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Monitoring Patch Produces False Results, Costing Parolees Freedom, Attorneys Say

Testimony at a recent court hearing in Las Vegas has increased doubts about the reliability of a new drug testing device used by U.S.  probation offices throughout the country.

The Administrative Office of the United States Courts authorized U.S.  probation offices to use the device, known as a sweat patch, in 1997.  The Nevada offices have been using it ever since.

Attorneys with the federal public defender's office in Nevada have been challenging results of the sweat patch for at least 2 1/2 years and have said environmental contamination could cause positive test results, even when the wearer of the patch has not used illegal drugs.

Testimony at a federal court hearing Nov.  30 bolstered their theory and prompted probation officials in Nevada to re-evaluate their use of the patch.

"I think it should be pulled off the market until the problems are fixed," said Franny Forsman, the federal public defender for Nevada.

PharmChem Laboratories of Menlo Park, Calif., which markets the PharmChek Drugs of Abuse Patch, has a national contract with the Administrative Office of the United States Courts.

The PharmChek device has an appearance similar to an adhesive bandage.  It can be worn on the upper arm, the lower midriff or the lower back.

An absorption pad on the patch acts as a collector for some components of sweat, including drugs.  It retains drugs used at any time during its wear period until the patch is removed, up to seven days later.

In July 1998, attorneys with the federal public defender's office in Las Vegas filed a motion that sought to prevent sweat patch results from being used to revoke a client's supervised release, the federal system's equivalent of parole.  The motion claimed the results were scientifically unsound.

After a January 1999 hearing, at which attorneys on both sides of the issue presented expert testimony, U.S.  District Judge Philip Pro ruled that the sweat patch "is a reliable scientific method for testing for the presence of controlled substances."

Forsman said defense attorneys did not have sufficient information at that time to challenge sweat patch results successfully.

"We knew there was a problem; we just didn't know what the problem was," she said.

Then came a study, published in November 1999, by researchers with the Naval Research Laboratory in Washington, D.C.

Forsman said the study, although it had some flaws, found a significant risk that the sweat patch can be contaminated both from within and from without the patch.

"The NRL study demonstrated that when the skin has been contaminated, even after frequent bathing and after use of isopropyl alcohol, the patch still could test positive," Forsman wrote in a recent court document.

The study said that most individuals subjected to sweat patch testing are previous drug users.  Their environments are more likely to be contaminated with drugs, "increasing the likelihood that their skin will contact drugs from prior drug-using episodes."

"Thus, the very people most likely to be tested by the sweat patch are also the most likely to be externally contaminated," according to the study.

Government authorities and PharmChem representatives discounted the study and continued to defend the device.

At the Nov.  30 hearing in Las Vegas, prosecutors again sought to convince a federal judge that he could rely on the results of sweat patch tests.

They called PharmChem toxicologist James Meeker to the witness stand, and he revealed unexpectedly that the company had conducted three in-house studies on the question of external contamination since the January 1999 hearing.

In one of the informal studies, a small amount of cocaine -- an amount invisible to the naked eye -- was placed on the skin of five subjects.  The skin then was wiped with isopropyl alcohol and covered with a sweat patch.

Meeker testified that two of the subjects tested positive for cocaine.  But he said the results did not change his opinion that the sweat patch "is accurate and reliable to determine drug use."

"I feel that the issue of external contamination is fairly insignificant, even though I know it's big for the defense," he testified.  "Based on articles and studies I've seen, I just don't find that external contamination is a likely scenario."

During the hearing, Meeker revealed that PharmChem recently had contracted with a Utah organization to conduct independent studies on the issue.

The hearing involved Marsha McLemore, a felon accused of violating the conditions of her release by using cocaine.

Shortly after Meeker's testimony, prosecutors withdrew their petition seeking the revocation of McLemore's supervised release.

"We didn't want to be in a position where we were trying to revoke somebody based on science that wasn't sound," Assistant U.S.  Attorney Joseph Sullivan said.

Sullivan said he continues to consider the sweat patch an excellent method of detecting drug use, but he thinks more research is needed on the question of external contamination.

"We decided to take a step back and see whether that potential for contamination is legitimate," he said.

Mike Severance, a senior U.S.  probation officer who oversees the drug testing program for Nevada's offices, said U.S.  probation officials in the state changed their stance on sweat patch testing after Meeker's surprise testimony.

