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F I S C A L I M P A C T R E P O R T

SPONSOR Komadina

ORIGINAL DATE

LAST UPDATED

2/1/07

HB

SHORT TITLE

Elected Official Drug Testing Act

SB 36

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

50.0

Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Pharmacy Board

Attorney General’s Office (AGO)

Public Education Department (PED)

Responses Received From

Secretary of State (SOS)

SUMMARY

Synopsis of Bill

Senate Bill 36, Elected Official Drug Testing Act, appropriates $50 thousand from the

GENERAL FUND to the Secretary of State for the purpose of randomly select “elected officials

of the state" for “voluntary" drug testing at laboratories designated to perform the testing. The

secretary of state shall receive and publish the results of these tests as well as any written

explanation offered by the elected official regarding the test results or the official’s written

explanation of his or her declination to participate in drug testing.

FISCAL IMPLICATIONS

The appropriation of $50 thousand contained in this bill is a RECURRING expense to the

GENERAL FUND. Any unexpended or unencumbered balance remaining at the end of FISCAL

YEAR 2008 shall revert to the GENERAL FUND.

Senate Bill 36 – Page

2

SIGNIFICANT ISSUES

According to AOC, SB 36 does not explicitly include elected judicial officers although it does

include the elected members of the New Mexico congressional delegation, state government,

counties and municipalities. The “voluntary" nature of the testing appears to address separation

of powers concerns that might arise from compulsory testing of elected officials. Lack of clarity

arises from the language stating that an official who fails to report for drug testing “shall be

requested to submit a written explanation to the secretary of state within twenty-four hours of

notification." It is unclear whether the written explanation is intended to be mandatory or

discretionary. This type of suspicionless drug testing has been the subject of significant

litigation in recent years. See Chandler v. Miller, 520 U.S. 305, 307 (1997) (striking down a

Georgia statute requiring candidates for elective office to pass a drug test, holding such testing

did not “fit within the closely guarded category of constitutionally permissible suspicionless

searches"), cited in Jaramillo v. City of Albuquerque,125 N.M. 194, 196 (Ct.App. 1998) (holding

suspicionless drug testing for city heavy vehicle mechanic constituted an unreasonable search).

The Attorney General’s Office also references Chandler v. Miller

, 520 U.S. 305 (1997), where

the United States Supreme Court struck down a Georgia law that required each candidate for

elective state office to be tested for illegal drugs and, in order to be certified as a candidate, the

test result had to be negative. Nominees of a political party sued seeking declaratory and

injunctive relief barring enforcement of the statute. The Court granted the requested relief. The

record in that case was devoid of evidence of drug abuse by elected officials in Georgia. It was

uncontested in that case that Georgia’s drug-testing requirement, imposed by law and enforced

by state officials, affected a “search" within the meaning of the Fourth and Fourteenth

Amendments. The Court opined that Georgia had failed to show, in justification of its statute, a

“special need" sufficient to override the individual’s acknowledged privacy interest and to

suppress the Fourth Amendment’s normal requirement of “individualized suspicion" necessary

to conduct a search. The Court rejected the State’s argument that the statute served to deter

unlawful drug users from becoming candidates and thus stopping them from attaining high state

office, because “[n]otably lacking in the respondent’s [State’s] presentation is any indication of a

concrete danger demanding departure from the Fourth Amendment’s main rule." The Court

further explained:

What is left, after a close review of Georgia’s scheme, is the image the State seeks

to project. By requiring candidates for public office to submit to drug testing,

Georgia displays its commitment to the struggle against drug abuse. The

suspicionless tests, according to respondents, signify that candidates, if elected,

will be fit to serve their constituents free from the influence of illegal drugs. But

Georgia asserts no evidence of a drug problem among the State’s elected

officials…. The need revealed, in short, is symbolic, not “special," as that term

draws meaning from our case law.

However well meant, the candidate drug test Georgia has devised diminishes

personal privacy for a symbol’s sake. The Fourth Amendment shields society

against that state action.

