1. Hawaii: Judicial challenge to drug testing in police department
2. Oklahoma: Statute authorizing and regulating drug testing by private employers
3. Massachusetts: Boston Police Department policy on drug testing
4. Massachusetts: Judicial challenge to drug testing in police department

Drug and Alcohol Testing of Public Employees

Just as the special needs of traffic enforcement have convinced courts to allow brief suspicionless stops of motorists, the special needs of government employers to supervise their employees have led federal courts (and most state courts) to approve of brief suspicionless tests for drug use.

In National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Supreme Court held that the government may subject certain employees and applicants to random, suspicionless tests for drug use. In order to justify such a seizure and search, the government must show that it has a "special need" to test, beyond the normal need for criminal law enforcement. After determining whether a special need exists, a court must then balance the applicant's or employee's privacy interests against those of the government employer in administering the drug-testing program. Important elements in this balance include the intrusiveness of the test, the notice the employer gives about the testing program, and the extent to which employees or applicants choose to place themselves in a position requiring a test.

In the wake of the many judicial decisions approving of drug tests for public employees under various circumstances, state legislatures took up the subject. Many passed statutes defining the limited conditions under which employers could test their employees for drug or alcohol use. The limits applied both to public and private employers, even though private parties are not limited by the search and seizure provisions of the federal and state constitutions.

Compare the following efforts to bring judicial and legislative controls to decisions about structuring and carrying out drug testing policies.

799 P.2d 953 (Haw. 1990)

LUM, J.

This court is called upon to decide whether the drug testing program of the Honolulu Police Department (HPD) violates the Hawaii Constitution. We conclude that neither the right to privacy of article I, section 6 nor the right to be free of unreasonable searches of article I, section 7 is infringed upon by the HPD's program of urine testing.

[Shanda McCloskey] has been a police officer since October 1984, assigned to the patrol division. Before being hired, she submitted to an extensive investigation of her personal background and qualifications, including criminal and traffic history, prior employment, psychological profile, and neighborhood and personal references. She also submitted to a pre-employment physical for which she produced a urine sample for testing.

Police officers are required to follow prescribed rules and regulations, and a code of ethics regarding their public and private life. They are required to conduct themselves so as not to bring disrepute upon HPD, to maintain themselves mentally and physically, and to avoid the use of drugs and narcotics. Furthermore, as police officers, they must always be mentally and physically alert while driving motor vehicles, and must exercise good judgment in the use of guns.

In response to concerns of illegal drug use within the police department, HPD implemented, in October 1986, a drug testing program. It required police officers to submit to drug tests on either a random, frequent, or regular basis, depending on the officer's duties.

An officer being tested must produce a urine specimen, in the privacy of a bathroom stall. No observation by a monitor is needed or used. Potential problems of adulteration or switching of urine samples are dealt with both by testing the temperature and specific gravity of the sample, and by dyeing the water in the toilet blue to prevent use of that water.

The samples are identified only by a control number, and a strict chain of custody procedure is utilized whenever the samples are transported. Half of each sample is forwarded for testing to an independent laboratory and half retained at HPD. Upon receiving the urine sample, the laboratory tests it only for indications of marijuana and cocaine use. Although urine tests can reveal any number of things about a person such as pregnancy, the samples taken by HPD are tested only for evidence of illegal drug use.

To prevent false reports of the presence of drugs, the laboratory performs confirmatory tests on any specimen testing positive. On receiving a positive test report, HPD sends the retained sample to a different independent laboratory for a confirmatory test. Only if the sample again tests positive, is it considered to be positive for drug use by HPD.

After a sample tests positive, the Internal Affairs Division of HPD administratively investigates whether there is a legitimate reason why the officer's urine tested positive for drugs. The investigation includes analyzing a list of medications taken by the officer for a medical determination on whether they could have caused a false positive result. All reports and test results are kept confidential by HPD.

Under the HPD program, on first testing positive an officer is not disciplined but is required to enroll at an approved drug abuse program at the officer's own expense. A second positive test results in termination proceedings which can mean the end of the officer's employment with HPD.

Despite orders to submit to drug testing on several occasions, Appellant refused. As a result, HPD required her to surrender her police badge, service revolver, identification card and uniform, and assigned her to a desk job....

