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Opiate Drug Testing


     By 3rd Degree Investigations, Inc. DNA, Narcotics and Controlled Substance Forensic Expert Witness

PhoneCall Dana M. Way. 3rd Degree Investigations, Inc. at (919) 427-5592

Poppy Seeds as a False Positive Result
INTRODUCTION:

Opiate testing is used to detect the presence of morphine and codeine. An opiate is defined as a
medicine containing opium or a substance derived opium, such as codeine or morphine. These are naturally occurring narcotics found in the poppy plant. In medicine morphine is an injectable analgesic and codeine is a pain reliever such as Tylenol #3 with acetaminophen. Morphine is a metabolite of codeine. A metabolite of a drug is formed in the body primarily by the liver, by enzymes which slightly change the chemical structure of the drug to make the metabolite.

The screening tests for drugs are known as immunoassays and these tests use antibodies that are naturally produced in immune systems to bind to a particular drug like morphine. However, the morphine antibody will also bind to drugs or food products that are similar in chemical structure to morphine. Codeine, hydromorphone, oxycodone, and hydrocodone are similar in chemical structure and therefore the screening tests for opiates will detect varying degrees of these narcotics. This is true whether the screen is performed in a laboratory or with an onsite testcup or teststick.

Heroin, morphine, codeine, hydromorphone, oxycodone, and hydrocodone are all narcotics that can be abused and addictive. A positive morphine screen can be caused by any of these drugs as well as consumption of poppy seeds (a raw product of the poppy plant of which opium is derived). This is true with all opiate immunoassays whether they are run on site with a quick test or in a laboratory.

On December 1, 1998, the Substance Abuse and Mental Health Services Administration (SAMSHA) that coordinates federal workplace drug test regulations for opiate testing instituted investigated new limits. Prior to that date, the initial screen by immunoassay and the morphine and codeine confirmation tests had cutoffs of 300ng/ml. Medical Review Officers and Probation Officers had difficulty determining actual heroin usage or a false positive derived from poppy seeds. The limit was raised by SAMSHA to 2000ng/ml for the elimination of a false positive result resulting from poppy seeds. They also added 6-acetylmorphine to the confirmation test by GC/MS (gas chromatography/mass spectrometry). The addition of 6-acetylmorphine, a metabolite of heroine, is used to conclusively show the recent use of heroin. 6-acetylmorphine metabolite is detectable in urine for several hours after use of heroin, morphine is detectable above the 2000ng/ml for about a day. It has been shown that the consumption of poppy seeds in most cases will not result in a morphine concentration of 2000ng/ml or greater.

The certified drug testing labs have switched to the 2000ng/ml opiate cutoff and many no longer use the 300ng/ml cutoff. For criminal justice testing, when confirming a TesTcup morphine positive at the 300ng/ml level, it is important that the lab use the 300ng/ml cutoff level as well. The TesTcup has had a morphine/opiate test at the 2000ng/ml cutoff available since April 1999.

INDISCREPANCIES IN TESTING:

Case 1: Two therapeutic residents upon returning to their program after a doctor visit offsite, both were subject to urine testing upon their return, both reviewed and shown to test positive for opiates. The drug testing provider confirmed the positive opiate tests by GC/MS (gas chromatography spectrometry). The urine confirmation tests showed positive with fairly low levels of morphine and other opiate alkaloids. Urine sample 1 tested positive at 0.15ug/ml (150ng/ml) and urine sample 2 tested positive at 0.3ug/ml (300ng/ml). For this particular facility, it was common to run urine screens for clients returning from time away from the facility. Neither of these clients had a history of opiate abuse and had been doing well during their program being treated for alcohol and marijuana dependency. Additionally, neither client exhibited behavior that may be consistent with opiate usage and both denied such usage while off site. Given the good behavior and lack of history, a toxicologist at the lab was consulted for further understanding. It was the response of the toxicologist that traditionally the lab treats morphine urine levels of under 5.0ug/ml (5000ng/ml) to be a food source contamination. This contamination can result from foods containing poppy seeds, such as cakes, bagels, cookies, cupcakes. These types of results are considered false-positive opiate urine tests.

This prompted the staff members to explore potential causes of their clients test results. In this particular case both clients had consumed poppy seed muffins while waiting for their off site appointments to occur. The staff determined, based on new knowledge from the lab that their urine screens were indeed false-positive.