As applied to SB 36, the Chandler

opinion would indicate that, in the absence of a demonstrated

problem of drug use among elected officials, a state law that required all elected officials, state,

federal, etc., to report within 48 hours for drug testing or write a letter, within 48 hours, stating

Senate Bill 36 – Page

3

“why not," and then posting those test results and excuse letters on a state web site, would

likewise diminish personal privacy for a symbol’s sake. This, states Chandler

, the Fourth

Amendment prohibits.

It is not at all clear that Chandler

, in its application of the Fourth Amendment, would allow

“consent" to serve as an exception to the state-imposed diminution of personal privacy for a

symbol’s sake. But even if it does, under traditional Fourth Amendment “consent" analyses, the

ability of the State to prove genuine “voluntary consent" may be difficult, for the reason that

under the bill the government orders

an individual to report for testing or state why not. If that

individual reports for testing as instructed, the individual may claim that he or she merely

acquiesced to the government’s claim of authority to require him or her to report. Consent is not

voluntary if it is a mere acquiescence to a claim of lawful authority. State v. Shaulis-Powell

,

1999-NMCA-090, ¶ 10, 127 N.M. 667, 986 P.2d 463, cert

. denied

, 127 N.M. 391, 981 P.2d

1209. See

also

United States v. Biswell

, 442 F.2d 1189 (10th Cir. 1971) (statute authorizing

entry into premises of any firearms dealer for purposes of inspecting records was

unconstitutional; consent to entry and inspection not valid under Fourth Amendment, as being

merely acquiescence to a claim of lawful authority, in this case, an invalid law, where shop

owner stated, in response to the assertion of authority under the law, “Okay, if that’s the law").

In order to be “voluntary," consent must be “unequivocal" and “specific" and may not be the

result of “duress" or “coercion." State v. Shaulis-Powell

, ¶ 8; State v. Duffy

, 1998-NMSC-014,

¶ 72, 126 N.M. 132, 967 P.2d 807 (constitution requires that consent not be coerced, by explicit

or implicit means, by implied threat or covert force) (quoting Schneckloth v. Bustamonte

, 412

U.S. 218, 228 (1973)). The government’s evidence of “voluntariness" is evaluated in light of the

“presumption disfavoring the waiver of constitutional rights." State v. Shaulis-Powell

, ¶ 8. The

central question is whether “a reasonable person would believe he was free to leave or disregard

the officer’s request." U.S. v. Ledesma

, 447 F.3d 1307, 1314 (10th Cir. 2006) (quoting United

States v. Manjarrez

, 348 F.3d 881, 885-86 (10th Cir. 2003)). The voluntariness of consent is a

factual question, to be determined based on the “totality of circumstances." State v. Anderson

,

107 N.M. 165, 167, 754 P.2d 542, 544 (Ct. App. 1998) (citing Schneckloth v. Bustamonte

, 412

U.S. at. 248-49).

SB 36 incorporates no method by which the Secretary of State can obtain “specific" and

“unequivocal" consent from each participant in the program. SB 36 incorporates no method by

which the Secretary of State can, on an individual basis, evaluate the “totality of circumstances"

surrounding the voluntary consent by each individual to participation in the program. To

“presume" consent from each participant based on his or her participation, without evaluating the

individual circumstances, is to ignore the “presumption disfavoring the waiver of constitutional

rights." State v. Shaulis-Powell

ADMINISTRATIVE IMPLICATIONS

AOC suspects that legal challenges to drug testing of elected officials can be expected. It is also

likely that the courts will be required to rule upon challenges to drug testing results. There may

be an administrative impact on the courts as the result of an increase in caseload and/or in the

amount of time necessary to dispose of cases.

Senate Bill 36 – Page

4

TECHNICAL ISSUES

The AOC points out that the brief time limits involved in SB 36 (forty-eight hours from when

“notified" to report for drug testing or decline, seven days from mailing to prepare an

explanation of results), suggest that a requirement for certified or return-receipt mail might be

appropriate to provide documentation that will establish when the applicable time limits begin

and end.

OTHER SUBSTANTIVE ISSUES

The Pharmacy Board notes that drug testing does not appear to be completely voluntary;

substances to be tested are not indicated in the bill. Does it include alcohol and all prescription

drugs.

EO/mt