He said they no longer will use positive sweat patch results as the sole basis for accusing a defendant of violating the conditions of probation or supervised release.

"We think the sweat patch is a great drug detection device," Severance said.  "The problem is it may be too good."

Until further research is completed, he said, probation officials will look for other evidence -- such as eyewitness accounts of drug use or positive urine tests -- to support positive sweat patch results.

That isn't good enough for Forsman.

"This thing ought not to be used because it is being used in this city to take people's kids away and to put people in jail," she said.

Judges in Clark County Family Court have used the patch to help them sort out allegations of drug use involving parents battling over custody of their children.

And PharmChem officials want to start using the sweat patch in the federal workplace.

"If it gets into the workplace, it's a lucrative proposition for PharmChem," Forsman said.

Meeker did not respond to a message requesting comment for this story.

Severance said U.S.  probation offices in Nevada applied about 850 patches on people under its supervision in fiscal 2000.

"We were one of the first districts to use it on the scale that we use it on," he said.

Severance said research suggests that the constant monitoring of sweat patches performs better than random urine tests when it comes to detecting the use of drugs such as methamphetamine and cocaine.

"It's relatively easy to get around a urine testing system," he said.

Proponents of the patch think it acts as a deterrent to drug users who wear it.  Forsman said she likes that concept.

"It's sitting there, and you think about it," she said.

Severance said his office pays PharmChem $5 for each sweat patch and an additional $20 to test the device for drugs.

His office spends about $4 for each urine test, but Severance said that a person might be asked to give several urine samples over a seven-day period, the time covered by a single sweat patch.

Forsman said urine tests -- unlike sweat patches -- have been subjected to many years of research.

She said she considers the sweat patch a good tool for detecting drug use, but she developed suspicions about the risk of false positive readings after several clients complained about the results of their tests.

Forsman said the clients denied drug use even when admissions would have resulted in better outcomes for them.

Attorneys in her office have challenged the results in 10 sweat patch cases and learned the related science along the way.  Forsman said authorities had no evidence of drug use, other than the sweat patch results, in those cases.

Julian Gross, a civil rights lawyer in San Francisco who works with The Lindesmith Center-Drug Policy Foundation, said he considers Forsman an expert on the legal issues surrounding sweat patches.

"It's a testament to the devotion of Franny's office that they've been able to devote the time and resources to addressing this issue so strongly," he said.

Gross said a revocation hearing for one of his clients was scheduled to start in Oakland, Calif., shortly after the McLemore hearing, but federal prosecutors declined to proceed after learning about Meeker's testimony.

In mid-December, probation officials in Las Vegas withdrew a petition to revoke the supervised release of a man whose sweat patch had tested positive for methamphetamine.

"We would now request that this petition be withdrawn due to new evidence shared with our office by PharmChem Laboratories which has shown the patch may have returned positive due to environmental contaminants," they wrote in a court document.  "Because this test is now in question, we no longer believe the totality of the offender's conduct rises to a level necessary to request revocation."

In the McLemore case, officials sought to revoke her release after 21 of her sweat patches tested positive for cocaine.

McLemore had been placed on a three-year period of supervision, which included regular drug testing, after her June 1998 release from a federal prison.

McLemore had no history of drug use.  She had been convicted of conspiring to launder the proceeds of her brother's cocaine-dealing operation.

While under supervision, McLemore had 110 urine tests.  Most were done at Forsman's request as a way to refute the sweat patch results.

"She'd dropped literally a river of urine," said Forsman, whose office began representing McLemore in February.

Only one of McLemore's urine samples tested positive, and Forsman said PharmChem destroyed that sample.

Forsman said probation officials, who could not explain the discrepancy between the sweat patch and urine test results, subjected McLemore to a strip search in May but found nothing.

The public defender, who spent six years working at a residential drug treatment program in Indiana before going to law school, said probation officers should not use sweat patch results to accuse someone of drug use unless they have confidence in the device's accuracy.

In cases involving drug addicts, doing so could hurt the suspects' chances of rehabilitating themselves, she said.

"What I really want is for people who have fought the battle of addiction to not be falsely confronted with accusations that they're using drugs," Forsman said. 

False Positive Drug Discharge Information and Drug Detection Times.

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