Appellant makes no challenge based upon the United States Constitution. However, before passing upon her constitutional challenges under the Hawaii Constitution, we first note that the United States Supreme Court has expressly held that drug screening tests at the work place do not per se violate the fourth amendment to the federal constitution. The Court rejected the requirement of individualized suspicion and held that public safety outweighs the minimal intrusion imposed upon employees by urine testing. See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). In addition, a number of other courts have upheld drug testing of police officers.(citations omitted)

Appellant contends that HPD's drug testing policy violates her right of privacy as guaranteed by article I, section 6 of the Hawaii Constitution....

Article I, section 6 of the Hawaii Constitution reads:

The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

The assembly of the Constitutional Convention of Hawaii of 1978 which adopted this right of privacy reported that:

By amending the Constitution to include a separate and distinct privacy right, it is the intent of your Committee to insure that privacy is treated as a fundamental right for purposes of constitutional analysis. Privacy as used in this sense concerns the possible abuses in the use of highly personal and intimate information in the hands of government or private parties but is not intended to deter the government from the legitimate compilation and dissemination of data. More importantly, this privacy concept encompasses the notion that in certain highly personal and intimate matters, the individual should be afforded freedom of choice absent a compelling state interest....

In support of her claim to a right of privacy, Appellant makes contentions of (1) intrusion of bodily integrity; (2) overbroad and unnecessary information gathering; and (3) insufficient protection against improper disclosure.

The program does not involve an intrusion into bodily integrity. The procedure used allows the officer to produce his or her urine specimen in the privacy of a bathroom stall with no visual observation by a monitor. There is no overbroad or unnecessary information gathering. The urine is tested only for evidence of marijuana or cocaine so that police officers who have been using illegal drugs can be identified. The list of medications being taken by the officer is used only to provide a possible benign explanation for a specimen testing positive for the presence of drugs. There is sufficient protection against improper disclosure. Under HPD's drug urinalysis screening program, the personnel clerk responsible for the maintenance of records and reports is required to protect them against damage or loss and safeguard them against illegal access. Moreover, an agreement between HPD and [the] police officers' union, prohibits these test results from being used for criminal charges. Therefore, we find no merit in these contentions....

Appellant next contends that HPD's drug testing program fails to achieve a compelling state interest by the least restrictive means. We disagree....

In determining whether the state interest is a compelling one, a court will review that government action with strict scrutiny. The strict scrutiny standard of review means that the government action is not entitled to the usual presumption of validity, that the government must carry a heavy burden of justification, that the government must demonstrate that its program has been structured with precision and is tailored narrowly to serve legitimate objectives and that it has selected the least drastic means for effectuating its objectives.

HPD's drug testing program serves three compelling interests: (1) insuring that individual police officers are able to perform their duties safely; (2) protecting the safety of the public; and (3) preserving HPD's integrity and ability to perform its job effectively.

Police officers, since they are authorized to make arrests, conduct searches, and carry and use firearms, even when not on duty, must be mentally alert and exercise sound judgment at all times. They may be placed in a life threatening situation in which they must exercise split second judgment in the use of their firearms. In addition, police officers must control and exercise proper judgment in the use of their motor vehicles. Thus, drug use by a police officer, which can substantially impair the user's judgment and ability to react quickly, threatens police and public safety. Drug use within HPD seriously affects the integrity of the department and undermines the public's trust and confidence in the police.

Although the evidence does not indicate a large number of HPD officers take drugs, the testing program is the only effective way to deal with the problem. In the past, the traditional method of investigation by direct observation has proven to be ineffective. Also ineffective was the use of criminal investigations. The testing program is necessary and the least restrictive to meet the governmental interests....

Appellant also contends that HPD's drug testing program is not a reasonable search within the meaning of article I, section 7.2 We disagree.

It is undisputed that HPD's testing program is a search under the Hawaii Constitution.... What is disputed is whether HPD's program involves reasonable or unreasonable searches. ... In each case [the test of reasonableness] requires a balancing of the need for the particular search against the invasion of personal rights that the search entails....

As previously concluded, HPD's program serves to protect both public and police safety and to preserve HPD's integrity and ability to perform its police function. On the other side of the balance, a police officer, by reason of the employment as a police officer, has a diminished expectation of privacy. HPD's rules prohibit the illegal use of drugs even when off duty, and all police officers know they are subject to regulations which affect their private nonprofessional lives. Our reasoning here echoes our response to Appellant's claim to an invasion of privacy.