Case 2: South Texas Law Review May 1997
Torts—Liability in employer-mandated drug testing—drug laboratories have no duty to warn employees that ingestion of certain substances could cause false positive test results, Smithkline Beecham Corp. v. Doe, 903 S.W.2D347

Employer policies often entail a pre-employment as well as random employment drug screens. As employers face potential liability for the torts of the employees, pre-employment screening tests serve to deter employee drug use, increase employee productivity, and promote job safety. Drug testing serves a valuable purpose while at the same time could place an employee’s privacy, reputation, career, and livelihood on the line. Unfortunately, these tests and procedures are not infallible and false-positive results do occur and disastrous consequences can follow.

Quaker contracted with SmithKline Beecham to perform drug testing. Quaker directed Doe to Austin Occupational Health Center (AOHC) for a urine sample to be taken. Although Doe completed a medical history form on which she listed all medications recently used. Doe did not disclose, nor was she asked about, recent food intake or poppy see consumption. The AOHC reported back to SmithKline, who then reported back to Quaker that Doe had a positive presence of opiates in her urine. Quaker then advised Doe of her results whereby she denied usage and explained that several days prior to the test she had consumed several poppy seed muffins which must have caused the positive test. Quaker still withdrew Doe’s offer for employment and described to her that she may apply again after six months. When Doe applied, Quaker chose not to hire her.

Doe sued SmithKline for negligence, breach of duty of good faith and fair dealing, defamation, and tortious interference with a prospective contract. The trial granted summary judgment on all four theories.

CASE 3: Inmate Thomas Grossi convicted on a federal sentence in Oakland. He was 2 weeks away from an early release when he tested positive for morphine and was yanked out of a halfway house and sent back to prison for another year. Grossi explains that that he ate poppy seed cake the day before the scheduled drug test, forgetting that poppy seeds contain opiates. The US Bureau of Prisons advises inmates that eating poppy seeds can result in positive tests that may result in disciplinary action. Grossi had signed a form five months earlier promising not to consume poppy seeds and it had slipped his mind when a friend at home offered him some cake containing poppy seeds. Knowing he would be subject to a drug test after a weekend home, it would not be likely he would engage in illicit activity and corroboration from a friend confirmed Grossi’s story. None the less the director stated he had been given “due process”.

Case 4: In the Matter of Philip Bennett, Department of Corrections
DOP Docket No. 2005-4903
(Merit System Board, decided October 24, 2007)

On July 5, 2007 Administrative Law Judge (ALJ) Bruce M. Gorman upheld the removal from duty of Lieutenant Bennett, a corrections officer at the Bayside State Prison. Lt. Bennett was removed from duty effective May 4, 2005 on charges steming from a random urine test.

In his initial decision, the AJL found that, on December 30, 2004, the appellant was randomly selected to submit a urine sample for drug testing, which proved positive for the presence of opiates. The state Toxicology Lab reported 805.85ng/ml of opiates in the appellants urine. The sample was confirmed by GC/MS and further revealed the sample specifically contained 768.23ng/ml of morphine and 262.84ng/ml of codeine. Because the state lab employs a cutoff level of 100ng/ml and the appellant did not disclose any medications that would contribute to the positive result, the State lab notified the appointing authority of the positive result for opiate use.

The state had introduced their expert who had emphasized that the test subjects in two cited articles had codeine levels of 30ng/ml and 51ng/ml after eating poppy seeds and since that was significantly lower than the appellant’s it could be concluded that the appellant had demonstrated illicit usage and could not have resulted from poppy seed consumption.

The expert for the appellant however emphasized that it is accepted that three factors are used to determine whether poppy seeds are reflected in drug testing. Specifically, the readings are not the result of poppy seeds if the morphine level exceeds 5000ng/ml, the codeine levels exceeds 300ng/ml, and/or the ratio of morphine to codeine was less than two to one. Since none of these factors were present in the appellant’s case it could be concluded within a reasonable degree of medical certainty that the ingestion of poppy seeds caused the levels of morphine and codeine in the appellant’s sample. The expert also noted that the levels produced through testing the appellant’s split sample, 636ng/ml of morphine and 120ng/ml of codeine, similarly did not suggest the use of illicit drugs in accordance with the above three factors.

In analyzing the expert opinions, the AJL afforded greater weight to that of the appellant’s expert and opined that the state’s expert’s opinion appeared to be based solely on anecdotal evidence contained in scientific articles presented, and did not reflect an application of the theories exposed above. Additionally the AJL found the testimony of a number of lay witnesses presented by the appellant to be credible. These witnesses confirmed that the appellant routinely ate a poppy seed bagel during his shift and that he did so on the shift preceding the random drug test on December 30, 2004. Thus, the AJL found that the appellant’s test results did not demonstrate illegal or illicit drug use and he recommended dismissing the charges and reversing the removal.

