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Ionscan Test Reasonable Cause to Require Urinalysis Test

Florida's Fourth District Court of Appeals held that reasonable suspicion
of use of drugs existed to require a Florida Department of Corrections
(FDOC) guard to submit to a urinalysis test. This action is an appeal of a
final order of the Public Employees Relations Committee affirming the
guard's discharge from employment. The guard was required to submit to an
Ionscan test, a variation of mass spectrometry, upon entrance to an FDOC
prison to work. Other officers were searching guards and visitors by
vacuuming the subject's shoulder area down to the palm of the hand, both
front and back.

After the guard tested positive for the presence of cocaine particles, he
was required to submit to a strip and body cavity search. No drugs were
found. The guard requested to be excused from work, and returned to his
residence in the Bachelor Officer Quarters (BOQ) on prison property. FDOC
guards and a certified narcotics search dog inspected the apartment. The
dog alerted to a portion of the refrigerator but no drugs were found. The
guard was asked to submit to a urinalysis test, and he tested positive for
cocaine. He was discharged from employment on that basis.

The guard argued that the Ionscan test was a drug test within the meaning
of § 112.055(5) (b), Fla. Stat., and thus reasonable suspicion was
required to conduct the test. The appellate court held the Ionscan did not
constitute a drug test, for the law protects state employees from
unwarranted intrusive drug testing that requires samples of bodily fluids
and tissues. The court found the Ionscan, which examines particles
vacuumed off the subject, to be less intrusive than a "shakedown" method
already approved by the courts.

The appeals court held that as it found use of the Ionscan was not
unreasonable, a positive result was "good cause" to conduct further
reasonable search procedures as employed in this case. The dismissal of
the guard's suit was affirmed. See: Mitchell v. Department of Corrections,
675 So.2d 62 (Fla. 4 DCA 1996).

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Related legal case

Mitchell v. Department of Corrections

675 So.2d 162, 21 Fla. L. Weekly D1106

District Court of Appeal of Florida,

Fourth District.

Latonn C. MITCHELL, Appellant,

v.

DEPARTMENT OF CORRECTIONS, State of Florida, Appellee.

No. 95-0291.

May 8, 1996.

Rehearing and Certification Denied June 26, 1996.
*163 Robert L. Saylor of Robert L. Saylor, P.A., West Palm Beach, for appellant.
Susan Schwartz, Assistant General Counsel, Department of Corrections, Tallahassee, for appellee.

FARMER, Judge.
Mitchell (Complainant), an employee of the Department of Corrections (DOC), timely appeals a final order of the Public Employees Relations Commission (PERC) affirming his discharge from employment. We affirm.

Complainant resided in the Bachelor's Officer Quarters (BOQ) on prison property. One day, officers were searching prisoners and employees for contraband at the entrance to the facility, using an Ionscan test, a variation of mass spectrometry. The procedure involves obtaining a sample by vacuuming the subject's shoulder area down to the palm of the hand, both front and back. Dust particles are trapped in a filter, which is then placed into the Ionscan machine. After analyzing the sample, the machine lights either green or red and displays a computerized image of the analysis. If narcotics or explosives residue is found, the light is red, a beeping alarm sounds, and the computer analysis is saved.

Complainant tested positive for the presence of cocaine particles, and was therefore required to submit to a strip and body cavity search. No drugs were found, and complainant asked to be excused from work. Shortly after he arrived at the BOQ, DOC employees and a certified narcotics search dog inspected his apartment. The dog alerted to a portion of a refrigerator. No drugs were found in the apartment. That afternoon, complainant was requested to submit to a urine test, and tested positive for cocaine. He was discharged from employment on that basis, which decision he has now appealed.

Complainant contends that the Ionscan test performed by the DOC was a drug test within the meaning of section 112.0455(5)(b), Florida Statutes (1993), which defines "drug test" to mean:
"any chemical, biological, or physical instrumental analysis administered for the purpose of determining the presence or absence of a drug or its metabolites."

Although this definition appears broadly phrased, in the context of the overall statutory framework it is further limited by other definitional provisions. Section 112.0455(5)(c) defines "initial drug test" to mean: "a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens. All initial tests shall use an immunoassay procedure or an equivalent, or shall use a more accurate scientifically accepted method approved by the Agency for Health Care Administration as such more accurate technology becomes available in a cost-effective form."
Section 112.0455(5)(d) adds:

" 'Confirmation test,' 'confirmed test,' or 'confirmed drug test' means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen. The confirmation test must be different in scientific principle form that of the initial test procedure. This confirmation method must be capable of providing requisite specificity, sensitivity, and quantitative accuracy."

Finally, section 112.0455(5)(k) defines "specimen" as:

"a tissue or product of the human body capable of revealing the presence of drugs or their metabolites."

Complainant argues that, because the Ionscan test is a "drug test" within the meaning of the statute, reasonable suspicion to conduct*164 that test should have been required.FN1 As no reasonable suspicion existed in the first instance, he argues, the ensuing searches and urine test were improper.
FN1. Section 112.0455(7) states that employers are authorized-but not required-to conduct four types of drug tests: (a) job applicant testing, (b) reasonable suspicion drug testing, (c) routine fitness for duty drug testing during a regular medical examination, and (d) followup testing when an employee has been treated for drug related problems.
We do not believe that the Ionscan test constitutes a drug test within the meaning of the statute. Courts are required to give full effect to all statutory provisions and construe related statutes in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992). It is basic to statutory construction that the words chosen by the legislature must be given their plain and ordinary meaning. Tatzel v. State, 356 So.2d 787 (Fla.1978).

Although literally the Ionscan test may seem to fit within the broad meaning of the term "drug test," we deduce from the whole statutory scheme and text a purpose to protect state employees from unwarranted intrusive drug testing, requiring samples of bodily fluids and tissues. Even though the Ionscan test is a fine technical line between the concept of a "search" and that of a "test," it plainly constitutes a less intrusive means of searching prison employees for contraband than the "shakedown" method upheld in Clark v. State, 395 So.2d 525 (Fla.1981).

Complainant next argues that the results of the Ionscan test were improperly admitted because the DOC did not adequately establish its scientific accuracy under the admissibility standards of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Complainant bases this argument on the interest of the DOC's expert in promoting the Ionscan testing device.

It should be noted that the Ionscan test result was not admitted as substantive evidence of complainant's use of drugs; nor was it admitted in a criminal context. Rather, it was admitted for the purpose of establishing reasonable suspicion to conduct later searches and testing. No Florida court has decided whether the Frye test applies in the administrative context, or whether such a stringent test is needed when the evidence is not being adduced to prove guilt or innocence.