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Defense attorney: Fees make a ‘debtors prison’

Legislature requires drug testing that indigent defendants cannot afford

State law requiring drug testing for defendants charged with drug possession can pose a Catch 22 for defendants like a man who was before Judge Gary Lee on Friday.

The man is facing Class C felony charges for possession of methamphetamine and possession of drug paraphernalia in district court.

The man’s bond conditions require that he undergo twice weekly drug testing, which he allegedly has not been doing because he cannot afford the $35 the company charges each time he comes in to test.

The man told Judge Lee that he actually has been going to testing every time he is called in for a random test, but the company – in his case, Northern Testing – turns him away every time he cannot pay and reports to the court that he has failed to test.

There is no evidence that the man is actually using drugs now, just that he has been unable to pay nearly $300 per month for the drug testing required by the state legislature under these circumstances.

“That’s a car payment for a nice car,” protested the man’s defense attorney, Ashley Gulke, who said the requirement amounts to a “debtors prison” “… That’s a private school payment.”

Gulke said if a client is so poor he qualifies for a state-appointed attorney, he should also qualify for free drug testing under state law.

Gulke said an employer is likely to fire any employee who misses work so frequently for drug testing or to be taken to jail. The man said he has lost his job.

When Ward County Assistant State’s Attorney Christopher Nelson said the man will have to get a job that pays more money so he can afford to pay for the cost of drug testing, Lee pointed out the defendant is probably not qualified to do anything except to work for minimum wage at a job such as convenience store clerk.

The prosecutor asked for jail time for the man as a consequence for failing to attend drug testing.

The state supreme court has said the drug testing requirement is constitutional, the lawyers said.

Gulke said that by the time an appeal has been filed and heard by the supreme court, a client in these circumstances would be inclined to just plead guilty to get the case over with.

“I can’t not do what the Legislature said I had to do,” said Lee, after commenting at length on the flaws with a law that puts poor defendants in such difficult circumstances.

Lee sentenced the man to two days time served, a fine, and ordered that he be placed on the drug patch, which is a little bit cheaper.

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