Key elements of a drug and alcohol testing order
A father in a custody matter was under a remote alcohol monitoring program. When he missed more tests than the agreement allowed, I recommended a urine EtG, collected as soon as feasible and no later than the next day. The sooner the test happens relative to the event in question, the more it can tell you.
What went into the order was "a urine alcohol test within twenty-four hours."
That phrase covers two different tests. Urine EtG detects a metabolite of alcohol for roughly eighty hours. Urine ethanol detects alcohol still in the body — a window of about twenty-four hours. Both are urine alcohol tests. Only one looks back far enough to answer the question the order existed to answer.
He chose ethanol. He waited until hour twenty-three and gave the sample. He complied with the order exactly as written, using a test that could not detect the drinking the order was written to catch.
Nobody did anything improper. The order permitted it.
Require forensic collection
Forensic collection
All testing conducted pursuant to this Order shall follow appropriate forensic collection procedures. All parties are advised that if testing is scheduled through a medical provider and/or billed to insurance, proper forensic collection procedures will NOT be followed and test results will NOT be valid for court purposes.
A test ordered through a physician or billed to insurance is a diagnostic test. It generally has no documented chain of custody, no tamper-evident handling, and no mandatory confirmation of a positive. It is often cheaper, which is exactly why a party under a testing order may choose it. In a contested proceeding those gaps are fatal.
Name the test, not just the substance
Naming the drug is not the same as naming the test. Alcohol was named in the order above. The problem was that "urine alcohol test" describes two tests with very different detection windows, and the choice was left open.
Where a substance can be tested more than one way, specify which. For alcohol in urine, that means writing "urine EtG/EtS." The panel checkboxes on the model order below do this by design — each one names a specific test rather than a category.
Hair and nail testing
Hair and nail collection notice
Hair & Nail Collection Notice: The donor must have at least 1.5 inches of head hair, or sufficient body hair, for hair testing, and all 10 fingers or toenails of sufficient length for nail testing. The donor is hereby ordered to refrain from shaving or cutting hair or nails until further order of this Court. If the Petitioner/Respondent appears for a hair test with all outside body hair and underarm hair shaved, he/she shall be deemed to have tested positive for drug and/or alcohol abuse. Additionally, the donor shall not dye, color, or undergo any other hair process (other than washing) for at least four (4) weeks prior to testing.
Include this whenever hair or nail testing is ordered. Without it, a donor who arrives without a testable specimen has not violated anything, and the detection window continues to close while the parties sort it out.
Alcohol testing
Alcohol testing notice
Alcohol Testing Notice: If testing for alcohol, the donor shall refrain from use of, or exposure to, all products containing alcohol prior to testing. This includes, but is not limited to: cough suppressant medications, hand sanitizer, mouthwash, vape products, soy sauce, and any other product containing alcohol.
Include this whenever alcohol testing is ordered. It removes a category of dispute before it arises.
Specify who receives results — and which report
Two things need to be named here, and the second is the one most orders miss.
Who. Results should be released by the testing provider directly to counsel for both parties, the child's representative or guardian ad litem, and the court. When a donor selects their own collection site, receives their own results, and forwards them to the other side, there is a gap in the record after the laboratory is finished. Do you know where the result came from? Do you trust the source? Direct release from the provider closes that gap.
Which report. A drug test can produce two different documents. The laboratory report shows every substance and metabolite detected, with quantitative values. The MRO report is a summary determination issued after a Medical Review Officer accounts for valid prescriptions — and by design it can screen out information the laboratory report contains. Some providers are configured to release only the MRO report. An order that says "release the results" may not produce the laboratory report at all.
Ask for both by name.
Specify who pays
Name the party responsible for the cost of testing. An order that leaves it open produces a delay at exactly the moment the detection window is closing.
A model order
The order below includes each of these provisions, with panel selections that name specific tests rather than categories. Counsel are encouraged to adapt it to the requirements of their jurisdiction and the facts of the case.
This is not a complete list
These are the provisions where we most often see orders come up short — not everything an order should contain. Every case turns on its own facts, and the right testing protocol depends on what the court is trying to establish and over what period.
If your matter raises a question this page doesn't answer, call before the order is entered. That conversation is easier than fixing an order after the detection window has closed.