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How Much Detail About Mommy’s Drug Test Can Daddy Or The Trial Court Learn? Discovery Into Drug Test Data In Custody Disputes

The trier of fact in a family law action is charged, among other things, with protecting the best interests of the children over whom it has jurisdiction. This mandate includes insuring their safety. One means the court has to address the safety of a child is to order drug testing of a parent under Family Code 3041.5 where there is evidence that a parent is engaged in use of illegal drugs or abuse of alcohol. Unfortunately, however, the family law statute at issue may restrict the court‘s ability to obtain details concerning the drug test results. This article posits that in a case with appropriate facts, counsel should be able to present to the court more detailed information about a drug test result beyond what the laboratory report (a negative or a drug positive presents) reveals.


This article first explains the nature of drug testing in family courts. It then posits that a family lawyer should be able to obtain the actual numerical data from the test, and a court should be able to make an order based on test data demonstrating the presence of drugs, albeit below the laboratory’s administrative cut-off for reporting test results, especially in circumstances there where are indicia that the subject’s specimen is dilute and clearly would have otherwise been reported as positive. If the appellate courts were to hold that Family Code 3041.5 does not provide a court with the ability to examine the detailed results of the test as disclosed on the drug test report, or if family courts believe the statute prohibits this examination, then this article suggests that the statute be amended. The public policy of the State of California present in the family courts is assuring the safety of our children, and accurately assessing the drug use of a parent is a critical component of making this assessment.

II.

                                                                 DISCUSSION

  1. LEGAL BACKGROUND OF DRUG TESTING
  2. When May Courts Even Consider Drug Abuse Allegations

It is within the discretion of family courts to order drug tests where a parent has a history of illegal drug use. More particularly, in determining a child’s best interest for custody purposes, the courts consider whether either parent has a habitual or continual illegal use of controlled substances or continual abuse of alcohol. (Family Code


‘ 3011(d).)[1] Before considering allegations of a parent’s drug use or alcohol abuse, however, the court may require independent corroboration such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. (Section 3011(d).) If the court has grounds for concern under this section, it may order a parent to be tested for drug use or alcohol abuse.

  1. What Specimens May Be Ordered Tested?

In 2004, the Legislature passed strict statutory constraints on the kind of drug testing allowed in custody cases. The statute was passed to address the concerns enunciated by the Court of Appeal in the Wainwright decision. (Wainwright v. Superior Court (2000) 84 Cal.App.4th 262.) The Court of Appeal held in Wainwright that although Section 3011, subdivision (d), directs a court adjudicating custody to consider as a factor the habitual or continual illegal drug use or alcohol abuse by either parent in determining the best interest of the child, nothing in the statute authorized court-ordered


drug testing unchecked by substantive and procedural guidelines.[2] Note that nothing in Section 3011 proscribed certain kinds of testing.


In the Wainwright case, Peter Wainwright and Nancy Sinkler had a son, Jacob. Nancy and Peter were never married. Peter filed a Complaint to Establish Parental Relationship and requested joint legal and physical custody. Nancy made various allegations that Peter was unfit, including claims that he had grown marijuana and was convicted of possession of the drug. Nancy asserted that Jacob returned from visits with Dad saying that Dad smelled of marijuana, and told her various things that led her to believe that Peter was smoking marijuana. At a pretrial hearing, Nancy requested drug testing and claimed the testing was authorized by Section 3011(d). Peter opposed drug testing. Nonetheless, the trial court ordered Peter to submit to drug testing, stating that the interest of the child outweighed privacy interests of a parent suspected of drug use. The trial court ordered a hair follicle analysis of Peter to occur within 48 hours of the Order. Peter filed a Petition for a Writ of Mandate and the Court of Appeal issued a stay pending its decision.

The Court of Appeal held that nothing in the words, purpose or legislative history of Section 3011, subdivision (d) authorizes court-order drug testing unchecked by substantive and procedural guidelines. It reasoned that governmentally compelled drug testing implicates the federal and state right to be free of unreasonable searches and seizures, and the state right of privacy. (84 Cal.App. 4th at p. 267) Interpreting Section 3011, subdivision (d) to permit drug testing creates serious constitutional difficulties, the court reasoned, given the provision’s lack of any substantive or procedure guidelines. The provision would permit parental drug testing upon a bare allegation of drug use and without any statutory limitations on the type of tests (blood, urine or hair) the manner of administering the test, or the disclosure of test results. (Id.) The appellate court concluded that Peter did not have to undergo any drug testing.

