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  1. #1
    Join Date
    Jan 2011
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    6

    Exclamation Can a Judge Order Hair Folicle Testing

    My question involves restraining orders in the State of:washington. I have been acussed of using drugs and drinking making me a danger to my children. I havnt even gotten a speeding ticket in ten years. My record is clear. I denied the allegations at the show cause hearing and now the judge wants me to do hair folicle testing. Is this legal. I am disabled and use pot occasionally for pain and she knows this. It was never a problem when we were together. I dont want to give any evidence against me so I am leaning towards refusing. What can happen?

  2. #2

    Default Re: Legality of Judge to Ask for Hair Folicle Testing

    You can be denied access to your children if you either refuse the test, or fail the test.
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  3. #3
    Join Date
    Jan 2011
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    6

    Default Re: Legality of Judge to Ask for Hair Folicle Testing

    why do I have to prove by taking a test? Isnt that self incrimination? Can you just plead the fifth admendment? Doesnt the plantiff need to prove thier case first before I am ordered to take a test? What are the rights of the respondent? Very frustrated !!!

  4. #4
    Join Date
    Apr 2009
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    Somewhere near Canada
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    27,348

    Default Re: Legality of Judge to Ask for Hair Folicle Testing

    The 5th amendment does not apply (generally) to non-criminal cases. This is a civil matter.

    With that said, even if you test positive it may not be as big of a deal as you think. Pot is often seen as the equivalent of alcohol - unless the parent is smoking consistently when the children are present, and/or endangering them while under the influence.

    Frankly you probably have more chance of losing access by refusing the test, than actually testing positive.

    With that said.. I STRONGLY suggest you speak with an attorney immediately.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  5. #5
    Join Date
    Jan 2006
    Posts
    27,914

    Default Re: Legality of Judge to Ask for Hair Folicle Testing

    and I understand medical use is legal in Washington. As long as you have the proper documentation to allow your use, I don't see why it would be seen as any worse than somebody on prescription painmeds. If your use is not a valid and recognized use, yes, a positive test result would not be good for you.

    Your use is doctor recommended, correct?

  6. #6
    Join Date
    Jan 2011
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    6

    Default Re: Can a Judge Order Hair Folicle Testing

    no dont have the documentation. I cannot afford an attorney. I have to represent myself and if I feel that it is in my best interest to refuse the test because I am not familiar with folicle testing and the accuraccy or the time frame as to how far back the test goes. 30days? 60days? 6months? a year? A refusal is a right and should not be held against you for using it. I feel like I have at least some good points to appeal a decision if I lose. It sounds like at some point I will need to take the test. I would just postpone the hearing for a couple of weeks trying to seek counsel if I new how far back the hair folicle testing went. Anyone Know?

  7. #7

    Default Re: Can a Judge Order Hair Folicle Testing

    Self medicating with a controlled substance without a prescription or proper documentation is called "illegal drug use". Yes, you absolutely have the right to refuse testing. That refusal comes with consequences. In your case, the consequence could be that the judge denies access to the children. Most folicle tests cover 90 days or so, but you can expect that the court KNOWS this, and would require not just ONE, but SEVERAL passed exams, several months apart, before being satisfied that the illegal use has ceased. So the realitiy of the situation is that you either (a) get your use authorized by a physician, or, (b) stop using, and don't start back up such that you're able to pass multiple, spaced, testings, or (c) get used to supervised visitation.
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  8. #8
    Join Date
    Aug 2007
    Posts
    3,837

    Default Re: Can a Judge Order Hair Folicle Testing

    49er, the Court can order the test, but, and don't take this is gospel, if you refuse you can't be held in Contempt, just what was said, you can be denied joint custody as a possible unfit parent.

    Such hair DNA extraction is a search under the 4th AM. Without a warrant, it is probably true, at least for civil purposes such as qualifying whether a parent is fit or unfit, once can refuse.

    If you need legal clarification on the consequences of non compliance, ask the Court.

  9. #9
    Join Date
    Apr 2009
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    Somewhere near Canada
    Posts
    27,348

    Default Re: Can a Judge Order Hair Folicle Testing

    Honestly OP - your ex has an attorney, you DO use pot, and you've been ordered to test....if you refuse, you better do so ONLY after you've spoken with your own attorney.

    Because again, even though smoking alone generally won't prove you unfit, a lot can be "assumed" by a refusal. These are your kids. Aren't they worth it?

    And asking for a continuance likely won't work. It will likely be seen for what it is - an attempt to "clean up" before the test.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  10. #10
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,653

    Default Re: Can a Judge Order Hair Folicle Testing

    This case suggests both that a court can order hair follicle testing, and both sanction a party who refuses and consider the refusal as a negative factor when making a custody decision, and that the appellate court will not have a problem with that approach.

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