Las Vegas Sun

March 29, 2024

High court reverses judge on random drug tests

CARSON CITY -- The state Supreme Court has reversed a Clark County judge who ruled that hair analysis is an unreliable method of testing for drug use.

On the contrary, the high court ruled, it is a "valid drug-testing methodology."

As such, the court ruled that Cynthia Holmes, who was fired as a slot hostess at the San Remo hotel-casino in Las Vegas after failing the hair sample test, could not collect unemployment benefits.

The court, in overturning District Judge Gerard Bongiovanni, cited a number of publications, including some that said hair testing was more accurate then urine samples.

The San Remo told its employees in April 1992 that it would start random drug testing and workers would be given a 90-day notice before the examination. The policy was to fire anyone who failed.

The resort used a procedure known as radioimmunoassay hair analysis. If an employee tested positive, a second test, called "gas chromatography/mass spectrometry" was performed to verify the first results.

Holmes was given notice she would be tested in January 1993. Her test result showed the presence of cocaine. But there were questions about the chain of custody of the hair samples, so Holmes was tested a second time 10 days later and still came out positive.

She was fired and subsequently sought unemployment compensation, which was denied by the state.

Holmes filed suit and Bongiovanni ruled: "There is no substantial, credible and reliable evidence in the whole record that Holmes used cocaine in the 90-day period preceding the dates" (of the testing).

Bongiovanni also held that "hair drug screens, standing alone, are scientifically unreliable at this time to sufficiently form a legal basis for disqualifying claimants for state unemployment insurance benefits. ..." He ruled that the denial was an abuse of government discretion.

The San Remo and the state Employment Security Division appealed and the Las Vegas Chamber of Commerce and the MGM Grand also filed briefs as "friends of the court" in supporting random drug testing.

The high court said other courts have upheld the validity of hair testing for drugs and it now concludes that the test and the confirming tests are "now an accepted and reliable scientific methodology for detecting illicit drug use."

"Employers have compelling reasons, both economic and social, to test their employees for drugs," the unanimous opinion said.

In other rulings:

* The court reduced a $72,500 judgment against officer William Yada and Metro Police to $50,000. A District Court jury awarded the money to Fred J. Simpson, who had charged that Yarda used too much force in arresting him in 1986.

* The court ruled Kim Blandino must have an attorney to process his appeal. He was convicted in Clark County of violating custody rights by removing his two children from their mother. Blandino represented himself at trial. He claims God instructed him not to hire an attorney for either the trial or appeals. But the court said requiring an attorney to represent a person on direct appeal "does not substantially burden appellant's right to free exercise of religion."

* The court overturned District Judge Donald Mosley, who ruled that Clark County schoolteacher Fletcher Harris had completed his probationary period and had procedural protections from being fired. The school district refused to renew his contract to teach for a second year after problems arose.

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