Alcohol Testing: Applying Drug Court Best Practices to Standard Supervision

By:  Hon. Diane Bull, Ret.

Do you remember the first person you really helped? Maybe it was a long journey, but somehow you got him or her over the finish line.  What were the things that helped that person succeed?  When it comes to impaired drivers in the court system, the answer to that question must include alcohol testing.

Why is testing important? 

Testing has always been a challenge in criminal justice, especially for impaired drivers. Quite a few of these individuals are actually at a low risk to reoffend.  Others have a very high likelihood of reoffending and pose a threat to public safety.  The latter group may need more of everything we have to give, including testing.  Often steeped in denial, and reluctant to change their behavior, high-risk impaired drivers and other alcohol-dependent offenders can be tough nuts to crack.  Fortunately, we have an array of effective strategies available for every risk-level of offender. 

While testing holds clients accountable to the rules, it’s really not about snaring clients with technical violations and dropping the hammer.  Dependable alcohol and other drug testing allow the court to gauge an individual’s use, respond swiftly to noncompliance, adjust supervision and, for those who need it, provide treatment services. Testing provides feedback to participants about their progress.  For those requiring treatment, testing can also tell us if the treatment plan is working and help clinicians address denial about the severity of the clients’ problems. 

How do we know who needs alcohol testing?

The best way to understand our clients’ testing needs is to promptly conduct risk/needs assessments using validated tools such as the state-mandated Texas Risk Assessment System (TRAS) and preferably at least one additional tool normed specifically for impaired drivers.  High-need individuals require daily alcohol-testing at the onset of supervision (and often beyond) and should receive random alcohol-testing for the duration of the supervision term. Even low-risk/ low-need offenders receiving pretrial diversions typically have alcohol-testing devices for a period of time.  

What are best testing practices? 

Best practice testing standards originated in treatment courts and they are based on scientific research.   These principles can be just as relevant for our clients on standard supervision.  The standards require us to:

• test frequently;
• be random and unpredictable;
• continue the testing uninterrupted while other services may be adjusted;
• witness the collection of test specimens;
• use methods and technologies that are scientifically valid, accurate and reliable; and,
• have rapid access to test results.

An array of options

As a judge of a criminal misdemeanor court in a county with over 10,000 DWI filings a year, making decisions about alcohol testing for defendants on bond, probation and appeal was a significant daily docket demand.  In my court, our primary alcohol-testing strategies included the use of ignition interlock devices (IID)[1] and handheld portable alcohol monitoring devices (PAM).[2]  Not only are these the least expensive testing options, they tick all boxes of the aforementioned best testing practices, including:

• They have the ability to test daily, throughout the day at multiple times.
• They’re suitable for testing for alcohol during the entire probation period.
• Equipped with cameras and facial recognition, testing is witnessed, deterring attempts to circumvent testing or having another person provide a breath sample.
• Truly random testing is possible. PAM systems can allow a supervision officer to text the individual on any day, including holidays and weekends, at any time, to submit a breath specimen.
• These methods and technologies are scientifically valid, accurate, reliable and admissible in probation violation hearings. Unlike some other testing options, IIDs and PAMs can detect low levels of consumption. Additionally, because they both require follow-up blows when a positive result is detected, false positives are unlikely.
• With real-time reporting capability, courts can rapidly access test results to quickly and effectively respond to violations.

Additionally, as we struggle to provide quality supervision amidst COVID-19, it’s crucial that we take the safety of our staff and clients to heart.  In many counties, we may need to discontinue some of our complementary testing options, such as PBT and EtG/ EtS urine testing, because the required close proximity between staff and clients is just too risky. The principle advantage of IID and portable testing devices is that the testing can be performed by the client, without requiring the client to leave his location and interact with staff. Minimal contact with the vendor is required for installation and calibration.  With safe distancing, masks and cautious disinfection procedures, alcohol testing can continue unimpeded by the pandemic.

