33-108.101. Inmate Substance Abuse Testing (Transferred)

The Office of the Inspector General shall be responsible for the development and implementation of the department’s substance abuse testing program.

(1) Definitions.

(a) Random Selection – a computerized random selection model utilized to obtain a sample of inmates to be tested for drugs or alcohol.

(b) Tester – a correctional officer who has been certified as competent by the manufacturer of the onsite testing device and trained by certified training personnel, affiliated with the department, on the proper procedures for collecting urine specimens, including the completion and maintenance of the Chain of Custody Form, the handling and disposing of urine specimens, and the administration and interpretation of the on-site testing device. All testing personnel must be approved by the Office of the Inspector General. The Chain of Custody Form is incorporated by reference in paragraph (3)(h) of this rule.

(c) Random List – the randomly selected sample of inmates to be tested for drugs or alcohol.

(d) Chain of Custody Form – the form used to document the identity and integrity of an inmate’s specimen from time of collection until the specimen is prepared for shipment to a designated outside laboratory for confirmation testing. This form will be provided by the laboratory conducting confirmation tests on specimens that had a positive result on the on-site testing device.

(e) Test refusal – failure on the part of an inmate to fully comply with the department’s substance abuse testing procedures, which includes failing to provide a valid urine specimen, attempting to alter a urine specimen with adulterants, as established by an on-site specimen adulteration testing product, and using substitute urine in makeshift devices or objects. Any inmate who refuses to comply with the testing process or fails to provide a valid specimen within the specified time frames of this rule shall be given a disciplinary report in accordance with Rules 33-601.301-.314, F.A.C.

(f) Dry cell – refers to a secure cell without a water supply or one in which the water supply has been interrupted.

(g) Confirmation Testing – testing conducted by an outside contract laboratory using gas chromatography coupled with mass spectrometry (GC/MS) when on-site results of a test are positive and the inmate refuses to sign Form DC1-824, Affidavit for Admission of Drug Use. Form DC1-824 is incorporated by reference in paragraph (3)(h) of this rule.

(h) Threshold Level – the concentration of a drug in the urine used to determine whether the test will be considered positive or negative. The threshold level for confirmation testing is the lowest level that can accurately identify and quantify the presence of a drug.

(2) The Department of Corrections conducts the following types of inmate substance abuse testing:

(a) For-Cause or Reasonable Suspicion Testing.

1. Inmates suspected of involvement with drugs or alcohol shall be subject to for-cause testing upon order of the warden, the duty warden, the correctional officer chief of the facility, a designee of one of the above individuals, or the Office of the Inspector General. An inmate should only be tested for a maximum of four drugs on a for-cause basis unless extenuating circumstances exist. For-cause tests will only be conducted on inmates who meet the criteria outlined in subparagraphs 2.a. through c. below.

2. For-cause drug testing (also referred to as reasonable suspicion drug testing) means drug testing based on a belief that an inmate is using or has used drugs or alcohol based on specific facts and reasonable inferences drawn from those facts in light of experience. Such facts and inferences shall be based upon:

a. Observable phenomena such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of drugs or alcohol (such as slurred or incoherent speech, erratic or violent behavior, uneven gait, or other behaviors or physical symptoms unusual for the inmate based on the staff member’s knowledge of the inmate).

b. Evidence that the inmate has tampered with or attempted to tamper with a urine specimen.

c. Evidence or intelligence reports indicating that an inmate has used, possessed, sold, solicited, or transferred drugs or alcohol.

3. When for-cause testing is ordered, an incident report shall be prepared including the dates and times of reported drug-related events and rationale leading to the request for testing.

4. The senior correctional officer on duty shall be notified that a staff member has identified a suspicious inmate who meets the for-cause drug testing criteria. The highest ranking correctional officer shall ensure that an incident report is prepared. The incident report shall contain all pertinent information concerning the inmate that prompted the request for testing, to include any supporting evidence.

5. Upon approval of the warden, duty warden, correctional officer chief, their designees, or the Office of the Inspector General, collection and testing procedures shall be conducted immediately pursuant to this rule.

