Court Cases

At the hearing, the government presented two witnesses: Benjamin Schmidt, United States Probation Officer for the District of Alaska, and Dr. Jared Kabulski, with the Clinical Reference Laboratory (CRL). Dr. Kabulski is a board-certified forensic toxicologist with a doctorate in pharmaceutical and pharmacological sciences. He has worked at CRL for over five years and oversees the certification department, the group responsible for the review of all drug testing results before they are sent to the client (Doc. 147-7). It is a forensic drug testing laboratory, which analyzes the PharmChek sweat patches to determine if drugs are present (Doc. 147-5). The laboratory is independent of PharmChek. (Doc. 147-6). Probation Officer Schmidt received online training from PharmChek about the proper procedures to be used when applying and removing sweat patches. PharmChek requires the probation officer to pass a test before being certified as an observer. (Doc. 148-10).

While failing to object to the admission of the test results during the hearing, the defense consistently challenged the reliability of the results, focusing most questions on the chain of custody for the six sweat patches analyzed by the CRL. The defense did not present any witnesses.

The SSA reported father had two positive drug patch results for cocaine in September and tested positive for alcohol once in October. Father maintained the drug patch testing was defective and resulted in a false positive.  SSA also noted father missed a test in September and had been arrested and jailed for two weeks for outstanding warrants. 

The court, therefore, had no reason to doubt the reliability of the drug patch test results. As noted by the court, nothing in the record showed any tampering between the time DCS sent the drug patch sample and the time the lab received it. The tamperproof seal remained intact upon receipt. The court, therefore, reasonably found the drug patch test results reliable and, hence, that mother used methamphetamine in June of 2004, about four months before the final review hearing.

On appeal, defendant argues the trial court violated his Sixth Amendment right to confrontation and cross-examination of witnesses by relying on a hearsay document reporting his positive “patch test” for methamphetamine. Defendant also contends he is entitled to additional custody and conduct credits.

Hall argues the district court erred in relying on Dr. Kadehjian's testimony to establish his supervised release violations. His main argument is that Dr. Kadehjian misrepresented the Barnes study's findings by testifying "that none of the participants in the [Barnes] Study had tested positive in sweat patches worn the second week after using methamphetamine." Appellant's Br. at 5. Hall claims that Dr. Kadehjian's testimony "was incorrect, as [1 of 5] of the participants in the study who received a `high' dose of methamphetamine . . . tested positive in the second week." Id. He also argues Dr. Kadehjian improperly extrapolated from the Barnes study's results because Hall consumed higher doses of methamphetamine than the study's participants.

Hall's criticism of Dr. Kadehjian's testimony misreads the Barnes's study. Although the study did find that one participant tested positive for methamphetamine in the second week, it also noted that no patches applied in the second week were positive according to the evaluative criteria employed by the study. Those criteria contemplated the possibility of a patch containing methamphetamine without actually testing "positive." Indeed, in his testimony, Dr. Kadehjian emphasized the difference between "testing positive" and "detection." Revocation Hr'g Tr. at 38. Hall's second criticism of Dr. Kadehjian also fails. To be sure, the doses administered during the Barnes study were lower than the large dose Hall likely used on or prior to March 19 or 20. But, Dr. Kadehjian did not rely exclusively on the Barnes study. He also relied on other studies reporting on methamphetamine users consuming high doses at high concentrations. He also noted that the subjects in the Barnes study had reported using high doses of methamphetamine prior to participating in the study.

Having reviewed the record, we find no evidence that Dr. Kadehjian misrepresented or improperly relied upon the Barnes study. Therefore, the district court did not clearly err in relying on Dr. Kadehjian's testimony. In light of that testimony, and in light of the three positive sweat patches themselves, we find the district court did not abuse its discretion in revoking Hall's supervised release.

The judgment of the district court is affirmed.

The mother contests her positive sweat-patch results because she tested negative for cocaine use on a hair test and UAs during some of the same time periods as her positive sweat-patch tests.Dr. Leo Kadehjian, a forensic toxicologist and expert witness for the State, testified it is possible for a person to have an accurate positive sweat-patch test and a negative UA or hair test. He testified a sweat-patch test is designed to detect smaller amounts of drugs that UAs and hair tests may not detect.

