Preview:

SUPREME COURT OF LOUISIANA No. 01-C-1878 Roy ARRIOLA versus ORLEANS PARISH SCHOOL BOARD

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, CIVIL DISTRICT COURT, PARISH OF ORLEANS

KNOLL, Justice This writ concerns the sufficiency of chain of custody for a urine sample procured for random drug testing from a public school teacher. Specifically, plaintiff claims his due process rights were violated, because the school superintendent did not "present the live testimony of persons who actually received and tested Mr. Arriola's urine sample." The plaintiff was terminated by defendant based on evidence of a positive drug test for cocaine. The district court found plaintiff's due process rights were violated and remanded for rehearing for the taking of further evidence. Before such rehearing, the Court of Appeal affirmed the trial court's findings that plaintiff's due process rights were violated. We reverse the lower courts, finding that the chain of custody evidence for the drug test was based on a foundation that satisfied due process, and that the school board's termination decision was based on substantial

evidence of drug abuse. Accordingly, we reinstate the decision of the Orleans Parish School Board. Factual and Procedural Background Roy Arriola ("Arriola") was a tenured public high school teacher in New Orleans. In April 1996, Arriola attended a conference called by his principal, concerning problems with his attendance. During the conference, Arriola admitted that his attendance problems resulted from a dependency on cocaine. He provided a urine sample on May 28, 1996, which tested positive for cocaine metabolites. Pursuant to the policy of the Orleans Parish School Board ("School Board"), Arriola was placed on an outpatient treatment and monitoring program plus required to submit to a six month period of random drug testing beginning August 22, 1996. Arriola returned to his teaching responsibilities in a probationary status at the beginning of the 1996-97 school year. During the period of his outpatient treatment, which ended December 12, 1996, Arriola's urine never tested positive.1 However, as part of random testing during his probationary period, on Jan 31, 1997, Arriola provided a urine sample which the testing laboratory, SmithKline Beecham Clinical Laboratories ("SmithKline"), reported as positive for cocaine metabolites. The record shows that SmithKline's actual testing laboratory was in Atlanta, while the physical location where Arriola's urine was collected, SmithKline's Patient Servicing Center, was located in New Orleans. The record further shows that SmithKline was a National Institute on Drug Abuse ("NIDA") certified laboratory, which certification allowed it to perform drug testing of federal employees. After SmithKline reported that Arriola's urine tested positive, the Superintendent

Arriola's substance abuse counselor testified, however, that a screening of Arriola's urine before he began treatment was positive. Without Arriola's objection, the counselor further testified that when the counselor asked him to explain why his urine indicated drug abuse, Arriola stated that he was just trying to test the drug testing system to see if it actually worked. -2-

1

of Schools for the Parish of Orleans ("Superintendent") referred to the School Board a charge of willful neglect of duty and immorality against Arriola, seeking to terminate his employment. At the termination hearing, the Superintendent presented the testimony of three witnesses regarding the chain of custody of the urine samples. The first witness, Karen Griffin, a phlebotomist2 employed by SmithKline, described the procedures for collecting urine samples at a SmithKline Patient Servicing Facility to be sent to the laboratory for testing. While examining SmithKline's chain of custody documentation, Ms. Griffin identified her signature on a form showing that she had collected the sample of May 28, 1996. She further identified her notations on the form that the sample was given to SmithKline's courier network for transit to its testing laboratory. The second witness, Julia Roy, was also a SmithKline phlebotomist. While examining the chain of custody documentation, she likewise identified her signature as indicating that she collected a urine sample from Arriola on January 31, 1997. Like Ms. Griffin, Ms. Roy identified her signature on the chain of custody form and her instructions sending the sample to the testing laboratory. Both Ms. Roy and Ms. Griffin testified that after a sample is collected, but before being sent to the testing laboratory, the donor completes the requisition form and initials the seal that is placed over the lid of the bottle containing the sample. At the hearing, the Superintendent introduced a photocopy of the seal which Arriola had initialed. The Superintendent also introduced records indicating that upon receipt at the laboratory, the bottle's seal and a second seal, enclosing the plastic bag placed over the bottle which Arriola also initialed, were both unbroken seals upon arrival. The third witness, Michael Feldman, Ph.D., was the manager of the testing

Ms. Griffin testified that a phlebotomist collects materials for medical testing, such as blood, and in this case, urine. -3-

2

laboratory. Dr. Feldman, whose doctorate is in the area of drug metabolism and biopharmacy, testified that he supervised and was ultimately responsible for the laboratory's specimen processing and testing. He described the laboratory's testing procedures and reliability safeguards at length. Additionally, while reviewing the chain of custody documentation, Dr. Feldman testified to the chain of custody procedures employed at the laboratory from receipt of a sample to testing and retesting3 of the sample. After all three witnesses had reviewed the chain of custody documentation, the Superintendent offered the documentation into evidence. Arriola objected, essentially arguing that the phlebotomists, who collected the samples at a SmithKline Patient Service Facility, could not serve as a foundation for the documents because they were not part of the chain of custody for the reason that they did not work at the actual testing laboratory. Arriola argued that the testimony of the lab director could likewise not serve as a foundation for admitting the documentation because he did not perform the actual testing and he neither received nor handled the urine sample in question. Over Arriola's objection, the School Board received the documentation in evidence. Other than this objection to the chain of custody of the tested sample, Arriola did not allege any particular flaws in the testing procedures to suggest that the SmithKline test results were inaccurate. At the hearing's conclusion, the School Board found that due to his drug abuse, Arriola evidenced immorality and willful neglect of duty. The School Board therefore terminated Arriola's employment. Pursuant to La. R.S. 17:462 B,4 Arriola filed a petition of review in the Civil
At Arriola's request, the urine sample of January 31, 1997 was retested. Again, it tested positive for cocaine metabolites.
4 3

