BILL REQ. #:  S-1079.1 

Read first time 01/30/09.   Referred to Committee on Judiciary.

     AN ACT Relating to mandatory drug testing of peace officers; adding new sections to chapter 43.101 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   LEGISLATIVE INTENT. The purpose of this act is to recognize the difficulty, challenge, and danger of law enforcement work, the jeopardy to public safety posed by law enforcement officers impaired by drugs, and the importance of local community safety standards.
     The legislature finds that law enforcement officers face extreme hazards and life-threatening circumstances while protecting and serving the public. Law enforcement officers are also granted certain powers such as the right to arrest, the right to drive at high speeds on crowded streets, and the right to use deadly force. The legislature finds that many law enforcement officers are also often exposed to illegal drugs in the course of performing their duties and that the state and local communities go to great lengths and expense to hire, train, and equip law enforcement officers.
     The legislature recognizes that drug use by law enforcement officers severely undermines the integrity of law enforcement agencies and undermines the public's trust and confidence in its officers. The legislature desires to assure that local communities can ensure that its law enforcement officers are always capable of performing at peak levels of productivity and health. The legislature finds that due to the special nature of their work, law enforcement officers are exposed to higher incidents of stress, danger, hostility, and risk, which can and does impact their physical and mental well-being. The legislature recognizes that law enforcement officers are critically important to public safety, and that their well-being is vital. The legislature finds that an impaired law enforcement officer creates a direct threat to the public safety.
     It is the intent of the legislature that local communities be allowed to establish local community safety standards ensuring that no officer is impaired by a chemical dependency or substance addiction that would adversely affect the officer's ability to do his or her job safely. Therefore, the legislature establishes this act allowing local communities to require that all peace officers working in their jurisdiction submit to mandatory posttraffic collision, postshooting, and random drug testing.

NEW SECTION.  Sec. 2   DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Confirmation test" means a second analytical procedure to identify the presence of a specific controlled substance or controlled substance metabolite which is independent of the screen test and which uses a different technique and chemical principle from that of the screen test in order to ensure reliability and accuracy.
     (2) "Drug" means any controlled substance subject to testing pursuant to drug testing regulations adopted by the United States department of transportation.
     (3) "Drug test" means a method for determining the presence of a drug in a specimen using a scientifically reliable method performed in accordance with regulations governing drug testing adopted by the United States department of transportation.
     (4) "Medical review officer" means a licensed physician who:
     (a) Has knowledge of substance abuse disorders, laboratory testing procedures, and chain of custody collection procedures;
     (b) Verifies positive, confirmed test results; and
     (c) Has the necessary medical training to interpret and evaluate a peace officer's positive test result in relation to the peace officer's medical history and any other relevant biomedical information.
     (5) "Peace officer" means a general authority Washington peace officer as defined by RCW 10.93.020(3) and reserve peace officers. For purposes of this chapter, a reserve peace officer is an individual who is an officer of a Washington law enforcement agency who does not serve such agency on a compensated or full-time basis but who, when called by the agency into active service, is fully commissioned on the same basis as a general authority Washington peace officer to enforce the criminal laws of the state.
     (6) "Random selection method" means a mechanism for the selection of an individual which results in an equal probability that any person from the group of individuals subject to the selection mechanism will be selected.
     (7) "Shooting" means the discharge of a firearm by a peace officer in the performance of his or her duties resulting in death or injury to any human being.
     (8) "Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of drugs or their metabolites.
     (9) "Traffic collision" means an occurrence associated with the operation of a motor vehicle if, as a result, any individual suffers or complains of bodily injury.

NEW SECTION.  Sec. 3   SUBMISSION TO VOTERS. (1) A city, county, town, port district, or any other taxing district may institute mandatory drug testing after a traffic collision or shooting and random drug testing for all peace officers employed by it, after approval by the voters, pursuant to the terms of this section.
     (2) The drug testing proposition must be submitted at a general or special election.
     (3) The proposition may be imposed only when specifically authorized by a majority of registered voters voting on the proposition.
     (4) Ballot propositions shall conform with chapter 29A.36 RCW.
     (5) Mandatory drug testing imposed under this section shall conform to all sections of this act and shall commence no later than twelve months after the date of the election.

NEW SECTION.  Sec. 4   RANDOM PEACE OFFICER DRUG TESTING. Random peace officer drug testing imposed pursuant to section 3 of this act shall conform to the following:
     (1) At least thirty percent of the average number of peace officers employed by the taxing district's law enforcement agency shall undergo random drug testing by the agency each calendar year;
     (2) Peace officers who are notified of selection for random drug testing shall proceed to the test site immediately;
     (3) Random drug testing shall occur during, or immediately before or after, a regular work period;
     (4) The selection of peace officers for random drug testing shall be made by a random selection method; and
     (5) Random drug testing shall be unannounced and the dates for administering the tests shall be spread reasonably throughout the calendar year.