Dr. Kadehjian testified regarding the length of time tested: a UA tests for use for one to two days following use, whereas a sweat patch can test for use one to two days before the patch is placed as well as the days the user is wearing a patch, typically up to a week. A person could have a patch applied, use drugs the same day, perform a clean UA three days later, but test positive for drugs on a sweat-patch test.

The mother’s six positive sweat-patch tests are sufficient proof of her drug use and clear and convincing evidence that the children should not be returned to the mother’s custody.

We find there is clear and convincing evidence of the mother’s continued drug use and affirm the juvenile court’s order continuing removal of the children from the mother’s custody.
AFFIRMED.

At the revocation hearing, a nationally recognized expert on sweat-patch testing, as well as two probation officers testified regarding the allegations of supervised release violations at issue. The district court made factual findings that Devos submitted two diluted urine samples, had positive sweat patches during three time periods, associated with persons engaged in criminal activity as alleged, and failed to truthfully answer inquiries by his probation officer.

Officer Moyle testified she was trained to wear gloves during the entire testing process and not to remove them at any point. Citing her testimony, Gonzales argues the patch was contaminated. However, the officer's testimony, which the district court credited, shows he changed gloves only after the patch was sealed in the cellophane bag. When the officer removed the patch, it did not have contact with anything that could compromise it. The district court found “the sweat patch protocol was substantially followed and there was nothing in the application or the removal of the sweat patch that would have caused it to test positive.”

In April 2016 a sweat patch that Andersen had been wearing for a week was removed and tested. In an initial test Andersen's patch tested positive for cocaine metabolite. The presence of cocaine metabolite "indicates that the wearer's body has broken down cocaine" and is a basis for a conclusion that the wearer has actually used cocaine. United States v. Meyer, 483 F.3d 865,867 (8th Cir. 2007). A subsequent test confirmed that cocaine metabolite was present in the sample. The confirmation test also revealed that the sample tested positive for cocaine. When asked about the results of the sweat patch tests, Andersen denied using cocaine. He further stated that while he was wearing the patch he had engaged in sexual intercourse with a woman who had been using crack cocaine. Andersen suggested that the woman's sweat had contaminated his patch and caused the positive tests.

In February 2014, the district court held the probation revocation hearing for Keatings. The probation officer testified that Keatings had six sweat patches applied between October 17, 2013, and December 5, 2013, and that all tested positive for cocaine usage. The officer further testified that Keatings had been arrested for driving under the influence of alcohol on November 8, 2013, and that Keatings admitted to the officers upon his arrest that he had consumed alcohol. Because one of the six sweat patches had been compromised, the district court determined that Keatings had violated the conditions of his probation by using cocaine on five occasions and consuming alcohol on one occasion.

Probation was notified on November 27, 2012, that the sweat patch worn by Ms. Drager from November 1 to November 15, 2012 (the First November Patch), tested positive for amphetamine and methamphetamine. When confronted, Ms. Drager denied using methamphetamine. However, at the December 10, 2012, hearing, Ms. Drager admitted to using methamphetamine. On December 10, 2012, Probation was notified that the sweat patch worn by Ms. Drager from November 15 to November 29, 2012 (the Second November Patch), also tested positive for methamphetamine. Ms. Drager claimed it was caused by being around other people using methamphetamine. 

On January 13, 2009, however, a sweat patch tested positive for methamphetamine. The court did not find the mother's excuse for the positive test credible.  On February 16, 2010, the mother tested positive for marijuana and amphetamine, and she admitted to using methamphetamine on February 12 and 13, the two days following the termination hearing. On March 11, 2010, the court also received into evidence an additional sweat patch test that had negative results, but with a notation that the patch “appear[ed] to be tampered with or compromised.”

After listening to the testimony of the State’s expert, Biochemist, Dr. Leo Kadejhian, and having reviewed all the exhibits, which have been offered herein, the Court finds sufficient reasoning and/or methodology exists from which the Court can rely upon the validity of sweat patch testing. Sufficient scientific knowledge and technique exists to support sweat patch testing. Further, sweat patch testing has been subject to peer review and publications as clearly set forth by the exhibits submitted herein. There is little known or potential rate of error, and sweat patch testing is generally accepted within the scientific community.

