What Good Is Drug Testing if Defendants Can’t Afford It?

In an undated photo, a urine test sample container. (Johnny Tergo/Copyright 2019 The New York Times)

North Dakota state law requires that defendants in drug cases be tested on a regular basis, as a part of their bond agreements, to ensure they aren’t using.

But what happens if they can’t afford it? Someone facing criminal charges probably finds themselves in a precarious employment situation, at best, and drug testing can run in the ballpark of $300 per month. That’s on top of whatever expenses the defendant must pay to defend themselves in court.

As a recent case in Minot illustrates, if you can’t pay for the mandated drug testing you fail the test by default. Per the Minot Daily News, defense attorney Ashley Gulke told the court this amounts to something like debtor’s prison for her client:

The man’s bond conditions require that he undergo twice weekly drug testing, which he allegedly has not been doing because he cannot afford the $35 the company charges each time he comes in to test.

The man told Judge Lee that he actually has been going to testing every time he is called in for a random test, but the company – in his case, Northern Testing – turns him away every time he cannot pay and reports to the court that he has failed to test.

There is no evidence that the man is actually using drugs now, just that he has been unable to pay nearly $300 per month for the drug testing required by the state legislature under these circumstances.

“That’s a car payment for a nice car,” protested the man’s defense attorney, Ashley Gulke, who said the requirement amounts to a “debtors prison” “… That’s a private school payment.”

The response from the prosecutor? The defendant should get a better paying job:

When Ward County Assistant State’s Attorney Christopher Nelson said the man will have to get a job that pays more money so he can afford to pay for the cost of drug testing, Lee pointed out the defendant is probably not qualified to do anything except to work for minimum wage at a job such as convenience store clerk.

Gulke argues that defendants who qualify for state-appointed criminal defense shouldn’t have to pay for the drug testing. Some of you reading this may be inclined to be unsympathetic to that argument, given that we’re talking about someone arrested on drug charges.

But consider that the defendant in this case hasn’t yet been convicted of anything. He’s innocent until proven guilty.

Also consider that the remedy for this situation is to put this defendant in jail for failing drug tests (those he, uh, didn’t actually take). That’s what Nelson asked the court to do, yet putting this man in jail has cost for taxpayers far in excess of the cost of drug testing.

Per the article, the state Supreme Court has upheld this testing requirement as constitutional, though I’m dubious. Can we really force not-yet-convicted defendants to pay what amount to fines before they’re convicted of anything? Maybe that’s constitutional, but it doesn’t seem just.

“I can’t not do what the Legislature said I had to do,” Judge Lee said of this particular situation, so the prosecutor got his way, but this seems a situation in need of attention from state lawmakers. Yes, covering the testing has a cost, but so do court hearings and jail time.

Besides, what good is drug testing if that testing isn’t actually happening because the defendant can’t afford it?

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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