Mandatory drug tests vs. privacy, self-incrimination (Laserna doctrine, 2008) - "When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves."

SOCIAL JUSTICE SOCIETY (SJS) vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), G.R. No. 157870, November 3, 2008; ATTY. MANUEL J. LASERNA, JR. vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, G.R. No. 158633, November 3, 2008; AQUILINO Q. PIMENTEL, JR. Vs. COMMISSION ON ELECTIONS, G.R. No. 161658, November 3, 2008.

“x x x

Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

X x x.”

Note:

Sec. 36, RA 9165 

“SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:

x x x x

(c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the schools student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

x x x x

(f) All persons charged before the prosecutors office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.”