Today, we join the other courts that have previously determined that sweat patch results are a generally reliable method of determining whether an offender has violated a condition of his or her probation. It is important to note that the Food and Drug Administration cleared the PharmChem sweat patch technology back in 1990. Today, the sweat patch is a widely used method for drug testing that is authorized by the Administrative Office of the United States Courts. We also place weight on the expertise of Dr. Kadehjian, who vouched for the general reliability of sweat patch results. And while sweat patches have not been exhaustively studied by scholars, the peer-reviewed academic studies that have been conducted generally support the device's reliability.

Finally, we reject Martin's arguments regarding the sweat patches worn by him. These patches are devices by which an individual is tested for the presence of drugs. It is through one of these patches that Martin tested for cocaine. Both Martin and the State presented expert testimony regarding the reliability of the patches and the court found them to be reliable. Regardless of the court's ruling on the reliability of the sweat patches, upon our de novo review of the facts we would still find termination appropriate under the circumstances. We therefore affirm the termination of Martin's parental rights. 

The father was participating in overnight visitations with the child until an April 2006 sweat patch test showed methamphetamine use. Tests from May through August 2006 showed drug use. The father admits to one relapse but argues subsequent positive tests are the result of environmental contamination from methamphetamine being manufactured by another tenant in his apartment building.

Based on the evidence, the court finds the USPO's sweat patch specimen program results in this case are reliable and establish by a preponderance of the evidence that Defendant has used cocaine at least eight times in the last calendar year. As such, the court finds Defendant has violated the conditions of his probation.

Most importantly, although Mr. Gatewood generally denied any use of methamphetamine while on pretrial release, he did admit that he had used methamphetamine at least once during the relevant period. Id.  Given the number of positive results and his admission to use on at least one occasion, the evidence of drug use in violation of his conditions of release in this case bears at least the minimum required indicia of reliability.

The Court also foundationally determines that Jones has not shown necessity for the materials from the FDA or PharmChem, under Rule 17(b). Jones's argument is that two negative urine tests during the sweat-patch window create a doubt about the reliability of the sweat-patch positive. The chronology easily supports the potential that Jones used sufficiently prior to or sufficiently after the distinct negative urine tests. Thus, and taking the tendered results as worthy of consideration, the fact of intervening clean screens on two of the testing period days does not suggest that the overall, and temporally broader, period report on the sweat patch is not valid. The Court sees a generalized assault on the testing method as not here justified, at least on this record. For these reasons, the Court wholly DENIES DE ##416 and 420.

From 4/30/08 to 6/4/08, five (3) sweat patches proved positive for Cocaine. From 3/26/08 to 6/11/08, the defendant was also given 20 urine tests. All of the urine tests were negative for the presence of drugs. None of the urine was retained. How could a sweat patch be positive, but a urine sample negative? Defendant claimed external contamination was the reason his sweat patches were positive. However, the Court finds it probable that contamination WAS NOT the cause of the defendant's positive sweat patch results. Rather, it is more probably that the positive sweat patch tests were the result of the defendant purposely using cocaine, albeit not in high doses.

The Court, after reviewing Dr. Smith's studies, concluded that although they do raise questions that warrant further research, they do not undermine the reliability of sweat patches to such a degree that the Court should reject them as a general matter, particularly because those studies are limited to laboratory contexts in which solutions containing drugs were applied directly to subjects' skin.

As to the so-called "Appendix A" submitted by defendant, this document does not cast doubt upon the accuracy of a PharmChek sweat patch in detecting the presence of cocaine metabolite in a person. The National Federation of Federal Employees is, as its name asserts, a union of federal employees, one of whose major goals is the preservation of employment for federal employees. There is a patent bias. In addition, most of the report criticizes the use of the sweat patch because a sweat patch often shows ingestion of cocaine when a urine test does not. Mr. Phillips is guilty of having used cocaine in violation of his supervised release.

At the hearing on September 30, after respondents had tested positive for cocaine on additional drug tests and respondent father removed his drug patch, the court reiterated that it had “found the statutory criteria to be established beyond any reasonable doubt, let alone clear and convincing evidence.”

Defendant used methamphetamine approximately two and a half weeks later. Her supervising officer then placed defendant on a sweat patch. When a sweat patch was removed October 8, 2014, it tested positive for methamphetamine. Defendant Lewis denied drug use. A second drug testing sweat patch applied on October 22, 2014, was unavailable for testing. Defendant appeared on October 29, 2014, to have the sweat patch removed for testing and told staff that it "merely fell off." Defendant's motion will be DENIED, for the reasons discussed below.

