Strategies to Avert Chain of Custody Issues in Drug and Alcohol Testing
The Federal Rules of Evidence provide that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[1]
When an item of evidence is not readily identifiable or vulnerable to being doctored, the requirement of authentication or identification is satisfied by establishing a so-called “chain of custody.”[2] The chain of custody is “[t]he movement and location of real evidence, and the history of those persons who had it in their custody, from the time it is obtained to the time it is presented in court.”[3] Establishing this chain of custody is meant to lower the probability that an item of evidence was contaminated, tampered with, or exchanged for something else.[4]
Federal regulations establish the procedures that must be followed to ensure an adequate chain of custody can be established.[5] This article will give an overview of the consequences of breaking the chain of custody and strategies to avoid those consequences.
Consequences: Potential Inadmissibility of Evidence
Keeping adequate records is critical to preserving the chain of custody. While the hurdle for establishing a chain of custody is not “particularly high,”[6] the courts can, and have, found poor recordkeeping to be fatal to a case.
United States v. Ladd is an instructive example. In that case, the chain of custody of laboratory test results were challenged by the defendant.[7] One test result was challenged on the grounds of the laboratory’s poor security and safeguarding measures.[8] While the court found the “sloppiness” to be “regrettable,” the defendant’s arguments were found to implicate the weight of the evidence, not the admissibility.[9]
The court did, however, find the chain of custody to have been broken with another test result.[10] This test result was from a separate lab than the one which produced the result that was ultimately found admissible.[11] The blood sample processed by the first lab was labeled “T87-1938-BBO,” but the sample the second lab received was labeled “T87-1936-BBO.”[12] The prosecution made next to no effort to explain this discrepancy.[13] The Court ruled that the chain of custody had been broken and the test result was inadmissible.[14
Consequences: Enforcement Action
Federal law requires the Secretary of Transportation, or the Administrator of the FAA in the case of aviation safety, to prescribe regulations that, among other things, establish “strict procedures governing the chain of custody of specimens collected for controlled substances testing.”[15]
Part 40 of Title 49 of the Code of Federal Regulations, also known in the industry simply as “Part 40”, regulates drug and alcohol tests required by the United States Department of Transportation.[16] Section 40.45 of the regulation specifies that drug tests are to be administered using the Federal Drug Testing Custody and Control Form, or CCF.[17] Section 40.47 forbids the use of non-Federal forms for DOT urine collections and subjects violators to “enforcement action under DOT agency regulations.”[18] This is just one example of explicit liability for possible enforcement action.[19]
Errors in administering drug tests that do not result in the test’s cancellation may nevertheless serve as grounds for enforcement action.[20] Examples include minor administrative mistakes or poor documentation and are laid out in Section 40.209(b).[21] The same is broadly true for alcohol tests.[22]
Consequence: Canceled Drug Test
Under federal testing protocols, test specimens with a fatal flaw are “Rejected for Testing.”[23] Such tests must always be canceled.[24] A fatal flaw means various mistakes in filling out the CCF, broken seals, or leakage from the specimen bottles.[25] A canceled drug test does not have to be redone unless a negative test is required.[26] Some flaws are correctable rather than fatal, but note that failure to correct such flaws will still result in the test’s cancelation.[27] Examples include the lack of the employee’s signature on the certification statement or using the wrong form.[28]
Under certain circumstances, a canceled drug test must immediately be followed up with another collection.[29] Collecting another sample is required when a split specimen fails to reconfirm all of the primary specimen results, and the split specimen is either invalid or was unavailable to test.[30] A lab report of “Invalid Result” may require another sample collection.[31]
A canceled drug test cannot serve as the basis for punishing an employee as though they had tested positive, nor can it serve as a basis for authorizing an employee to perform safety-sensitive functions as though they had tested negative.[32] Canceled tests do not count towards compliance with minimum testing regulations.[33]
Consequence: Canceled Alcohol Test
