Time for Another Haircut: A Re-Look at the Use of Hair Sample Testing for Drug Use in the Military

• Author: MAJ Keven J. Kercher
• Pages: 05

38 MILITARY LAW REVIEW [Vol. 188

TIME FOR ANOTHER HAIRCUT: A RE-LOOK AT THE USE OF HAIR SAMPLE TESTING FOR DRUG USE IN THE

MILITARY

Major Keven Jay Kercher*

1. Introduction

   The Army's urinalysis program has made great strides in reducing drug use in the military ranks.1 However, the current military operational tempo and the prevalence of illegal drugs in local communities2 warrant a more comprehensive approach to eliminating drug use in the service.3

   An annual national drug survey by the U.S. Department of Health and

   Human Services' Substance Abuse and Mental Health Services Administration reflects the gravity of the drug problem in America.4

   According to the 2004 survey, 19.1 million Americans, age twelve and over, currently use illegal drugs.5 Seventy-five percent of the 16.4 million drug users, aged eighteen and older, had current employment.6

   Since those serving in our armed forces are a cross-section of society as a whole, commanders can expect servicemembers to have easy access to people who use drugs and to people who sell drugs.

   Also, increased servicemember usage of popular "club drugs", especially ecstasy, has left commanders wondering whether current urinalysis programs sufficiently ensure good order and discipline in their units.7 Several dilution products, cleansing products, chemical adulterants, and prosthetic devices (e.g., an artificial penis) currently exist to assist servicemembers in avoiding a positive urinalysis test result.8 An Internet Google search using the words "beat a drug test" provided over 1,200,000 hits.9 Many of these sites offer to provide pills or chemical solutions that counter urinalysis tests.10 These products claim to help avoid a positive drug test result by flushing drugs out of a person's urine prior to a test.11

   Additionally, a urinalysis can only detect, for most drugs, drug use occurring a few days prior to the test.12 This inherent testing limitation greatly reduces a urinalysis's ability to catch drug users. As a result, servicemembers could easily avoid testing positive by abstaining from drug use for a short period of time prior to an expected test.13

   Drug testing of a servicemember's hair sample serves as a viable addition to a commander's current arsenal of tools to combat continued drug use among the ranks. Commanders should utilize drug testing of hair samples to curtail servicemember drug use for several reasons. Drug testing of hair samples: (1) increases the drug detection "window" to several months;14 (2) satisfies any Fourth Amendment concerns;15 (3) provides commanders with reliable results;16 and (4) requires only minor adjustments to current military drug testing programs.17 Accordingly, this article advocates the wide spread implementation of hair testing as a much needed and complementary addition to the military's current urinalysis program.

2. A Forensic Overview of Hair Sample Testing (The Science)

   An understanding of the scientific concepts of hair drug testing will assist commanders and military lawyers in successfully utilizing hair drug testing.18 The concepts include: how drugs deposit in the hair; how authorities collect hair samples; and how laboratories analyze these samples.19 These concepts will highlight hair drug testing's advantages and disadvantages by explaining the biological process behind the test.20

   A. Dynamics of Drug Deposits in the Hair

   When a servicemember ingests a drug by injecting, snorting, smoking, or other methods, the body metabolizes the drug.21 The drug and its metabolites then enter the servicemember's blood stream and circulate throughout his body.22 As the blood brings nutrients to the hair, the blood also deposits the drug and drug metabolites in the hair follicles.23 The drug metabolites and actual drug traces come to rest permanently in the hair strand.24

   As the hair grows, the hair section containing the drug deposit grows beyond the skin's surface.25 Normally, a hair must grow for five to seven days before the hair containing the drug deposit emerges from the skin's surface.26 Hair grows at an average rate of about 1/2 inch (approximately

   1.3 centimeters) per month.27 Chronic drug use creates a band-like pattern of drug deposits within the exposed hair, similar to rings in a raccoon's tail.28 The hair continues to grow until it becomes dormant and eventually falls out of the head.29

   B. Forensic Collection Procedures

   Based on a hair growth rate of 1/2 inch per month, hair collection procedures usually require a 1 1/2 inch long hair sample,30 with this sample size covering a three-month period.31 The back of the crown of the head is the primary area used for sample collection.32 The hair is collected using a pair of sterilized scissors, using a 1/2 inch wide hair sample taken as close to the scalp as possible.33 Keeping the hair root ends of the sample aligned, the collector then deposits the hair sample into a foil packet.34 Next, the collector places the foil packet into a sealed envelope secured with an integrity seal.35 Finally, the collector mails the sample and accompanying paperwork to the designated laboratory.36

