HAIR SAMPLE TESTING FOR DRUG USE
IV. Reliable and Relevant Results
Besides surviving Fourth Amendment scrutiny, hair sample tests
have also defeated reliability arguments and relevancy challenges in the
courts over the last fifteen years.
Prior to 1990, military appellate
courts had only addressed hair sample testing in the context of
comparing a hair sample taken from a person whose identity was known,
to a crime scene sample.
Since 1990, military courts have allowed hair
sample results into evidence.
The recent CAAF opinion in United
paras. 1-8 (a)(2), (3) (3 Feb. 2005) (allowing female servicemembers to have longer hair
than male servicemembers). Second, pubic hair collection is less intrusive than current
urine collection methods because pubic hair collection does not require observation of the
genitals. See Mr. Thistle E-mail, Jan. 4, 2006, supra note 59. Third, use of trained
female collectors for female servicemembers would reduce the emotional impact of hair
collection. See AR 600-85, supra note 59, E-4(d) (requiring a commander to designate
same sex observers for tested Soldiers). Furthermore, military regulations already
account for differences in gender physiology and in gender anatomy when appropriate.
For example, while not completely analogous to this situation, male servicemembers
could argue that lower physical fitness test standards for female servicemembers results
in unequal treatment for male servicemembers. See U.S
14-3 to 14-7 (1 Oct. 1998) (providing the fitness test
point scales for male and female Soldiers); U.S.
para. 3-47(b) & tbl. 3-21 (10 Jan. 2006) (linking
promotion points to physical fitness test scores). Nevertheless, the author argues that the
military supports these different standards based on physiological and anatomical
differences, not on gender alone. The hair collection protocol would create the same
distinction—a distinction based upon biological differences and not upon a
servicemember’s gender status. As a result, hair drug testing does not create a male-
female distinction, but instead creates a hair-no hair distinction, regardless of gender. In
the author’s opinion, the few servicemembers (male or female) who would have to give
body hair or pubic hair would suffer no more embarrassment or intrusion than the few
servicemembers (male or female) who could not provide a urine sample due to the
anxiety of urinating under direct observation.
See United States v. Medina, 749 F. Supp. 59, 61-62 (E.D. N.Y. 1990) (setting
precedent for hair analysis reliability); United States v. Bush, 47 M.J. 305, 310 (1997)
(rejecting defense argument that hair drug testing is only reliable as a confirmatory test).
See Major Samuel Rob, Drug Detection by Hair Analysis, A
., Jan. 1991, at
14 (noting that the author’s case law research could not find a single case where the
military appellate courts had admitted hair drug test results at trial); United States v.
Pyburn, 47 C.M.R. 896, 904-07 (A.F. C. M. R. 1973) (comparing hair samples).
See United States v. Bethea, 61 M.J. 184, 184-88 (2005) (upholding search
authorization for hair samples); United States v. Brewer, 61 M.J. 425, 427 (2005) (noting
that the trial court allowed hair drug test results into evidence); United States v. Cravens,
56 M.J. 370, 370-75 (2002) (affirming lower court’s ruling on the admissibility of a hair
sample obtained under a search authorization); United States v. Bush, 47 M.J. 305, 306-
12 (1997) (upholding hair analysis evidence); United States v. Will, No. 9802134, 2002
CCA LEXIS 218, at *12-18 (N-M Ct. Crim. App. Sept. 27, 2002) (unpublished) (finding
MILITARY LAW REVIEW
States v. Bethea demonstrates the military judicial system’s continuing
acceptance of hair drug testing results.
During this fifteen-year period, federal courts have also recognized
the reliability of hair drug testing.
United States v. Medina provided
an on-point analysis of hair drug testing’s reliability in detecting cocaine
The Medina court referred to extensive scholarly writing on hair
drug testing to support its conclusion.
A. Evidentiary Reliability
Ironically, military appellate courts’ first review of hair drug testing
originated with the defense.
In United States v. Nimmer, the defense
sought to enter a hair sample that tested negative for drug use into
evidence to counter a positive urinalysis test.
The trial court and the
Navy-Marine Corps Court of Military Review denied admissibility of the
hair sample test.
