Pubdate: Mon, 17 May 2004
Source: Greenville News (SC)
Copyright: 2004 The Greenville News
Contact:  http://greenvillenews.com/
Details: http://www.mapinc.org/media/877
Author: Andy Paras

SOLICITOR'S DRUG PATCH FACES COURT TEST

A drug program designed to help offenders kick the habit and avoid jail 
relies on a drug test that some participants contend is faulty and could 
wrongly send them to prison for up to 10 years. Two men and a woman who 
pleaded guilty to drug charges in order to join the Drug Court program face 
termination in part, they say, because a Band-Aid-like testing device 
called the "sweat patch" falsely showed they had used drugs.

A judge has heard testimony about the patch's reliability and will make a 
decision on whether the three can remain in the program. Both sides say the 
decision could spell the end of the program.

Thirteenth Circuit Solicitor Bob Ariail, who runs the Drug Court, said that 
while there could be an occasional false-positive, the program is fair 
because it provides the same opportunities to everyone.

"This is a program that serves criminals," he said. "These people are 
criminals first and drug addicts second. Therefore, when they go into the 
program they do so through the grace of the solicitor's office and in my 
view they will follow whatever rules the program or the solicitor's office 
deems appropriate."

Ariail said that given the nature of the program, it takes more than one 
false positive to be expelled.

"A false positive is never going to get anyone kicked out," he said. "It's 
going to have to be a multiplicity of events."

Neil Fortner, vice president of lab operations for PharmChem, makers of the 
PharmChek Patch, said their patches have been the subject of many court 
cases at the federal, state and local levels. "It has been widely upheld," 
he said.

Betty Strom, deputy assistant solicitor, said her office has full 
confidence in the sweat patch and uses other drug tests as well.

"I don't think there's any test that is absolutely 100 percent fool-proof, 
but we are confident in the reliability of the sweat patch," she said. "We 
don't believe it is subject to contamination as the defense lawyers have 
claimed."

Defendants calling for repeated hearings could undermine the program's 
authority, she said, and even cause its demise.

"Hearings like this could potentially end the program," she said.

Ken Gibson, attorney for 37-year-old Cedric Perkins, said continuing use of 
the patch could discourage people from volunteering for the program.

"Its integrity and very existence is at risk," he said. "A lot of people, 
when they go into this program, take a huge risk. And I think it's highly 
unlikely anyone will take the risk if they could end up going to jail for 
an extended period of time even if they did everything right."

Drug Court, an 18-month treatment-based program, offers some defendants 
accused of drug-related crimes a second chance, Strom said.

The defendants must plead guilty to all charges against them and be 
sentenced. The charges are suspended and hang over the defendant as 
incentive to complete the program.

Drug Court has used the patch since October 2002, Strom said. Everyone in 
the program uses it unless they can prove ahead of time they have an 
allergic reaction, she said.

Participants put it on their arm or back and wear it for seven to 14 days. 
The patch is then taken off and sent to a lab, which tests for drugs 
including cocaine, heroin, methamphetamines and marijuana, she said.

Strom said even though the patch and testing can cost twice as much as 
urine testing, it's advantageous because it tests for a longer period of 
time than the urine test, which has a range of about 48 to 72 hours. It's 
also more convenient.

She said it takes just a few minutes to apply, allowing the person to go 
about their lives. "Their daily routines aren't interrupted as often," she 
said.

Since Greenville County Drug Court started using the patch, 910 sweat 
patches have been applied and 57 have registered positive, Strom said.

Of the 57 positive tests, four people didn't later admit to the test or the 
results weren't confirmed by another test, she said. Three of those four 
people are contesting the sweat patch. A fourth person is a fugitive, she said.

While Gibson declined to allow his client to talk while the case was still 
under the judge's consideration, Perkins' mother, Carolyn, says Drug Court 
rescued her son from a 15-year drug habit.

She said it helped him stay sober for the last year. She believed him when 
he called her earlier this year from jail, swearing he didn't violate the 
program's conditions.

"This was the first time he asked for help," she said.

Attorneys for the three, however, say participants who test positive are 
strongly encouraged to admit to using drugs or face termination for not 
being honest, a cornerstone of the program.

"They're told to be truthful or face the consequences," said Jim Bannister, 
attorney for one of the three. "The consequences of being truthful are 
being kicked out of the drug court program."

Circuit Judge Charles Simmons decided to have a termination hearing for the 
three defendants to hear evidence regarding the reliability of the patch.

Attorneys for the three called Dr. David Kidwell, a research scientist with 
the Naval Research Laboratory in Washington, D.C., to testify as a private 
citizen about his findings about the patch.

Kidwell said testing shows drugs are very difficult to remove from a user's 
skin and could show up on the patch if their skin hasn't been cleansed 
well, even if they've not used drugs for a while.

He said addicts who are now clean but still live in an environment 
surrounded by drugs are subject to having drugs make contact with the 
patch. He said the drugs can easily seep through from the outside.

Paul L. Cary, director of the Toxicology & Drug Monitoring Laboratory at 
the University of Missouri Health Care, testified on behalf of the 
Solicitor's Office.

He said no human endeavor is fail-safe, but the sweat patch is accepted by 
the majority of experts in the scientific community as an accurate and 
reliable method to test for drug use.

Experts say they don't agree on an accuracy rate for the sweat patch, and 
that's why the courts have had to become involved.

"That's the question the court is really trying to answer," Cary said.

Kidwell said he doesn't recommend a drug court program stop using the 
sweat-patch, but he does want results verified with a urine test.

Strom said that if a person used drugs on the first day he puts on the 
patch it wouldn't show up on a urine test done two weeks later.

Gibson said he doesn't think that ensuring there are no false positives is 
a priority of the Solicitor's Office.

"I think they're sort of willing to take the risk that some people who have 
not in fact used drugs but come up positive on this sweat patch are going 
to get kicked out of the program," he said. "I think they're OK with that."

Strom said allowing the participants to change the rules of the program 
could ultimately undermine it.

"These people voluntarily go into this program," she said. "If the person 
doesn't think we're doing what we should be doing, they don't have to come 
into the program."

Perkins praised the program for helping her son. She said, though, that she 
hopes they stop using the sweat patch.

"It is too unreliable to be relied on to take people's lives away from 
them," she said.

Staff Writer Andy Paras covers crime and courts. He can be reached at 298-4220.
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