   C. Analyzing the Test Results

   Upon arrival at the laboratory, technicians subject the hair sample to rigid procedures.37 First, the technicians inspect the hair sample and accompanying paperwork for any existing discrepancies that may upset the integrity of the sample.38 Next, the technicians wash the hair.39 The washing procedures eliminate any drugs or oils that may have attached to the hair strands through external exposure.40 The technicians then cut the

   hair strands into 1/2 inch segments for separate testing.41 Segmentation establishes a monthly drug history; each segment represents roughly thirty days of hair growth.42 If a laboratory finds drug metabolite in a segment, the laboratory will then know that the drug use occurred within that thirty-day window.43

   After segmentation, the lab combines each hair sample segment with an enzymatic solution that breaks down the hair.44 This procedure converts the hair into liquid form for testing.45

   The laboratory technicians then further subject the hair solution to a radioimmunoassay (RIA) screening test and a subsequent gas chromatography/mass spectrometry confirmatory (GC/MS) test.46 The laboratory reports the drug results of both the RIA and GC/MS tests in nanograms per ten milligrams (NPM) of hair47 or in picograms per one milligram of hair.48 Each laboratory has established drug cut-off levels for each drug.49 Although laboratory differences in drug cut-off levels for

   hair do exist, the DOD Coordinator for Drug Enforcement Policy and Support would likely ensure uniform drug cut off levels for hair sample testing across the DOD.50 The cut off levels require the hair sample to contain an amount of drug or drug metabolite at or above the drug cut-off level before a laboratory will report a positive test result for that particular drug.51

   D. Advantages of Hair Sample Analysis

   The long drug detection window of hair drug testing represents the greatest advantage of hair drug testing over the currently used urine testing method.52 The average hair sample allows for the detection of drug use within the past three months, while the detection window for urine testing is generally only a few days.53 If the command tested a servicemember's urine for cocaine, a urine test would only expose illegal cocaine use occurring in the past seventy-two hours.54 In contrast, a hair drug test could show cocaine use over a three-month period.55 As a

   result, the typical hair test would give the command a three-month "snapshot" of the servicemember's drug use.56 The hair drug test, like a urinalysis, cannot reveal exact dates of drug use, but the hair drug test can indicate low, moderate, or chronic use.57

   In addition to a long drug detection window, hair drug testing also provides several other advantages.58 First, testing of hair samples taken from the head is less of an invasion of the servicemember's privacy than a urine test, which requires direct observation of the urine flow.59

   Second, hair drug testing does not have the potential inherent adulteration problems of urine testing such as dilution or usage of prosthetics.60 Third, the command can easily transport and store hair samples.61 In austere environments, the command would not have to worry about crushed samples, contaminated samples, or the effects of extreme heat or cold.62 For example, the current conflict in Iraq

   represents such an environment, where the extreme heat could cause the drug concentrations in urine samples to decrease.63 The intense heat could also stimulate rapid bacteria growth in the urine sample.64 Fourth, the command could obtain another similar hair sample if the laboratory indicated a problem with the original hair sample.65 Fifth, hair drug testing can help discriminate heroin users from codeine users or poppy-seed consumers, which urine testing allegedly cannot do.66

   E. Limitations of Hair Analysis

   Although hair drug testing has many advantages, it cannot detect a use that occurred only a few days prior to a drug test.67 After a servicemember consumes an illegal drug, the actual drug and drug metabolite must circulate through the blood to reach the hair.68 Once the drug reaches the hair root, the hair must then grow long enough to

   expose the drug deposits above the skin's surface.69 Consequently, a commander would have to wait almost a week to obtain a hair sample reflecting present-day drug use.70

   Hair drug testing also might not detect a one-time use based upon selected, drug detection, cut-off levels.71 For example, the average amount of cocaine ingested during one use is 125 mg.72 A hair sample test would require the user to ingest approximately 200 mg of cocaine to return a positive result.73 However, if a servicemember ingested several 125-mg "lines" of cocaine at one time, sometimes called "binge" use, the hair test would detect that use.74 Hair drug...