La. R.S. 17:462 B provides in pertinent part:

-4-

District Court for the Parish of Orleans. In his petition, Arriola alleged that the School Board allowed the documentation into evidence "solely" on the testimony of the lab director, Dr. Feldman. Later, Arriola argued that Dr. Feldman's testimony was "largely hearsay because he did not personally receive, handle, or test the samples in question." Arriola argued that he was therefore denied the opportunity to crossexamine the only evidence introduced against him, specifically the positive test results, and that the minimal standards of due process were not met. After a hearing, the district court held: "[F]inding that Arriola's right to due process was violated, this case is remanded to the School Board for rehearing with both parties allowed the opportunity to introduce evidence after establishing a proper foundation and to cross-examine that evidence. See Bourque vs. Louisiana State Racing Commission 611 So2d 742 (La App 4Cir 1992)" [sic]. The Court of Appeal affirmed, finding "that the evidence on chain of custody of the urine specimens was insufficient by the substantial evidence standard set forth in the case of Coleman v. Orleans Parish School Board, 93-0916, 94-0737 (La. App. 4 Cir. 2/4/97), 688 So.2d 1312." Arriola v. Orleans Parish Sch. Bd., 2000-0643, p. 15 (La. App. 4 Cir. 5/23/01), 789 So.2d 64, 72. We granted the School Board's writ to study the correctness vel non of the lower courts. Arriola v. Orleans Parish Sch. Bd., 01-1878 (La. 10/12/01), ___ So.2d ___ . Before this court, Arriola reiterated his due process challenge to the chain of custody documentation. The School Board argued that due process was satisfied under the standards of the federal Constitution announced in the administrative

If a permanent teacher is found guilty by the school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or incompetency, or immorality ... and ordered removed from office or disciplined by the said board, the teacher may, not more than one year from the date of said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board... . -5-

procedures holding of Mathews v. Eldridge, 424 U.S. 319 (1976) and the public employee case of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). DISCUSSION I. The Chain of Custody and Due Process We initially note that Arriola has made no allegation of a particularized defect in the chain of custody. Likewise, he does not argue that the testing procedures are inaccurate, or that any of the laboratory procedures interfered with proper testing of a urine sample, or that his urine sample was contaminated. Instead, in a blanket challenge based upon due process, he makes essentially two arguments: first, that due process was not satisfied because there was an insufficient foundation to admit the documentation evidencing the chain of custody; and second, that due process could only be satisfied in this case by presenting live testimony of the individuals who both received and tested the urine sample. We address each argument in turn. Throughout the course of his appeal, Arriola has contended that the only method for the Superintendent to introduce the chain of custody evidence was through the testimony of Dr. Feldman. Arriola argued that the admission of the chain of custody documentation was improper, because the documentation lacked a foundation insofar as Dr. Feldman was not himself a link in that chain. However, contrary to Arriola's assertion that Dr. Feldman's testimony was the "sole" basis for admitting the evidence, our examination of the hearing transcript reveals that although the Superintendent offered the documentation into evidence after Dr. Feldman's review, the earlier testimony of the phlebotomists, who were the first links in the chain of custody,5 satisfied the requirements for a proper foundation. See, e.g., State v.
5

Although Arriola admitted drug abuse in April 1996, he challenges the documentation of the positive result of his May 1996 urine sample inasmuch as that test result triggered his probation which led to the January 1997 testing and the ultimate termination of his employment. Because Arriola makes the identical due process challenge for both tests, we likewise need not address them separately. -6-

Merrill, 94-0716, (La. App. 4 Cir. 1/31/95), 650 So.2d 793, writ denied 95-0530, (La. 6/23/1995) 656 So. 2d 1012. In Merrill, a criminal defendant argued that the State failed to lay the proper foundation for the introduction of a rock of crack cocaine because, he argued, the State failed to prove that the rock analyzed by the State Police laboratory was indeed the actual object he allegedly gave to the arresting parish police officer. The court found that a proper foundation existed, based upon the testimony of the parish officer who was the first link in the chain and the officer's initials on a sealed envelope sent to the State Police Crime Laboratory. The court noted: "The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices that it is more probable than not that the object is the one connected to the case." Id. at p. 9, 650 So.2d at 799 (Emphasis added). In the instant case, we observed that each phlebotomist testified as to her training and experience with the collection of urine samples and identified her signature as the first link in the chain of custody documentation. Additionally, each testified from her review of the documentation that Arriola initialed the seal on the lid of the bottle containing the sample and that Arriola initialed the seal on the bag that contained the bottle. We observed that the chain of custody documentation also consists of several forms, the first of which has donor identification information which Arriola completed when he presented his sample for testing. The subsequent forms were generated at the SmithKline laboratory and purport to be continuations of the chain, and were generated as needed to reflect the subsequent handling involved in the testing for indicators of various drugs.

