In Daubert the U. S. Supreme Court handed down a new standard for determining the admissibility of scientific evidence in the Federal courts. The Daubert rule states that "the reasoning or methodology underlying testimony must be scientifically valid. Examination of the scientific validity include: widespread acceptance; peer review; publication; testing; rates of error; the existence of standards." But no particular one of these items is essential under Daubert. Bohan and Heels (1995) reported on the number of states that have adopted Daubert:

"In the year following Daubert, high courts in ten states had the opportunity to affirmatively respond to it, and nine others have commented upon it in dicta. Of the ten states that reevaluated their approach to scientific evidence in light of Daubert, eight explicitly or implicitly adopted Daubert, two explicitly or implicitly rejected it, while one stated that it adopted Daubert while apparently doing the opposite. Of all the state courts that ruled on the admissibility of scientific evidence with a year after Daubert, only three changed their rule of law from Frye to that of Daubert. "

Bear in mind that drug testing may be used as evidence in both criminal and civil proceedings. Evidence may be more readily accepted in civil procedures because of the lower standard of proof (civil tests are based on evidentiary preponderance, i.e. "more likely than not"). In criminal cases proof must be established "beyond a reasonable doubt." In employment security, workman's compensation, arbitration, military, and administrative hearings, the evidentiary rules may be more lenient than in either civil or criminal trials. The majority of cases reviewed in this article were decided in non-federal hearings held prior to Daubert.

Smith and Liu (1986) are the first to report expert testimony regarding drug detection in hair. This was in a criminal case where they identified cocaine metabolite in a variety of matrices using unconfirmed radioimmunoassay:

"This report describes the analysis of extracts of perspiration-stained clothing, menstrual-bloodstained tampon, and hair which had been collected from an alleged sexual assault victim by law enforcement officials as part of their standard investigation procedures. While routine analyses for trace evidence associated with these items did not provide evidentiary links to incriminate the defendant, the detection of cocaine metabolite in these items was used to implicate the alleged victim of cocaine use, a fact she denied in sworn testimony at trial but later admitted. The State's attorney could have appealed the presentation of these findings by way of petition for review, he did not."

In a child custody case (Burgel v. Burgel 1988) the father claimed that the mother was unfit for custody because she habitually used cocaine. Based on the father’s affidavit and his claim that analysis of her hair (which was surreptitiously obtained from bathtub and sink drains) showed high levels of cocaine, coupled her admission to prior but not recent use of cocaine, the court ordered her to submit hair samples for analysis "in order to perform a radioimmunoassay test which would purportedly determine if the plaintiff (mother) used cocaine several months prior to the test." The New York Appellate court upheld this discovery request and stated that a preliminary determination regarding the reliability and validity of RIA testing before considering whether discovery should proceed, was not necessary.

The U.S v. Foote, the United States appealed a District Court denial of a motion which would have required an undercover detective to submit hair for analysis for the purpose of identifying illegal drugs. The motion was denied by the court

"because of the Fourth and Fifth Amendments implications of forcing (the detective) to undergo drug testing, the intrusive and unreliable nature of the experimental radioimmunoassay of hair ("RIAH") test that (the accused) requested; and the lack of any evidence that (the detective) used or even had the opportunity to use, an illegal substance during any of the drug transactions involved in this case." (U.S. v. Foote 1990)

A New York Appellate court ordered deletion of a lower court's order compelling a mother and a third party in a child custody case to submit hair specimens for RIA analysis for the purpose of detecting use of illegal drugs. The court determined that there was no "reasonable ground" for such testing, but only the "suspicion" that the mother smoked marijuana which according to the petitioner, is not readily detectable by the proposed test (Garvin v. Garvin 1990). In a similar case a Colorado trial court denied several requests by defense council including those for fingernail and hair samples to be tested for evidence of cocaine addiction of a confidential police informant (People v. Thuan i990).

A particularly important case is that of U.S. v. Medina (1990). In this case the Federal appeal court trial judge, Judge Weinstein, had participated in the May 1990 Society of Forensic Toxicology conference. This conference had produced a "consensus statement" which did not endorse the stand-alone use of hair analysis and also concluded that hair analysis was not sufficiently developed for use in forensic circumstances unless confirmed by use of another testing matrix. The defendant, Medina, who was on probation for violation of federal narcotic laws, indicated that he had not used cocaine for many months. His hair which tested positive for cocaine indicated more recent usage and was therefore not consistent with his claims of abstinence from cocaine. The court’s ruling stated that the expressed scientific cautions - centering around the biochemical mechanisms of narcotics absorption and quality control in the laboratory - were not based upon a challenge to the scientific principles of analytical chemistry which formed the foundation of radioimmunoassay. Judge Weinstein stated:

"These accepted principles establish that radioimmunoassay is an effective and accurate method of detecting the presence of various compounds including narcotics."

