A number of physical and psychological conditions may prevent a person from producing a urine sample within the two-hour period required by DOC.
For example, some individuals may be taking medications that make urination difficult or may have a physical problem that interferes with urination, such as a urinary tract infection or a kidney condition. Another common problem is often referred to as Shy Bladder Syndrome or Paruresis. It is a psychological condition in which individuals have trouble urinating in front of other people. The medical and psychiatric community has recognized it as a legitimate psychological condition for many years. It is diagnosed as a form of social phobia. In situations in which a person has to urinate in the presence of others (such as public bathrooms or while someone is monitoring), people with this condition are physically unable to relax the muscles necessary to urinate, regardless of urgency. Individuals with Shy Bladder Syndrome are unable to produce urine samples for drug tests under the Department of Correction’s standard procedure, in which a Corrections Officer watches the person urinating to ensure that there is no tampering with the sample.
Up until the past few years, the DOC always considered an inability to produce a urine sample for a drug test to be the same thing as refusing to give a sample. Refusing to give a sample can carry the same penalties and punishments as if you tested positive for drugs. However, the DOC changed its drug testing policy after an incarcerated individual successfully sued the Department about this issue in Dwyer v. Dubois, Superior Court Civil Action No. 95-05162-G. The policy has been amended several times since then to provide further protection against unfair accusations that the individual is refusing to give a urine sample.
The current DOC policy on drug testing is 103 DOC 525 (December 2001), “Inmate Substance Abuse Testing, Sanctioning, and Treatment Interventions.” It officially acknowledges that some people are unable to produce urine samples within a two-hour period. We have attached a copy of the policy.
If you are in a county jail or house of correction, this policy does not apply to you. You would need to use this DOC policy and the Dwyer case to argue that you have the same rights in this area as someone held in state custody.
What to do when you are called to give a urine sample:
1. You must be given two hours to try to produce a sample.
You may be given 8 oz. of liquid (water, coffee, or soda) every thirty minutes to help produce a sample. The DOC policy (103 DOC 525.06) states, “Prisoners who do not provide a specimen within two (2) hours of being ordered to do so shall be considered to be refusing to provide a specimen, with the exception of those prisoners presenting medical and/or mental/psychological problems as outlined in 525.03.”
If the collection officer considers you to be refusing to give a sample (as opposed to being unable to), they must record the specific reason you give for why you were unable to urinate in your disciplinary report. 103 DOC 525.06. If you receive a disciplinary report for failing to produce a urine sample and the report does not state your explanation for why you could not urinate, the charge should be dismissed.
2. If you have Shy Bladder Syndrome:
Tell this to the collection officer. Under current DOC policy, it is no longer necessary for your condition to be diagnosed by mental health staff. If you say you have Shy Bladder Syndrome, your word must be accepted. The collection officer is supposed to place you in a “dry cell” and then contact the Superintendent to decide what alternative test will be used (such as keeping you in the dry cell until you can urinate, oral fluids testing, or hair testing). See 103 DOC 525.03(I)(A) and 525.03(I)(D). At one time, DOC used the Pharmchek Patch as an alternative test, but they no longer use the “patch,” so do not ask for it. There is no longer a need to have you evaluated later by mental health staff to determine whether or not you have a legitimate case of Shy Bladder Syndrome. Since mental health professionals cannot distinguish between people who actually have Shy Bladder Syndrome and those who are falsely claiming they do, the DOC policy now calls for an alternate test whenever the person claims Shy Bladder Syndrome.
3. If you have a physical condition:
If you have a physical condition that you believe is interfering with urination or are taking medications that make it difficult to urinate, tell the collection officer. You should NOT be required to give a urine sample in the normal way. Instead, the officer should place you in a dry cell and contact the Superintendent to determine what kind of alternative drug test should be performed (such as dry cell, oral fluids, or hair testing). See 103 DOC 525.03(I)(B) and 103 DOC 525.03(I)(C). If your condition is a physiological problem, as opposed to a psychological problem, the DOC may consult with appropriate medical personnel to assess whether you really do have a condition that prevents you from providing a urine sample in a timely fashion. But this is only supposed to happen AFTER an alternative test has been administered. However, you should know that if the DOC’s medical personnel later determine that you do not have a physical condition that prevents you from providing a timely urine sample, you will be charged for the extra cost incurred by DOC in giving you the alternative test.
If the collection officer refuses to put you in a dry cell and insists that you try to produce a urine sample, request that the officer make a note in the records of the test that you told him you have a condition that interferes with urination. Also, ask that he make a note that you are not refusing to give a sample but that you are physically unable to give a sample.
4. If you are deemed to have refused to give a sample and are given a disciplinary report:
You may be given the same sanctions as if you had tested positive for drugs.
You can plead not guilty at the disciplinary hearing and tell the hearing officer that you have Shy Bladder Syndrome or some other condition making urination difficult. If you told this to the collecting officer and did not receive an alternate testing procedure, tell this to the hearing officer. You should write out all places in which the DOC policy was not followed in your case and submit that at your hearing.
If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):
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or write us a letter to:
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Boston, MA 02110
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PRISONERS’ LEGAL SERVICES
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