Section 3041.5 was enacted by the legislature in response to the decision in Wainwright, although the provision is due to sunset on January 1, 2013. (It is likely that this date will be extended, as January 1, 2013 is just the latest in a number of extended sunset dates.) The Legislature felt the need to provide some substantive and procedural guidelines. Section 3041.5 provides in material part as follows:


(a) In any custody or visitation proceeding brought under this part, as


described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship. This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance. The court shall order the least intrusive method of testing for the illegal use of controlled substance or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship, or the person seeking visitation. If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.   *   *   * The results of this testing shall be confidential, shall be maintained as a sealed record in the court file, and may not be released to any person except the court, the parties, their attorneys, the Judicial Council, until completion of its authorized study of the testing process, and any person to whom the court expressly grants access by written order made with prior notice to all parties.

What specifically does Section 3041.5 instruct? We know from its text that the family court must order the least intrusive method of testing, and that whatever testing is performed has to be in conformance with procedures and standards established by the United States Department of Health and Human Services for the drug testing of federal employees. But what does this instruction mean?

The one and only case decided under Section 3041.5, Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, gives us only limited guidance: Hair follicle testing is not permitted in connection with custody disputes, because only urine tests are used to test federal employees. So urinalysis is all that can be ordered, no matter how much more scientifically sensitive hair or hair follicle testing might be, or how much more convenient (and sensitive) the use of a Asweat patch@ might be.[3] There are no other helpful appellate decisions.


  1. SCIENTIFIC   BACKGROUND   OF DRUG   TESTING

 

  1. How Are Urine Drug Tests Performed in the Federal Workplace Context?

Drug testing varies by the programmatic need for it. Private corporations may

have rules which differ from rules of state school boards, which in turn differ from the federal governments workplace rules and criminal justice tests.

The mandatory guidelines for federal workplace drug testing programs ( the program the family court is guided by) are set forth in the Federal Register Volume 73, No. 228 at pages 71858, et seq. (November 25, 2008).


The subject’s urine is collected at a testing site in a specially designed secure cup, sealed with a tamper resistant tape, and is sent to a testing laboratory to be screened for drugs. Under federal workplace rules the first step at the collection site is to split the urine into two portions. The first portion is screened for drugs using an analyzer that performs an immunoassay as the initial screen. If the urine screen is positive, then another potion of the original specimen is tested to confirm or dispute the findings, usually by a method called gas chromatography-mass spectrometry (GC-MS). In the federal employment arena, all test results, whether positive or negative, are relayed to an MRO (Medical Review Officer) where this person, a physician or a Doctor of Osteopathy, reviews the results. The MRO is generally the supervising medical doctor appointed by a federal agency testing its employees.

If the result of the screen is negative, the MRO informs the employer that the test result is negative. However, if the test result of the immunoassay and GC-MS are non-negative and show a concentration level of parent drug or metabolite at or above the established limit (called the Aadministrative cut-off”), then the MRO contacts the employee to determine if there is any legitimate reason – such as a medical treatment or prescription. If there is no legitimate reason, then the test result is reported to the employer as positive. Section 13.8 of the Mandatory Guidelines sets forth the procedure for reporting test results to a federal agency.

Section 13.3(a) of the Mandatory Guidelines provides for the review by the MRO of all positive, adulterated, substituted, rejected for testing, and invalid test results. Staff under the supervision of the MRO may review and report negative and negative/dilute test results to the agency’s designated representative. (73 Fed. Reg. 71900 [2008] ‘13.3[a], emphasis added.) The MRO’s staff may thus review and report to the employer a result from the laboratory reported as Anegative.

It is very important to note that in family court there is no MRO. This absence means that there is no one reviewing the test reports, no one looking at the detailed data, and no one determining that the detailed data shows there is drug present in a specimen, albeit below the administrative cut-off.