The ruling concluded that "the results of the hair analysis report are accepted as some proof that probationer violated the conditions of his probation. Other evidence supports that conclusion beyond any possible doubt. "

A Nevada (1990) district court accepted the results of a positive hair test where the plaintiffs sought an injunction against the use of hair analysis in workplace drug testing. Any positive radioimmunoassay assay results were confirmed by GC/MS. The plaintiff's expert wanted to introduce only part of the "Society of Forensic Toxicology Consensus Report" (May 27-29,1990) in evidence because he did not agree with it in its entirety. The report was excluded. The court found that:

"RIAH screen test alone has not, at this stage, developed sufficiently to form a basis for termination of employment. Under the existing policy, current employees are not terminated based on RIAH alone. The Court declares that the Substance Abuse Testing Procedures, together with the provision set forth above relative to the employee's option to submit to urine screen testing in lieu of RIAH, are reasonable, valid, and lawful and do not constitute an unlawful invasion of privacy."

The Delaware Superior Court granted a motion to dismiss a law enforcement officer's appeal of his suspension. A warrant for searching his house and car and for collecting blood and hair samples was obtained from a magistrate's Court. The test results of the officer's blood and hair samples were negative and were admitted as evidence. During the search the police found three hypodermic syringes and anabolic steroids. Possession of these substances without medical prescription violates Delaware Law. The appellate court found that neither the issuance of the search warrant nor his subsequent suspension were violations of his legal rights (Maull v. Waen 1992).

In 1993 an Florida appellate court reversed and remanded a case. It ruled that hair analysis results should have been accepted as evidence. A urine specimen obtained during a biennial physical examination of a correction officer produced a positive test for cocaine. Because she was terminated, she voluntarily had a hair drug test which showed no evidence of cocaine. A hearing officer refused to allow the evidence of the hair analysis and of a letter explaining how a false positive urine test could have resulted. The Court of Appeals ruled that the exclusion of the evidence was error and stated:

"The radioimmunoassay analysis of human hair to determine cocaine is generally accepted in the scientific community." The court cites a series of references and further concludes, "The hair analysis therefore meets the test for admissibility of novel scientific evidence as enunciated in Frye v. U.S. (1923)."

The Court noted that the test has been superseded by the Federal Rules of Evidence, particularly, rule 702 (Moore 1994a). The court determined that the exclusion of the expert testimony regarding a false positive result from the urinalysis was error and ''that testimony was admissible to rebut the State's claim that the urinalysis test was reliable." Finally, hair analysis evidence should not have been excluded on the basis of hearsay. Under section 120.58(l)(a), Florida Statutes (1991), hearsay is admissible for the purpose of supplementing or explaining other evidence." (Bass v. Fla. 1993).

A Nevada employee was discharged because the results of a hair test was positive for cocaine. The specimen in this first test was sufficient to examine the past thirty days. Since the chain of custody was broken for that specimen, a second specimen was obtained and it was also positive for cocaine. The second hair test, which was based on a longer specimen, revealed that claimant used cocaine sometime in the 90 day period prior to being tested. The claimant's attorney questioned the validity of hair testing and presented three papers to support his claim. The referee stated:

"After reading these papers, the referee was not convinced that the testing was not valid. The authors raised some questions about the tests, but the bottom line was that drugs do show up in the hair if they are used by the individual and if properly tested, can be detected. The questions about chemicals in the hair and rate of growth and race of the individual were addressed by the employer's witnesses and the documents they presented. The preponderance of evidence establishes that hair drug testing done properly is an accepted form of drug testing. Given the testimony, the preponderance of evidence establishes the testing was done properly."

The referee's determination was affirmed. The finding was subsequently reversed by a district court. The employment security department and the hotel appealed to the Nevada Supreme Court. The supreme court reversed the district court's decision and reinstated the board of review's decision to deny the employee unemployment benefits in (Nevada 1996).