The testing program is not more intrusive than needed. The police officer produces his or her urine sample unobserved. The urine sample is tested only for evidence of illegal drug use and the information obtained is used only for the administrative actions of requiring drug abuse treatment for the first positive drug test and termination for the second.

Finally, HPD had no other practical and available means of responding to legitimate concerns over drug use in the police department. Criminally investigating officers suspected of using drugs proved ineffective. Also, it is extremely difficult, if not impossible, to detect drug use among police officers by mere observation. Both methods proved to be non-workable within the police force.

Upon balancing the competing interests, we hold that the searches are reasonable. HPD's need to conduct its suspicionless drug testing program outweighs the privacy interest of the police officers. Our interpretation of the state guaranty of freedom from unreasonable searches therefore conforms to the interpretation of the analogous federal guaranty. The United States Supreme Court held that the need to conduct suspicionless searches in the form of urine testing for evidence of drug use outweighed the privacy interests of customs employees who are engaged in drug interdiction and those who are required to carry firearms. National Treasury Employees Union v. Von Raab, 489 U.S. at [], 109 S. Ct. at 1392....

HPD's testing program does not violate our constitution. We affirm the decision of the trial court.

Employers who choose to conduct drug or alcohol testing may only request or require an applicant or employee to undergo testing under the following circumstances:

1. Applicant testing: A public or private employer may request or require a job applicant, upon a conditional offer of employment, to undergo drug or alcohol testing and may use a refusal to undergo testing or a confirmed positive test result as a basis for refusal to hire, provided that ... such testing is required for all applicants who have received a conditional offer of employment for a particular employment classification;
2. Reasonable suspicion testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the employer has a reasonable suspicion that the employee has violated the employer's written policy;
3. Post-accident testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the employer has a reasonable suspicion that the employee or another person has sustained a work-related injury or the employer's property has been damaged as a direct result of the employee's use of drugs or alcohol;
4. Random testing: A public or private employer may request or require an employee to undergo drug or alcohol testing on a random selection basis, except that a public employer may require random testing only of employees who: a) are police or peace officers, b) have drug interdiction responsibilities, c) are authorized to carry firearms, d) are engaged in activities which directly affect the safety of others, or e) work in direct contact with inmates [or] juvenile delinquents or children [in] the custody of the Department of Human Services;
5. Scheduled, periodic testing: A public or private employer may request or require an employee to undergo drug or alcohol testing if the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination or is scheduled routinely for all members of an employment classification or group and which is part of the employer's written policy, except that a public employer may require scheduled, periodic testing only of employees who [could be subject to random testing under this statute]; and
6. Post-rehabilitation testing: A public or private employer may request or require an employee to undergo drug or alcohol testing without prior notice for a period of up to two (2) years commencing with the employee's return to work, following a confirmed positive test or following participation in a drug or alcohol dependency treatment program under an employee benefit plan or at the request of the employer.

 555

No employer may request or require an applicant or employee to undergo drug or alcohol testing unless the employer has first adopted a written, detailed policy setting forth the specifics of its drug or alcohol testing program....

 559

All sample collection and testing for drugs and alcohol pursuant to the provisions of this act shall be conducted in accordance with the following conditions:

1. Samples shall be collected and tested only by individuals deemed qualified by the State Board of Health and may be collected on the premises of the employer;
2. ...
3. The collection of samples shall be performed under reasonable and sanitary conditions;
4. A sample shall be collected in sufficient quantity for splitting into two separate specimens, pursuant to rules of the State Board of Health, to provide for any subsequent independent analysis in the event of challenge of the test results of the main specimen;
5. Samples shall be collected and tested with due regard to the privacy of the individual being tested. In the instances of urinalysis, no employer or representative, agent or designee of the employer shall directly observe an applicant or employee in the process of producing a urine sample; provided, however, collection shall be in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;
6. Sample collection shall be documented, and the documentation procedures shall include: a) labeling of samples so as reasonably to preclude the probability of erroneous identification of test results, and b) an opportunity for the applicant or employee to provide notification of any information which the applicant or employee considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant information;
7. ...
8. ...
9. A written record of the chain of custody of the sample shall be maintained from the time of the collection of the sample until the sample is no longer required.

