You asked for a brief summary and copies of leading federal cases addressing the constitutionality of requiring mass transit operators to submit to alcohol and drug testing.

SUMMARY

There appear to be two major federal cases regarding the constitutionality of mandatory drug and alcohol testing of mass transportation employees: Amalgamated Transit Union v. Sunline Transit Agency and Skinner v. Railway Labor Executives’ Association. Both cases found that such testing is a search within the meaning of the Fourth Amendment and must, therefore, be reasonable.

In Amalgamated, the court held that a public mass transportation employer may constitutionally require mandatory alcohol and drug testing of employees without a warrant or probable cause. However, the court also held that to be reasonable, the search could not grant officials too much discretion over the process. As a result, the court found that the testing program at issue was unconstitutional to the extent that it was random and not based on a reasonable suspicion that a particular employee was under the influence of drugs or alcohol.

In Skinner, the Supreme Court went further to find that individualized suspicion is not always required. When balancing minimal privacy intrusions against compelling government interests, a search (i. e. ,

alcohol and drug testing) can be reasonable even without such suspicion. The court found the privacy intrusion to be minimal due to the employment context of the testing, since an employee consents to significant restrictions in his freedom of movement in accepting employment. The court determined that the testing program at issue was reasonable even though a warrant, probable cause, and individualized suspicion were not required.

Amalgamated and Skinner are summarized in more detail below and copies are enclosed. Also discussed below and enclosed is a Georgia state case, Cooper v. State. The court declared the state’s implied consent statute unconstitutional for lack of a probable cause requirement before testing a driver who is involved in an accident resulting in serious injury or fatality. The court distinguished the state statute from Skinner, finding that the testing there was to prevent railroad accidents, not to aid in the criminal prosecution of those tested. The purpose of the testing required under the Georgia implied consent statute, however, is to gather evidence for a criminal prosecution. As such, the court ruled probable cause cannot be waived.

FEDERAL CASES

Amalgamated Transit Union v. Sunline Transit Agency, 663 F. Supp. 1560 (1987)

Amalgamated Transit Union (ATU) sought to prevent Sunline Transit Agency (STA) from instituting a random, mandatory alcohol and drug-testing program. STA is a public corporation that provides mass transit in Palm Springs, California. ATU is the union that represents STA’s employees.

The court held that STA’s program violates the Fourth Amendment’s prohibition against unreasonable searches and seizures to the extent that it is random, and not based on a reasonable suspicion that the employee is under the influence of drugs or alcohol. As a result, the preliminary injunction was granted.

The court relied on Supreme Court holdings to find that (1) the Fourth Amendment applies to the conduct of state government actors through the due process clause of the Fourteenth Amendment; (2) a municipally operated bus company is a state actor for Fourth Amendment purposes; (3) a “search” occurs when a reasonable privacy expectation is infringed; (4) a “seizure” of property happens when there is a meaningful interference with a person’s possessory interest in the property; and (5) urinalysis, though painless and less intrusive, is roughly equivalent to blood testing, which is expressly held to be a search and a seizure. Based on these holdings, the court found that STA’s program is a search and a seizure that triggers the Fourth Amendment.

The Fourth Amendment requires searches and seizures to be reasonable. Probable cause and a warrant are usually needed for a finding of reasonableness. However, in certain situations, neither is needed. The Supreme Court has held that when a governmental purpose will be frustrated, a warrant is not needed and a standard of reasonableness less than probable cause will suffice.

Based on this authority, the court held that a public employer may constitutionally require mandatory alcohol and drug testing of employees in jobs directly related to mass public transportation without a search warrant or a showing of probable cause. The court noted that this is an exceptional circumstance.

Despite this holding, the court also found that the decision to conduct a search and seizure must not be at the discretion of officials. Therefore, the court held that random searches with no reasonable suspicion goes too far and violates the Fourth Amendment.

Skinner v. Railway Labor Executives’ Association, 489 U. S. 602, 109 S. Ct. 1402 (1989)

Railway labor organizations sought to prevent Federal Railroad Administration (FRA) regulations regarding drug and alcohol testing of railroad employees from taking effect. The Supreme Court determined that while the regulations on testing triggered the Fourth Amendment, the government’s compelling interest outweighed the employees’ privacy concerns. Therefore, the Court concluded that testing was reasonable even though no warrant and no suspicion that drugs or alcohol impaired an employee were necessary to prompt a test.

Finding that alcohol and drug abuse by railroad employees poses a serious safety to threat to the public and to employees, FRA promulgated regulations regarding testing. Subpart C of the regulations mandate blood and urine tests of employees who are involved in a (1) major train accident, defined as one that involves (a) a fatality, (b) the release of hazardous material accompanied by an evacuation or a reportable injury, or (c) over $ 500,000 of damage to railroad property; (2) collision that results in a reportable injury or over $ 50,000 of damage to railroad property; and (3) train accident that involves a fatality to any on-duty railroad employee. The regulations include a limited exception from

mandatory testing if a railroad representative can immediately determine that the employee had no role in the cause of the accident. However, no exception is allowed in the case of a major train accident.

Subpart D of the regulations permit testing after (1) a reportable accident where a supervisor has a reasonable suspicion that an employee contributed to the accident or (2) certain rule violations, including noncompliance with a signal and excessive speeding.

Relying on their previous decisions, the Court found that the Fourth Amendment is applicable to drug and alcohol testing. Further, “special needs” (i. e. , the government’s interest in ensuring the safety of the traveling public and of the employees) make the warrant and probable cause requirements impracticable. The Court noted that while it has typically required some individualized suspicion before concluding that such a search is reasonable, a showing of individualized suspicion is not a constitutional floor. In limited circumstances, where privacy interests are minimal and the governmental interest compelling, a search may be reasonable without the individualized suspicion. Further, precedent has found that not all government interference with a person’s freedom of movement raises constitutional concerns. And, an employee consents to significant restrictions in his freedom of movement in an employment setting.

Therefore, the Court held that intrusions under the drug and alcohol testing regulations are minimal given the employment context in which it takes place. Further, the government’s interest in public safety is compelling as railroad employees can cause “great human loss before any signs of impairment become noticeable to supervisors or others. ” As a result, the Court held that the testing required and permitted in the regulations does not violate the Fourth Amendment.

GEORGIA

Cooper v. State, 277 Ga. 282 (2003)

Appealing his conviction for driving under the influence of cocaine, Cooper challenged the constitutionality of Georgia’s implied consent statute that requires chemical testing of a motor vehicle operator involved in a traffic accident resulting in serious injuries or fatalities. The Court held the statutory provision to be an unconstitutional violation of the Fourth Amendment because it authorizes a search and seizure without probable cause. The court stated that federal constitutional standards are the minimum protections that must be given to the citizens of Georgia.

The court discussed Skinner and determined that under the “special needs” exception to the Fourth Amendment requirements of warrant and probable cause, the alcohol and drug tests at issue there were reasonable because their purpose was to prevent railroad accidents, not to aid in the criminal prosecution of those tested. The purpose of the testing required under the Georgia implied consent statute, however, is to gather evidence for a criminal prosecution. The court held that this does not meet the Skinner “special needs” standard to justify waiver of the Fourth Amendment probable cause requirement. The flaw in the statute is compelling testing of a person merely because of his involvement in a traffic accident resulting in serious injury or fatality. There is no requirement of individualized suspicion or probable cause to render the driver impaired. Therefore, the court held that the statute violates the Fourth Amendment.

JB: nf