-7-

We note that Arriola makes much over the fact that the phlebotomists who collected his urine did so at SmithKline's Patient Servicing Center in New Orleans and that no one from SmithKline's Atlanta laboratory who received the sample testified. However, because Arriola gives us no basis for doing so, we decline to draw a distinction between the SmithKline Patient Service Facility and the SmithKline testing laboratory. We therefore find that similar to the officer in Merrill, the phlebotomists who collected Arriola's sample were the first links in the chain of custody and that their testimony provided the minimum required by due process to admit the chain of custody documentation. Furthermore, even though the documentation was introduced after the testimony of the third witness, Dr. Feldman, and not immediately after the phlebotomist whose testimony established the foundation, tenure hearings are not held to the same formalistic requirements of trials for the introduction of evidence. See Roberts v. Rapides Parish Sch. Bd., 617 So.2d 187 (La. App. 3 Cir. 1993)(holding that in tenure hearings, "strict rules of authentication ... do not apply" and even though the superintendent conceded that the copy of the movie "Child's Play" offered as evidence was not the same copy that the teacher showed in class, the School Board properly admitted the videotape copy when other witnesses identified the copy as being the same movie). Accordingly, we find no error in the method of introducing the documentation. It is worthy to note that even if Arriola had pointed to a specific gap within the chain of custody between the SmithKline Patient Servicing Center and the actual testing laboratory, our review of the jurisprudence indicates that courts have treated gaps within the chain of custody as a question involving the weight of the evidence, rather than its admissibility. See, e.g., State v. Sam, 412 So.2d 1082, 1086 (La.
-8-

1982); United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988); State v. Dunbar, 2000-178, (La. App. 4 Cir. 8/8/01), 798 So.2d 178, 181. Thus, we conclude that a proper foundation for the chain of custody documentation was established.6 In addition to his first argument, lack of foundation, Arriola further argues that the School Board's findings were based solely on the documentary evidence without live testimony detailing the actual receipt and testing of the samples in the laboratory. Without this live testimony, Arriola contends that he had no opportunity to crossexamine the evidence. In short, while the Superintendent presented the testimony of someone within the chain of custody and testimony as to the testing procedures from the laboratory's director, Arriola's second argument is that due process can only be satisfied by the live testimony of individual(s) who both received and tested the urine sample. Stated differently, this second argument is really a proposal for testimony from both: 1) additional persons in the chain of custody at the actual testing laboratory; and 2) persons actually performing testing.7
While the School Board urges that we find that due process was satisfied because the documentation alone could have been introduced without testimony under the business records exception to the hearsay evidence exclusion, we decline to so hold. Despite some authority for that argument (see e.g., Ruddock v. Jefferson Parish Fire Civil Svc. Bd., 96-831 (La. App. 5 Cir. 1/28/97), 688 So. 2d 112; Mollette v. Kentucky Personnel Bd., 997 S.W.2d 492 (Ky. App. 7/30/1999), this case reached this court on a due process challenge and we address it according to the due process arguments submitted. Given that a due process inquiry must focus on the particular nature of the proceeding at issue, further comment upon standards not at issue in the instant case would be improvident. Instead, we confine our review to the question as Arriola has presented it: whether minimal due process standards were met. Arriola bases this argument on the Court of Appeal's holding in Bourque v. Louisiana State Racing Comm'n, 611 So.2d 742 (La. App. 4 Cir. 1992) in which the court held that a drug test result collected by a State Chemical Inspector and shipped to a testing laboratory was inadmissible without "any live testimony detailing the actual receipt and testing of the sample at the laboratory." Id. at 744. Bourque is inapplicable to the instant case because Bourque addressed due process safeguards in the context of administrative hearings conducted pursuant to the Louisiana Administrative Procedure Act ("LAPA"), La. R.S. 49:950 et seq. See Bourque, 611 So.2d at 743. As the Court of Appeal recognized in the instant case, the LAPA applies to state agencies, not to political subdivisions and their components, such as local school boards. See Arriola, 2000-0643, p. 11 (La. App. 4 Cir. 5/23/01), 789 So.2d at 70 (citing George v. Department of Fire, 93-2421 (La. App. 4 Cir. 5/17/94), 637 So.2d 1097). In the absence of a particularized attack upon the chain of custody, we do not need to reach the issues of which persons within the chain of custody must testify or whether anyone at all need testify. -97 6

In order to address this argument, because Arriola draws no distinction between the due process guarantees of the Fourteenth Amendment to the federal Constitution and the guarantees of Article I,

Download 2001-C-1878 ROY ARRIOLA v. ORLEANS PARISH SCHOOL BOARD.pdf

Louisiana Law