I'll get right to the point. Is there any rule, law, case, etc. which would prohibit drug testing a juvenile at intake into a detention facility. I have found it useful in arguing "a danger to oneself" if I know there is drug usage in the childs recent history. Our juvenile people seem to be oppossed to drug testing and are under the impression that they can not. This isn't for the people on some sort of orders or probation. This is for the brand new cases and I don't plan on using the information for prosecution purposes but simply for that first detention hearing. Anyone have any thoughts.

I assume you mean: can a juvenile consent to a urine or blood test. (If people could be forced to submit just because they were arrested, then there wouldn't be the DWI problems with getting testing done.)

The only special juvenile problem that comes to my mind is 51.09. See TFC 52.02(d) (special provision for getting a breath sample despite 51.09)

I would argue that they should all be drug tested at intake both for their own safety and for the safety of the others in detention with them. That way the juvenile authorities have knowledge of what is in their systems if there are any adverse effects or acting-out situations. This testing would not be for evidence, but for safety. Also - I'm thinking out loud here - there are liability issues if the county does not care properly for a child in it's custody, and it is difficult to do that without knowing what they have previously ingested. For example - what if the child has a seizure or attempts to commit suicide? Knowing what they have taken could make a difference in their treatment and saving their life.

I would also argue that this is a different situation from the DWI testing issue and whether or not they give consent, because in that situation the state is trying to recover evidence to be used against them in court. However, I would concede that a positive drug test could be grounds for a motion to modify or to revoke a probation.


I know there is a provision in 54.01(g) that prohibits any "statement" made at a detention hearing from being used as evidence in any other hearing. I wonder if a positive drug test could be considered such a "statement". Probably not. Maybe an "admission" at a detention hearing could.

I want to think about this some more and would be interested in hearing other views.

I think just using jail safety as the sole justification for requiring routine drug tests might buy you some liability.

McGee v. State, 105 S.W.3d 609, 615-16 (Tex. Crim. App. 2003) ("since Robinson, the Supreme Court has continued to emphasize that Fourth Amendment jurisprudence prohibits unreasonable searches incident to arrest.")

Powell v. Barrett, 496 F.3d 1288, 1312(11th Cir. 2007) (blanket rule requiring strip searches of people arrested was unconstitutional); Kelly v. Foti, 77 F.3d 819, 821 (5th Cir.1996) ("[j]ail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion that he is hiding weapons or contraband.").

So, we can have drug testing to play in the high school band but we should be worred about drug testing for juveniles being detained for commission of a crime?

I think the high school activity cases just say that you can condition eligibility for an activity on agreeing to submit to a drug test. You couldn't announce a policy that anyone who has previously signed up for band must submit to a drug test.

Still seems twisted.

I think every county I've ever done juvi work in has drug tested the kids upon entry into detention. I never used (or even thought I could use) the results for anything other than determining what services the juvenile and his/her family needed. If I remember correctly, most of those counties had as a part of the operating orders from the juvenile board, a requirement that each juvi be tested.

Here's a case that seems to be on point

Hodgkins v. Goldsmith, No. IP99-1528-C-T/G, 2000 WL 892964 at *19-24 (S.D.Ind. July 3, 2000) (finding 4th Amendment violation in policy requiring urinalysis and breathalyser tests on all juveniles arrested during curfew sweeps)

I guess I should clarify that I'm not using the positive drug test at any time other than the detention hearing and this would be on juveniles arrested for "other" offenses. Also the testing would be once they arrive at detention as part of a general policy at the detention center. Also I would argue that any potential 4th amendment violation is not an issue to be brought up at a detention hearing but rather at a motion to suppress after the petition has been filed.