Eric Landon of Middletown had nearly finished serving five years' probation when he flunked a drug test last Dec. 17.
What happened after that could have an impact on hundreds of probationers in Orange County.
The Orange County Probation Department charged Landon with violating probation by smoking pot. Traces of it turned up in his saliva. That bought him a return trip to County Court. He faced the prospect of prison time — up to 2 1/3 to seven years.
But Landon's mother worked as a nurse, and according to County Court records, she had warned him that saliva tests weren't always reliable. So he had the foresight to get his blood tested the same day that he gave up a saliva sample to the county.
The blood test contradicted the saliva test. Landon brought the results with him when he was arraigned in County Court. Four court appearances and three months later, the Orange County District Attorney's Office declined to prosecute Landon.
He's now suing the county and the company that contracts with the Probation Department to drug-test probationers.
In papers filed in U.S. District Court, Landon's lawyers accuse the county and its vendor, Kroll Laboratory Specialists, of negligence and violating his constitutional right to due process.
Landon's lawyers say that the county and Kroll, which is a subsidiary of a reputable, nationally-known risk-management company, failed to follow federal and state guidelines for drug testing. The suit contends that federal workplace testing guidelines call for a urine test as the backup for a saliva test for marijuana, and so do the state Health Department's forensic toxicology lab standards.
In a 2004 letter to a U.S. Health and Human Services official, Kroll Labs wrote that "saliva testing cannot provide definitive proof of marijuana use and, therefore, requires another testing methodology to be used for marijuana."
Landon's lawsuit also accuses the county and Kroll of using a lower threshold for a positive test than the threshold recommended by Orasure Technologies Inc., maker of the equipment that Kroll uses for the saliva tests. Kroll and county probation, according to the suit, should tell judges about the potential problems with the saliva tests.
The county's probation director, Victoria Casey, declined to comment. Kroll didn't respond to requests for an interview.
Landon's lawyers are asking for class-action status against Kroll, meaning that his case could represent other probationers in similar circumstances.
"I am bringing this lawsuit, not only to right the wrongs done to me, but to protect those who are unaware of what is being done to them," Landon said in a statement through his lawyers, Kevin Bloom and Robert Isseks.
Isseks conceded that Landon might not be the most sympathetic character, since being charged with violating probation didn't cost him his freedom.
"Someone might cynically say, 'So what? He's still free to go here and there,' " Isseks said. "I think this is a case where a jury ought to have the ability to reward punitive damages, to prevent this from ever happening again."
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: RecordOnline.com Times Herald-Record
Author: Oliver Mackson
Contact: omackson@th-record.com
Copyright: 2008 Hudson Valley Media Group
Website:Drug-Use Test Triggers Suit Against County
What happened after that could have an impact on hundreds of probationers in Orange County.
The Orange County Probation Department charged Landon with violating probation by smoking pot. Traces of it turned up in his saliva. That bought him a return trip to County Court. He faced the prospect of prison time — up to 2 1/3 to seven years.
But Landon's mother worked as a nurse, and according to County Court records, she had warned him that saliva tests weren't always reliable. So he had the foresight to get his blood tested the same day that he gave up a saliva sample to the county.
The blood test contradicted the saliva test. Landon brought the results with him when he was arraigned in County Court. Four court appearances and three months later, the Orange County District Attorney's Office declined to prosecute Landon.
He's now suing the county and the company that contracts with the Probation Department to drug-test probationers.
In papers filed in U.S. District Court, Landon's lawyers accuse the county and its vendor, Kroll Laboratory Specialists, of negligence and violating his constitutional right to due process.
Landon's lawyers say that the county and Kroll, which is a subsidiary of a reputable, nationally-known risk-management company, failed to follow federal and state guidelines for drug testing. The suit contends that federal workplace testing guidelines call for a urine test as the backup for a saliva test for marijuana, and so do the state Health Department's forensic toxicology lab standards.
In a 2004 letter to a U.S. Health and Human Services official, Kroll Labs wrote that "saliva testing cannot provide definitive proof of marijuana use and, therefore, requires another testing methodology to be used for marijuana."
Landon's lawsuit also accuses the county and Kroll of using a lower threshold for a positive test than the threshold recommended by Orasure Technologies Inc., maker of the equipment that Kroll uses for the saliva tests. Kroll and county probation, according to the suit, should tell judges about the potential problems with the saliva tests.
The county's probation director, Victoria Casey, declined to comment. Kroll didn't respond to requests for an interview.
Landon's lawyers are asking for class-action status against Kroll, meaning that his case could represent other probationers in similar circumstances.
"I am bringing this lawsuit, not only to right the wrongs done to me, but to protect those who are unaware of what is being done to them," Landon said in a statement through his lawyers, Kevin Bloom and Robert Isseks.
Isseks conceded that Landon might not be the most sympathetic character, since being charged with violating probation didn't cost him his freedom.
"Someone might cynically say, 'So what? He's still free to go here and there,' " Isseks said. "I think this is a case where a jury ought to have the ability to reward punitive damages, to prevent this from ever happening again."
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: RecordOnline.com Times Herald-Record
Author: Oliver Mackson
Contact: omackson@th-record.com
Copyright: 2008 Hudson Valley Media Group
Website:Drug-Use Test Triggers Suit Against County