The Armed Services Courts of Appeals have accepted the admission of hair drug test results in court-martials. The following is a review of two relevant military appeal cases. In the case of U.S. v. Nimmer (1994) - heard in the U.S. Navy/Marine Corps Court of Military Review - the accused's urine tests were reported as positive for cocaine and a hair test was reported to be negative. The court stated that:

"We note that the Government Expert witness testified that the amount of cocaine ingested to obtain a reading of 151 nanograms (ng/mL) on the RIA (of urine) could be very small, so small as to give no noticeable effects to the person who ingested it." (39 MJ at 928)

The findings of guilty and sentence were affirmed. In 1995. U.S. v. Nimmer (1995) was appealed to a higher court, the U.S. Court of Appeals for the Armed Service. The appeals court upon review noted that:

"The studies referred to by Dr. Smith (defense expert), two in number and, thus, of somewhat diminished persuasiveness, certainly don't establish a norm with which this court is comfortable saying ‘if cocaine had been used in this case, it would have shown up in the accused’s hair. . . Moreover, only one of these studies dealt with cocaine and only one with hair from the head as opposed to beard hair. . . Finally, our reading of the record of this litigation leaves us with the sense that it probably would have read much differently it the parties and the military judge had had the benefit of the added specificity and guidance of Daubert (1993) as a refinement of Gipson (1987)."

"The United States Court of Appeals held that remand was necessary for relitigation of admissibility of expert testimony on analysis of accused's hair for cocaine metabolite, in order to allow consideration of reliability of proffered evidence by looking at validity of scientific methodology that led to evidence. . . The decision of the United States Navy/Marine Corps Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority for a hearing before a military judge at which the parties will litigate anew the question of the admissibility of Dr. Smith's expert testimony concerning the analysis of appellants hair for the cocaine metabolite." (43 MJ at 260).

In June 1996, an appeal decision was rendered by the U.S. Air Force Court of Appeals in U.S. v. Bush (1996). Bush was convicted by a General court martial based on a positive hair test for the use of cocaine. It was suspected that the accused had submitted a false or adulterated urine sample. It was "confirmed that the sample was not urine, but some sort of saline solution." (44 MJ at 647)

A specimen of hair which was "seized" nearly two months after "the probable cause triggering incident" was reported to contain 17 ng/mg of cocaine and 2.7 ng/mg of benzoylecgonine. A ratio of cocaine to benzoylecgonine of about 6 to 1. (44 MJ at 648,651)

"Technical differences aside, we face an issue which is the logical obverse that in Nimmer. That is the question of whether the absence of benzoylecgonine in a GC/MS analysis of hair reliably tends to prove that the subject didn't use cocaine, is a logically and scientifically discrete question from whether the presence of benzoylecgonine or cocaine itself in a tandem stage quadrapole mass spectrometer (MSIMS) analysis of hair reliably tends to prove that the subject did use cocaine. Put another way, it is necessary to separately evaluate the reliability and the validity of hair analysis with reference to the dangers of false positives and false negatives. We are concerned with the former; the Nimmer court is concerned with the latter. (44 MJ at 650)

The court, regarding the conflicting expert testimony, continued:

Perhaps the most important source of disagreement between the two (Drs. Donnelly and Goldberger, the experts for respectively, the prosecution and the defense) lay in the question of passive exposure to the drug, that cocaine found in hair might be explained by other than knowing ingestion. Thus where the two sides part company is over the final conclusion the government wished the court to draw from Dr. Donnelly's testimony- that appellant used cocaine. . . To eliminate the passive exposure/contamination hypothesis, Dr. Donnelly first washed the hair samples in a methanol solution then analyzed the wash for the presence of cocaine. It proved negative. Both experts agreed exposure or adulteration should have been revealed in the wash. In fact, Dr. Donnelly testified that a ratio of 5-1 of cocaine to benzoylecgonine was strongly indicative of actual ingestion of the drug. (44 MJ at 651)

The experts might dispute some particularities of the testing protocol or suggest ways that it could have been improved, or that different controls might be used, or that SOFT might harbor policy concerns about the feasibility of hair analysis for workplace testing, or deem it prudent to have independent corroboration of hair analysis, even considered in the aggregate, are insufficient bases upon which to exclude the results. A vigorous forensic dialogue between both experts was aptly engaged before the triers of fact who ultimately decided that Dr. Goldberger's reservations about and disagreement with Dr. Donnelly's conclusions were insufficient to raise a reasonable doubt that appellant had used cocaine. Thus, we hold the military judge did not abuse his discretion in denying appellant's motion in limine (at the beginning) and permitting qualitative and quantitative analysis of appellant's hair to go before the court members. (44 MJ at 652)

The conviction and sentence were affirmed on June 13, 1996. These Military Appeal Courts have affirmed that hair drug tests are considered admissible as evidence in court-martials.