Why drug testing is unconstitutional

Security guard Jonathan Sanchez shot lawyer Gerik Paderanga, 37, in a narrow Cebu City street at about 8 p.m. last Dec. 23. Sanchez then shot his father, lawyer Goering, 62, when he ran out of their law firm.

Sanchez felt the lawyers’ car blocked cement mixers entering the construction site he guarded. Sanchez “used illegal drugs” and “did not show any remorse,” reported the Cebu Daily News.

Would stricter drug test policies have prevented this?

Our Supreme Court’s 2008 Social Justice Society (SJS) decision upheld broad testing for high school and college students and government and private employees.

The government recently reiterated the need for random tests in all private companies and schools. The Land Transportation Office proposed that drivers be tested several times a year.

A notice from Barangay Laging Handa, Quezon City, stated businesses would not have clearances renewed and would be added to police “Operation Tokhang” lists if their employees did not take drug tests.

I would never take illegal drugs. I agree that drugs are a crucial national problem. However, I would never voluntarily take a drug test.

I felt both violated and moronic when the LTO forced me to. I once went to the bathroom before entering the LTO office. The clerk encouraged me to drink two bottles of water so that I would be urinating in no time.

Associate Dean Myrna Feliciano required all UP law freshmen to write memos on LTO-required drug testing in 2001.

Contradicting my batch, I argued that if the right against unreasonable search prohibits government from searching one’s pockets without a warrant, it equally protects searches on one’s blood and urine.

First, drug testing must be justified by a compelling state interest and narrowly drawn to restrict the rights of as small a group as possible.

The US Supreme Court recognized “special needs.” Its 1989 Skinner and Von Raab decisions upheld drug tests on federal employees handling trains, involved in drug enforcement or carrying guns.

But it is blatantly unconstitutional to test everyone who wants to drive. The exception swallows whole the rule that a warrant is generally required to search one’s body fluids.

The US 2002 Earls decision did broadly allow drug testing for schoolchildren only, because of the need to supervise them. But even Earls reiterated: “Urination is ‘an excretory function traditionally shielded by great privacy.’”

Second, costly but clearly ineffective drug policies must be unconstitutional. The US 1997 Chandler decision struck down a policy requiring candidates to take a drug test on a date and by a doctor they chose. Only a complete idiot would be caught by this.

Same with requiring a drug test every three years on a date chosen by a driver’s license applicant.

SJS destroys the right against unreasonable search by not requiring particular, concrete reasons to require drug testing for a particular group. Instead, it all but declared wholesale that the drug problem justifies testing every Filipino.

Returning to the Cebu tragedy, the question is not whether security guards should be tested for drugs, which is already required, but whether everyone else in the city should be tested. Are we really about to require people to spend an unconscionable amount of time and money on multiple, intrusive drug tests each year just to retain a driver’s license?

Instead of scolding me for unprecedented impertinence, Professor Feliciano suggested I submit my paper to the Philippine Law Journal (PLJ). Deans Pacifico Agabin and Raul Pangalangan humored me as I cut their classes to rewrite the paper.

But shortly before it was published, I learned that the new Dangerous Drugs Act of 2002 would legalize broad drug test policies. PLJ Volume 76, page 685 still contains my freshman note to self: “This author thus expects the ideas in this paper to comfortably gather dust somewhere in the UP Law Library.”

Thank you for humoring, for another year, the thought that writing about legal principles is the epitome of pointless labor.

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