for
    use in Federally regulated Workplaces, the Substance Abuse and Mental
    Health Services Administration (SAMHSA) through its Division of
    Workplace Programs and Drug Testing Advisory Board (DTAB), is actively
    appraising, in partnership with industry, the eligibility of these other
    biological specimens and devices.

    The FDA has not granted approval to the hair test that Quest/AML used.
    And since the FDA regards hair tests as medical devices under its
    jurisdiction requiring pre-market approval, Quest/AML possibly sold the
    test illegally.


    companies seeking to market a system that uses a hair test or any other
    test that has not been recognized by FDA would need to establish the
    validity of the test with FDA prior to marketing.

    DFS and the GAL go to significant lengths to elicit testimony from its
    urine testing contractors saying that the urine tests are SAMHSA
    approved or certified. Ashley Hern made two statements to this regard
    (in previous testimony in this case) to promote the veracity of his
    urine tests. DFS&GAL are, by extension, arguing that such approval is
    important in judging the reliability of the urine tests.

    Pathway of Entry

    It's not clear by what mechanism drugs enter the hair. The sebum, blood
    or perspiration could each be responsible for delivery.

    Gary L. Henderson, Martha R. Harkey, and Reese T. Jones
    ..the mechanism of how drugs enter the hair remains unknown (Cone and
    Wang 1995; Kidwelland Blank 1995). Understanding the pathway of drug
    entry into hair is important for interpretation of results, i.e., if
    drugs get into hair only from blood there is less risk of contamination
    and more likelihood of dose-concentration and time-location
    relationships existing; however, if sweat or sebum are important
    contributors, then these relationships are expected to be much less
    reliable and introduce the risk of environmental contamination.


    Current RIA (radioimmunoassay) techniques were developed for urine,
    which comes from inside the body. Hair is a different medium that is
    contaminated by a wide variety of substances, and the potential for
    cross-reactivity of the test to other substances, perhaps substances
    that might enter the hair form the air, has been established.

    Conclusion, Analytical Methods
    However, because cocaine is the primary analyte in hair, the antisera
    should be directed at cocaine rather than BZE, as is the case with many
    RIA kits used in urine drug screening. Analysts also should be aware
    that most commercially available RIA kits are designed for urine
    specimens and therefore have not been evaluated for possible matrix
    effects from different hair digestion techniques or for cross-reactivity
    to other possible components in hair, such as cosmetics.

    Cutoff Levels

    On those drug tests that give results in terms of numbers, the results
    are usually given in a ratio (picograms per milligram or nanograms per
    milligram) of the
    analyte to the substance as a whole. This can be called a concentration
    of that analyte.

    The cutoff is a pre-designated concentration, above which the sample is
    declared positive, and below which the sample is declared negative.

    Currently, there is no government established cutoff levels with hair
    tests, and different companies have different notions of what is

    Conclusion, Dose-Response Relationships
    The correlation between the dose of cocaine and the amounts of drug and
    metabolites detected in hair is unclear at the present time and remains
    controversial. Most studies have shown few correlations between dose of
    drug and concentration found in hair.


    When cocaine is metabolized, it results in several higher metabolites in
    addition to the parent drug cocaine itself:

    Benzoylecgonine (BZE)
    Ecgonine methyl ester (EME) (aka anhydroecgonine methyl ester)
    Cocaethylene (a.k.a. ethyl cocaine)
    Ecgonine ethy ester
    M-hydroxybenzoylecgonine (m-OHBZE)
    P-hydroxybenzoylecgonine (p-OHBZE)
    N-desmethyl benzoyl ecgonine (norBZE).

    The testing company in this case cast its results as a "pg/mg" level of
    "Cocaine/Metabolite(s)". It's not clear if this results indicated the
    concentration one or the other or both combined, and Quest/AML didn't
    indicate which metabolite it was referring to.

    Benzoylecgonine (BZE) is the most common tested-for metabolite with
    urine RIA tests. But characterization or BZE as a metabolite shouldn't
    force the conclusion that BZE had to be the product of cocaine
    metabolized by the body. BZE is simply cocaine with a methyl group
    (-CH3) replaced with a simple hydrogen. In other words, BZE is cocaine
    with a part hydrolyzed, that is, reacted with water.

