May 22, 2009
False Positive Claim Rejected
An Illinois hearing board has recommended a suspension for 18 months and until further court order in a case involving a conviction for cocaine possession and subsequent positive test for cocaine as revealed by a court-ordered urine test. The attorney had contended that he was subject to false positives on cocaine tests, a contention refuted by the bar's medical expert:
It was Dr. Henry’s opinion, given the totality of the circumstances, that Respondent’s explanation for the positive toxicology screens was not plausible. Although Dr. Henry acknowledged that the elevated lysozyme explanation was theoretically possible, if such were the case you would expect all of Respondent’s urine screens to be positive. With regard to Respondent’s explanation for the six negative screens, Dr. Henry indicated that while this also was theoretically possible, he believed that it was unlikely that someone would give blood six times in one year and that each of those instances would coincide with a negative drug test result. Dr. Henry also noted Respondent’s inability to provide documentation to verify that he had given blood on these six occasions. Dr. Henry said that given the ramifications that would flow from the positive test results, including the ARDC matters and possible incarceration in the criminal case, he expected that Respondent would have been able to provide documentation if in fact he had given blood six times during this time period.
In arriving at his opinion, Dr. Henry also considered the other circumstances in the case. This included the fact that Respondent tested positive for the same drug that was found in the car he was driving and his inability to identify the owner or account for the crack pipe that was also discovered in the vehicle. Putting all of this information together, Dr. Henry’s opinion was that Respondent was cocaine dependent and that the positive drug tests returned during the period of supervision were the result of him self-administering cocaine.
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Yet another case determined without the participation of the respondent.
I am a little confused by the psychiatrist’s roll in the case. Ostensibly, the respondent submitted to a psychiatric evaluation but the psychiatrist seems to have also been conducting a factual enquiry. Most of what the psychiatrist testifies to is the factual information which was relayed to him by the respondent. Indeed, the psychiatrist then goes on to analyse the facts of the case and to draw conclusions as to the reasonableness of the respondent’s explanation. To me, this seems to confuse a number of different rolls. Surely the respondent had a right to expect the psychiatric evaluation to be just that?
In any case, here is the perfect example of how not to go about defending yourself.
Posted by: FixedWing | May 23, 2009 7:37:08 AM