 560

Employers shall maintain all drug and alcohol test results and related information, including, but not limited to, interviews, reports, statements and memoranda, as confidential records, separate from other personnel records. Such records, including the records of the testing facility, shall not be used in any criminal proceeding, or any civil or administrative proceeding....

A testing facility, or any agent, representative or designee of the facility, or any review officer, shall not disclose to any employer, based on the analysis of a sample collected from an applicant or employee for the purpose of testing for the presence of drugs or alcohol, any information relating to: 1) The general health, pregnancy or other physical or mental condition of the applicant or employee; or 2) The presence of any drug other than the drug or its metabolites that the employer requested be identified and for which a medically acceptable explanation of the positive result, other than the use of drugs, has not been forthcoming from the applicant or employee....

 561

Drug or alcohol testing governed by [this statute] shall not be requested or required of an employee by an employer unless the employer provides an employee assistance program. For the purposes of this section, "employee assistance program" means an in-house or contracted program which at a minimum provides drug and alcohol dependency evaluation and referral services for substance abuse counseling, treatment or rehabilitation.

 562

No disciplinary action, except for a temporary suspension or a temporary transfer to another position, may be taken by an employer against an employee based on a positive test result unless the test result has been confirmed by a second test....

An employer may take disciplinary action against an employee who refuses to undergo drug or alcohol testing conducted in accordance with the provisions of this act....

NOTES

1. Constitutions and statutes. Would Officer McCloskey have fared any better in her challenge to the Honolulu Police Department drug testing program if Hawaii had passed a statute like Oklahoma's? Suppose the collective bargaining agreement in Honolulu had not addressed the use of drug testing results in a later criminal prosecution of the drug user. If the Department used the test results to obtain other evidence of illegal drug use, would the defendant succeed under a constitutional regime like the one in Hawaii? Under a statute like the one in Oklahoma?

Is there anything special about drug testing programs that make them more suitable for regulation by statute than by constitutional adjudication? Could you make the same arguments about any governmental effort to collect information?

CASE STUDY: BOSTON

In 1986, the Boston Police Department adopted Rule No. 111, which deals with Drug Testing for Departmental Personnel. Rule 111 is set out below:

Sec. 1 This rule is issued to establish uniform internal policy and procedures to govern the administration of a screening process to test and control unauthorized use of illicit drugs among all sworn and civilian personnel of the Boston Police Department. The Department is seeking to test for drugs which have a high potential for abuse, have no medical use in treatment, and for which there is no safe protocol for medical use.

Sec. 2 This Rule is written and promulgated to be used in conjunction with Rule 102 governing the general conduct, duties and responsibilities of the Boston Police Department personnel. It takes cognizance of the rights inherent in each individual of the Department under the Constitution of the United States of America and the Commonwealth of Massachusetts. It is established to help combat the national epidemic in the illicit use of drugs and to combat illegal trafficking in drugs. It is adopted to rationally foster the efficient operation of the Boston Police Department and to establish a reasonable and uniform system by which the Department can monitor its employees for unauthorized drug use. The Rule is necessary to preserve and protect the integrity of the Department and its personnel; to guard against the harmful consequences to the public good occasioned by the unauthorized unlawful use of, or the illegal trafficking in, illicit drugs by law enforcement personnel and to preserve and maintain a high degree of public confidence in all those charged with upholding public order and public safety.

Sec. 3 The Department hereby establishes two base methods of implementing this Rule to identify Department personnel who are users of certain controlled substances: a. Testing of those individual subjects where facts are sufficient to constitute reasonable suspicion of controlled substance abuse as further described in Section 4; and b. A universal random and urinalysis procedure.

Sec. 4 In circumstances where the facts are sufficient to constitute a reasonable suspicion that a Department employee is a user of certain controlled substances, the Department shall have the right to require that employee to submit without delay to a urinalysis test.

Reasonable suspicion shall be based on information of objective facts obtained by the Department and the rational inferences which may be drawn from those facts.

The credibility of the sources of information whether by tip or informant, the reliability of the facts of information, the degree of corroboration, the results of Department inquiry and/or other factors shall be weighed in determining the presence or absence of reasonable suspicion.

Sec. 5 There shall be a Drug-Testing Advisory Committee, members to be appointed by the Commissioner, which shall meet from time-to-time to advise the Commissioner on procedural and technical matters pertinent to the drug-testing program established by this Rule.

