March 14, 2011 The Honorable Jim Beall, Jr.

Chair, Assembly Human Services Cmte State Capitol Sacramento, CA 95814 To Assembly Member Beall: On behalf of the Drug Policy Alliance, a national advocate for policies to curb the excesses of the drug war and to build in its place a policy response to drugs grounded in science, compassion, health and human rights, I am writing in opposition to AB 730, which would require recipients of the California Work Opportunity and Responsibility to Kids (CalWORKs) program to undergo periodic drug testing as a condition of continued eligibility. The proposal in AB 730 is unsound for legal and policy reasons. I. Suspicionless Drug Testing is Likely Unconstitutional under the Fourth Amendment and the California Constitution The Fourth Amendment of the U.S. Constitution protects the right of the people to be secure in their persons . . . against unreasonable searches and seizures. The Fourth Amendment requires individualized suspicion (or a special needs exception) to justify searches, including drug testing. Existing California law adheres to this high legal standard and only permits suspicion-based testing for CalWORKs recipients under Welfare & Institutions Code 17001.51. AB 730 seeks to unconstitutionally sidestep the requirement of individualized suspicion in order to justify the drug testing of all CalWORKs recipients. A program similar to the one proposed by AB 730, which also sought to conduct suspicionless drug testing of applicants for public assistance, was found to be unconstitutional under the Fourth Amendment of the U.S. Constitution. See Marchwinski v. Howard (6th Cir. 2003). The drug testing program proposed in AB 730 also infringes upon the constitutionally protected privacy rights of CalWORKs applicants and recipients under the California Constitution. The California Constitution explicitly guarantees a right to privacy under Article I, 1. This protection requires that any state-imposed drug testing program must provide a compelling interest to justify the invasion of welfare recipients privacy rights. The present bill provides no compelling reason to justify such an intrusion. II. Random Drug Testing of Welfare Recipients is Cost-Prohibitive, Unreliable and Counterproductive a. Drug Testing is Expensive and Unreliable

Re: AB 730 (Grove) Position: OPPOSE

Drug testing is fiscally irresponsible and an inefficient use of taxpayer money. Testing can cost anywhere between $35-76 for each test that is administered.i This bill does not require just a single test, but requires regularly scheduled periodic drug testing of recipients. Therefore each CalWORKs applicant/recipient would be subject to multiple drug tests, which would rapidly increase the cost to taxpayers.

AB 730 calls for a chemical test to detect the presence of a drug or its metabolites in a persons bodily tissue, fluids, or products. The type of drug testing that is most frequently used is urinalysis testing, which is very technical and requires complex, time-consuming procedures to ensure the reliability of specimens and test results. When administered with the safeguards and reliability measures required by law, urine testing can consume considerable resources. Urinalysis is also unreliable and can frequently produce false-positive results. False-positives can result from commonly used medications: codeine products can produce false-positives for opiates; ibuprofen and dronabinol (Marinol) can yield false-positives for cannabis; and decongestants can cause false-positives for amphetamines. Even herbal teas can produce false-positive results.ii Therefore, in order to ensure the accuracy of testing and provide protections against false-positives, it will be necessary for a person to reveal sensitive medical information. It will also require the state to conduct confirmation testingiii before requiring a person to participate in drug treatment or disqualifying a person from the CalWORKs program. This substantially increases the cost of drug testing and further intrudes on recipients privacy. Moreover, the bill requires a CalWORKs applicant or recipient who fails a drug test to successfully complete a one-year drug treatment program. However, drug testing does not distinguish between occasional substance users and those who have addiction problems. Since the bill mandates treatment, even for those who do not have a drug addiction problem, the bill would require wasteful spending for participation in treatment that is not needed. It would also have the effect of taking away scarce treatment slots from persons who truly need treatment. b. Drug Testing is Overinclusive and Sweeps too Broadly

