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AG says random drug tests in GovGuam forbidden, with some exemptions

HAGÅTÑA (The Guam Daily Post) — Attorney General Elizabeth Barrett-Anderson, in an opinion issued Tuesday, said random drug testing of Government of Guam employees is a violation of the Fourth Amendment to the United States Constitution.

This is in response to a request made by Sen. Telena Nelson, chairperson for Committee on Public Safety, who sought the legal advice of the AG before introducing legislation that would authorize the government to execute random drug testing.

Barrett-Anderson wrote that drug testing of an employee must be based on reasonable suspicion of wrongdoing, and any violation of that would offend constitutional protections.

“In recent months, Guam has revived its effort to rid our island of the drug epidemic on our streets, in our homes, in our prisons, and just about everywhere we turn. We should not throw out constitutional protections in an effort to accomplish our worthy mission,” said the AG.

Officers with the Guam Police Department inspect a vehicle after a raid by the Mandaña Drug Task Force at the Department Of Public Works compound in June.  Photo by John O’Connor/The Guam Daily Post

“While drug testing can be a deterrence for drug use, suspicionless drug testing is a violation of the Fourth Amendment,” said Barrett-Anderson.

“Drug testing offends the reasonable expectation of privacy an individual holds, and is considered an act of ‘search’ under the Fourth Amendment. Individuals are protected from unreasonable searches and seizures, to include unreasonable searches conducted by the government as an employer,” she continued.

In certain circumstances, however, employees may be drug tested at any time. Government employees who hold “test designated positions- such as police, police guards, drug counselors, and aviation workers- are not protected under the Fourth Amendment.

This is based on a decision by the Supreme Court of California who found that positions involving the interdictions of drugs, the carrying of firearms, and the handling of highly sensitive information were such important government interests it justified suspicionless drug testing in the workplace.