Karina Carrasco appeals the district court's revocation of her supervised release and her resulting sentence. Carrasco's supervised release was conditioned on her refraining from unlawfully using controlled substances, and Carrasco was required to wear sweat patches that could detect her use of drugs. After several of her patches tested negative for controlled substances, no fewer than nine subsequent patches tested positive for methamphetamine.

Carrasco, who denied any drug use, then paid to have hair and nail samples collected and tested. The record shows that a hair test could detect illegal substances between 14 and 90 days after their use, but we have found nothing in the record that reveals the corresponding detection range for a nail test. Both samples tested negative for illegal substances, including methamphetamine. But five more sweat patches tested positive for methamphetamine in the following months, and the district court revoked Carrasco's supervised release based on the methamphetamine-positive tests.

"….. one of the most important tools we use, is sweat patch. I was a state court judge for 14 years. We use sweat patch. We use it in federal court. The courts have found that sweat patches are consistently accurate, and reflect what’s in a person’s system. It’s – it’s – you know, to say, well, it’s well settled law is to maybe not give it enough respect. One of the justices of the United States Supreme Court, Justice O’Connor, wrote this for the Eighth Circuit. And it’s clear in the Eighth Circuit, which is the intermediate Court of Appeals above this court, that the sweat patch is the way we should conduct business. And it’s accurate. And it is more accurate than hair and nails".

CONCLUSION: Based on the above reasons and authorities, the United States respectfully asks this Court to affirm the district court’s decision to revoke Carrasco’s term of supervised release based on reliable sweat patch evidence, and sentence her to 12 months in prison, followed by five years of supervised release. AFFIRMED

Royrico A. Bunch admitted a supervised-release violation after sweat patches revealed drug use. At a revocation hearing, the district court2 found that Bunch also committed more serious supervised-release violations involving assault and the possession of crack cocaine and marijuana. Bunch appeals, arguing the district court made unsupported factual determinations when concluding he committed the more serious violations. Because the findings at issue are supported by substantial evidence and rest upon the district court's credibility determinations, we affirm.

Pending before the Court is the United States' motion to revoke Defendant's supervised release. Evidence relating to the pending motion was presented by the parties at a hearing before the Court on March 15, 2002. The hearing was continued to allow the parties to develop evidence specifically addressing the reliability of the PharmChek sweat patch and its susceptibility to external contamination. The hearing was resumed on October 9, 2002. This Order supplements a portion of the Court's ruling at the October 9, 2002 hearing. Specifically, this Order supplements the Court's rejection of Defendant's challenge to the results of tests performed on a PharmChek sweat patch indicating the presence of illegal drugs. For the following reasons in addition to those stated at the October 9, 2002 hearing, the Court rejects Defendant's challenge to the reliability of the sweat patch and finds that the sweat patch is reliable evidence that Defendant used illegal drugs thereby violating 897*897 a condition of her supervised release.

Redd plead guilty to one count of conspiracy to commit mail fraud and money laundering. He was sentenced to 12 months and one day of imprisonment to be followed by three years of supervised release. He began his term of supervised release on February 28, 2001. Over the next seven months, four violation reports were filed alleging cocaine use. The allegations were based on six positive "sweat patch" test results.

In the case at bar, the parent (mother) tested positive for methamphetamine on numerous occasions, claiming that each positive test was a result of drug absorption into her skin through the sweat patch or in other words environmental contamination.

The Court finds that (PharmChem) sweat patch testing is reliable and accurate. Additionally, the Court finds that the evidence overwhelmingly supports the conclusion that the mother consumed methamphetamine that produced the positive sweat patch tests results as reported.

Defendants filed motion to exclude the admissibility of sweat patch test results from proceedings to revoke their supervised release. The District Court, Pro , J., held that sweat patch drug testing and retention device utilized by the United States Department of Probation was a reliable scientific method for testing for the presence of controlled substances, including methamphetamine. 