The members of the Committee shall include a representative of each of the official collective bargaining groups representing members of the Department; three or more medical specialists qualified in the various sciences pertinent to the conduct of drug-testing such as pharmacology, toxicology and pathology; and such other members as the Commissioner deems appropriate. The Committee shall offer recommendations to the Commissioner on the procedures and mechanics of conducting a drug-testing program and on the science of drug-testing with a view to maintaining fairness, objectivity, accuracy and confidentiality in the entire drug-testing program. Also, the Committee shall make recommendations on the following:

a. Changes and improvements in science and technology which will improve the effectiveness of laboratory testing for the detection of drug abuse among Department personnel. b. Appropriate external proficiency-testing and internal quality assurance procedures for evaluating the performance of drug-testing laboratories. c. Procedures for the certification, decertification, and recertification of laboratories for drug analyses. d. Make recommendations to improve the effectiveness of the drug-testing program.

Sec. 6 The employee-subject to be drug-tested will be selected by randomized independent computer process unless otherwise to be tested on [a] reasonable suspicion basis. The subject will be notified of the test requirement just prior to transport to the medical facility or laboratory designated by the Department to obtain the urine sample. At the time of the test the subject will be notified of the specific drugs which will be screened by the test. The subject will be accompanied by a Testing Officer from the Department assigned to supervise the taking of the urine sample and responsible for proper conduct and uniform procedures of urine sampling process.

The subject will be assigned a test code-identification for purposes of maintaining anonymity and to assure privacy throughout the sampling and testing procedure. At the sampling site the subject will be required to deposit a sample of urine into an approved container up to a required-minimum quantity necessary for laboratory testing purposes. The subject will be required to thoroughly wash hands and fingernails prior to urination and shall be required to sign and certify Department documentation that the coded identification on the sample container corresponds with test code-identification assigned to him/her. From the point of embarking and at all stages of the urine-sampling procedure the subject will be under the direct supervision of the Testing Officer and is expected to follow strictly each instruction of the Testing Officer. Following the completion of the urine-sampling procedure, the subject will then be re-transported to his/her original point of departure.

Sec. 7 Testing Officers shall be appointed or assigned by the Commissioner from the Department with full authority to order personnel compliance to oversee the integrity of the Department's role in the personnel drug-screening process. They shall be responsible for the notification of the subject-employee of his/her random selection for testing and of the specific drugs for the detection of which, the test will be administered.

The Testing Officer shall be responsible for the attendance, identification and transportation of personnel to-be-screened to the designated test site at the appointed time and shall certify as to the cleanliness of the surroundings, the sterility of the sample and the integrity of the entire sampling procedures.

The Testing Officer shall supervise and observe in the company of the medical officer or technician all aspects of obtaining, marking and packaging of individual urine samples including the following:

(A) To assure that the medical officer or technician is afforded the cooperation of the subject in securing the urine sample from the subject in the necessary amount into the test container. Also, to oversee the securing and sealing of the individual urine sample containers of each subject-employee; and (B) The accurate matching of code-identification of the subject with the sample and the containers including the seals and any packaging of the sample containers; and (C) The exact completion and execution of the required legal documentation of chain-of-custody including appropriate identification and certification of [the] medical or technical officer participating in obtaining the urine sample from the test subject and by bonded courier if so employed; and (D) The proper maintenance of anonymity of the subject with the medical or technical officer conducting the urine-sampling procedure; and (E) If necessary, to arrange for transport of the specimen by designated bonded courier to the testing laboratory if located elsewhere; and (F) To arrange for the return transportation of the subject; and (G) All other steps necessary for the purpose of maintaining absolute control and legal accountability from initial notification of the subject to the final marking, sealing, packaging and transport arrangements for the urine samples to the testing laboratory together with the accompanying chain-of-custody documents, and the strict maintenance and final delivery of accurate Department ledgers and documents relating to the test, chain-of-custody and test records to the Commissioner or that person authorized by him to receive them; and (H) To strictly apply all other more-detailed testing procedures as may be required by the Department prior to the effective date of actual testing. Testing Officers shall attend an initial training seminar in the proper and legal administration of this personnel drug-testing rule prior to the start of actual testing and such other additional training seminars as changes and modifications in the program or procedures may require.

