The Dangers of the False Positive: Why State Legislatures Should Regulate the Use of EtG Testing in Probation

Ethyl glucuronide (“EtG”) is a metabolite of ethanol, the type of alcohol found in alcoholic beverages. An EtG test is a urine test that is used to detect recent consumption of alcoholic beverages once the ethanol itself is no longer present in the body. EtG remains in the body for approximately eighty hours after consumption so there is a longer window available for testing. Although EtG testing has not yet been approved by the Food & Drug Administration, these tests are widely used in several settings that prohibit the use of alcohol, including employment, alcohol treatment programs, and the criminal justice system.

Failing an EtG test can have huge consequences in civil contexts, such as disciplinary action at work, termination of employment, or an extension of the period that one is required to remain in a treatment program. However, when abstention from alcohol is a mandatory condition of probation, an EtG test failure can mean additional probation or even jail time. One would expect that, with such far-reaching consequences, EtG testing would have been scientifically proven to be incredibly accurate at determining whether or not a person has consumed alcoholic beverages. In fact, the opposite is true because the tests are far too sensitive.

Ethanol is extremely common in our everyday lives and it can be found in over four hundred household products including cleaners, beauty products, foods, and medications. There is evidence that incidental EtG exposure can occur even in the absence of contact with the individual’s skin. Simply inhaling the vapors created by antibacterial hand sanitizers can be enough to elevate EtG levels and, in fact, this increase can be very high. Research has proven that such incidental exposure to alcohol can result in a false positive on an EtG test. For this reason, the Substance Abuse and Mental Health Services Administration (“SAMHSA”) has issued an advisory against using EtG tests in probative settings.

A judge can require a defendant to abstain from alcohol as a condition of probation, and this is usually done in cases in which the crime is alcohol- or drug-related, such as driving under the influence or drug dealing. Additionally, if a defendant is sentenced to probation for any crime and violates this probation due to substance use, a judge may order him to abstain from alcohol, or may sentence him to a drug treatment program that includes a prohibition on alcohol consumption. Defendants required to meet this condition are tested by their probation officers to ensure compliance, and often EtG testing is the specific type of test that is used.

I was able to speak with an individual about what it was like to suffer a false positive in the context of his probation. Phillip* had been sentenced to probation for larceny and he subsequently violated his probation by failing a drug test. Instead of sending Phillip to jail, the judge sentenced him to a drug treatment program. One of the conditions of the program was that Phillip submit to random drug and alcohol testing. Failing a test was not an option or Phillip would be facing expulsion from the program, extension of his probation, and even potential jail time. Phillip completed six months of the program without a hitch by completely abstaining from alcohol.

For this reason, Phillip was shocked when he was informed by his probation officer that he had failed an alcohol test.

Upon researching EtG testing on Google, Phillip discovered the SAMHSA’s advisory against its use in probative settings and he realized that he had been the victim of a false positive.

Even though he was completely compliant with all of the conditions of his probation, he was penalized. He feels violated by the criminal justice system because he believes that the government is not doing enough to ensure that testing is scientifically valid. “I did everything right. I did what I was supposed to do. And I still got in trouble. It’s not fair and it’s not right.”

SAMHSA began research on EtG testing due to multiple reports of stories just like Phillip’s and discovered that the testing is actually too accurate, resulting in the possibility of false positives. Despite this finding, which was published in 2006 and updated in 2012, EtG testing has continued to be used in probative settings, potentially to the detriment of many who have followed their probation to the letter and then find themselves facing further punishment for something that they did not do. The manufacturers of EtG testing do recommend that purchasers of their products warn the individuals being tested to avoid products containing ethanol. However, Phillip denies having ever been given any such information.

State legislatures should take action regarding alcohol testing in probation to ensure that the tests that are being used are specific enough to alcoholic beverages that the possibility of false positives as a result of incidental environmental exposure is very minimal. One of the justifications for requiring abstention from alcohol in the criminal context is the hope of higher probation success rates by removing a factor that has the potential to lead to criminal behavior. False positives undermine this purpose and it is up to the government to take preventative measures to ensure that this does not happen so that people like Phillip are given a fair chance to make amends for previous behavior and then move on with their lives.

*Name has been changed.