NEW SECTION.  Sec. 5   POSTSHOOTING PEACE OFFICER DRUG TESTING. Peace officer drug testing after a shooting imposed pursuant to section 3 of this act shall require that a peace officer who discharges a firearm in the performance of his or her duties resulting in death or injury to any human being shall submit to a drug test as soon as practicable following the discharge.

NEW SECTION.  Sec. 6   POSTTRAFFIC COLLISION PEACE OFFICER DRUG TESTING. Posttraffic collision drug testing imposed pursuant to section 3 of this act shall require that a peace officer who is operating a motor vehicle involved in a traffic collision shall submit to a drug test as soon as practicable following the traffic collision.

NEW SECTION.  Sec. 7   TESTING POLICY. Drug testing pursuant to this act shall be carried out within the terms of a written policy that has been distributed to all peace officers subject to the policy. The written policy shall include at least the following:
     (1) A description of those persons who are subject to testing;
     (2) The circumstances under which testing will be required;
     (3) A description of the testing methods and collection procedures to be used;
     (4) The consequences of a refusal to participate in the testing;
     (5) The right of a peace officer, on request, to obtain the written test results;
     (6) The right of a peace officer, on request, to explain in a confidential setting a positive test result; and
     (7) A statement of the law enforcement agency's policy regarding the confidentiality of the test results.

NEW SECTION.  Sec. 8   PROCEDURES FOR SPECIMEN COLLECTION AND TESTING. All specimen collection and testing pursuant to this act shall be performed in accordance with the following:
     (1) A specimen shall be collected with due regard to the privacy of the individual providing the specimen, and in a manner reasonably calculated to prevent substitution or contamination of the specimen;
     (2) Specimen collection shall be documented, and the documentation procedures shall include labeling of specimen containers so as to reasonably preclude the likelihood of erroneous identification of test results;
     (3) Specimen storage and transportation to the place of testing shall be performed in a manner that reasonably precludes the probability of sample misidentification, contamination, and adulteration;
     (4) Specimen testing shall conform to scientifically accepted analytical methods and procedures;
     (5) Specimen testing shall be conducted at a laboratory approved or certified by the United States department of health and human services;
     (6) Before the result of a positive initial screening may be used as a basis for any action by a law enforcement agency, the law enforcement agency shall verify or confirm the positive initial screening test by a confirmation test;
     (7) Laboratory analyses required by this act shall be restricted to those tests required by this act to detect drugs. They shall not be used for other purposes such as the analysis of physiological states or diseases;
     (8) Prior to reporting a positive test result, the medical review officer shall give the peace officer an opportunity to discuss the test result, including providing verification of any prescription medications. If the peace officer meets with the medical review officer and fails to present information affecting the test result or if the peace officer refuses to meet with the medical review officer, the medical review officer will verify a positive test result and will inform the law enforcement agency on a confidential basis that the peace officer tested positive;
     (9) Within five working days after its receipt of a positive confirmed test result from the laboratory, the law enforcement agency shall inform the peace officer in writing of the positive test result. The law enforcement agency shall provide to the peace officer, upon request, a copy of the test results; and
     (10) If the peace officer meets with the medical review officer and fails to present information affecting a positive test result, the medical review officer will inform the peace officer that he or she may request split specimen testing. For purposes of this section, "split specimen testing" means that a peace officer who wishes to challenge a positive drug test must notify the medical review officer that he or she wishes split specimen testing within seventy-two hours after he or she is notified of a positive test result, and the test of the second specimen must be processed at a different laboratory than the laboratory that tested the primary specimen.

NEW SECTION.  Sec. 9   PROTECTION FROM LITIGATION. (1) No cause of action is or may be established against a law enforcement agency that has established a program of drug testing in accordance with this act unless the law enforcement agency's action was based on a false positive drug test result and the law enforcement agency knew or clearly should have known that the result was in error and ignored the true test result because of reckless or malicious disregard for the truth.
     (2) In any claim, including a claim under this act, if it is alleged that a law enforcement agency's action was based on a false positive test result, there is a rebuttable presumption that the test result was valid if the law enforcement agency complied with the provisions of this act; and the law enforcement agency is not liable for monetary damages if its reliance on a false positive test result was reasonable and in good faith.

NEW SECTION.  Sec. 10   CONFIDENTIALITY. The drug test results obtained pursuant to this act shall be treated as sensitive information and shall be released only to persons within the agency who have senior administrative personnel authority and to their immediate staff. All drug test results shall be maintained by the law enforcement agency in a secure location with controlled access and separate from other files containing personnel information. No evidence derived from a positive test result pursuant to this act shall be admissible in a criminal prosecution concerning unlawful possession, sale, or distribution of controlled substances.

NEW SECTION.  Sec. 11   OTHER LAWFUL TESTING. Nothing in this act shall prohibit law enforcement agencies from conducting any lawful testing of peace officers that is in addition to the minimum testing in this act.

NEW SECTION.  Sec. 12   Sections 1 through 11 of this act are each added to chapter 43.101 RCW under the new subchapter heading "Mandatory drug testing of peace officers."

NEW SECTION.  Sec. 13   Captions used in this act are not any part of the law.