Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 8/31/1998
Status: Precedential
Modified Date: 7/6/2016
Dear Director Saffle,
¶ 0 This office has received your request for an Attorney General Opinion in which you ask, in effect, the following question:
May the Oklahoma Department of Corrections require drugtesting, including random, reasonable suspicion andpre-employment, pursuant to the Standards for Workplace Drug andAlcohol Testing, 40 O.S. Supp. 1997, §§ 551[
¶ 1 Your question raises issues concerning the
¶ 3 The
¶ 4 For instance, the United States Supreme Court has upheld governmental drug-testing programs for student athletes, customs officials, and railway employees. Vernonia,
¶ 5 While not binding on Oklahoma, the Ninth Circuit upheld random drug testing for certain employment classes within the Federal Bureau of Prisons. American Federation of GovernmentEmployees v. Roberts,
1. those employees in primary law enforcement positions who, in the regular course of their duties, are issued or given access to firearms for use on a daily or weekly basis;
2. those licensed physicians and dentists in primary law enforcement positions who, in the regular course of their duties, diagnose, treat, or directly supervise the diagnosis or treatment of patients on a daily or weekly basis;
3. those employees in primary law enforcement positions who (a) have direct contact with inmates (b) on a daily or weekly basis (c) for periods of one hour or more each day of contact.
Id. at 1465-1466.2
¶ 6 These constitutionally permissible suspicionless searches, however, are "closely guarded" and require a "context-specific inquiry" by the Courts. Chandler,
In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.
Skinner,
¶ 7 To support random governmental testing, the special need, or important governmental interest, must be substantial — enough to override the individual's privacy interest — enough to suppress the
¶ 8 You also asked about "reasonable suspicion" drug testing. "Reasonable suspicion" drug testing of a government employee is allowed and does not require a warrant when there is a "reasonable suspicion" that the employee was engaging in unlawful activity involving controlled substances. Benavidez v. City ofAlbuquerque,
Reasonable suspicion depends both upon the content of information possessed and its degree of reliability.
Id. (citations omitted).
¶ 9 The Department of Corrections, therefore, must have a "special need" or "important governmental interest," which outweighs a person's privacy interest, to impose a drug testing requirement for all employment candidates or to impose random drug testing for all employees. To test an employee based on "reasonable suspicion," the Department of Corrections must have reliable information which would lead a reasonable person to suspect on-the-job drug use, impairment, or possession. Id.
¶ 11 In considering the constitutionality of the statute the Court considered the following factors:
— Georgia's claim that the use of illegal drugs is incompatible with holding high state office;
— Georgia's claim that the use of illegal drugs draws into question an official's judgment and integrity;
— Georgia's claim that the use of illegal drugs jeopardized the discharge of public functions, including antidrug laws;
— Georgia's claim that the use of illegal drugs by an elected official undermines public confidence and trust in the official. Id. at 1297.
¶ 12 Additionally, the Court considered the complete lack of any indication there was a "concrete danger." The Court noted that the statute was not enacted in response to "fear or suspicion" that candidates or elected officials were engaged in drug use. In fact, the Court recognized that the statute was not truly designed to identify drug offenders because the test could be scheduled at any time by the candidate allowing users to abstain prior to the test and avoid a positive test result.Chandler,
We reiterate, too, that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as "reasonable" — for example, searches now routine at airports and at entrances to courts and other official buildings. But where, as in this case, public safety is not genuinely in jeopardy, the
Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.
Id. (citations omitted).
The state of Oklahoma in the exercise of its sovereign power may provide more expansive individual liberties than those conferred by the United States Constitution — it is only when state law provides less protection that the question must be determined by federal law. The Constitution of the State of Oklahoma contains independent sources of rights and liberties, which may, under some circumstances, offer more protection than the federal constitution.
Turner v. City of Lawton,
¶ 14 Article
[T]he appropriate inquiry in each case is "whether the government's need outweighs the individual's privacy interest."
Saavedra v. City of Albuquerque,
¶ 16 It is outside the purview of an Attorney General's Opinion to make a factual determination as to whether there is an identifiable "special" need in the operation of prisons that outweighs an individual's expectation of privacy. 74 O.S. Supp.1997, § 18b[
¶ 17 It is, therefore, the official Opinion of the AttorneyGeneral that:
1. Drug tests which are imposed by governmental agencies are"searches" within the meaning of the
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
GRETCHEN ZUMWALT ASSISTANT ATTORNEY GENERAL
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anthony-lucero-v-frank-gunter-director-colorado-department-of , 17 F.3d 1347 ( 1994 )
american-federation-of-government-employees-afl-cio-benita-mays-american , 9 F.3d 1464 ( 1993 )
pete-benavidez-v-albuquerque-city-of-lawrence-rael-chief-administrative , 101 F.3d 620 ( 1996 )
Turner v. City of Lawton , 733 P.2d 375 ( 1986 )
Independent School District No. 1 v. Logan , 789 P.2d 636 ( 1989 )
Arthur W. Stigile and Ellen Balis v. William J. Clinton, ... , 110 F.3d 801 ( 1997 )
United States v. Janis , 96 S. Ct. 3021 ( 1976 )
Skinner v. Railway Labor Executives' Assn. , 109 S. Ct. 1402 ( 1989 )
National Treasury Employees Union v. Von Raab , 109 S. Ct. 1384 ( 1989 )
Vernonia School District 47J v. Acton , 115 S. Ct. 2386 ( 1995 )