Professional Athletes, Drug Tests and "Technicalities"



With the recent Ryan Braun vs. MLB decision sparking such debate, I couldn't help but see the parallels between Braun's precarious position and that of an ordinary citizen charged with an OVI. It seems as though Braun was found guilty in the court of public opinion long before any significant details surfaced in his case. Many people were quick to call Braun a cheater. People heard "high testosterone levels" in his urine, and assumed he was guilty. After all, no player had ever successfully appealed a positive drug test. Similarly, most people upon hearing that someone had a high level of alcohol in their system simply assume the person must be guilty. But that is not always the case.

It bugs me to hear people say that Braun was simply lucky and that he's still a dirty player who got off on a "technicality". And I've heard more a few national radio hosts exclaim that while Braun may not have been proven guilty, that certainly doesn't mean he is innocent either. Really? C'mon.

I take exception to the whole concept of a "technicality" in a court or administrative hearing-type setting. It is a well-established principle in this country that someone accused of wrongdoing should be presumed innocent until proven guilty. However, it seems that all-too-often, that scenario is flipped. More and more, when someone who is presumed to be guilty of a crime is not convicted, people want to blame it on a technicality. But let me ask this: since when did the Constitution become a "technicality"? If evidence is excluded from trial because it resulted from an unlawful seizure, that's not a technicality. If statements are not allowed to be admitted at trial because they violate an accused's right to confrontation, that is not a technicality. And if, as in the Braun case, the agency alleging the violation has failed to comply with the applicable testing regulations, that is not a technicality.

Unfortunately, the fact of the matter is Braun was presumed guilty until proven innocent, and so are most people accused of OVI. And even if the person, who like Braun, is subsequently acquitted, we still have to hear all of the "yeah, buts…" The fact of the matter is that Major League baseball was unable to show compliance with applicable testing regulations. Period. It is not Ryan Braun's job to explain why baseball dropped the ball. It is not Braun's responsibility to explain the alleged elevated testosterone levels. It's not Braun's job to prove the sample was tampered with. The problem is that MLB cannot prove the sample wasn't tampered with. They cannot prove the integrity or reliability of the sample because the testing regulations were not followed. In short, Major League Baseball cannot prove that Braun's sample is what they say it is. And that is MLB's problem, not Braun's.

And these same concepts often apply in an OVI prosecution. If a person is accused of having a prohibited amount of alcohol in their blood, breath or urine, that doesn't mean they are automatically guilty. The state must still prove it, and must comply with certain testing regulations. These rules and regulations are not so-called "technicalities". They are safeguards to protect citizens' rights. And these safeguards are in place to ensure accuracy and reliability. If the State cannot demonstrate compliance and reliability, that's tough luck for the State. They lose. The accused has no duty, obligation or burden to prove anything.

Just as in the Braun case, if a prosecutor in a criminal case intends to use a urine sample against an accused at trial, that prosecutor must first show that the sample possesses certain indicia of reliability. By way of example, in Ohio the state must show compliance with the Ohio Administrative Code regulations governing alcohol and drug testing before a urine sample can be admissible against an accused (read on for information on drug testing in high schools). First, the urine specimen must be witnessed to ensure the sample can be authenticated. Furthermore, the urine shall be deposited into a clean glass or plastic screw top container which shall be capped or collected according to laboratory protocol. The container must be sealed in a manner such that tampering can be detected and have a label that contains at least the following information: name of suspect, date and time of collection, name or initials of the person collecting the sample, and name or initials of the person sealing the sample. Additionally, while not in transit or under examination, all urine specimens shall be refrigerated. And unless the state can show compliance with these regulations, among others, the urine sample would be inadmissible in a trial of the accused.

So the next time you hear that someone got off on a "technicality," give it some thought. And ask what the technicality really was. Chances are the technicality was actually a Constitutional or statutory provision implemented to safeguard our rights. And remember, the Constitution is not a technicality. Our laws are not a technicality. And if the State cannot provide sufficient evidence of guilt, that is not a technicality.