  1. What Does the Term A Detailed Data Mean?

What specifically do I mean by detailed data? The answer requires an understanding of what the results of a urine test looks like. Most drug testing laboratories report drug test results as negative (or no drugs found) or a positive remark next to the drug or metabolite tested (for example, cocaine, THC, alcohol) which are tested. The test result also provides the administrative cut-off value for each drug or metabolite tested (that is, the number described in nanograms per milliliter (ng/mL) at or above which a test is deemed positive).[4] In other words, the administrative cut-off for various drugs is the number which, if met or exceeded, will constitute a positive test. The administrative cut-offs represent urine drug-concentrations established by balancing scientific testing capabilities, clinical considerations, and other policy considerations. They should not be construed to be the sensitivity limits of the testing. The urine drug testing cut-offs utilized for federal workplace testing follow those established by the U.S. Department of Health and Human Services for urine drug testing of federal workplace employees. The arm of the Department of Health and Human Services which carries out the function to set administrative cut-offs is the Substance Abuse and Mental Health Services Administration (ASAMHSA).


The term ’detailed data’ thus refers to the actually measured or quantified ng/mL of drug in a particular urine sample. Put another way, if a urine drug result from a particular laboratory is reported as negative at the specified administrative cut-off, the terms non-detected or negative cannot be taken to mean no drug in the specimen, but rather only non-detected or negative when compared to the relevant administrative cut-off utilized.


As I was recently informed by the toxicologist cited in footnote number three, Dr. Leo Kadehjian, when urine drug screening is performed on an automated analyzer, most commonly using immunoassays, the analyzer generates a numerical test result. The numerical result for a donor’s specimen is then compared to that for the administrative cutoff calibrator to determine if the result is to be reported as positive or negative. However, by examination of the analyzer’s numerical output, the donor’s numerical result can also be compared with the numerical result for a certified drug-free control specimen. Such drug-free control specimens are generally included in every calibration sequence and batch of specimens. Comparison of a donor specimen’s numerical results with that for the certified drug-free control specimen allows for an objective determination of whether the donor specimen’s numerical result is consistent with that expected for a drug-free specimen or rather demonstrates significantly elevated test results demonstrating presence of drug, albeit below the administrative reporting cutoff. As discussed later in this article, the use of below cut-off test results is recognized as scientifically valid in the peer review literature and in case law.

In this way, there can be drug present in a non-detected or negative specimen, albeit below the administrative cut-off. For example, the administrative cut-off utilized by SAMHSA for screening methamphetamine is now 500 ng/mL (nanograms per milliliter). However, a specimen containing 400 ng/mL of methamphetamine, demonstrating possible methamphetamine use, would be reported by the screening laboratory as negative. Similarly, for cocaine, the SAMHSA administrative screening cut-off is 150 ng/mL, but a specimen containing 100 ng/mL, demonstrating the possible presence of cocaine, would be reported by the screening laboratory as negative. Note that effective 2010 SAMHSA lowered the screening cut-off for methamphetamine from 500 to 400 ng/mL.[5] For 22 years previously, with a cut-off of 500 ng/mL, a laboratory reading of 400 ng/mL would have been reported as negative. This recent change, therefore, is evidence that the administrative cut-offs are neither immutable guidelines nor laws of nature.