Counsel often cite this case as authority for
that the trial court should have allowed the defense to submit a hair sample testing
negative for the presence of drugs into evidence); United States v. Ruiz, No. 33084, 1999
CCA LEXIS 219, at *3-11 (A.F. Ct. Crim. App. July 26, 1999) (unpublished) (involving
AF OSI agents obtaining a search authorization for a hair sample test based upon
observations of the accused snorting a white substance); see also United States v. Webb,
No. 32521, 1998 CCA LEXIS 270, *6 (A.F. Ct. Crim. App. June 12, 1998) (unpublished)
(mentioning an order to provide a hair sample to test for cocaine); United States v. Millar,
No. ACM 32222, 1997 CCA LEXIS 30, at *2-7 (A.F. Ct. Crim. App. Jan. 8, 1997)
(claiming pretrial punishment because an agent took photographs of pubic hair
collection); United States v. Baker, 45 M.J. 538, 539-41 (A.F. Ct. Crim. App. 1996),
aff’d, United States v. Baker, 50 M.J. 223 (1998) (challenging accused’s consent to a hair
Bethea, 61 M.J. at 184-88.
See also Medina, 749 F. Supp. at 61-62 (accepting the reliability of a hair sample
Id. at 60-62.
Id. at 61. As a starting point for their case research, counsel can refer to American
Jurisprudence Proof of Facts 3d to find multiple references on hair drug testing. See
Vinal, supra note 18.
See United States v. Nimmer, 41 M.J. 924 (N.M.C.M.R. 1994), remanded by United
States v. Nimmer, 43 M.J. 252 (1995).
Id. at 926.
Id. at 927-28. The judge found that the scientific community generally did not accept
the ability of a hair test to detect one-time use. Id. at 927. The Navy-Marine Court of
Military Review (NMCMR) agreed with the trial judge and concluded that hair analysis
needed more scientific study. Id. at 928-29.
HAIR SAMPLE TESTING FOR DRUG USE
challenging the reliability of hair drug testing.
However, on appeal,
the CAAF remanded the case to the trial court to apply the “new”
Daubert guidance on admissibility of expert scientific evidence.
the Nimmer case, the military court system has accepted hair sample test
results as reliable evidence under MRE 702.
Additionally, hair drug testing also survives relevancy challenges
under MRE 401 and 403.
In United States v. Will, the Navy-Marine
Court of Criminal Appeals (NMCCA) upheld the logical relevance of a
hair sample analysis test to rebut a charge of drug use.
States v. Cravens, the CAAF upheld the legal relevance of a hair sample
The CAAF deferred to the trial judge’s decision that hair
sample analysis results were not too confusing to be at issue before the
As a result, commanders should feel comfortable relying on
hair sample test results.
See United States v. Bush, 47 M.J. 305, 309 (1997) (citing the decision of the
NMCMR in United States v. Nimmer, 39 M.J. 924 (1994)).
United States v. Nimmer, 43 M.J. 252, 260 (1995). Between the time of the trial and
the CAAF ruling on the case, the Supreme Court had decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Id. at 256-60. Daubert provided a non-
exclusive list of factors to assist a trial judge in determining the admissibility of scientific
evidence. Id. at 256.
See Bush, 47 M.J. at 309-12 (upholding a trial judge’s ruling under MRE 702 to admit
hair drug testing results after the judge conducted a Daubert hearing). Military Rule of
Evidence 702 states “[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” MCM, supra note 85, M
See United States v. Cravens, 56 M.J. 370, 376 (2002) (confirming the trial judge’s
decision to admit hair sample evidence under MRE 401 and 403); United States v. Will,
No. 9802134, 2002 CCA LEXIS 218, at *15 (N-M Ct. Crim. App. Sept. 27, 2002)
(unpublished decision, this opinion does not serve as precedent). The United States
NMCCA uses the phrase “as an unpublished decision, this opinion does not serve as
precedent” on all of its unpublished decisions. See
para. 6-4 (C1, 15 Feb.
2002). Although the Navy-Marine court does not give these cases precedential value, the
court still allows counsel to cite to the cases as persuasive authority. Id.
Will, 2002 CCA LEXIS 218, at *15; see also Major Charles H. Rose III, New
Developments: Crop Circles in the Field of Evidence, A
., Apr./May 2003, at
49-52 (providing an overview and analysis of United States v. Will).
Cravens, 56 M.J at 376.
