Q: I’m facing a urine drug test in prison, for probation, or related to a criminal/civil judgment.  What can I do?

A: You should provide your attorney with a heads-up on this situation so there is someone who can defend you at the probation hearing, and further advise you about legal issues and your rights after conviction.

You need three things to make your case: (1) Medical documentation of your condition, (2) a lawyer willing to work hard for you, and (3) the information and assistance that we can provide—which could include expert testimony about paruresis in general and arguments to help establish your rights to alternative testing to prove your drug-free status.

Show your lawyer this document. If your lawyer has any questions, please contact IPA at our 800 number for further clarification. IPA can help you get in touch with a lawyer with a history of successful legal challenges so yours can establish precedent in court.  The key vulnerability in current drug testing policy where your lawyer can make a persuasive argument is that a policy of calling an inability to provide a sample “a refusal to test” and presuming drug use based on the inability to provide a sample is a discriminatory practice, especially for a person with paruresis. A person with shy bladder or paruresis wants to give a sample, but is unable to do it.

The United States justice system is based on the fundamental concept of “innocent until proven guilty,” but drug-testing policy turns this concept on its head. The person who is unable to produce a urine sample is presumed guilty in the absence of any evidence. Drug use must be established by testing, and without a test or a witness testifying you were under the influence of drugs at the time of the test there is no evidence of drug use, nor is there reasonable suspicion of it. You can offer to provide the evidence by any other means that's convenient for you, such as a hair test, using a catheter to obtain the urine sample, a saliva test, or a sweat patch. You or your lawyer will need to prevail upon the judge to use common sense in your case, not a policy based on invalid assumptions that people can urinate in front of someone watching them.

Equating a refusal to test with guilt is erroneously based on laws for driving under the influence of alcohol, where a person’s refusal to submit to a breathalyzer test given at the police station is legal evidence of guilt in most states. However, there are key differences. In the case of drunk driving, there is an arresting officer who gives a field sobriety test to the driver and observes through the driver’s behavior suspicion of intoxication. There is also an “implied consent law” where a licensed driver agrees to submit to testing for intoxication in order to be granted the privilege to drive. There is no such implied consent governing you in this situation. Staying off of drugs may be a condition of probation or a requirement if you are serving a jail sentence, but proving you are drug free can be accomplished through a variety of means other than urine testing.

From a medical point of view, the alcohol breath test is quite different from a urine test. We all must breathe; there is no such thing as an inability to breathe for a living person.  Urination, however, is quite different.  A person with paruresis won’t be able to urinate with others present. Contrary to widespread public belief, the muscles that control urination are not under the person’s voluntary control.[iii] Someone with paruresis won’t be able to urinate until their anxiety disappears, which will not happen in a drug testing facility. The person may experience bodily harm in terms of bladder or kidney damage before being able to urinate. A doctor serving as an expert witness can explain to the court that once a person’s bladder fills beyond a certain point, it may be impossible to drain it without medical intervention. There will be horrific pain, and only insertion of a catheter will empty the urine from the person’s bladder. This amounts to cruel and unusual punishment without any evidence of guilt.  It’s the legal equivalent of torture. 

If these arguments are made successfully, your lawyer should be able to prove that there is no solid legal basis for presuming drug use if a person with paruresis is unable to provide a urine sample. If you have an alternative test showing you are drug free, the court should find in your favor. IPA wants to hear from anyone with either a positive or negative court decision regarding drug testing so we can continue to strengthen our arguments.

We suggest to your PO or correctional health administrator that they use a hair test, sweat patch, or oral fluid test on you. These are inexpensive, and the hair test is especially good for detecting use of drugs during the past 90 days. In other words, if you have been staying off the stuff for 3 months, the hair test will prove it. Another option is to see a doctor or urologist and learn to use a catheter to provide the urine sample. See IPA’s Catheters page for more details. Tell your probation officer or other authority involved in the drug testing program about these options and try to work with them to find one that is acceptable to both of you and involves the minimum cost.

Alternative tests are less expensive for the government than a hearing to revoke probation, and far less expensive than putting you in jail. These are important and practical arguments to make with the authorities. Depending on how the negotiations go, you may need to pay all or part of the extra cost for an alternative test. If you need to use a catheter you’ll likely need to bear the cost of a doctor’s visit and buying the catheter, which typically costs under $12. IPA hopes someday to change the law so that the government will pay for these tests, but until that point the responsibility may be yours. Please support the IPA, as we can’t achieve these things without the help of your donations. 

If you need to pay for a hair test, and it might not be a bad idea to have one done so the evidence that you are clean is available to your attorney and the court, they cost around $70-100. It takes about a week to get the results back.

Call the IPA 800 number at www.paruresis.org for information on how to get a hair test.