1998 -NMCA- 62, Jaramillo v. City of Albuquerque

Decision Date06 April 1998
Docket NumberNo. 18051,18051
Citation125 N.M. 194,958 P.2d 1244,1998 NMCA 62
CourtCourt of Appeals of New Mexico
Parties, 1998 -NMCA- 62 Ernest JARAMILLO, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE and Arthur Blumenfeld, Ph.D., Chief Administrative Officer, Defendants-Appellees.
OPINION

HARTZ, Chief Judge.

¶1 Plaintiff, Ernest Jaramillo, was fired from his position as a mechanic for the City of Albuquerque (City) when a drug test on May 22, 1991 revealed metabolites of marijuana in his urine. On November 24, 1993 he filed suit for declaratory and compensatory relief against the City and its Chief Administrative Officer, Arthur Blumenfeld, in his official capacity. After a bench trial on June 25, 1996, the district court entered judgment for Defendants on November 8, 1996. Jaramillo contends on appeal that the drug test violated his rights under the United States Constitution and that it was also unlawful because it was pursuant to a City policy adopted in violation of the state Open Meetings Act. Agreeing with his constitutional claim, we reverse and remand for further proceedings in district court. We need not address his claim under the Open Meetings Act.

BACKGROUND

¶2 City regulations in effect in 1991 provided for drug testing in a variety of circumstances. Under City Administrative Instructions Nos. 121 (revised) and 123 (revised), all offers of employment were conditioned on the applicant's passing a drug test, and all City employees were subject to drug testing on reasonable suspicion. City employees could also voluntarily refer themselves to an employee assistance program for help with drug abuse. One class of employees singled out for special treatment consisted of those issued a City Vehicle/Equipment Operator's Permit. Such a permit would be issued only after the employee passed a drug test. Among the employees required to have City permits were those required to have a state commercial driver's license (CDL) because of the type of vehicle they operated. Drivers of heavy vehicles--those with a gross vehicle weight exceeding 26,000 pounds--must have a CDL. See NMSA, § 66-1-4.3(K) (1990); NMSA 1978, § 66-5-59(A) (1989).

¶3 When his drug test was administered, Jaramillo was a mechanic assigned to the Fleet Management Division of the City's General Services Department. According to the City, Jaramillo was informed on October 31, 1990 that his job required him to obtain a CDL. Jaramillo obtained a CDL on April 19, 1991. He missed his first scheduled drug test because he was on sick leave. On May 2, 1991 he was notified that his test would be on May 22. As stated above, he failed that test and was fired.

¶4 At the lime of his firing Jaramillo worked only on vehicles with a gross vehicle weight less than 26,000 pounds. Prior to July 1990, however, he had worked at the City's Pino Yard. The Pino Yard handled maintenance on heavy vehicles. Vehicle maintenance involves test driving the vehicles being worked on.

DISCUSSION

¶5 It is settled law that requiring a person to provide a urine sample for drug testing constitutes a search under the Fourth Amendment to the United States Constitution. See Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Fourteenth Amendment applies the requirements of the Fourth Amendment to state and local governments. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Although the Constitution ordinarily requires a warrant and probable cause to justify a search, warrantless drug testing of public employees without probable cause can be justified by "special needs beyond normal law enforcement." Skinner, 489 U.S. at 620, 109 S.Ct. 1402 (internal quotation marks omitted).

¶6 For example, in Skinner the Supreme Court upheld suspicionless drug testing of railroad workers who had been involved in certain kinds of train accidents or who had violated certain safety rules. Id. at 606, 634, 109 S.Ct. 1402. Weighing the privacy interests of railroad employees against the government interest in safety, it noted that the intrusion on privacy was a limited one, id. at 627-28, 109 S.Ct. 1402, the employees' expectations of privacy were "diminished by reason of their participation in an industry that is regulated pervasively to ensure safety," id. at 627, 109 S.Ct. 1402, and the government interest was compelling because "[e]mployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences," id. at 628, 109 S.Ct. 1402.

¶7 Similarly, the Supreme Court has permitted "suspicionless testing of [Customs Service] employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm." National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Such testing is justified by the "compelling interests in safeguarding our borders and the public safety." Id. at 677, 109 S.Ct. 1384.

