Las Vegas Sun

March 29, 2024

Lawyer: High court should reconsider hair-test ruling

CARSON CITY -- Las Vegas lawyer John Tofano wants the Nevada Supreme Court to reconsider its ruling that hair testing is reliable for detecting drugs.

Tofano says the court based its findings on outdated scientific information. He suggests the court get up-to-date with this important policy, which affects many major casinos and other employers in Nevada.

Tofano has filed a request with the court for a rehearing on its April 4 decision, which upheld the right of the San Remo hotel-casino in Las Vegas to fire slot hostess Cynthia Holmes after she tested positive for drugs in hair testing.

Hair testing also is a major issue in the case of casino executive Ted Binion before the Nevada Gaming Commission. Binion failed four hair tests but passed urine sampling.

The commission, which opened its hearing in Las Vegas Monday, is examining evidence to determine whether Binion should be allowed to return to the industry. He holds an interest of about 20 percent in the Horseshoe in downtown Las Vegas.

To illustrate the changing nature of the controversy, one has only to look at Binion's lawyer, Mark Ferrario.

In December 1994, Ferrario, representing the Las Vegas Chamber of Commerce and the MGM Grand hotel-casino, filed a "friend of the court" brief with the Supreme Court in support of hair testing at the San Remo.

"Hair testing for drug abuse is between five and 10 times more effective at detecting illegal drug use than urine testing," Ferrario said then.

Ferrario now says hair testing is unreliable. A person could be in the same room with somebody using drugs and this could contaminate the hair of the nonuser, he says.

He told the board that urine testing is more reliable.

In the case before the Supreme Court, Tofano says the court relied on scientific research that was six years old. That research, said Tofano, does "not reflect the current contrary conclusions of the scientific community involved with hair testing."

"This court should change its conclusion that hair testing is accepted and reliable to prove use of an illegal drug," he said.

Tofano cites Dr. Edward Cone, writing in a publication of the National Institute of Drug Abuse in 1995. Cone says hair testing can lead to an incorrect result, with an innocent person being accused of wrongdoing.

Dr. Frederick Smith of the Department of Law Enforcement at the University of Alabama is another who changed his view about the validity of hair testing. A recent experiment, Smith said, showed traces of cocaine in the hair of children while their urine tested drug free.

"The current view of the scientific community only supports the conclusion that hair testing alone does not prove drug use," Smith wrote.

Tofano also cites the policy of the federal government, which doesn't use hair testing for its drug-detection program. He notes this is important because the government must test commercial pilots and those working on nuclear reactors, railroads and highways.

The case before the Supreme Court involved a policy by the San Remo that called for random drug testing with the workers being given 90 days notice. Anyone who failed was fired.

Holmes received notice she would be tested in January 1993. The hair sample revealed the presence of cocaine. Holmes also tested positive in a second examination. She was fired and then sought unemployment compensation.

The benefits were denied and Holmes took her case to court.

District Judge Gerard Bongiovanni ruled there was "no substantial, credible and reliable evidence in the whole record" that Holmes used cocaine in the period before testing. He said hair drug tests, standing alone, were scientifically unreliable to deny jobless benefits to Holmes.

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