 In many circumstances, Texas mandates alcohol testing as a condition of probation.   Beyond these mandates, judges have a great deal of discretion in determining when and how to require testing.  Criminal history, driving facts and the person’s blood alcohol content are key factors.  If people do well and have no violations, the frequency of testing may be reduced at the court’s discretion.  If violations occur, testing can be intensified and extended.  Other technologies and devices, such as transdermal alcohol monitoring (TAM),[3] preliminary breath testing (PBT),[4] and EtG/ EtS[5] urine testing can be used to augment the primary testing strategy.   To illustrate this point let’s look at a few common scenarios:

• Client is required by state law to have an IID, but she has a sales job requiring clients in the vehicle and the IID is embarrassing. Texas law permits a judge to waive a mandatory ignition interlock requirement only if, based on a controlled substance and alcohol evaluation of the defendant, the judge determines and enters on the record that the defendant’s use of an ignition interlock is not necessary for the safety of the community. In lieu of the IID, we can require a portable device.  The PAM is small and can be used discretely.  The court has the option of requiring the person to submit a sample at specific times throughout the day. The supervising officer (CSO) can also text the client to randomly submit a breath sample.  In a world without COVID safety precautions, periodic PBT testing during probation office visits and field visits can augment this testing, as can randomly adding an EtG/ EtS test to the existing urine panel.
• Client is required to have an IID, but it appears he’s driving another vehicle not equipped with an IID. Of course, the concern is that this client is drinking and driving and putting the community at risk.  First, examine reports from the interlock provider, and look for lower than normal engine starts.  Impose a curfew, require the client to add GPS monitoring to his IID device, and closely question client about his work schedule and daily routine. Adding a portable (PAM) device with a camera, GPS and real-time reporting and requiring four daily detection windows spaced 3-5 hours apart is the best way to determine whether or not the client is drinking.  Portable devices reliably detect low levels of alcohol and they can provide immediate results with real-time reporting.  To improve your monitoring, you can add unannounced visits to the client’s home, check for other vehicles on the premises, and also conduct random PBT and EtG/ EtS testing if appropriate. 
• Client has a PAM and is required to blow 4 times a day. The last blow is at 10:00 p.m. He has numerous early morning blows with low levels of alcohol indicating late night drinking.  We can add later testing times, but that may interfere with the client’s sleep. Also, consider adding (not substituting) additional types of testing devices such as a TAM system, bearing in mind that it may not be as sensitive to low levels of consumption as the PAM device. As a TAM device is the most expensive testing option and has some features clients dislike such as skin irritation and difficulty to conceal, it may not be the best long-term solution.  If safe to do so, you may also add random EtG/ EtS urine testing to the existing urine panel, understanding that, as with TAMs, it may not detect low levels of consumption.

What can we learn from these troubleshooting scenarios?   We have many alcohol-testing alternatives. Each has unique features.  Some, like IIDs and PAMs are particularly suitable for our primary alcohol testing methods throughout probation.  Others, like TAMs, PBTs and EtG/ EtS may be used to complement your testing.

To implement best practices in our day-to-day testing, what should we look for?

• Choose technologies that guarantee swift return of test results. For years it was a common practice to not respond to testing violations until there are multiple positives in the file — leaving few options other than a violation report and a likely head-lopping in court. Test results that can be returned swiftly in real-time, as with IIDs, PAMs, PBTs and TAMs, allow us to respond effectively before intervening behaviors occur or matters worsen.
• Choose testing that reliably detects low levels of consumption. If our testing methods can’t reliably detect low levels of consumption, we are encouraging devious behavior and providing our clients yet another chance to fail.  Choosing testing devices that have a proven ability to detect low levels of use, such as IIDs, PBTs and PAMs, helps clients practice the new behaviors they learn while on probation.
• Choose testing strategies that enable unpredictable patterns of random testing. By testing in unpredictable ways, we discourage criminal thinking and behaviors that hinder progress, decreasing the likelihood we will see them again through the revolving courthouse doors. Utilizing flexible devices such as PAMs enables us to test daily, and throughout the day, when clients are struggling with abstinence.  Frequency of testing can easily be adjusted as the client gradually improves and prepares for life after probation.
• Choose technologies that are safe, affordable and convenient for clients. Is this an official best practice to consider?  No, but I believe it should be considered.  In one of my favorite quotes, Maya Angelou said, “People will forget what you said, people will forget what you did, but people will never forget how you made them feel.” We are in the business of changing lives.  The best way to motivate clients to make the positive changes permanent is to treat them respectfully and fairly, and to instill hope and positivity.  Testing is essential, but we can choose methods that are affordable, comfortable, safe and not stigmatizing.  As the least expensive and most unobtrusive device, PAMs hit the mark.       