6. A copy of Form DC6-210, Incident Report, shall be attached to the facility’s copy of the Chain of Custody Form for positive specimens sent to the laboratory for confirmation testing. Form DC6-210 is incorporated by reference in Rule 33-602.210, F.A.C.

(b) Random Substance Abuse Testing. All correctional facilities shall receive on a weekly basis a list of the names and DC numbers of inmates generated through random selection for substance abuse testing. The list will be electronically transmitted from the department’s electronic database to the secure printer of the warden of each major institution or the correctional officer chief of the correctional facility. Any facility that does not have a secure printer will have its respective list printed to a secure printer at another facility as designated by the warden of the institution or correctional officer chief of the facility. The list is considered confidential and shall not be disseminated to inmates or non-essential staff members prior to testing. Each time an inmate’s name appears on the random list, he or she shall be tested regardless of whether or not he or she has been previously tested.

(c) Substance Abuse Program Testing. Inmates participating in substance abuse programs will be subject to substance abuse testing as a condition of the programs.

(3) Procedures.

(a) Chain of Custody.

1. At a minimum, the Chain of Custody Form must include inmate and tester identification, initialed by both the inmate and the tester, date and time of collection, type of test (i.e., random, for-cause, or substance abuse program participation), and identification of all individuals who had custody of the specimen from the time of collection until the specimen was prepared for shipment to the laboratory. Once the outside laboratory receives the specimen, it will become the laboratory’s responsibility to maintain a chain of custody throughout the testing process.

2. The Chain of Custody Form allows for comments by the tester regarding any unusual observations. Any failure by the inmate to cooperate with the collection process and any unusual nature (e.g., discolored urine or urine containing foreign objects) of a specimen shall be noted.

3. The tester shall ensure that all collected urine specimens being sent to a designated outside laboratory for confirmation testing are properly labeled and sealed with a security label as provided on the Chain of Custody Form. The tester shall also ensure that the Chain of Custody Form for all collected urine specimens is completed in accordance with department procedures.

4. If an inmate is unable or unwilling to enter his or her initials on the Chain of Custody Form, the tester will make a notation in the comment section of the form and leave the space blank. The tester will not under any circumstances sign the Chain of Custody Form for an inmate.

(b) Specimen Collection Procedures.

1. The tester shall ensure that all urine specimens are collected in accordance with department procedures. All collections shall be performed under direct observation, where the tester directly observes the voiding of urine into the specimen cup. Direct observation may also be accomplished through use of mirrors strategically mounted in the collection rest room.

2. Under no circumstances is direct observation of an inmate by a tester of the opposite sex allowed.

3. A female inmate shall not be required to provide a urine specimen during her menstrual cycle.

4. Prior to collecting a urine specimen, the tester shall ensure that there is positive inmate identification by observing the inmate, confirming his or her name and DC number, and examining the inmate’s picture identification card.

5. The tester shall search the inmate to ensure that the inmate is not concealing any substances or materials that could be used to alter or substitute his or her urine specimen. If any such substances or materials are found, the inmate will be charged with refusing to submit to a substance abuse test.

6. The tester shall give each inmate a closed specimen cup with an identification label containing the inmate’s name and DC number prior to collecting the inmate’s urine specimen. The tester shall ensure that the inmate acknowledges his or her correct identity information on the label of the specimen cup.

7. The inmate is expected to provide a minimum of 30 ml of urine. If the inmate provides less, the tester shall again attempt to collect an adequate specimen. If the inmate cannot immediately provide an adequate specimen, the procedure outlined in subparagraph (3)(b)8. below shall apply.

8. An inmate who has not provided an adulterated urine specimen and who claims an inability to provide an adequate urine specimen shall be detained in the presence of the tester or other designated person for a period not to exceed 1 hour to provide an adequate specimen. During that time, the inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC1-823, Acknowledgement of Beverage, shall be completed. Form DC1-823 is incorporated by reference in paragraph (3)(h) of this rule. If after the 1 hour period an inmate still fails to submit a valid adequate urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C.

