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The 5th Amendment guarantees that you cannot be forced to be a witness against yourself. This grew out of our American founding fathers' revulsion for kings and totalitarian rulers torturing confessions and self incriminating testimony from those accused of crimes. Random and mass drug testing assumes you are guilty until you have proven your innocence by peeing in a little cup. If you smoke a joint at a party on Saturday night, and while perfectly clear headed are forced to take a mandatory urine test on a Wednesday afternoon, you are clearly being forced to incriminate yourself without probable cause.

To date the results in Federal Court are mixed due to so many Reagan appointees. But in 13 Federal cases judges have ruled in favor of employees constitutional rights of privacy and against self incrimination. Eleven individuals recently won a case against the Philadelphia Post Office. Although they fulfilled all other requirements for the position applied for, they failed their urinalysis test. They were awarded $55,000 in damages, and the Post Office was forbidden to use urine tests in the future. It's interesting that even White House staff members have been resisting the intrusion of drug tests. Recently Congress defeated a provision to test its members.

ltimately drug testing of Government employees will not stop until a favorable ruling is made by the U.S. Supreme Court. On December 16. 1991 the Court refused to hear Willner v. Barr which challenged the constitutionality of random drug tests. Recent challenges under State constitutions have been more successful. The Boston Police Department won a 4-3 decision against random testing . The New York Transit Authority agreed to pay 5.6 million dollars to employees illegally required to take drug tests. In Louisiana, a drug testing lab was found negligent by the State Appeals court. David B. Elliot who had tested positive for marijuana was awarded $25.000 due to faulty testing procedures.

No definitive case has been decided yet. But in Skinner vs. Railway Labor Executive Association the Court stated: "There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom."

When dealing with governmental employers, your rights are guaranteed by the 4th and 5th Amendments to the Constitution. The 4th Amendment guarantees you, the people's right to be secure in their "persons, houses, papers, and effects against unreasonable searches and seizures." Whether a bodily fluid like your urine is "your person" or "an effect", one thing is clear, as a search warrant is needed before a policeman can search your house, "probable cause" should be needed to force you to give up your right to the privacy of your bodily fluids.

Remember, there are no federal or state laws governing your urine. If you substitute, dilute or adulterate your urine sample it is a matter between you and your employer. The Constitutional protections were founded on eminent good sense. These American guarantees of individual rights are what protect us as a free people from political dictatorship.


A drunk or stoned worker, particularly in a job which involves a clear hazard to the public, is clearly not desirable. But Urine tests don't measure your ability for job performance. Someone might have consumed pot at a party on the weekend and be fully functional at work two weeks later - yet they would fail. The answer is to give job performance tests. For instance pilots before they board the aircraft would have to play a video simulation game corresponding to the coordination and depth perception required of a pilot.

Such a test has been perfected and is in use in California. Developed by Performance Factors of Alameda, California, this simple video game is in use at the Old Town Trolley system in San Diego. Each day drivers spend thirty seconds on a video screen calibrated to their individual skill level. When drivers fail, they are merely assigned to another job. Many accidents occur from the stresses of divorce, deaths in the family, news of serious health problems, or other personal tragedies. If a company is interested in safety rather than being a policeman investigator into people's private lives - the Performance Factors machine is an answer when public safety is at risk.

The way to deal with the alcohol or drug abuser in a non safety related job, is on an individual basis. Supervisors need to be trained to spot problems and help employees into counseling programs. In America, you do not, Big Brother style, deprive everyone of their 4th amendment right to privacy because a few people abuse illegal substances.

  


Because private employers are not bound by the same constitutional guarantees as Federal and state governments, some individuals may want to petition their city councils to pass an ordinance against employers using urinalysis to screen their workers.

In San Francisco, Supervisor Bill Maher sponsored an ordinance which prohibits drug testing urinalysis except where public safety is at stake and probable cause is evident. He reports that his fellow Supervisors were doubtful at first, but after an educational campaign about the inaccuracies of drug testing and the invasions of people's privacy, the vote for the ordinance was nine for, one against.

A copy of this ordinance can be obtained by writing : Supervisor Bill Maher, Room 235, City Hall, San Francisco, Ca. 94102. Berkeley passed a similar ordinance in 1988.

Boulder, Colorado, another high tech city, passed ordinance 5195, which prohibits employee drug testing except in clear cases of probable cause, and where a written policy has al ready been provided to the work force. A copy of this ordinance may be obtained by writing the Boulder city hall.

Iowa and Vermont restrict drug testing except in cases of "probable cause". Legally "Probable cause" is a more stringent standard than "reasonable grounds".

