OLATHE, Kan. — Six times a day, Kenneth Green blows into an alcohol monitor that he keeps with him at all times. There’s another monitor in his car that he has to blow into every time he starts it.
“And while you are driving, it will ask you to blow again,” Green said.
In total, 8-10 times a day Green is monitored to make sure he isn’t drinking alcohol. It’s a pretrial requirement Green was given after he was arrested for driving drunk. He’s never flunked a single alcohol test.
So why then did he end up back in jail last November?
“They told me I had a positive test showing alcohol in my system,” Green said. “There’s no way.”
The positive test wasn’t from one of the monitors that he had blown into repeatedly that day, but on a single urine sample that’s part of a controversial test some say is throwing innocent people behind bars.
“There are no scientific studies that show that a single ETG test is proof that a person has consumed alcohol,” said Johnson County attorney Jay Norton.
Norton, who isn’t representing Green, said he was just one person in a long line of people who have been falsely imprisoned because of a urine test that he believes isn’t reliable but is used every day in Johnson County as judge and jury.
Why is the test problematic?
The test, administered by Averhealth, doesn’t measure alcohol in your system. It measures something called ETG, a byproduct of alcohol. It’s the enzyme your liver creates when it metabolizes alcohol.
The problem is that other substances can create that same enzyme, said James O’Donnell, an associate professor of pharmacology at Rush University Medical Center in Illinois.
“You can get ETG from a cleaning product, from a mouth wash, from a hand wash sanitizer, or from any product that contains alcohol … or substances similar to alcohol,” O’Donnell said.
Those substances can include industrial cleaning solutions, which Green uses as a maintenance worker at a Kansas factory where he often puts in a 12-hour day.
O’Donnell is one of two pharmacology experts who said Green should never have been arrested based solely on the urine test. Both said the test is still in the experimental stages.
“I think it’s a violation of due process,” O’Donnell said. “It’s draconian.”
In Green’s case the amount of alcohol byproduct detected was about 1,000 nanograms per milliliter.
O’Donnell said the level should be at least 10 times that to establish a likelihood that someone’s been drinking.
Averhealth said the test is reliable. In a written statement, it said the results of any positive test are double checked by using a second test on the same vial of urine. That test — a high performance liquid chromotography/mass spectrometry — is far more exacting and sensitive and can rule out many false positives, according to Averhealth.
But experts FOX4 talked to said even that more exacting test can’t distinguish whether the byproduct detected is from someone who had a drink or someone who absorbed alcohol in their skin by cleaning the floors.
“This is news to me”
In Green’s case, it’s a distinction that he believes cost him time in jail and $6,000 to bond out.
So why would Johnson County take away someone’s freedom based on solely on a test that even experts aren’t sure is valid?
“I’ve got to be honest with you, this is news to me. There is so much doubt being passed on this test,” said Robert Sullivan, director of the Johnson County Department of Corrections.
Sullivan said his Johnson County division likes the test because it’s inexpensive for the people being tested (defendants have to pay for the test themselves).
However, Sullivan said the findings in FOX4’s investigation should give everyone in the county second thoughts about how the test is used.
“I think what impressed me about this particular case that you are working on is that they were on a remote breath unit as well as an interlock in their vehicle while testing positive for this,” Sullivan said.
He acknowledged that it made no sense that Green would have tested negative on everything except the urine test.
“I can tell you our intent is not to incarcerate people unfairly,” Sullivan said. “That’s the last thing we want. It is not cost effective. It does not maximize public safety.”
Sullivan then ordered his own study of the urine test, consulting a different expert on its accuracy. That expert was also concerned that people were being locked up because of it.
He’s now recommending to the entire county that no one lose freedom based solely on its results.
That decision came too late for Green. With the help of an attorney, he didn’t have to go back to jail. But he’s still being monitored while on probation for that initial DUI arrest.
It’s been more than year now since he’s had a drink, but he still worries that a single bad urine test could put him back behind bars.