Metropolitan News-Enterprise


Wednesday, April 10, 2019


Page 1


Court of Appeal:

Judge Erred in Ordering Litigants To Supply Hair Follicle Evidence

Opinion Says 2005 Decision Relating to Requirement of Drug Tests in Custody Disputes Retains Efficacy; Only Urine Tests Authorized


By a MetNews Staff Writer


The First District Court of Appeal has declared that nothing has changed since 2005 when the Fourth District held that there’s no legal authority for a court to order parties to a custody dispute to submit to hair follicle drug testing.

Testing of hair follicles can reveal drug use during the preceding 90 days while conventional urine tests can only reflect such use in the past three days. But Justice Carin Fujisaki of the First District’s Div. Three said in an unpublished opinion filed Monday that only urine tests may be ordered.

She cited the April 29, 2005 opinion of the Fourth District’s Div. One in Deborah M. v. Superior Court. There, Justice Gilbert Nares said:

“In this petition we are asked to determine if Family Code section 3041.5, subdivision (a)… permits courts in custody and visitation proceedings to order drug testing by means of a hair follicle test of a parent whom the court has determined engaged in ‘habitual, frequent, or continual illegal use of controlled substances.’ We conclude the language of section 3041.5(a), relevant federal regulations, and section 3041.5(a)’s statutory history demonstrate that at present only urine tests are allowed.”

Federal Standards Followed

Sec. 3041.5 provides that testing “shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.” Those standards, Nares noted, did not include testing of hair follicles.

They still don’t, Fujisaki said in Monday’s opinion. She wrote:

“From our review of the federal authorities, it appears neither the guidelines in effect at the time of the September 5 order nor the guidelines currently in effect allow for hair follicle drug testing for federal employees. No evidence or argument presented at the hearing could alter the fact that the trial court ultimately issued a formal order imposing a method of testing that did not conform to the procedures and standards for drug testing of federal employees….Section 3041.5 sets forth the procedures and standards that ‘shall’ apply to court-ordered drug testing in custody and visitation cases, and the applicable law and regulations did not permit the method ordered here.”

Trial Court Order

Fujisaki’s opinion invalidates a Sept. 5, 2017 order by Humboldt Superior Court Judge Joyce Hinrichs that both parents, who are involved in a custody dispute, “shall submit to hair follicle drug testing…on or before Friday, September 1, 2017.”

(The order, which directs that an act be performed four days before the order was filed, is a formal recitation of an oral order made in court on Aug. 30.)

The mother, Kathryn Walton, appealed.

While persuading the First District that the order for hair follicle testing was invalid, she failed to convince it that substantial evidence was lacking as to her “habitual, frequent, or continual illegal use of controlled substances.”

Walton and the respondent, contractor Jeff Stetzel, each acted in pro per.

The case is Jeffrey S. v. Kathryn W., A152599.

Controversies Over Evidence

Legal issues over use of hair follicle evidence have arisen across the nation.

The Massachusetts Supreme Judicial Court on Monday heard arguments in a case in which a cadet was denied employment in 2010 by the Boston Police Department based on the results of a test of his hair follicles. It is contended that false positives occur with greater frequency in connection with African Americans, such as he.

A Feb. 3, 2018 article in the National Law Review explains that contention, raised in state and federal litigation:

“Plaintiffs argued that black individuals have higher levels of melanin in their hair and that causes cocaine and cocaine metabolites to bind to the hair at higher rates. If someone snorts or smokes cocaine its ‘aerosolized powder’ will deposit on any nearby surface, including non-users hair. These deposits cannot be distinguished from the effects of actual use by current hair testing methods.”

Sweat Patches

In 2016, the Eighth U.S. Circuit Court of Appeals, in a memorandum decision, upheld the revocation of supervised release for a woman who flunked a sweat patch test for drugs—which utilizes a patch worn for seven days—though passing a hair follicle test. The opinion says:

“[S]weat-patch testing is a generally reliable method of determining drug use…and the results of a hair-follicle test, without more evidence as to the method and sample used, did not discredit the sweat-patch test results, especially where the district court found credible the hearing testimony establishing that the sweat patches were not contaminated.”

A 2010 decision by the Supreme Court of Idaho finds that testimony in the case established “the scientific reliability” of hair follicle evidence.

A 2008 opinion from the Florida District Court of Appeals reverses, as an abuse of discretion, an order that a mother be denied supervised visitation with her child until a hair follicle test shows she is drug-free. A footnote observes:

“We note that a hair follicle drug test will remain positive until approximately ninety days after the individual stops using cocaine. Thus, even if the mother wanted to comply with the order immediately, she might be unable to do so, and both she and the child would be punished unnecessarily by the deprivation of supervised visitation during the ninety-day cleansing period.”

Other Decision

In a separate decision yesterday, the Fourth District’s Div. One, in an unpublished opinion by Huffman, denied Jones’s writ petition challenging Weber’s denial of his request for the discovery of documents. These relate to six other persons who were investigated as suspects in connection with the slayings of which he was convicted, as well as to one unsolved crime.

Weber, in denying discovery, explained:

“The Petitioner has cited similarities in terms of most of these suspects. Their crimes involved strangulation or suffocation. The bodies, many of them, were dumped. They're generally during the same general time period.

“The question is whether they have sufficient similarity and whether there is some connection between the victims in our case and the crimes in our case and the suspects, and I think that's what the case law requires.”

The judge concluded:

“I am not seeing that the Petitioner has shown significant similarity and a direct connection in order to require discovery by the People.”

Huffman agreed.

Similarities Insufficient

One of the alternate suspects was charged with murdering an African American woman by stabbing her. Jones was accused (but not convicted) of fatally stabbing an 18-year old African American prostitute.

“Although both crimes involve African-American women who were stabbed and asphyxiated, there were also differences, including the motives for killing, the locations of the bodies, and the causes of death,” Huffman said, proclaiming that the similarities were to warrant a discovery order.

After pointing to similarities and differences with respect to the other five alternate suspects and the unsolved crime, he wrote:

“In light of the requirement that the defendant bear the burden of establishing a plausible justification for production of the materials…and the information regarding each alternative suspect, we independently conclude the denial of the postconviction discovery requests was appropriate.”

The case is Jones v. Superior Court, D074665.

 In both of yesterday’s opinions, Huffman identified the women Jones was convicted of murdering as “JoAnn S. and Sophia G.” However, the 2013 California Supreme Court opinion affirming his convictions referred to them as “JoAnn Sweets and Sophia Glover,” and they and other victims were named in various news reports.


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