In Austin, Texas CAPP an organization founded by workers from Motorola and Texas Instruments, joined by the ACLU, AFL-CIO as well as Byrd Labs petitioned the city for an ordinance to prohibit testing of workers without probable cause along with other guarantees. The Council voted 3-4 against this ordinance, after strenious lobbying from Motorola. A copy may be obtained from CAPP, as well as information regarding forming a local chapter.of this professional organization dedicated to protecting workers right to privacy. The phone number at their office is 512 448-4804.

Congress is currently considering a bill which partially limits some of the abuses of testing laboratories. At present it requires testing of government employees in certified labs, and restates employees right to sue employers for reinstatement, promotion, lost wages and damages due to false positives.


Warning!
There are many imitations of NuKlear. If you buy a product called Klear which is used as a drink, it has no relation to NuKlear and DOES NOT WORK. Drinks do not defeat drug tests. Beware of imitations sold in stores and flea markets.

Urine Testing Violates

Our 5th Amendment Right

The 5th Amendment guarantees that you cannot be forced to be a witness against yourself. This grew out of our American founding fathers' revulsion for kings and totalitarian rulers torturing confessions and self incriminating testimony from those accused of crimes. Random and mass drug testing assumes you are guilty until you have proven your innocence by peeing in a little cup. If you smoke a joint at a party on Saturday night, and while perfectly clear headed are forced to take a mandatory urine test on a Wednesday afternoon, you are clearly being forced to incriminate yourself without probable cause.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Our 4th Amendment Right
Random Urine Testing Violates

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When dot-com worker John Hlinko recently applied to graduate school, something made him see red: the Bush administration's April announcement that it would deny federal financial aid to students who refuse to answer questions about their drug histories.

Students for a Drug-Free White House, released a Web petition, dubbed "Just Say Blow," asking that President Bush be denied federal funds - including his salary - until he, too, is willing to answer drug-record questions. After just two days, about 1,800 people have lent their signatures to the cause, with a new John Hancock being added about every 2 minutes.



Urine tests are unreliable. The public is told that they are scientific. But in operation they can't stand up to scrutiny. Don't trust their results.

A test of the testers conducted by the government's Center for Disease Control in Atlanta found: "...one of thirteen labs given cocaine-spiked urine gave totally correct results. Five of thirteen failed to find the drug in any of 34 spiked samples that each lab received. On the other hand, the labs somehow detected cocaine in as many as 6%, and amphetamines in up to 37% of urine specimens that were 'blank' - those containing no drugs at all."

In the April 26, 1985 edition of the Journal of the American Medical Association, Dr. Hugh Hansen reported shocking results from blind tests conducted for the Center for Disease Control and the National Institute on Drug Abuse. By sending in blind samples spiked with drugs the following results were obtained from samples sent to thirteen labs. FALSE NEGATIVES: Barbiturates best lab 11% error rate, worst lab 94% error rate. Amphetamines 19% to 100%. Methadone 0% to 33%. Cocaine 0% to 100%. Codeine 0% to 100%. Morphine false negative error rate ranged from 0% to 100%.

The range of FALSE POSITIVE error rates were: Barbiturates 0% to 6%. Amphetamines 0% to 37%. Methadone 0% to 66%. Cocaine 0% to 6%. Codeine 0% to 7%. Morphine 0% to 10%. An official for the Center for Disease Control commented, "If these labs dumped the samples down the sink or tossed a coin, they would have come up with the same reliability in their test results." In the May 1987 edition of Laboratory Medicine, Dr. T.P. Moyer of the Mayo Clinic concluded in testing for marijuana on the EMIT test, 15% of the positives would be false.

Who would be more sensitive to drug testing errors than physicians? In the August 22, 1990   volume  of  the  Journal of   the    American   Medical    Association, Dr. David Orentlicher draws a distinction between impairment and positive drug tests results.  He writes: "It is not clear, however, that adequate justification exists for the use of  random urine testing to detect physician impairment from drugs of abuse. ..there may be only a weak correlation between positive urine tests and impairment by drugs."

The November 1992 issue of the Archives of Internal Medicine, printed this surprising result. In a survey of 272 Michigan doctors 38 per cent said they didn't believe drug tests were accurate.

Urine testing is less accurate that the lie detector tests that have been banned from the work place. Employers who rush into urine testing, wouldn't dream of giving every worker a lie detector test. Dr. David Greenblatt, Chief of clinical pharmacology at Tufts medical center called the most widely used tests "essentially worthless."

Because many employers do not want to pay the $100 plus lab price for the sophisticated confirmation tests, many falsely accused people are fired, or never hired, rather than retested. BEWARE ! New job applicants are usually given the EMIT(r) test, with no follow up. If you fail, you're not informed. You're are just not hired.

Modified:  April 4, 2005

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