Sec. 8 PERSONNEL SELECTION FOR RANDOM SCREENING The selective procedure will be governed by a secured computer selection process. The selection of individual personnel to-be-screened will be effected by a computer program designed for random selection. Human intervention in this process is limited to the programming of the computer by an independent contractor hired outside the Department for the purpose according to contract specifications.

Sec. 9 Urine samples will be taken at a medical or laboratory site selected by the Department for this purpose. This facility may or may not be affiliated with the testing laboratory or facility which will be conducting the urinalysis process.

This facility must provide a clean and sanitary location for the urine-sampling process including washing facilities. It must also provide a competent person qualified in the practice of sterile urine-sampling and experienced in the legal requirements of chain-of-custody documentation and procedures. The person will be required to work cooperatively with the Testing Officer in obtaining from selected individuals under his/her direction [and in his/her presence] urine samples in the required quantity, in proper receptacles for purposes of laboratory urinalysis for controlled substances, and to arrange for marking, sealing, packaging, storing and final delivery of such specimens to the testing laboratory.

All personnel selected to submit a sample for urinalysis shall be provided a private sanitary area at the collection center. The individual will be in a hospital-type gown and will not have access to street clothes, purses, bags, etc. After providing the sample, the subject will call the testing officer or medical assistant. In the presence of the individual, the medical assistant will pour the sample into the plastic laboratory bottle, cap the bottle and place the tamper proof seal over the cap.

Sec. 10 Testing process of urine specimens of personnel shall be completed by a qualified medical laboratory selected by the Department which shall meet Department contract specifications which will ensure results are legally supportable and scientifically accurate.

With the delivery of each specimen, the Department will designate to the testing laboratory only certain specific drugs for which the specimen is to be analyzed. The testing laboratory will report findings only as to those specific substances contained in the Department request.

To ensure optimum accuracy the tests shall be drug-specific. The drug-abuse screening test will consist of two tests:

a. The initial test of each urine sample shall employ a methodology different from the secondary confirmation test. b. The initial test shall use a thin-layer chromatography process unless a different process has been approved by the Department. The test process at the laboratory for the initial analysis will be completed in 24-48 hours. c. The secondary confirmation test of any positive findings of specific drugs selected to be screened in the subject shall be accomplished by one of the following methods: enzyme immunoassay, gas liquid chromatography, mass spectrometry. d. The test procedure for determining the presence of cannabinoids will be immunoassay. Secondary confirmation test of a positive finding for the presence of cannabinoids will be gas chromatography-mass spectrometry. e. The foregoing drug-testing procedures are not meant to be an exhaustive compilation of the tests that will be or could be used to implement the personnel drug-screening program. f. The testing laboratory will make provision to properly preserve, store and secure one aliquot of the original urine specimen to be reserved and made available for purposes of independent confirmation testing by experts chosen and authorized by the subject-employee. This employee-confirmation test will be conducted at the testing laboratory jointly with the experts representing the subject-employee and the laboratory chemists and experts of the testing laboratories which returned the original urine-test findings. Also, the testing laboratory will make available to the inspection of the employee or his representative all records of primary and secondary confirmation testing done by the testing laboratory on the urine specimen provided by the employee. The confirmatory test will be a test different from the initial test. The test will be a gas liquid chromatography, mass spectrometry (GC/MS).

Sec. 11 The testing laboratory contracted by the Department to test urine specimens under this Rule must continue the uninterrupted chain-of-custody procedure from receipt of specimens and to maintain internal chain-of-custody procedures which establish fundamental accountability and reliability of testing from a legal viewpoint at each stage in the handling, testing, and storing of specimens and reporting of test results.

The testing laboratory will be subjected to appropriate external proficiency-testing and internal quality-assurance procedures for evaluating the performance of its testing process and procedures and for strict conformity with the contract specifications.

The testing laboratory will not be allowed to know the identity of the subject tested. Strict confidentiality must be maintained throughout the entire testing and reporting process. Results of the test will be sealed and forwarded only to the Commissioner or that person authorized by the Commissioner to receive test results.

Sec. 12 [All personnel whose confirmatory test results in a positive finding for controlled substances, will be subject to the full range of discipline including discharge from the Department pursuant to M.G.L. Chapter 31, Sections 41 - 46 and Rule 109.]