The official form used for United States Department of Transportation (DOT) alcohol tests is the official Alcohol Testing Form or ATF.[34] 49 CFR § 40.267 describes how an alcohol test can be canceled.[35] Most of the reasons given are related to defective equipment or defective use of the equipment, but for chain of custody purposes, subsection (b) is relevant.[36] Subsection (b) indicates that an alcohol test must be cancelled if the sequential test numbers or alcohol concentrations displayed on the testing equipment are not the same as the ones printed on the ATF.[37] A test can also be canceled if the test equipment does not print out the result.[38]
An alcohol test will be canceled if the ATF is not signed, or is not used to conduct the test, or is filled out incorrectly.[39] These flaws will not necessarily lead to a test’s cancellation, provided they are corrected.[40] The effects of a canceled alcohol test are substantially the same as for a canceled drug test.[41]
Consequence: Civil Litigation
Employers who cannot establish a chain of custody may face certain legal liability depending on the circumstances. In Edgerton v. State Personnel Bd., an employee was fired for failing a drug test.[42] The employee, Edgerton, challenged the decision and the trial court found that the employer had failed to establish proper chain of custody.[43] A period of almost one month was unaccounted for in the documentation.[44] Due to this break in the chain of custody, Edgerton was reinstated in his position with backpay.[45]
In the case of Inmon v. Convergence Employee Leasing III, Inc., the employer challenged the claim of a spouse of a deceased employee for workers’ compensation.[46] Under Florida law, compensation is not payable if an employee’s injury was caused by their intoxication.[47] There is also a legal presumption that an injury was caused by intoxication if there is evidence of the injured person’s blood alcohol level above a certain concentration.[48] The autopsy results for this case showed the deceased employee had a blood alcohol level above the legal limit.[49] The court found, however, that the employer was not entitled to this presumption due to issues with the chain of custody on the test.[50] The employer subsequently lost the case.[51]
Strategies to Avoid the Consequences of Chain of Custody Issues
Read the Regulations
DOT regulations are designed in part to ensure an adequate chain of custody can be established.[52] Therefore, the best strategy to avoid the consequences of a broken chain of custody is to be familiar with the regulations and to follow them. 49 C.F.R. Part 40 lays out the recordkeeping requirements as well as other procedures that must be followed regarding DOT drug and alcohol tests.[53] Even when performing Non-DOT tests, chain of custody must be followed; however, the DOT “Part 40” is used as an industry standard guide to ensuring proper chain of custody throughout the process. Often, DOT regulations serve as “gap-fillers” for tests and specimen collections where there is no specific guidance under the state or company testing authority.
Use the Prescribed Forms Correctly
Federal drug tests and alcohol tests under DOT regulations must be administered using the federal CCF and the ATF, respectively.[54] Enough copies of these forms should be available with extra copies on hand in the event a specimen needs to be re-collected.[55] General information about how to use these forms are laid out in sections 40.45 and 40.225.[56]
Ensure Service Agents are Properly Trained and Reputable
Service agents are persons who provide services in connection with the DOT’s drug and alcohol testing regulations.[57] This includes urine specimen collectors, breath alcohol technicians, medical review officers, and laboratories, among others.[58]
Collectors perform the initial inspection and collection of the specimens and fill out the CCF.[59] The medical review officer is a doctor charged with verifying test results.[60] Ensuring the qualification of service agents is the responsibility of the employer.[61] Employers are permitted to require service agents provide proof of their qualification.[62] Liability for violating DOT regulations falls on the employer, even if a service agent is at fault.[63]
The best way to ensure your service agents are trained properly as an employer is for the employer to have their drug and alcohol testing point of contact (known in the industry as the Designated Employer Representative, or “DER”) take a course on the regulations themselves. In DER courses, employers are taught not only about regulations that affect the administration of a federally mandated testing program, but also how service agents may be qualified. For example, a certificate of completion is insufficient to demonstrate qualification to be a DOT Urine Specimen Collector or DOT Breath Alcohol Technician. The service agent must also have proof of completion of the initial proficiency demonstrations required under Part 40.[64]
Conclusion
Being able to establish proper chain of custody is critical to ensuring the usefulness of test results should they need to be used in court. Chain of custody is also critical in avoiding liability from federal and state regulators. Through methodical and diligent care, employers can avoid these issues, and the attendant consequences, and work toward ensuring a drug free workplace.