That requirement was satisfied here where the district court found that Rojas used cocaine after 1. Examining the laboratory report documenting the positive test and 2. Crediting testimony from Rojas’s probation officer, the technician who applied and removed the sweat patch, and an expert familiar with the laboratory’s procedures, who opined that they yield highly accurate results. Moreover, the district court found Rojas’s testimony that the sweat patch may have been contaminated by the environment not credible in light of the large amount of cocaine detected in the sweat patch.

Defendant Richard Bentham is charged with various violations of the conditions of his probation, to wit, failure to satisfy his restitution obligation; use of cocaine on or before September 8, 2004, August 1, 2005, August 8, 2005, and January 6, 2006; use of marijuana on or about July 30, 2005 and November 14, 2005; and frequenting places where controlled substances are illegally sold or used on or about July 30, 2005. Defendant admits to the use of marijuana on or about July 30, 2005 and to the use of cocaine on or about September 8, 2004 and January 6, 2006; but he denies in one respect or another the other charges. In particular, with respect to the charges that he used cocaine on or about August 1, 2005 and August 8, 2005, defendant, while conceding that the "sweat patch" tests he took around those dates tested positive for cocaine, asserts that these must be so-called "false positives," 473*473 since be did not in fact use cocaine at any time during this period.

On October 26, 2017, at the time of the probation violation hearing, [Appellant] objected to the laboratory expert testifying by telephone. As a result, the [trial court] continued the probation hearing to allow the Commonwealth to fly in an expert from out of state. On November 9, 2017, [Appellant] filed a motion for a Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923)] hearing to determine whether drug patch testing is generally accepted in the field of toxicology. On December 1, 2017, the Commonwealth filed a motion for telephonic testimony of its lab expert and an expert on the non-novelty of sweat patch technology. After subsequent filings, rulings and continuances, the matter came before the [trial court] for a Frye hearing on April 9, 201[8]. After the Frye hearing, the [trial court] concluded that the testimony of Dr. Kadehijan established that the sweat patch technology satisfied the standards of the Frye test.

The Doctor's testimony has confirmed that the FDA certified this kind of patch testing and technology in the mid 90s and these tests were cleared by the FDA. In fact, the patch has been in use since the mid 90s and the Federal Court System has utilized the drug patch in their federal probation and parole work.The Court finds that Dr. Kadehjian was very credible and knowledgeable and the Court therefore accepts his opinion that the sweat patch technology is generally accepted in the field of toxicology. Further, the testimony of the Doctor as a whole supports the idea that drug patch technology is not novel science that would bring the Frye test into question in the initial case.

The Petitioner, Eli Crawford, an inmate at USP-Lewisburg, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc.1). He has also filed an application to proceed in forma pauperis and a motion for appointment of counsel. (Docs. 2 & 7). In his petition, he claims that the United States Parole Commission (USPC) erred in revoking his parole. Specifically, he argues that the drug test the USPC used to detect cocaine in his system, a sweat patch, is unreliable and that the USPC may have also based its revocation decision on the presence of drugs in his system for which he had valid prescriptions. Further, he contends that his medical condition, Hepatitis C, has resulted in extremely poor health and extensive medical needs which constitute mitigating circumstances and justify his release.

Appellant Cedric Perkins was terminated from the Thirteenth Circuit Drug Court Program, and the trial court imposed Appellant's suspended sentence. Appellant argues positive "sweat patch" drug tests and certain violations should not have been considered in the decision to terminate Appellant from the Drug Court Program. For the foregoing reasons, we affirm the trial courts order imposing Appellants original sentence.

Lower court ruling in State of SC v. Cedric E. Perkins, South Carolina Court of General Sessions. 

The trial court found that the defendant had violated the terms and conditions of his community corrections sentence in that he failed to remain drug-free. The court accredited the testimony of Murley, indicating that the defendant tested positive for cocaine and marijuana while on probation and specifically while wearing the drug patch. The court noted that the defendant's testimony was discredited by his prior violations of his community corrections sentence wherein he tested positive for cocaine and marijuana and admitted to using those substances. The court revoked the defendant's community corrections sentence and ordered him to serve the balance of his sentence in the Department of Correction with credit for the time spent in jail.

Defendant-Appellant Roy Tonche Carrion appeals the revocation of his supervised release, asserting that the district court erred in his revocation hearing when it admitted prior expert testimony on the reliability of "sweat patch" drug testing. We find no reversible error, and affirm.