Final scientific confirmation of the presence of one of the four harmful drugs (defined in the last sentence of Rule 111, section 1) in the urine sample of an employee shall set in motion the operation of Mass. General Laws Chapter 31, sections 41-46. These sections provide and protect the legal rights of tenured Civil Service employees. Under these provisions the employee is entitled to a full department hearing and a subsequent 'de novo' Civil Service hearing at which hearings he/she is afforded the opportunity to present a complete legal defense and exculpatory evidence and to contest all scientific and other evidence presented by the Department pursuant to the complaints. The employee shall be charged under the general complaint of conduct unbecoming an employee (Rule 102, section 3) and the unauthorized use of illegal drugs (Rule 102, section 16) under Boston Police Rules and Regulations. The Department shall bear the burden of proving the presence of illegal drugs in the urine sample; and that the employee knowingly violated Regulations 102, sections 3 and 16.

A finding against the employee shall subject him/her to a full range of discipline under the Rules and Regulations of the Boston Police Department. A finding for the employee shall constitute an exoneration of the employee.

Sec. 13 The provisions of this regulation are severable and if any of its provisions shall be held unconstitutional or otherwise invalid by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.

Francis M. Roache

Police Commissioner

582 N.E.2d 523 (Mass. 1991)

WILKINS, J.

In April, 1986, the defendant police commissioner issued Boston Police Department Rule 111 concerning the testing of Boston police department personnel for the use of illicit drugs. Rule 111, as now amended, authorizes urinalysis drug testing of police officers both on reasonable suspicion and on a random basis. In this action, the plaintiff, a Boston police officer, relying solely on art. 14 of the Massachusetts Declaration of Rights, challenges the constitutionality of the random testing proposed by Rule 111....

The details of Rule 111 are not important for our purposes. Any police officer to be tested, except on the basis of reasonable suspicion, will be selected by randomized independent computer process. Rule 111, if followed, thus eliminates any prospect of an improper exercise of discretion to test a particular police officer.

Rule 111 states that the rule is necessary to preserve the "integrity of the Department and its personnel; to guard against the harmful consequences to the public good occasioned by the unauthorized unlawful use" of drugs by law enforcement personnel; and to "maintain a high degree of public confidence in all those charged with upholding public order and public safety."

There is nothing in the record to indicate that there has been any problem, or any public perception of a problem, arising from the illicit use of drugs by Boston police officers. Indeed, there is nothing in the record to indicate that Boston police officers have unlawfully used controlled substances on or off duty. Moreover, there is no showing of how random drug testing by urinalysis will provide information that is needed to identify officers whose on-duty performance was affected by illicit drug use.

The commissioner rightly concedes that the random urinalysis testing called for by Rule 111 involves a search and seizure for the purposes of art. 14. The question is whether the unannounced, warrantless, suspicionless, random urinalysis testing procedure that Rule 111 imposes is an unreasonable search and seizure under art. 14. If such an intrusive testing process could ever be justified as reasonable in an art. 14 sense (barring the police officer's consent to the testing), the government would have to make a strong factual showing that a substantial public need exists for the imposition of such a process applicable to all police officers....

In O'Connor v. Police Comm'r of Boston, [full cite], which concerned the testing of police cadets for drug usage, the police cadet had consented to the search, and, therefore, he had little or no reasonable expectation of privacy. In such circumstances, the generalized but undocumented governmental need for the search -- discovering and deterring drug use by police cadets -- made the search, in the court's view, reasonable under art. 14....

In the case before us, no consent to the searches is contemplated by Rule 111, and the commissioner has made no demonstration, on the record or otherwise, that facts exist that warrant random drug tests of police officers. The record offers nothing to show that there is a drug problem in the Boston police department. Nor is there anything outside the record of which we could take note that would permit such a conclusion. There is also no fact in the record, or otherwise established, to which the commissioner points to show that a substantial public purpose requires and justifies random testing of the urine of Boston police officers....

The court should not infer or assume the existence of facts that might justify the governmental intrusion. The reasonableness of a mandated urinalysis cannot fairly be supported by unsubstantiated possibilities. If the government is to meet the requirements of art. 14, it must show at least a concrete, substantial governmental interest that will be well served by imposing random urinalysis on unconsenting citizens. In such a case, the justification for body searches, if there ever can be one, cannot rest on some generalized sense that there is a drug problem in this country, in Boston, or in the Boston police department and that random urinalyses of police officers will solve, or at least help to solve, the problem or its consequences. We reject the view of the majority of the Justices of the Supreme Court that such proof is not required because "[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context." See National Treasury Employees Union v. Von Raab, supra at 675....

