Cheaters never prosper--even when it comes to drug tests.
Finding ways to cheat on drug tests dates back at least 1987, when Abbie Hoffman's book Steal This Urine Test was published. As the drug tests evolve, so do products enabled to foil them.
Prosecutors determined to charge people for falsifying the results of drug tests often charged them under other laws. For example, TV station KDKA Pittsburgh reported a couple was cited with disorderly conduct and criminal mischief after they attempted to heat a urine sample--and the prosthetic penis containing it--in a convenience store microwave.
While some states have laws regarding the sale of giving away of human urine if the intent is to falsify drug screening results, pending legislation in Missouri is considerably more comprehensive.
State Rep. Jeff Roorda (D, Barnhart) pre-filed House Bill No. 1280 for the 2010 session. The bill, if passed, will criminalize falsifying drug or alcohol test results, as well as make products designed to do so illegal. Sales or free distribution of such products would be a misdemeanor, while using such products would be a felony.
In a phone interview, Roorda said he's introduced similar legislation every year since he was elected in 2004. Roorda, who has a background in law enforcement, said police officers are complaining about the difficulty obtaining legitimate test results due to such products.
"They're becoming more and more common," he said.
One such incident, the case State of Missouri vs. Robert Ryan Smothers, made national news and drew attention to Roorda's bill.
According to the Missouri Department of Corrections, Robert Ryan Smothers received a 7-year sentence for possession of a controlled substance and was assigned to District 18 Probation and Parole. According to the Missouri Court of Appeals, Western District, Smothers allegedly used a prosthetic penis and dehydrated urine during a court-ordered, police-administered drug test. Smothers was charged with forgery and possession of forging instrumentality, and the Missouri Court of Appeals upheld the charges.
"A false urine sample qualifies as an inauthentic item because it purports to have a genuineness, ownership, or authorship that it does not possess," Judge Karen King Mitchell wrote in her opinion. "When Smothers represented the urine sample as his own, the urine sample lacked 'genuineness' in that it was not what it was purported to be, that is, a urine sample made by Smothers. Moreover, Smothers did not 'own' the urine sample, though the urine sample was purportedly his own. Smothers did not 'author' the urine sample in that he did not produce it himself."
A state-by-state search of the U.S. Department of Labor's Office of the Assistant Secretary for Policy revealed that only eight states have specific laws criminalizing cheating on a drug test. Most of the laws deal with fraudulent urinalysis.
Roorda's bill seems to anticipate a shift away from urinalysis, stating "the term 'biological sample' includes but is not limited to urine, hair, hair follicles, perspiration, saliva, blood, and fingernails."
Congress is considering legislation similar to Roorda's, H.R. 858 IH, or the National Drug Testing Integrity Act of 2009. If passed, the bill would "prohibit the manufacture, marketing, sale, or shipment in interstate commerce of products designed to assist in defrauding a drug test." Enforcement would be the responsibility of the Federal Trade Commission, and violations would be prosecuted under "Unfair and Deceptive Act or Practice".
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