    Benzoylecgonine Cocaine

    This reaction can easily take place outside the body. BZE, thus, may
    technically qualify as an in vivo metabolite, but it also can develop
    from cocaine in any environment, and finding BZE is not indicative that
    the original drug passed through the body. Other metabolites, such as
    EME, are believed to arise solely from in vivo metabolism. A credible
    test for the use of drugs would at least check for EME or some of its

    The presence of EME in a sample would tend to show that someone had
    actually ingested the drug. This is not foolproof, of course, because a
    contaminant could be from someone else's sweat that contains EME.
    (Remember, we are discussing exceedingly small amounts.) Nonetheless,
    testing for EME would eliminate many false positives in a hair test for
    cocaine use.

    The Quest-AML test results gave no indication of which metabolites it
    tested for (if indeed it tested for any). And considering the way
    Quest-AML presented the results, it appears that Quest-AML only
    performed an immunoassay with antibodies that had an affinity to at
    least both cocaine and BZE. Results form gas chromatographic-mass
    spectrometric procedure would have given separate numbers for each
    substance and would have identified the substance. And there would be a
    ratio between these two concentrations.

    Reference: Simultaneous GC-MS analysis of meta- and
    para-hydroxybenzoylecgonine and norbenzoylecgonine: a secondary method
    to corroborate cocaine ingestion using nonhydrolytic metabolites
    Klette KL, Poch GK, Czarny R, Lau CO
    Navy Drug Screening Laboratory,
    J Anal Toxicol 2000 Oct; 24(7):482-8

    Passive or Involuntary Exposure, External contamination

    A decent drug test only tests positive for voluntary ingestion (by
    whatever means). If the test is testing for involuntary exposure, then
    anybody could test positive. Since hair is on the outside of the body
    and since the amount needed to yield a positive result is infinitesimal,
    involuntary exposure is a recognized problem.

    Hair samples are particularly susceptible to environmental
    contamination; hair will become tainted by drug residue in the air from
    drugs which are smoked (marijuana, crack, heroin) or by physical,
    external contact with the drug. Thus a hairdresser or girlfriend, with
    residue on their hand, could unwittingly contaminate a test subject's
    hair. Tests with a high threshold, designed to screen out environmental
    contamination, will also screen out many users. Washing the samples
    prior to testing may also wash out the substance which was absorbed into
    the hair through the subject's body, thereby defeating the purpose of
    the test. Furthermore, samples may reveal a substance use history dating
    back months or years, defeating its use, for example, as a probation
    oversight tool.
    Robert O. Bost, Hair Analysis -Perspectives and Limits of a Proposed
    Forensic Method of Proof: a Review, Forensic Science International 63
    (1993), 31-42.

    The Validity of Self-Reported Drug Use: Improving the
    Accuracy of Survey Estimates
    Lana Harrison and Arthur Hughes

    ..Research has demonstrated that passive contamination occurs, and that
    procedures to remove external contamination are not effective (cf.,
    Kidwell and Blank1995). The basic pharmacological relationship between
    drug dose and concentration in hair has not been demonstrated; the
    amount of drugs incorporated into the hair depends on a variety of
    factors (Kidwelland Blank 1995). The relationship between time of drug
    exposure and location of drug in the hair strand has not been clearly
    established. Studies with labeled cocaine have found only a limited dose
    and time relationship (Cone 1994a; Henderson et al. 1993; Kidwell and

    + Finale Argument

    + Conclusion

    Because of the unproven reliability record of the test in question and
    of hair tests in general

    ..and because of the lack of standardization of hair test procedures,
    ..and because of the lack of certification of the process used to test
    the hair,
    ..and because of the lack of governmental oversight for the testing
    ..and because of the lack of additional supporting evidence to the
    inference produced by the hair test results - i.e., there is no evidence
    nor history of [...] taking cocaine.

    Hair tests for drugs in this case should not be given a picogram of
    credibility. The court should not rely on hair test results whatsoever.


    Accredited laboratory
    Laboratories accredited by the College of American Pathologists meet
    exacting standards set by the College's Commission on Laboratory
    Accreditation and approved by the College's Board of Governors.

    American Medical Laboratories, Inc.(AML)
    Associated Pathologists Laboratories Division, now part of Quest
    [I may add here, that these hair testing companies were evasive when I
    asked in detail about the reliability of their tests. Call them
    yourself, or call the particular company involved in your case. You'll
    get some good quotes.]

    4230 Burnham Avenue
    Las Vegas, NV 89119

    The substance being measured in an analytical procedure.

    Human or animal serum containing antibodies that are specific for one or
    more antigens.

