Many Michigan probation departments employ a relatively new urine test to determine whether a probationer has consumed alcohol while on probation for a drunk driving crime. This test, known as EtG testing, refers to a urine test designed to look for biomarkers affiliated with alcohol exposure. Specifically, EtG testing looks to see if Ethyl Glucuronide is present in the urine. Several other biomarkers have also been explored as possible trace evidence of alcohol usage, but EtG testing has become fashionable in Michigan.
Michigan probation departments began to adopt EtG testing only a few years ago around 2008. Importantly, these probation departments adopted these testing methodologies after a federal advisory was issued by SAMSHA (Substance Abuse and Mental Health Services Administration). In 2006, SAMSHA warned that:
Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking. Legal or disciplinary action based solely on a positive EtG, or other test discussed in this Advisory, is inappropriate and scientifically unsupportable at this time.
Surely, no Michigan judge would ever order a person’s probation revoked based upon such highly questionable evidence, right?
The standards for revoking probation are extremely broad. As the Michigan Court of Appeals held in People v Breeding, 284 Mich App 471, 479-480 (2009):
Probation is a matter of grace, not of right, and the trial court has broad discretion in determining the conditions to impose as part of probation. People v Oswald, 208 Mich. App. 444, 446; 528 N.W.2d 782 (1995); see also MCL 771.4. Therefore, when a judge imposes probation, it is “revocable on the basis of a judge’s findings of fact at an informal hearing, and largely at the judge’s discretion.” People v Harper, 479 Mich 599, 626; 739 NW2d 523 (2007). This Court has recognized that the scope of a probation violation hearing is limited and that a probationer’s rights at a probation violation hearing are not as broad as the rights afforded to a defendant in a criminal trial. “Probation violation hearings are summary and informal and are not subject to the rules of evidence or of pleading applicable in a criminal trial. The scope of these proceedings is limited and the full panoply of constitutional rights applicable in a criminal trial do not attach.” People v Pillar, 233 Mich. App 267, 269; 590 N.W.2d 622 (1998).
Under this standard, a person on probation might not even have the right to confront his or her accusers. Defense lawyers have joked that a probation officer might successfully violate a person on probation based upon Ouija boards and soothsayers.
Well, perhaps that’s an exaggeration, but several Michigan courts, notably Judge Lisa Asadoorian in Rochester Hills, have permitted a police report to be used to violate probation without any witnesses other than the probation officer. Lacking any knowledge of the offense or surrounding facts, a probation officer is probably not the best person to provide detailed testimony regarding events that might support a probation violation. This appears to conflict with federal authorities, including the United States Supreme Court. For example, in United States v Lloyd, 566 F.3d 341, 343 (3d Cir. 2009), where the federal rules provide nearly identical summary proceedings for probation violations, the Court held:
This does not mean, however, that hearsay evidence is ipso facto admissible. Due process requires that supervised releasees retain at least a limited right to confront adverse witnesses in a revocation hearing. See Morrissey v Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
In Morrissey, the Supreme Court held that a parolee’s liberty cannot be revoked without due process and the minimum requirements of a revocation proceeding include “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” 408 U.S. at 489. This limited right to confrontation stems from the Fifth Amendment’s Due Process Clause, not from the Confrontation Clause of the Sixth Amendment. See Gagnon v Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
But EtG tests are frequently employed to support a violation of probation, even if the laboratory technicians are not available to testify. These “laboratory technicians” are frequently referred to as “toxicologists” despite their rudimentary training and experience. And, they often time reside in California, working at labs promoting this particular type of testing, where they are unavailable to testify in Michigan probation violation hearings.
Because of the apparent lack of rules regarding probation violation hearings, Michigan courts typically permit a probation officer to proffer a copy of EtG laboratory test results submitted by a toxicologist. With a declaration that the rules of evidence do not apply at these summary proceedings, the results are accepted. Cross-examination of a probation officer whose entire basis of knowledge is based upon a fax, as you might imagine, is usually quite rudimentary, i.e. you were faxed a copy of this piece of paper that has no foundation, no value, and no reliability, and you are asking that the Court order the accused to be incarcerated for a long time based upon this fax, correct? Answer: Yes.
