U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

How to Make Drug Tests Pass Muster

NCJ Number
Current Municipal Problems Volume: 14 Issue: 3 Dated: (1988) Pages: 285-289
J F Banzhaf
Date Published
5 pages
Reasonable governmental drug-testing programs based on neutral criteria approved beforehand by a magistrate and providing cost-effective safeguards against testing errors are likely to be upheld by the courts and by popular opinion, and appropriate legislation to achieve these objectives can easily be drafted.
Those who argue that privacy and search-and-seizure mandates make the drug testing of employees unconstitutional ignore the well-established distinction between 'criminal searches' (which require individualized probable cause) and 'facilitative searches' (which do not). In facilitative searches, such as fire or safety inspections, detecting specific violations is secondary, as the aim is to correct problems rather than dispense criminal punishments. The U.S. Supreme Court has repeatedly sanctioned facilitative searches, even in the absence of probable cause or reasonable suspicion to believe that a specific violation has occurred. A warrant may be required for a facilitative search, however, so as to ensure that the proposed search complies with a reasonable administrative plan based on neutral criteria. Thus, governmental drug testing can be constitutional, even if the urinalyses are intrusive and even in the absence of reasonable suspicion, so long as the government first seeks a warrant by showing a reasonable need for such searches and uses a plan that does not unfairly discriminate. If a drug-test result is used to discipline or dismiss workers, certain due process provisions must be followed. These include guarantees that an initial positive test will be repeated using a more accurate test and that a hearing will be afforded workers before a final adverse determination is made. 15 footnotes.


No download available