Traverse City Record-Eagle

September 8, 2013

Court drops drug testing company

BY ANNE STANTON
astanton@record-eagle.com

---- — TRAVERSE CITY — The 86th District Court dropped another drug testing company after a judge deemed it didn't meet the court's standards.

"I don't think the testing was done in compliance with our normal procedure," said 86th District Judge Michael Haley said last week. "... Scratch it from our list. We're done with them. These standards aren't even close."

Haley made the decision to stop referring drug testing to KPEP, a long-standing drug testing facility and rehabilitation center in Kalamazoo, after a probation violation hearing on Sept. 3 that involved Nicholas Newman, 27, a Western Michigan University senior.

Newman was suspected by KPEP of providing a phony urine sample on July 29. After learning of the accusation, Newman sought out a blood test from a different medical facility. It took two days and visits to three hospitals, but a July 31, nine-panel serum test showed he was clean of drugs and alcohol. Despite that finding, Haley ruled Newman violated his probation.

Haley's decision to drop KPEP came on the heels of the court ending its relationship in May with Tri-County Monitoring Services, an area company that alcohol and drug tested individuals on bond or probation through 86th District Court. Its owner was accused of falsifying records to indicate a woman on probation completed daily urine and Breathalyzer tests; authorities said the woman admitted she skipped the tests because she knew she'd fail them.

Newman originally was convicted in September 2011 on a second misdemeanor offense of operating a vehicle under the influence of marijuana. Sept. 3 was the first time he was required to attend a probation violation hearing. His probation required frequent urine screenings and Breathalyzer tests in Kalamazoo, where he attends college.

Newman's probation officer Bob Brown testified that KPEP employee Drew Warner observed bulges in his Newman's front pocket prior to the urine test, saw his hands in his pocket "doing something, and that his urine sample was "cold to the touch." He asked for a second sample, which was warmer and tested clean. Newman told the drug tester that he drank a lot of cold water before coming in, Brown testified.

Brown said Warner did not measure the temperature of the urine, which is a local standard. Newman also wasn't patted down or asked to empty his pockets.

Newman testified he carries a wallet and cell phone in his front pockets. He offered to provide a hair sample for testing. He praised the court for helping him gain sobriety, giving him back his relationships and sense of purpose. He's now closely involved with the Michigan Convention of Young People in Alcoholics Anonymous.

But Haley still found him in violation of probation and fined him $300.

"If we had decent evidence, you'd be in jail for 90 days," Haley said. "I don't know how long you've been pulling these shenanigans."

Haley was also disappointed with court staffers, who allowed Newman to choose his drug test site and the time of day he took the test.

William DeBoer, president of KPEP, said if a urine sample is cold, it's not considered valid and the client is asked to resubmit another sample. DeBoer said he needs to learn more detail from 86th District Court staff and will take corrective action, if necessary.

He couldn't say whether KPEP staff normally uses a thermometer or not.

"If it's not warm to the touch, it's not a degree off," he said.

Newman said after last week's hearing that it was "wonderful" to be discharged from probation, although unfavorably.

"I've got my life back," he said.

Jesse Williams, Newman's Traverse City-based attorney, said the court has to allow some "give and take."

"Everybody doesn't lie," he said. "Here he provided a blood test, which is the gold standard."

The blood test, administered two days after the urine test, could still have detected THC metabolites from marijuana, Williams said.