9. After the inmate has voided a urine specimen into the cup, the tester will visually inspect the urine specimen to make sure that it appears to be valid and unadulterated. If the tester suspects that the specimen has been adulterated based upon observation, experience, or prior training, the tester will utilize the on-site specimen adulteration testing product in front of the inmate following the manufacturer’s testing protocols. If a positive result is received on the on-site specimen adulteration testing product indicating that the urine specimen was adulterated, the specimen will not be accepted as valid and will be discarded. The inmate will be required to submit a valid and unadulterated specimen pursuant to the procedure outlined below in subparagraph (3)(b)10. below.

10. Inmates who have adulterated their urine by ingesting substances, as established by the on-site specimen adulteration testing product, shall be detained in the presence of the tester or placed in a dry cell for a period not to exceed one hour. During that time, the inmate shall not be allowed to consume any water or other beverage. If after the one hour period an inmate still fails to submit an unadulterated, valid urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C.

11. Once the tester has determined that the urine specimen is valid and unadulterated, the tester shall direct the inmate where to place the urine specimen so that the on-site test can be conducted. The specimen must be in view of the inmate throughout the entire testing process.

12. If a urine specimen contains blood or appears to contain blood, the inmate who produced the specimen shall be referred immediately to the medical department for evaluation. If no valid reason exists for having blood in the specimen, the inmate will be required to provide another urine specimen. If the inmate cannot submit a urine specimen, the inmate shall be detained in the presence of the tester or other designated person for a period not to exceed 1 hour to provide an adequate specimen. During that time, the inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of 2 cups during this time period, and Form DC1-823, Acknowledgement of Beverage, shall be completed. If after the 1 hour period an inmate still fails to submit a valid adequate urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C

(c) Upon notification from an inmate that he or she is unable to urinate due to a medical condition, the officer shall verify with medical staff that the inmate possesses a specific medical condition or is taking medication that inhibits the inmate from urinating within the designated time frame. Upon receiving such verification, the inmate shall be given the opportunity to provide a urine specimen under the following conditions:

1. The inmate shall be informed that he or she will be placed in a dry cell until he or she can provide a valid urine specimen, not to exceed two hours. The inmate shall be issued a hospital or other type privacy gown during the time that he or she is housed in the dry cell.

2. The inmate shall remove his or her shirt, shoes, pants, hat, and the contents of his or her pockets. The inmate shall be thoroughly searched prior to entering the dry cell to prevent him or her from using any adulterants such as bleach or cleanser to alter the specimen.

3. The tester shall give the inmate a closed specimen cup with an identification label containing the inmate’s name and DC number. The testing officer shall ensure that the inmate acknowledges his or her correct identity information on the label of the specimen cup.

4. The inmate shall be allowed to consume one cup (8 oz.) of water or other beverage every 1/2 hour, not to exceed a total of two cups during the time spent in the dry cell, and Form DC1-823, Acknowledgement of Beverage Form, shall be completed.

5. A physical check shall be made on the inmate once every 30 minutes to see if he or she has provided a valid urine specimen.

6. Upon receipt of the urine specimen the tester shall visually inspect the specimen to ensure it appears valid and unadulterated, and the procedures outlined in paragraph (3)(e) for the testing of urine specimens shall be followed.

7. If after the two hour period an inmate fails to submit a valid urine specimen, the inmate shall be considered to have refused to provide a urine specimen, and a disciplinary report shall be prepared in accordance with Rules 33-601.301-.314, F.A.C.

(d) If an inmate claims an inability to urinate in front of or in the presence of others, the tester shall collect the urine specimen under the conditions outlined in subparagraphs (3)(c)1.-6. In this circumstance, the inability to urinate is not treated as a medical condition, and the officer does not need to verify with medical staff that the inmate possesses a specific medical condition or is taking medication that inhibits the inmate from urinating within the designated time frame. However, such inmates shall be limited to up to one hour in the dry cell rather than two.

(e) Testing of urine specimens.

1. Only certified testing personnel are authorized to utilize the on-site testing equipment. For every on-site test conducted, regardless of purpose, the results shall be entered into the department’s electronic database.

2. Certified testers shall follow collection procedures in paragraph (3)(b).

3. All on-site testing procedures shall be conducted in the presence of the inmate in accordance with the manufacturer’s protocols.

