Can I Sue the Probation Office for a False Positive Drug Test?

If you are on probation and fail a drug test, or if you are in court and fail a drug test administered by the probation office, you might go to jail.

But what if the drug test result is wrong? You go to jail anyway, and no one in the courtroom is likely to believe you – of course, you would claim it was wrong. You don’t want to go to jail.

What if you know it’s wrong, and you are able to get a second, independent test done quickly to prove that the probation office’s test was wrong? Can you sue the probation office for the false imprisonment that was a direct consequence of their negligence?

Last week, the SC Supreme Court held that a drug testing laboratory who negligently reports a false positive on a drug test for an employer owes a duty of care to the employee and is liable for their negligence. A BMW employee who was fired from their job because the lab hired by their employer reported a false positive for cocaine (twice) can be held liable for damages to the employee.

Why wouldn’t the same reasoning apply to a probation officer whose negligence results in a person’s freedom being taken away?

Let’s take a look at the Court’s reasoning in Shaw v. Psychemedics Corporation and see if it fits…

The following are excerpts from the fictional case of Shaw v. S.C. Office of Probation, Pardon, and Parole:

Can I Sue the Probation Office for a False Positive Drug Test?

The SC Supreme Court’s reasoning in Shaw v. Psychemedics Corporation indicate that you should be able to, but… disclaimer: suing a government agency under the SC Tort Claims Act or a federal Section 1983 action is very different from a run-of-the-mill negligence action.

I’ve substituted probation officer for laboratory and probationer for employee in the following excerpts:

Do Probation Officers Have a Duty of Care to Perform Accurate Drug Tests?

We also find that there is a sufficient relationship between a [probation officer] and [probationer] to support the recognition of a duty. The principal purpose of the [probation officer’s authority to conduct a drug test] is to test a given [probationer’s] biological specimen for the presence of drugs. Moreover, the [probation officer] possesses and exercises control over the [probationer’s] specimen at some point during—if not the entire duration of—the testing process. In addition, if the [probation officer] is negligent in testing the [probationer’s] specimen, it is foreseeable that the [probationer] will likely suffer [loss of their freedom, loss of their employment, separation from their family, and economic losses as a result of the faulty test result].

What About Public Policy Considerations?

We note a host of public policy considerations that favor the recognition of a duty of care in this context. There is a significant public interest in ensuring accurate drug tests because countless [probationers] are required to undergo drug testing as a condition of their [probation]. [Probation officers] have the greatest amount of control over the accuracy of the testing process… Conversely, [probationers] have very little control, if any, over the testing procedures and methods used.

…[T]he recognition of a duty in this context advances a major policy goal of tort law: deterrence. In short, [o]ne reason for making a defendant liable in tort for injuries resulting from a breach of his duty is to prevent such injuries from occurring. Underlying this justification is the assumption that potential wrongdoers will avoid wrongful behavior if the benefits of that behavior are outweighed by the costs imposed by the payment of damages to victims.

What are the Consequences of a False Positive Drug Test?

[A probationer who receives] a positive drug test faces immediate consequences, namely the loss of the employee’s [freedom] and livelihood. Moreover, many employment applications inquire about an applicant’s prior work history, including any instance of [incarceration]. As a result, the positive drug test and subsequent [incarceration] may hinder the employee as he or she seeks [to not be locked in a prison and find future employment]. See Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo. 1999) (“[T]he likely effect of a false positive result is significant and devastating; employment will likely be terminated and future prospects of employment adversely impacted.”).

In Conclusion…

A [probation office] is more likely to implement measures that ensure better accuracy in its testing process if the [probation officer] owes a duty of care to [a probationer]. See Lewis v. Aluminum Co. of Am., 588 So. 2d 167, 170 (La. Ct. App. 1991) (stating that subjecting a drug testing laboratory to liability “should foster a greater sense of responsibility within it to perform its drug testing services in a skillful and competent manner”).

How is a Probation Officer Different than an Independent Lab?

If an independent lab negligently provides a false positive drug test that results in harm to an employee, they are subject to the law of negligence – they owe a duty of care to provide accurate results, and, when they breach that duty of care, they are liable for damages that they caused to the employee.

If a probation officer provides a false positive drug test that results in a wrongful imprisonment, they might be subject to a lawsuit under the SC Tort Claims Act (SCTCA). They owe a duty of care to the probationer to provide an accurate result, and, if they breach that duty of care, the consequences may be much more severe than an employee who loses their job – the probationer may end up locked away in a prison.

On the other hand, will they be granted qualified immunity by the Court? Will there be a different standard because the defendant is the government and the plaintiff is a convicted criminal?

In most cases, drug tests results are going to be accurate. If they are not, a positive drug screen by a probation officer does not always result in a probation revocation and prison – it may result in drug treatment or other consequences instead of a revocation.

When a judge orders a drug test in the courtroom, however, it often results in immediate consequences that include incarceration…

Would a SCTCA Case Based on a False Positive Drug Test Be Successful?

It should be. I don’t think there is any SC case law on point – let me know in the comments if I am wrong.

I think the court would probably bend over backwards to find legal reasoning to shut down any such lawsuit – and then, there are practical considerations like whether a jury will be sympathetic to a person who was convicted of a crime and on probation at the time, or whether a jury would find the person credible.

What do you think?

Criminal Defense Attorney in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, or if you are facing prison time for a probation revocation, call now at (843) 808-2100 or send an email to schedule a free consultation.