Public defender appeals decision on drug patch

Kim Smith

Monday, Dec. 6, 1999 | 10:52 a.m.

The fight over a new drug testing method used by federal probation officers in Las Vegas is now in the 9th U.S. Circuit Court of Appeals.

U.S. Public Defender Franny Forsman is asking the appeals court to consider the reliability of the sweat patch because U.S. District Judge Philip Pro has twice ruled that the drug-detecting method is sound.

The patch, similar in appearance to nicotine patches worn by people trying to quit smoking, collects the components of sweat that do not evaporate and contain trace elements of consumed drugs.

The federal probation office here has been using them on some probationers for two years. However, Forsman questions their reliability.

When Douglas Stumpf, one of Forsman's clients, was in danger of having his probation revoked because a sweat patch tested positive for drugs, Forsman argued that the sweat patch had not been tested enough. She asked Pro not to consider the sweat patch result, but Pro deemed the patch reliable.

When Forsman heard that U.S. Naval Research Laboratory tests showed the patch is not impermeable, she asked Pro to reconsider his decision.

At a Nov. 12 hearing, Dr. Frederick Smith testified that minute amounts of drugs placed on the outside of the patch while it is moist can result in a positive test result. He also said that the isopropyl alcohol used to clean the skin before putting the patch on does not remove all evidence of methamphetamine that may end up on the skin of a former user, perhaps from residual drugs left in clothing, bedding or carpeting.

In his subsequent decision, Pro wrote that he agreed with the expert who testified on behalf of the U.S. attorney's office, Dr. Edward Cone.

Cone didn't dispute the test results but said that the lab conditions weren't "reflective of typical real life exposure (to drugs)" and therefore the tests shouldn't be considered by Pro when discussing the sweat patch cases currently pending in his court.

Forsman said she was going to keep fighting and is hopeful the 9th Circuit will overturn Pro's decision. In the meantime, Stumpf remains on probation.

"I'm tremendously disappointed about Judge Pro's order," Forsman said. "The courts and other entities are using it even though the manufacturer never bothered to do research on contamination."

Assistant U.S. Attorney Joe Sullivan said he is pleased with Pro's decision.

"The amount of drugs they were using to test the patch was tremendously larger in quantity than in any real-life environment," Sullivan said.

Sullivan said it would be like saying air bags are unsafe because they don't deploy at 1,000 miles per hour.

"That doesn't mean the air bag won't work at 50 miles an hour," Sullivan said.

Sullivan said Pro has probably heard more expert testimony about the sweat patch than any other federal judge in the United States.