  1. Is It Possible for Someone To Dilute Their Specimen By Drinking Fluids, and By Doing So Mask Drug Use?

Urine specimen validity testing is a critical component of effective urine drug testing programs to ensure that donors provide their own fresh, unadulterated and undiluted specimens. Efforts at urine specimen manipulation by drug-using donors are well-documented, and there are a host of products available on the Internet that purport to allow a drug user to avoid detection of their drug use. For this reason, urine specimen validity testing is now mandated on all urine specimens collected and tested under federal workplace urine drug testing programs. (71 FR 19644, 19654 (April 13, 2004).) One of the federally-mandated urine specimen validity tests involves a quantitative assessment of urine specimen dilution. It is well-known that a drug-using donor may easily dilute his or her urine specimen through rapid above-normal fluid consumption prior to urine specimen collection. Such rapid above-normal fluid consumption can be effective within 15-30 minutes of notice of urine specimen collection and the urine specimens may remain highly dilute for up to several hours after such excess fluid consumption. Through such supra-normal fluid consumption, drug users can dilute their urine specimen by 10-20 fold, thereby dramatically reducing urine drug concentrations, perhaps so much so that an otherwise positive specimen may be reported as negative. Thus, for example, if someone’s urine is ten times more dilute than normal, a 400 ng/mL result for methamphetamines should properly be read as 4,000, in other words, eight times the administrative cut-off of 500. It is important to note that direct observation of urine specimen collection has no impact whatsoever on a donor’s ability to provide a highly dilute specimen and in doing so attempt to avoid detection of drug use.

For this reason to assess dilution urine drug testing includes measurements of urine creatinine concentration for the specimen which, if very low, suggests that the subject’s urine was diluted.[6] Urine specimen dilution is quantitatively assessed through a measurement of the urine creatinine concentration. Urine creatinine excretion is primarily a reflection of muscle mass and does not fluctuate significantly in a given individual except in response to fluid consumption. The population average urine creatinine concentration is about 150 mg/dL. Clinically, creatinine concentrations less than 20 mg/dL are considered dilute. (The World Health Organization considers urine specimens less than 30 mg/dL as dilute.) The federal workplace drug testing program uses a 20 mg/dL cutoff.


Where there has been drug use and the donor’s urine specimen is objectively determined to be highly dilute, it creates a suspicion that it may be possible to demonstrate the presence of drug below the administrative cutoff. When evidence of a significantly elevated test result is coupled with a dilute urine creatinine concentration, it may be possible to demonstrate that the specimen would have clearly tested positive had the specimen not been unusually dilute.

 

  1. WHAT LEGAL CONCERNS COULD BE IMPLICATED BY RELEASE OF THE UNDERLING DATA?

  1. Is consideration of detailed data a reliable measure of illicit drug use under Kelly-Frye?[7]

  1. If SAMHSA sets the administrative cut-offs at particular concentrations such that negative results under those cut-offs end the matter for a federal employee, why would a family lawyer be entitled to the data, and is it an abuse of discretion for a court to make an order based on those numbers? Stated another way, do policy considerations exist in custody cases which are clearly different from those in the federal workplace?

As to the first question, whether a drug test result below the administrative cut-off can be deemed accurate or reliable, the answer is that the accuracy, reliability and utility of urine drug test results below administrative reporting cut-offs has been well-documented in the published peer-reviewed clinical scientific literature. See, for example, V. Luzzi, et al., Analytical Performance of Immunoassays for Drugs of Abuse Below Established Cut-off Values, Clin. Chem., 50(4), 717 (2004); A. Fraser & J. Zamecnik, AImpact for Lowering the Screening and Confirmation Cut-off Values for Urine Testing Based on Dilution Indicators, Ther. Drug Monitor., 25(6) 723 (2000). Even the mandatory guidelines include the use of so-called Limit of Detection urine drug testing (that is, utilizing the lowest concentration in which a test can distinguish a specimen containing drugs from one that is drug-free). (73 FR at 71860; 71878; 71902.)

And as to the second question, whether policy considerations exist in custody cases which are clearly different from those in the federal workplace, this writer postulates that the best interests of small children in the care of a parent who is abusing drugs raise interests significantly more sensitive than those of adults whose pecuniary governmental employment rights could be at stake.


  1. FAMILY LAWYERS AND JUDGES SHOULD REVIEW THE DETAILED DATA

Drug testing is important to the safety of children. The report of the Senate Judiciary Committee for AB 1108, the statute enacted as ‘3041.5, notes that drug testing in family courts was necessary because

[a]ccording to a study cited by the author, children whose parents abuse drugs or alcohol >are almost three times more likely to be abused, and more than four times more likely to be neglected than children of parents who are not substance abusers. The California Judges’ Association, writing in support of the bill, asserts that drug testing has been a useful and practical tool in allowing the court to make appropriate custody determinations. Other supporters assert that drug testing would insure that the best interest of the child are truly considered in these cases.