¶8 More recently, however, the Supreme Court has emphasized the limits to the power to conduct suspicionless drug testing. A Georgia statute requiring candidates for elective office to pass a drug test was struck down because such testing did not "fit within the closely guarded category of constitutionally permissible suspicionless searches." Chandler v. Miller, 520 U.S. 305, ----, 117 S.Ct. 1295, 1298, 137 L.Ed.2d 513 (1997). The Court said that the statute served only a symbolic purpose, id. 117 S.Ct. at 1304-05, and was "not needed and [could not] work to ferret out lawbreakers," id. at 1304.

¶9 To justify the drug testing in this case, the City points to the dangers of driving heavy vehicles. Mechanics who work on such vehicles occasionally drive the vehicles in the course of their repair work. At trial the City presented evidence indicating that a 26,000-pound vehicle is more dangerous than a passenger car.

¶10 Because of concern about these dangers, the federal Department of Transportation has issued regulations requiring interstate carriers to subject drivers of vehicles weighing more than 26,000 pounds to drug testing in a variety of circumstances: preemployment, 49 C.F.R. § 382.301 (1997); post-accident, id. at § 382.303; random selection, id. at § 382.305; reasonable suspicion, id. at § 382.307; return-to-duty, id. at § 382.309; and as a follow-up to a positive test, id. at § 382.311. These regulations have been upheld in court. See International Brotherhood of Teamsters v. Department of Transp., 932 F.2d 1292, 1306 (9th Cir.1991) (biennial, preemployment, post-accident, and random drug testing of drivers for interstate motor carriers). A similar local law has also been affirmed. See Keaveney v. Town of Brookline, 937 F.Supp. 975, 983-87 (D.Mass.1996) (random testing of city employees who drive vehicles weighing more than 26,000 pounds).

¶11 Courts have also upheld suspicionless drug testing of drivers of other types of vehicles. See National Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990) (random drug testing of Department of Agriculture drivers who primarily carry documents and chauffeur officials); American Fed'n of Gov't Employees v. Skinner, 885 F.2d 884, 892-93 (D.C.Cir.1989) (random and periodic drug testing of Department of Transportation motor vehicle operators who transport dignitaries, operate shuttle buses, or drive mail vans that carry classified documents). American Fed'n of Gov't Employees v. Thornburgh, 798 F.Supp. 597, 599 (N.D.Cal.1991) (random drug testing of Immigration and Naturalization Service drivers of vehicles that carry passengers or security-sensitive materials); American Fed'n of Gov't Employees v. Derwinski, 777 F.Supp. 1493, 1500 (N.D.Cal.1991) (random drug testing of Veteran's Administration drivers of vehicles that carry passengers); National Treasury Employees Union v. Hallett, 776 F.Supp. 680, 687, 697 (E.D.N.Y.1991) (random drug testing of Customs Service drivers who deliver mail and passengers); Burka v. New York City Transit Auth., 739 F.Supp. 814, 826 (S.D.N.Y.1990) (random drug testing of bus operators); cf. Plane v. United States, 796 F.Supp. 1070, 1075-78 (W.D.Mich.1992) (random drug testing of heavy equipment operators); Middlebrooks v. Wayne County, 446 Mich. 151, 521 N.W.2d 774 (1994) (similar). But see American Fed'n of Gov't Employees v. Sanders, 926 F.2d 1215, 1991 WL 33473, at * 1 (D.C.Cir.1991) (affirming lower court decision that permitted random drug testing of Department of Education drivers who transport passengers but vacating portion of decision permitting such testing of other drivers); American Fed'n of Gov't Employees v. Sullivan, 787 F.Supp. 255, 257 (D.D.C.1992) (striking down random drug testing of motor vehicle operators who do not carry passengers or have access to classified information); National Treasury Employees Union v. Wa

tkins, 722 F.Supp. 766, 769 (D.D.C.1989) (preliminary injunction against random drug testing of Department of Energy motor vehicle operators who transport documents).

¶12 There is also authority for suspicionless drug testing of vehicle mechanics, because errors in their work can cause the vehicles to operate dangerously. See English v. Talladega County Bd. of Educ., 938 F.Supp. 775, 782 (N.D.Ala.1996) (random drug testing of mechanic's helper who inspected, repaired, and drove school buses), Thornburgh, 798 F.Supp. at 599; Derwinski, 777 F.Supp. at 1500; cf. Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.1990) (random drug testing of aviation maintenance personnel). But the drug testing of Jaramillo was predicated solely on the requirement in Administrative Instructions Nos. 121 and 123 that employees be tested before being issued...

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