AB 730 requires periodic drug testing for all CalWORKs applicants and recipients regardless of any suspicion of drug use. The bill also tests for all Schedule I substances, some Schedule II substances and prescription medications. Therefore, the bill goes far beyond the standard five panel test commonly used in urinalysis. Further, while marijuana is a Schedule I substance under California law, voters have endorsed the use of marijuana for medicinal purposes. Thousands of Californians obtain relief from their ailments under this states Compassionate Use Act. As such, the bill would subject those patients who are exercising their rights under California law to unnecessary scrutiny, mandated treatment, and possible sanctions. Finally, the bill requires a CalWORKs applicant/recipient to participate in a year-long treatment program and remain drug free during treatment. The consequence for noncompliance is that the person will be terminated from the CalWORKs program. This bill ignores the realities of drug treatment and recovery. Drug treatment programs do not have a one-size-fits-all solution. The appropriate level of treatment and intensity should be assessed using accepted medical and other health guidelines, because the severity of addiction, poly substance abuse, health impacts, and cooccurring disorders will vary widely among treatment participants. The type of treatment, length of treatment, and many other factors must match the needs of the addicted person in order for treatment to be successful. Additionally, for those who do have a drug addiction problem, relapse is an expected part of the recovery process and a person should not be penalized and refused welfare benefits for having a chronic relapsing condition.iv c. Drug Testing of Welfare Recipients is Counterproductive

The foreseeable impact of this bill would be to push already poor and marginalized men and women, including parents and pregnant mothers, outside of the system and further away from access to necessary health care and substance abuse treatment. Fear of testing alone will drive many people away from vital services, negatively impacting the health and wellbeing of families and entire

communities, not just those who struggle with drug use problems. Therefore, this bill would have the effect of impeding rather than improving the wellbeing of a significant number of Californians.v In conclusion, AB 730 will cause significant harm and cost with little discernable benefit. For these reasons, among others, Drug Policy Alliance opposes AB 730. Please feel free to contact me at (510) 229-5211 to discuss the bill, or call our policy consultant, Glenn Backes, at 916-202-2538. Respectfully,

Theshia Naidoo Staff Attorney, Drug Policy Alliance cc: Assembly Member Shannon Grove Members, Assembly Human Services Committee Glenn Backes, public policy consultant

Drug Testing of Public Assistance Recipients as a Condition of Eligibility, American Civil Liberties Union, April 08, 2008, http://www.aclu.org/drug-law-reform/drug-testingpublic-assistance-recipients-condition-eligibility. ii See, e.g., Nancy C. Brahm et al, Commonly Prescribed Medications and Potential False-positive Urine Drug Screens, Am. J. Health Syst. Pharm. 67 (2010):1344-50; Manchikanti L, et al. Monitoring opioid adherence in chronic pain patients: Tools, techniques and utility. Pain Physician 2008; 11:S155-S180 (22); Manchikanti L, et al. Protocol for Accuracy of Point of Care (POC) or In-Office Urine Drug Testing (Immunoassay) in Chronic Pain Patients: A Prospective Analysis of Immunoassay and Liquid Chromatography Tandem Mass Spectometry (LC/MS/MS), Pain Physician 2010; 13:E1-E22; Dasgupta A. The effect of adulterants and selected ingested compounds on drugs of abuse testing in urine. Am J. Clin Pathol 228 (2007): 491503; and MacDonald S, Wells S, Fry R. The limitations of drug screening in the workplace, Int Labour Rev 132 (1993): 95-113. iii Moeller KE, Lee KC, Kissack JC. Urine Drug Screening: practical Guide for Clinicians, Mayo Clinic Proc, 83 (2008): 66-76. iv See, e.g., A. Thomas McLellan et al., Drug Dependence, a Chronic Medical Illness: Implications for Treatment, Insurance, and Outcomes Evaluation, 284 JAMA 1689-1695 (2000); Jordi Cam & Mag Farr, Mechanisms of Disease: Drug Addiction, 349 New. Eng. J. Med. 10 (2003) (demonstrating that compliance and relapse rates for addictive disorders do not differ significantly from rates for other chronic medical illnesses such as diabetes, asthma and hypertension.). v See, e.g., Legal Action Center, Steps to Success: Helping Women with Alcohol and Drug Problems Move from Welfare to Work, 18 (1999) [hereinafter Steps to Success]; Laura Schmidt and Dennis McCarty, Welfare Reform and the Changing Landscape of Substance Abuse Services for Low-Income Women, 29 Alcoholism: Clinical and Experimental Research 1298, 1304 (2000).