If counsel receives a report showing a negative, or no drug finding, is there anything else that counsel can do and should do to ascertain the actual numerical rate of all the metabolites in the tested specimen? Counsel might want to tell a judge that even though the drug test is reported as negative, as discussed above, there is methamphetamine or cocaine in the specimen sufficiently high to demonstrate drug use, but just under the administrative cut-off. In that event, the judge would be acting in a function similar to an MRO. However, opposing counsel could argue that cut-offs are there for a reason, and that the family court bench does not have sufficient scientific expertise to evaluate test results.   The cut-offs, in other words, should take away the family court’s discretion, the argument would go.

Additionally, opposing counsel could argue that MROs usually deal with false positives wrongful guilt. In contrast, this article addresses false negatives – wrongful innocence, and argues that the court be given the power to deal with such situations.


Responding to the argument that cut-offs are there for a reason, the response is that strict cut-offs in the federal employment arena should not guide family courts because the public policy assuring the safety of children is different from that concerning worker job security. Moreover, the underlying concern that gave rise to administrative cut-offs in the federal workplace, namely, mitigation of the invasion of privacy inherent in a suspicion-less search and seizure, is inapplicable to family court. Absent probable cause, the government does not have the right to make searches and seizures of your person. (United States Constitution, Article 4.) Random drug tests in the workplace do not involve probable cause. Therefore, strict adherence to administrative cut-offs in the federal workplace is necessary to mitigate the potential violation of a worker’s right against unreasonable searches and seizures. But the ordering of drug tests by a family court judge does involve probable cause, without which Section 3041.5 would not permit drug testing at all. Moreover, the trier of fact in family court should be accurately informed where it has a suspicion of drug use, and the reporting by the laboratory of test results should not mislead the court.

Under what circumstances, then, is it both equitable and justified to request the detailed data? In answering this question, the eye should be kept on the goal of Section 3041.5: To assure that the family court is accurately informed about drug use of one of the parents.

By way of example, in a recent divorce case, we subpoenaed the underlying data from a number of urine tests where the parent’s results were suspect: A number of the subject’s specimens were highly dilute, with creatinine levels that were very low, distorting the trier of facts ability accurately to assess drug use, and creating a concern that there may have been an attempt to mask drug use and thwart effective drug testing. Other of the results had creatinine levels with unusually high concentrations (e.g., in excess of 500 mg/dL [milligrams per deciliter]). These dramatic Aup and down results were clinically suspect and brought into question the integrity of the specimen collection procedures and whether the provided specimens were truly representative of the parent’s natural unaltered urine. We subpoenaed the underlying data and the parent’s attorneys objected. The trial judge ordered the results released on the basis that the case was in discovery and the underlying data was relevant and reasonably calculated to lead to the discovery of admissible evidence.


In short, if a parent wants to make the case that the other parent is abusing drugs and is a danger to the children, that parent ought to be entitled to obtain the underlying data from the drug tests. In the federal workplace, the MRO may obtain all such data. The family court judge, analogous to the MRO, ought to have the underlying test results obtained by the drug free parent’s lawyer. Such Limit of Detection evidence of drug use, in addition to recognition in peer-reviewed scientific literature, has been sanctioned in case law.[8]

The family courts should be able to see and evaluate evidence of the presence of drug, albeit between the administrative cut-off. A parent’s right to privacy should not win out over release of the detailed data in a child custody case.[9]


CONCLUSION

 

Drug testing is one tool that the Legislature has provided to the courts to answer the critical questions regarding whether a child’s safety is at risk. If this tool is to be effective, our family court has to be able to access all that science offers to be accurately informed.   Nothing in federal workplace guidelines preclude the MRO from accessing test data, and the federal workplace rules recognize testing both using the administrative cut-off and at the Limit of Detection. A family lawyer should be able to obtain the underlying data (i.e., the actual numerical data from the test) and a court should be able to make an order based on below cut-off data, in circumstances where there are indicia that the subject’s specimen is dilute. If the trial or appellate courts believe that Family Code 3041.5 restricts the court’s ability to obtain information concerning the drug test results, then the statute should be amended.