Thus, whether one rejects the balancing of interests test as a standard for protecting art. 14 rights or whether one might apply such a test on a proper showing of a compelling reason for nonconsensual random drug testing, Rule 111 violates art. 14 to the extent that it purports to authorize random searches. Constitutional safeguards should not be abandoned simply because there is a drug problem in this country. Article 14 of the Declaration of Rights should not be a casualty in the war on drugs. It is at times when pressures on constitutional rights are greatest that courts must be especially vigilant in the protection of those rights.

The judgment is reversed. Summary judgment shall be entered for the plaintiff declaring that, on the record before the court, the random testing of urine purportedly authorized by Boston Police Department Rule 111 would violate the rights under art. 14 of the Massachusetts Declaration of Rights of any police officer ordered to be tested.

So ordered.

Liacos, C.J. (concurring). While I concur with the result reached in this case, I must reiterate my concern with this court's willingness to consider the "balance" of public interests against privacy interests in determining the constitutionality of searches and seizures. Notwithstanding its allusion to the laws of physics, and their concomitant certainty and precision, a "balancing" test subjects the constitutional right against unreasonable searches and seizures to a standard only slightly more enduring than the latest public opinion poll. It is my firm belief that the use of these tests, no matter how well-intended, will result in the eventual dissolution of this precious constitutional right. The focus of the constitutional analysis must remain on the issue whether reasonable cause exists to justify the particular search and seizure at issue.

Nolan, J. (dissenting). Once again a majority of this court has found some hidden meaning within article 14 of the Massachusetts Declaration of Rights to deviate from a decision of the United States Supreme Court in a question concerning the Fourth Amendment to the United States Constitution.... What is of paramount concern today is that the majority opinion is totally devoid of any standard used to deviate from the position of the Supreme Court. This court has characterized that area where art. 14 and the Fourth Amendment diverge as a "special category," and one that should apply to a particular situation only if there is some "compelling reason" to do so. In this case, the plaintiff failed to present any coherent rationale for this court to disagree with the Supreme Court... Also conspicuous by its absence in the majority opinion is any reference to the history of art. 14. It is well-established that the Fourth Amendment derives from our own art. 14. It is also well-established that Massachusetts adopted art. 14, as a result of the colonists' experiences with British officials, to protect the public from public officials. It is doubly ironic, therefore, that the majority today reaches a conclusion which not only is at odds with the Fourth Amendment but also undermines an effort by the public to protect itself once again from the abuses of public authorities.

Even if it were expedient for this court to ignore the Supreme Court's interpretation of the Fourth Amendment and decide this case purely on art. 14 grounds, the majority's reasoning is unpersuasive. In assessing the reasonableness of any search or seizure, we must balance the public interest against the individual's right to personal security free from arbitrary interference by law officers. In performing this balancing test, it is implicit that each situation should be judged on its own merits, and that there are instances in which a reasonable expectation of privacy, which would normally outweigh the public interest, has less weight.

That is the case in the present action where it is without question that police officers, as police officers, have an expectation of privacy that is less than that of private citizens. Our General Laws contain numerous provisions that reflect the unique status of police officers within our Commonwealth. [These statutes deal with age and height requirements, appointment, days off, and collective bargaining.] The majority opinion, while recognizing that the police cadet in O'Connor v. Police Comm'r of Boston, 408 Mass. 324 (1990), had little or no reasonable expectation of privacy, fails to examine or consider any limitation on the expectation of privacy of the police officers in this case.

What is reasonable in terms of an expectation of privacy may also change over time. Not so long ago, many people might have been appalled, as is the majority, by the specter of drug testing, but the times have changed. It is now estimated that sixty percent of our country's largest private employers have drug testing programs. Additionally, I have found no court decision since decisions of the Supreme Court on drug testing, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), that supports the majority opinion. See McCloskey v. Honolulu Police Dep't, 71 Haw. 568, n.1 799 P.2d 953 (1990), and cases cited....

The majority, apparently, would limit drug testing by the State to situations in which the individual consents to the test, and would restrain the State from protecting the public from the dangers of drug abuse by police officers until the damage is done, until the public is harmed, and until it is too late.

For all these reasons, I dissent.

2 The section reads: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy 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 or the communications sought to be intercepted.