Id. (noting that the trial judge “specifically considered and admitted this hair analysis
evidence under Mil.R.Evid. 401 and 403”).
MILITARY LAW REVIEW
B. Value of the Results
Although hair drug testing emerged recently as a reliable drug use
test method, hair drug testing has existed for several decades.
the 1950s, authorities have tested hair for arsenic or lead.
sample testings’s extensive track record, experts have raised concern
over the interpretative variability hair drug testing.
These experts do
not question the ability of hair drug testing to detect drugs, but instead
question what a positive result reveals about drug use.
contamination and racial bias have surfaced as the predominant areas of
1. Environmental Contamination
Congressional hearings on drug testing in the summer of 1998
examined the environmental contamination controversy.
in the hearings, the environmental contamination issue involves hair drug
testing’s ability to distinguish between intentional drug use and innocent
environmental exposure to drugs.
Some experts argue that illegal
The author acknowledges that researchers (medical and legal) have written hundreds
of articles about hair sample analysis and the interpretative concerns of hair analysis
results. See, e.g., D
(Pascal Kintz ed., 1996) (providing a
compilation of articles, including references, about hair analysis). A complete analytical
review of all of the hair analysis writings is well beyond the scope of this article.
However, the following subsections provide the author’s view of the current status of
See Tom Mieczkowski, New Approaches in Drug Testing: A Review of Hair Analysis,
in 521 A
See United States v. Bush, 44 M.J. 646, 651 (A.F. Ct. Crim. App. 1996), aff’d, United
States v. Bush, 47 M.J. 305 (1997) (noting that hair drug testing for heavy metals and
arsenic had existed for fifty to sixty years at the time of the case).
See Theresa K. Casserly, Evidentiary and Constitutional Implications of Employee
Drug Testing Through Hair Analysis, 45 C
. 469, 473-77 (1997)
(discussing some scientists’ concerns over external drug contamination and hair drug
Interview with Charles Guenzer, Forensic Toxicologist, Federal Bureau of
Investigations Laboratory, in Quantico, California (Oct. 5, 2005) [hereinafter Mr.
Hearing on the Federal Workplace Drug Testing Program, supra note 52, at 21-22.
See id. at 20, 25, 27-28, 33, 63, 85 (providing testimony and prepared statements from
various experts in the hair testing field on environmental contamination ); Hearing on
Drug Testing and Drug Treatment, supra note 55, at 10-11.
Hearing on the Federal Workplace Drug Testing Program, supra note 52, at 21-22;
Tom Mieczkowski, Distinguishing Passive Contamination from Active Cocaine
HAIR SAMPLE TESTING FOR DRUG USE
drugs could innocently infiltrate a person’s hair through sweat absorption
or smoke penetration.
The drugs presence would then create a “false”
positive test result.
For example, the Naval Research Laboratory conducted several
studies which indicate that drugs can absorb into a person’s hair.
studies also indicate that continuous exposure to crack smoke could
appear in hair drug testing results.
However, additional studies prove that metabolite identification and
proper wash procedures can eliminate external contamination.
External contamination would leave traces of the actual drug on the hair,
while ingestion results in the deposit of drug metabolites within the
A hair sample test’s detection of these metabolites would tend to
Consumption: Assessing the Occupational Exposure of Narcotics Officers to Cocaine, 84
87, 108 (1997) (discussing “passive contamination” of hair in
narcotics officers); see also United States v. Bush, 47 M.J. 305, 307 (1997) (noting that
the appellant routinely suggested “passive” exposure of his hair sample to drug smoke as
Hearing on the Federal Workplace Drug Testing Program, supra note 52, at 21; Wen
Ling Wang & Edward J. Cone, Testing Human Hair for Drugs of Abuse. IV.
Environmental Cocaine Contamination and Washing Effects, 70 F
49 (1995) (finding cocaine deposits in hair exposed to crack cocaine smoke and hair
exposed to cocaine-filled solutions); Kidwell & Blank, supra note 40, 28-29 (addressing
the effects of passive exposure on hair testing).
See Wang, supra note 252, at 49 (discussing how false positives can ruin a testing
Hearing on Drug Testing and Drug Treatment, supra note 55, at 141 (statement of
David Kidwell, Ph.D., Naval Research Laboratory). The Naval Laboratory conducted
hundreds of laboratory tests where the laboratory soaked hair in drug solutions. Id.