[1]           All further citations are to the Family Code.

[2]           Section 3011 states in material part as follows:


In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

* * *

(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, ’controlled substances’ has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.


[3]           A sweat patch is an approximately one inch-by-one inch patch worn on the

skin which absorbs metabolites from the skin and can be tested with accuracy for most controlled substances. (Kadehjian & Crouch, Sweat Testing Handbook of Workplace Drug Testing [2d ed. 2009], Chapter 8, p. 227.) Even though they are not sanctioned by Section 3041.5, a subject might prefer wearing a sweat patch to making repetitive trips to a urinalysis testing facility and, therefore, the parties are free to stipulate to use of a mechanism like a sweat patch which is not utilized in the drug testing of federal employees.

[4]           A nanogram is one-billionth of a gram. A gram is about 1/30 of an ounce. A milliliter measures fluid volume equal to 1/1000 liter. A liter is a little bigger than a quart.


[5]           See 73 FR 71858. SAMHSA provided two years from 2008 to 2010 until the new standard became operative, to allow laboratories to make the changes necessary to adjust to the new standard.

[6]           Creatinine is a chemical waste molecule that is generated from muscle metabolism. It is produced from creatine, a molecule of major importance for energy production and muscles. Creatinine is transmitted through the blood stream to the kidneys. The kidneys filter almost all of the creatinine and dispose of it in the urine. Abnormally low levels of creatinine suggest an unusually dilute specimen, which lead to artificially low drug concentration, which could mislead the court.

[7]           The Kelly-Frye standard was stated in its original form in Frye v. United States (1923) 293 F. 1013, and was adopted by the California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24. The Kelly-Frye standard places the determination of whether scientific evidence is reliable in the hands of experts in the scientific community, recognizing that they are in the best position to judge the validity of scientific techniques and principles. The Kelly-Frye inquiry allows the judiciary to defer to scientific expertise as to whether or not scientific principles have gained Ageneral acceptance@ in the relevant field. (People v. Kelly, supra, 17 Cal.3d at pp. 30-31.)

[8]           See, e.g.,United States v. Klimek (2005) 411 F.3d 50, 54. That case held that a defendant=s probation could be revoked on the basis of a confirmatory test result below the cutoff level of cocaine metabolite specified in the contract between the Administrative Office of United States Courts and the testing laboratory. The Second Circuit Court of Appeals held that the District Court could consider the totality of the evidence before it when a test result falls below the cutoff level. In Klimek there was evidence of dilution of the defendant’s specimen, which the government’s scientist was able to ascertain in part from a creatinine level of 29.6 milligrams per deciliter, a result that was within the acceptable range but well below the average creatinine concentration of 100 milligrams per deciliter. (411 F.3d at p. 52, n. 2.) See also In re Brown (1998) 17 Cal.4th 873, 889 (in a habeas corpus petition in the California Supreme Court, the high court held that a positive finding of drug in a radioactive immunoassay in a number below the GC/MS cut-off number, was still relevant Brady evidence that could have exculpated this defendant).

[9]           See Manela v. Superior Court (2009) 177 Cal.App.4th 1139. A principal issue in this dissolution case is whether father should have been granted joint custody over the couple’s 4ByearBold son. Mother contended that father has a seizure disorder that affects his ability to care for the child. Father denied mother’s allegations and contended that he merely had a tic that was controlled by medication. Mother subpoenaed the medical records of two of father’s physicians, claiming that the records would support her allegations regarding father’s seizures. The trial court, however granted father’s motion to quash the subpoenas on the ground that the documents were protected by the physician-patient privilege. Mother filed a petition for a writ of mandate requiring the trial court to vacate its order quashing the subpoenas. The Court of Appeal held that the trial court abused its discretion by quashing the subpoena to the doctor because father waived the physician-patient privilege with respect to the relevant records. While we do not have a waiver situation present in the drug testing arena, note that the appellate court also rejected father’s claim that his medical records were protected by his constitutional right to privacy. The court held that this right is not absolute and, in this case, were outweighed by the state’s compelling interest in protecting the child’s best interests. (177 Cal.App.4th at pp. 1142-1143.)

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