Finally, an additional issue that warrants comment. The Merit System Board recognizes the discussion in the record regarding the apparent low cutoff levels utilized by the State Lab to determine positive drug test results, particularly for opiate testing. It is also notable that the federal government utilizes significantly higher levels as a threshold for a positive opiate result, and that the state’s expert could not explain why the state lab used the 100ng/ml cutoff level. Since there are scientific studies which militate against the use of such low cutoff levels, it would suggest that the state lab reevaluate its reliance on relatively low cutoff levels that may not be reliable indicators of illegal drug use.

The Merit System Board found that the action of the appointing authority in removing Phillip Bennett was not justified. The board dismissed the charges against the appellant, reversed the removal, and ordered that the appellant be granted back pay, benefits, and seniority for the period of his separation from employment. Additionally, the board granted counsel fees pursuant N.J.A.C. 4A:2-2.12.

Finally: Revisions to Opiate Testing (SAMSHA)

“In our ongoing efforts to ensure fairness in our Workplace programs, the Department has revised the Mandatory Guidelines for opiate testing.” This revision will increase the initial confirmatory cutoff levels for morphine and codeine from 300ng/ml to 2000ng/ml and operationalize the new requirement to test for 6-acetylmorphine (6-AM), a metabolite that comes from heroin, using a 10ng/ml confirmatory cutoff level when morphine is present at 2000ng/ml or greater. The initial opiate test concentrations or cutoff levels that were also used by the Department of Defense and uniformed service members were designed to determine or identify heroin usage. However, at the 300ng/ml cutoff many who had not used heroin, but instead had ingested prescription drugs or ingested poppy seeds that interfered with an accurate finding in drug usage. It was determined that by raising the cutoff level to 2000ng/ml, Medical Review Officers would be able to determine usage by adding the detection result of 6-AM and therefore be able to more accurately determine drug usage that should not be confused with prescription drugs or the consumption of poppy seeds.

“The process used by the Department to study the opiate testing issue before revising the Mandatory Guidelines is a model of how to use scientific data and consensus to inform the development of public policy. As part of this process, the Department has evaluated results on 1.1 million urine specimens tested for opiates in 5 certified laboratories and approximately 317,500 specimens that were reviewed by 3 different MRO groups. Each laboratory and MRO group was asked to furnish information on results reported form January 1, 1992 to March 31, 1993. Based on the information obtained from the MROs, 87% of all opiate positives reported by the laboratories were verified negative by the MRO based on the use of prescription medications, poppy seed consumption, no clinical evidence of heroin use (such as “needle tracks”), or other reason. It is clear that the current opiate testing cutoff levels are not properly identifying opiate drug users.”

It should be apparent from this information that if law enforcement and government agencies insist on using drug screens with the cutoff limit/level of 300ng/ml, whereby the confirming laboratory must then use the same cutoff limit/level, then law enforcement and government agencies should interpret and conclude the results within the guidelines of the SAMSHA cutoff limits/levels.



Ref:
1. www.workplace.samsha.gov/resourcecenter/r397_1.aspx
2. www.sfgate.com
3. Callahan, Scott P., 1997 South Texas Law Review
4. Inaba, PharmD., CADC III, Darryl S. CNS Drug Education
5. Meadway C, GeorgeS and Braithwaite R (1998). Opiate concentrations forlling the ingestion of poppy seed products-evidence for the ‘poppy seed defense’. Forensic Science International, 96:29-38
6. Kwong TC 2008. Handbook of drug monitoring methods: therapeutics and drugs of abuse. Human Press, New York, NY
7. Varian Incorporated – A dissolution company www.varianinc.com/cgi-bin/nav?products/dat/opiates&cid=OILQMJMFQ

ABOUT THE AUTHOR: Dana M. Way. 3rd Degree Investigations, Inc.
3rd Degree Investigations, Inc. was founded in 2005 intended to serve the Criminal Justice System with an unwavering commitment to Science in the Pursuit of Truth. 3RD Degree Investigations, Inc. has more than 15 years combined experience in the field of testing and analysis and investigations. We have set the standard to work only with laboratories committed to the highest level of standards obtainable to assist us in our efforts serving our clients. The labs we contract hold accreditation by the Crime Laboratory Accreditation Program of the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASLCD-LAB) for laboratory analysis in the disciplines of Biology (DNA and Serology), Controlled Substances, and Trace Evidence Examination. In addition, the labs hold accreditation by the American Board of Forensic Toxicology (ABFT).

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.