One might wonder what transpired after SAMSHA issued its warning about EtG testing to convince Michigan probation departments to accept something that “lacks sufficient proven specificity,” particularly with the apparent Draconian lack of procedural safeguards in place. The answer is, “not a damned thing.”
As a matter of fact, the major EtG promoters are being sued for providing false-positive results that resulted in loss of employment to several healthcare professionals. While on a term of employment-style probation, these healthcare professionals were subjected to EtG testing. A group of them have sued Compass Vision, Inc. and National Medical Services, Inc. Those defendants quickly tried to sue everyone else, rather than defend their own testing methodology. After filing numerous motions in federal court to dismiss the action and/or to hold other people responsibile for their own EtG testing product, the Court’s latest ruling states:
[National Medical Services, Inc. (NMS)] introduced Ethyl Glucuronide (EtG) commercially in 2003. The test analyzes the participant’s urine to detect EtG, a metabolite of alcohol. NMS promoted and marketed EtG testing as the state-of-the-art test for the consumption of alcohol. NMS represented that the test could determine if a subject had consumed even one drink for up to two days and four to five drinks for up to five days after consumption. NMS established 250 ng/mL as the cut off for a positive test. These representations were made through news releases, unpublished articles portrayed as scientifically sound, presentations, and ongoing communications with customers like [Compass Vision, Inc. (Compass)].
Compass contacted NMS about the test and was integral in its selection as a test for alcohol consumption. Compass described the test as the gold standard in testing for alcohol consumption. Compass’ President and Medical Review Officer (“MRO”) drafted the protocols for the EtG testing used in [Plaintiffs’/health-care workers] diversion programs, including establishing 250 ng/mL as the cutoff for a positive test result. Under the protocols, a single positive test would result in suspension with removal from work until the participant had two negative test results. A single positive test, over 250 ng/mL, was sufficient to establish relapse and Compass maintained that any result over 500 ng/mL should not be considered the result of incidental use. Incidental use would include use of hand sanitizers, mouthwash, or non-alcoholic beer.
The reliability of the test was in doubt as early as 2005, when the scientific community began to question the use of the test and governmental advisories cautioned about reliance on the test to establish alcohol consumption. In response to these warnings and criticism, Defendants maintained that the established cut-offs were valid and resisted any attempt to raise the cut-off. Defendants co-authored a white paper, disseminated to customers . . . that defended the 250 ng/mL and reinforced their position that 500 ng/mL represented intentional use of alcohol. Defendants continued to rely on the test until early 2009.
No explanation is given as to why the defendants abandoned EtG testing and stopped promoting this questionable science in 2009.
On September 27, 2010, only a few months ago, the Court denied each and every argument put forth by National Medical Services, Inc. and Compass Vision, Inc. The Court held that they were not immune from liability based upon the fact that they were alleged to have been “promoting an unreliable and inaccurate test and setting an arbitrary cut-off limit.” Incidentally, the nature of the defendants’ arguments are insulting to any intelligent person, revealing their desperation. The defendants claimed that they were immune from suit, in part, based upon the First Amendment (claiming they had the right of free speech to claim that EtG testing was accurate, even though it was not) as well as the 11th Amendment (claiming that they were working under the state, giving them state immunity, even though they are a private for-profit laboratory promoting an unsound product). These arguments were also rejected by the federal court.
But if you are accused of violating probation based upon unreliable EtG tests, do not believe you are out of the woods! Michigan courts have not only accepted EtG testing results in the non-formal setting of probation hearings but also as substantive evidence of alcohol consumption in other cases. In In re Anderson-Mansfield, 2010 Mich App LEXIS 325 (Unpublished Feb. 16, 2010), a parent lost custody of his child in part due to EtG testing. As the Court held:
A major issue at the beginning of this case was respondent’s alcohol abuse. Throughout the case, respondent contended that he was not drinking. However, the results of the EtGs belied this claim. Respondent blamed his high EtG numbers on food products, floor glue, and other products in the home. This was clearly refuted by the toxicologist’s report. Although respondent had recently shown negative test results, the court found that, while he could control his drinking for short periods of time, he had not demonstrated that he had successfully overcome his life-long alcohol dependence.
Note the liberal use of the word “toxicologist’s report” in the above quoted paragraph. Toxicologist, my ass.