According to the United States Department of Justice, year ending 2012, 4.7 million adults were on probation, parole or other post-prison supervision. Another 4.1 million adults moved onto or off probation. In New York, 107,747, adults were on probation, another 46, 222 adults were on parole. In New York State, the Division of Criminal Justice Services, Office of Probation and Correctional Alternatives has the overall legal and managing obligations of probationers but, those responsibilities are often delegated to the various resident counties and the City of New York. Generally, probationers must agree to ‘Random Drug Testing’ at the ‘sole discretion’ of their probation officer. Parolees must agree to similar conditions. To facilitate the ‘Random Drug Testing’ component, the various probation relief programs generally send out Requests for Proposals, and then select a presumably qualified drug-testing provider in compliance with federal, state and local laws. Needless to say, not only can this result in vastly differently consequences or even ‘abuse’ depending upon which probation relief program the probationer is enrolled but, the consequences could result in probation violations being filed in Court with the possibility of incarceration. This important criminal justice managing function affects the probationer, their families and the public.

Generally, the probationer must submit to a ‘Random Drug Test’ at ‘sole discretion’ of their probation officer. The alleged purpose is to test for the presence of illicit drugs or controlled substances that would violate the conditions of probation. Generally, if the specimen tests positive for illicit drugs or controlled substances, the drug-testing provider will send a report to the probationers supervising probation officer indicating the positive result. Generally, this positive result will be result in a violation of their probation that can lead to an extension of probation or even incarceration.

Unfortunately, for the probationer, they are at the mercy of the probation relief programs, the probation officers, the drug-testing providers and the Courts. The Courts ‘unreasonably’ relies upon the unchallenged results from the drug-testing provider. Currently as it stands, there are no ‘Random Drug Testing’ protocols in place to protect the probationers against ‘abuse’ of the program by probation officers ‘unreasonably’ seizing oral fluid samples from probationers, false-positive or even erroneous positive results. There are no ‘Random Drug Testing’ protocols in place to ensure drug-testing providers comply with the various federal, state and local laws. There are no ‘Random Drug Testing’ protocols in place to challenge positive results. Without the aforementioned “Random Drug Testing’ protocols in place, presumably probationers were violated had their probation extended and certainly in some cases, incarcerated. Therefore, the question becomes: Are there any potential legal remedies available to probationers harmed by ‘false-positive’ or ‘erroneous positive’ drug test results as a third party not in contract with the drug-testing provider? The Court of Appeals recently answered this question in the affirmative.

In Eric Landon v. Kroll (“Kroll”) Laboratory Specialists, Inc., a case of first impression, Mr. Landon was required to submit to ‘Random Drug Testing’ as a condition of probation. Mr. Landon was supervised by the Orange County Probation Department (“the County”). Knoll contracted with the County to test oral fluid samples from probationers for the presence of illicit drugs or controlled substances. Oral fluid sample testing is just another less invasive type of blood testing. Mr. Landon was not a party to the contract between Kroll and the County. During a visit with his probation officer, Mr. Landon was required to submit an oral fluid sample to his probation officer for testing. Shortly thereafter, Mr. Landon went to an independent laboratory and submitted a blood sample to test for the presence of illicit drugs or controlled substances to protect himself from a false positive or erroneous result. The County does not have any ‘Random Drug Testing’ protocols in place to protect probationers. Mr. Landon’s blood test came back negative for the presence of illicit or controlled substances. Meanwhile, Mr. Landon’s oral fluid sample submitted to Kroll tested positive for the presence of marijuana. Based upon the positive result from Kroll, the County moved to revoke Mr. Landon’s probationary status and seek his incarceration him despite having the conflicting independent negative test result provided by Mr. Landon. After several subsequent Court hearings, the County reluctantly withdrew its petition alleging probation violations; therefore, the proceedings terminated in favor of Mr. Landon.

Mr. Landon filed a lawsuit against Kroll alleging it acted negligently and disregarded his rights when it sent an erroneous positive drug test result to the County. In addition, Mr. Landon alleged Kroll negligently used a lower threshold than the manufacturer of the collection device recommended, the threshold was lower than the industry standard for forensic drug testing and it never confirmed the positive drug test results by using more specific gold standard drug testing methodologies as required by the State of New York.

Kroll countered, arguing their contract was with the County, not with third parties like Mr. Landon. Additionally, Kroll argued, the County set the lower ‘Random Drug Testing’ threshold; more importantly, since Mr. Landon is not a party to the contract, he has ‘no standing’ to challenge the performance of the contract.

On appeal, the New York State Court of Appeals held Kroll could be liable for negligently testing Mr. Landon’s oral fluid sample although there was no contract between them. Further, Kroll owed Mr. Landon as third party, a duty to test his oral fluid sample consistent with acceptable professional standards. The Court further recognized harm could flow from a false-positive result and Kroll owed Mr. Landon a duty of care to avoid such harm, which was separate and apart from the contractual duty of performance.