    Ashley Hern (816) 868-0500
    The de facto owner of DRAGNET and the person who collected the hair
    samples. His company contracts for the Division of Family Services (DFS)
    of Missouri.

    A cocaine metabolite with the molecular weight of 289

    College of American Pathologists (CAP) (800) 323-4040, EXT. 6065

    The College of American Pathologists (CAP) is a medical society serving
    more than 15,000 physician members and the laboratory community
    throughout the world. It is the world's largest association composed
    exclusively of pathologists and is widely considered the leader in
    providing laboratory quality improvement programs.

    A pre-designated concentration of an analyte, above which the sample is
    declared positive, and below which the sample is declared negative.

    Ecgonine methyl ester (EME)
    Also known as anhydroecgonine methyl ester; an in vivo metabolite of

    U. S. Food and Drug Administration
    1-888-INFO-FDA (1-888-463-6332)

    FUDT (Forensic Urine Drug Testing) CERTIFIED laboratory
    [CAP (College of American Pathologists) or SAMSHA]

    Hair follicle
    A tubular infolding of the epidermis containing the root of a hair.

    The chemical reaction of a compound with water, usually resulting in the
    formation of one or more new compounds.

    In vivo
    In the living organism, as opposed to in vitro (in the laboratory).

    JAMA Journal of the American Medical Association

    A substance produced by metabolism. For the purposes of this paper, a
    breakdown product from the body's metabolism of a drug.

    Nanogram -
    one billionth of a gram; 0.000,000,001 gram; 10-9 gram

    NIDA National Institute on Drug Abuse

    SAMHSA Substance Abuse & Mental Health Services Administration , part of HHS
    Office of Policy & Program Coordination (OPPC) 443-4111
    Center for Substance Abuse Prevention 301 443 0365
    Division of Workplace Testing 301 443 6780 Charles L Mrs. Hersh

    Picogram --
    one trillionth of a gram; 0.000,000,000,001 gram; 10-12 gram

    Psychemedics Corporation
    A company that sells and performs hair tests for drugs
    1280 Massachusetts Ave.
    Cambridge, MA 02138
    (617) 868-7455
    (800) 628-8073

    Quest Diagnostics Incorporated
    The company that now owns AML

    An abbreviation used in this document to describe the company formed by
    the combination of Quest and AML

    RIA (radioimmunoassay)
    A type of assay technique that uses radioactive antibodies to attach to
    target antigens in the sample. A gamma counter is then used to quantify
    the amount of antibodies that have found and attached to antigens
    The fatty lubricant matter secreted by sebaceous glands of the skin

    Society of Forensic Toxicologists, Inc. (SOFT)

    * ROUGH DRAFT * Not a completed work * ROUGH DRAFT *

    * Nehmo Sergheyev *

  • #2
    Hair follicle drug test

    Thank you for your input on this subject, I have a question for you. My sister lives in Las Vegas, Nev. her ex-husband is trying to take thier kids away from her saying that she is on drugs. She agreed to take a drug test as long as he did as well (he had to Pay for both) she just found out that they ran the follicle test on her but the urine test on him when they both some time again had used drugs. They now have a rushed court date for the 22nd of July 2008 based on her positive report. Can they do this or would it be against her rights because of it not being accurate as well as Fam.C. 3041.5(a)] Presently, the federal drug-testing standards only allow for urine tests; thus, e.g., the court may not order a parent (or other custody/visitation claimant) to submit to a hair-follicle drug test under 3041.5. [Deborah M. v. Super.Ct. (Daryl W.) (2005) 128 CA4th 1181, 11911194, 27 CR3d 757, 764766 (also noting that proposed amendments to federal standards permitting hair-follicle and other alternative testing methods have not yet been adopted). QUESTION- can she fight this in court and request that the testing be dimmissed? Please hurry if you can with an answere. Thank you so much. Candi


    • #3
      You do realize, of course, that the post you hijacked was over 4 years old, right??

      If you want an answer to your problem, start your own thread.
      Not everything that makes you mad, sad or uncomfortable is legally actionable.

      I am not now nor ever was an attorney.

      Any statements I make are based purely upon my personal experiences and research which may or may not be accurate in a court of law.


      • #4
        oops sorry, was not aware that I was hijacking, was just hoping for help.
        Thank you


        • #5
          This is a common problem, because half of the BBS systems want people to start new threads for new questions, while others want people to search for similar threads and post there.

          What I want to know is, why are they allowed to call a document that large a "brief"?