Within five minutes, the experiment indicated that some drugs had absorbed into the hair.
Id. (describing the Naval Research Laboratory’s studies). The Naval Research
Laboratory conducted a study of the hair of children living with cocaine-smoking
mothers. Id. The study found that the children’s hair had similar cocaine levels as their
mother’s hair. Id.
See Virginia Hill et al., Removing and Identifying Drug Contamination in the
Analysis of Human Hair, 145
(2004); Mieczkowski, supra
note 251, at 108 (assessing the effects of wash procedures on narcotic officer hair
See Mr. William Thistle, Accounting for Environmental Contamination,
Pyschemedics Corp. (2004) (available by contacting Mr. Thistle at billt@psychemedics.
com or 1-800-522-7424) (describing metabolites as “unique compounds created by the
body’s processing of the drugs”). Mr. Thistle works as the Senior Vice President and
General Counsel of Psychemedics Corporation.
MILITARY LAW REVIEW
expose drug use versus mere drug exposure.
The results of these
studies also showed that laboratory hair wash procedures effectively
removed external drug deposits.
In comparison, hair may also have a stronger resistance to drug
penetration than the lungs and the gastrointestinal tract.
difference would make urine samples and breath samples more
susceptible to external contamination than a hair sample.
Forensic laboratories have begun to set drug detection cut-off levels
high enough to eliminate concerns over innocent exposure.
off levels originate from scientific studies research,
making it possible
See Hill, supra note 256, at 97-99, 108 (combining in-depth wash procedures and
detailed wash criteria to effectively identify contamination). The authors used a wash
criterion that subtracted the amount of drug left in the wash solution from the amount of
drug found in the hair segment to further prevent false positives. Id. at 99. See Gideon
Koren et al., Hair Analysis of Cocaine: Differentiation between Systematic Exposure and
External Contamination, 32 J.
671, 674 (1992). The
researchers placed volunteers in a 2.5 x 3 x 2.5 meter unventilated room and exposed
them to crack cocaine smoke. Id. at 672. The researches also placed hair samples in
closed beakers and exposed the hair to the equivalent of 5 - 5000 “lines” of cocaine
(100mg per line). Id. After exposure, the researchers washed the hair using ethanol. Id.
All cases of contaminated hair tested negative after washing except for the highest
amount- 5000 cocaine lines. Id. at 673.
See Dr. Kippenberger E-mail, Jan. 26, 2006, supra note 63 (estimating that the lungs
and the gastrointestinal tract would absorb drugs more easily than hair). “The cortex of
hair is surrounded by a protective layer of epithelia cells called the cuticle. The cuticle
cells overlap in a shingle arrangement, holding the cortex together and serving as a
protective barrier to the environment.” Wang, supra note 252, at 40.
See generally Dr. Kippenberger E-mail, Jan. 26, 2006, supra note 63 (estimating that
the lungs and the gastrointestinal tract would absorb drugs easier than hair).
See United States v. Fuller, No. 35058, 2004 CCA LEXIS 182, at *4 (A.F. Ct. Crim.
App. June 23, 2004) (referencing Associated Pathologies Laboratories, Las Vegas,
Nevada, cut-off’s levels for cocaine in hair); Proposed Revisions to Mandatory
Guidelines for Federal Workplace Drug Testing Programs, 69 Fed. Reg. 19673, 19697
(Apr. 13, 2004) (providing cut-off concentrations—i.e., 500 pictograms of cocaine
metabolites for 1 milligram of hair); F
. § 112.0455 (13)(b)(1)(b) (LEXIS
2005) (establishing a cut-off level for cocaine of 5 nanograms of drug per 10 milligrams
of hair). Cut-off levels exist for both the initial drug screening test and the subsequent
drug confirmatory test. See id. § 112.0455 (13)(b)(1)&(2) (creating screening cut-off
levels and confirmatory cut-off levels).
See Mr. Thistle E-mail, Jan. 19, 2006, supra note 49 (explaining how approximately
90% of the hair testing industry uses the same cut-off levels based upon instrument
limitations and scientific research); E-mail from Mr. Tom Mieczkowski, Ph.D., Professor
and Chair of the Department of Criminology, University of South Florida, to Major
Keven Kercher, Student, The Judge Advocate General’s Legal Center and School, U.S.
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