4. After the tester has taken a sample of urine from the specimen cup for the on-site testing device, the tester shall close the cup tightly.

5. In instances wherein an on-site testing device does not exist for the drug being tested, the sample shall be sent directly to the lab.

6. Negative test results. The tester shall inform the inmate of the negative test results of the on-site testing device. The tester shall record all negative test results in the department’s electronic database. The tester will then dispose of the remaining specimen, specimen cup, and testing device. All forms shall be retained in accordance with state law and rules governing the retention of records.

7. Positive test results. The tester shall inform the inmate of the positive results of the on-site testing device. The inmate will then be given the opportunity to sign Form DC1-824, Affidavit for Admission of Drug Use.

a. If the inmate chooses to sign Form DC1-824, the testing officer shall complete the affidavit form and have the inmate swear to its content, with the officer witnessing the inmate’s signature. The inmate will be placed in administrative confinement, and a disciplinary report shall be written. The signed Form DC1-824 will be attached to the disciplinary report to be used as evidence in the disciplinary hearing.

b. The testing officer shall indicate the positive results of the on-site testing device in the department’s electronic database.

c. If the inmate does not sign Form DC1-824, the following steps shall be taken:

i. Once the urine specimen has been securely closed by the tester, the tester shall attach a security seal from the Chain of Custody Form across the lid of the sample cup under the inmate’s observation.

ii. The tester shall instruct the inmate to place his or her initials on the Chain of Custody Form verifying that the urine specimen was collected and sealed under the inmate’s observation and that the specimen cup identification is correct.

iii. The tester shall then prepare the urine specimen for shipment by a commercial carrier to the designated outside laboratory for confirmation testing.

iv. Inmates with positive test results on the on-site testing device shall immediately be placed in administrative confinement pending investigation until results of the confirmation test are received.

8. Once received from the outside laboratory, the confirmation testing results will be entered into the department’s electronic database. If the confirmation testing results are positive, a copy of the results will be attached to the disciplinary report for use as evidence during the disciplinary hearing.

(f) Other on-site testing device procedures.

1. Due to product limitations, it may become necessary to utilize other noninvasive on-site testing devices for alcohol testing. In such instances, the certified tester will utilize the on-site testing device in the presence of the inmate in accordance with the manufacturer’s testing protocols. If the initial result of the on-site testing device is positive, and the inmate declines to sign Form DC1-824, Affidavit for Admission of Drug Use, a urine specimen will be obtained from the inmate and sent to a designated outside laboratory for confirmation testing in accordance with the procedures outlined in paragraphs (3)(b) and (3)(e) above.

2. All correctional facilities shall maintain a record of all reasonable suspicion substance abuse tests conducted. This record shall be maintained by the correctional officer chief or designee. Form DC1-827, Reasonable Suspicion Testing Tracking, shall be utilized for this purpose. Form DC1-827 is incorporated by reference in paragraph (3)(h) of this rule.

(g) Record keeping. Each facility shall keep all records pertaining to the testing program. This includes the drug testing list and results, Chain of Custody forms, laboratory confirmation reports, and inventory control logs. All records shall be kept in accordance with state law and rules regarding retention of records.

(h) Forms. The following forms referenced in this rule are hereby incorporated by reference. Copies of these forms, unless otherwise indicated, may be obtained from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500.

1. Form DC1-823, Acknowledgement of Beverage, effective February 5, 2001.

2. Form DC1-824, Affidavit for Admission of Drug Use, effective February 5, 2001.

3. Chain of Custody Form, effective November 28, 2010, is a vendor form that may be obtained directly from the vendor or through the Office of the Inspector General, 501 South Calhoun Street, Tallahassee, Florida 32399-2500.

4. Form DC1-827, Reasonable Suspicion Testing Tracking Form, effective February 19, 2007.

Rulemaking Authority 944.09, 944.473 FS. Law Implemented 944.09, 944.472, 944.473 FS. History–New 2-8-00, Amended 2-5-01, Formerly 33-602.2045, Amended 7-2-02, 2-19-07, 7-29-08, 8-26-09, 2-10-10, 11-28-10, 1-11-12.