In closing, effective supervision of impaired driving offenders requires alcohol testing.  It’s not about “Gotcha,” it’s about “Help ya.” When we respond to client behavior immediately, consistently, with certainty and in evidence-based ways, we can motivate the client to improve their lives and successfully complete probation.  Not only does this have a real impact on public safety, it changes lives for the long term.  These are the things that can make our work truly rewarding.

1st Editor’s Note:  First published in: Texas Probation: The Official Publication of the Texas Probation Association, Winter 2020, pp. 11-15

2nd Editor’s NOTE:  To read more about the LifeSafer Portable Alcohol Monitoring Unit and a comparison of it to other alcohol testing technologies, click here.

About Judge Bull:

Judge Bull has over 35 years of experience in criminal justice.  She’s a retired judge who served on the criminal bench in Houston, Texas for 24 years and presided over the Harris County SOBER DWI Court for 10 years.  She lectures frequently and works as a contract consultant for the National Center for DWI Courts, the National Drug Court Institute and Justice Speakers Institute, among others.

Footnotes:

[1] IIDs are fuel-cell-based breath-testing devices which are attached to vehicles’ ignition systems and require drivers to provide breath samples free from alcohol before their vehicles will start.  Many judges favor this method of testing as the IID remains the only technology that prevents an impaired driver from operating an interlock-equipped vehicle. 

[2] PAMs are discreet handheld instruments that monitor users’ BAC. They are commonly used for those who lack a driver’s license and/or vehicle.Most use the same fuel-cell technology as IIDs, without the cost of mounting, or installation.  As with IIDs, some PAMs are equipped with a camera, have facial recognition technology, GPS tracking and real-time reporting capability. Testing can be conducted by the individual throughout the day at any location.  Courts can order customized testing protocols to fit their probationary requirements.  Individuals may randomly be notified via text to submit to a test.  

[3]Unlike breath testing devices, TAMs detect alcohol that secretes through the pores of the skin as sweat, measured through a bracelet-like device worn on the body.  TAMs feature tamper-alert technology and have the ability to achieve true 24/ 7 monitoring.  They are often used at the outset of supervision of high-risk individuals to gauge the person’s alcohol use and encourage abstinence.   They are also used as a short-term sanction for alcohol violations.

[4] PBT devices are portable, handheld fuel-cell devices commonly used by law enforcement and probation officers. As with all devices, they must be calibrated periodically.  They usually have an LCD screen where the BrAC is immediately displayed. PBTs require close proximity to the person administering the test.  While these are inexpensive, witnessed tests, they usually require travel to a location and therefore are less suitable for clients who require testing throughout the day. 

[5] EtG/ EtS testing detects metabolites of ethanol (alcohol) detected in urine.  The EtG/EtS urine panel may be added to our typical drug testing panels.  Under optimal circumstances, this test can detect the metabolites of alcohol in high levels of drinking for up to 72 hours after consumption. It can detect low levels of consumption (one to two drinks) 12 to 24 hours after drinking.  Because some jurisdictions aren’t able to perform testing on weekends, Monday morning EtG/ EtS tests increase the likelihood of detecting weekend drinking.