A REASONED OPPOSITION TO NEW DA TESTING POLICY

(Ed's. Note: The new reporting requirements for pre-trial diversion defendants implemented by the Cameron County District Attorney's Office plus the hike in the cost of the drug test from $5 to $17 has drawn stiff criticism from many defense attorneys. Below is a comprehensive response from a former district court judge now in private practice.)




Thursday, September 17, 2015 2:45 PM
Dear Rene (Asst. District Attorney) Garza:
I waited to see if this matter would be resolved, but apparently it is still being talked about and most defense attorneys are unhappy that this is being forced upon their clients. Particularly the clients who already have been placed on Pre-Trial Diversion.
(We are) in complete disagreement with this “new” policy and we urge the DA’s office to

reconsider not adopting this policy.

I have spoken to various individuals regarding the Avertest takeover of PTD drug testing and, eventually, the probation department’s drug testing completely. I learned that Avertest was brought down for use by the drug impact court (“divert court”). These individuals have serious drug and alcohol problems. And this is their last chance to avoid prison.

I can understand why checking in for 365 days a year would be appropriate for these individuals and therefore using Avertest for them would be appropriate if the Divert Court chose to do so.
However selecting Avertest for Pretrial concerns me. The District Attorney's Office already has strict criteria for persons to qualify for PTD and using Avertest does not make sense.
There have discussions that having Avertest enter into the PTD agreements would be a breach of existing PTD contracts and I agree. Using Avertest would be a new condition of the PTD because this is normally done by Probation. You would need Court approval to add this new condition.
First time offenders agree to go through random urinalysis, but lets be honest, it will either happen when they check into probation or, if needed, out in the field. Probation officers use their judgment in
determining whether or not a drug test is appropriate. It also only costs $5 to do a drug test. I know this very well as I have served for a very long time.
So not only is this a material breach because of the intrusiveness of the new requirements, but you are forcing them to pay $17 for each test? As pointed out, many of these people have barely enough to make ends meet and cannot afford it.
Also, since (attorneys) were court appointed, they will have to be reimbursed for their time by the County for contacting all their clients if this becomes a new rule. Is this going to be authorized
by the County Auditor or Judges for payment? I am sure all the attorneys who have represented these clients will have to incur the costs to do this work. They will have to be paid and does the County
support this? There will be plenty of costs just to find these clients and advise them of the new testing policy and get them to sign the new form.
It seems that these first time offenders are being setup to fail. PTD persons already have about 200 to 250 community service hours within the first 6 months along with many other classes. This is
burdensome if the client fails to plan properly (as the saying goes) “If you fail to plan, you plan to fail.”
However, how can a person plan for  this? What if the person is working during the week and finds out they have to leave work to take a drug test and pay $17 or else that’s noncompliance? What if a person has approval to spend Christmas outside of Cameron County and finds out they’ve been selected. In other words, you cannot plan for this and as Ms. Franke said, you won’t have a life as a first time offender. This is wrong.
Lastly, the probation department does a hell of a job! They always have. You mention challenges in court to drug tests and Avertest is the only solution to this?
Really? By the time probation seeks to revoke a person’s probation, he or she would have several other violations. Proof of any one of them is all that’s needed for revocation and the person goes to prison or jail. This isn’t the strongest point.
Having said all the above, we respectfully request this Avertest program be stayed from being implemented.