Department of Corrections and Community Supervision

Rules & Regulations

Update and Clarify Procedures Regarding Contraband Drugs (Part 1010 of 7 NYCRR)

Date filed with the Department of State (DOS): 5/5/2009

DOS #: COR 20-09-00020

Date adopted: 8/12/2009

Description: To clarify regulations governing, and improve the procedures for identification, handling and testing of, suspected contraband drugs.

TEXT OF RULE

In the interest of providing clarity for staff and consistency between established departmental policy and 7 NYCRR, Part 1010. DOCS proposes to amend, create, move text between and repeal vacated sections of 7 NYCRR, Part 1010 as indicated below:
Amend Section 1010.3, as follows:
The possession by [inmates or visitors] anyone of contraband drugs presents a serious threat to the safety and security of a correctional facility. The [attendant] importation of and trafficking in contraband drugs provides an opportunity for the demoralization of inmates and the corruption of correctional staff. The accurate identification of suspected contraband drugs and the use of appropriate disciplinary sanctions for the possession of contraband drugs can assist facility administrators in detecting and suppressing this threat.
Amend sections 1010.4(b), 1010.4(c), 1010.4(e) and 1010.4(f), as indicated below:
When a substance is found which is suspected of being a contraband drug, the following steps shall be taken.
(a) Place the substance in a sealed container and label it with the following information:
(1) date and time found;
(2) place where found; and
(3) name and badge number of the officer, security supervisor, executive team member with peace officer status or name and title of the employee (if civilian) finding the substance.
(b) Initiate a request for test of suspected contraband drugs (see [subdivision [h]] section 1010.8(a) of this part [section]) to include details of circumstances leading to request. Each person handling the suspected substance shall make an appropriate notation on the form to document the action taken as well as the chain of custody of the substance until it is identified or, if applicable, placed in control of the Inspector General’s Narcotics staff or a police agency or [forwarded to ]the State Police laboratory.
(c) If the substance is not to be identified immediately, it shall be secured in a locked contraband locker or other appropriate secure place with limited documented access.
(d) If the substance is in tablet or capsule form, it shall be inspected at the facility pharmacy for possible identification.
(e) If the substance has not been conclusively identified at the facility pharmacy, it shall be tested by the use of the narcotics identification kit (NIK®) manufactured by Public Safety, Inc. Always begin Polytesting with Test A and continue from test to test until a positive or negative result is obtained. Tests E, L, M, N, P, Q and R are exceptions to this rule and are designed as stand alone tests (see section 1010.8(c) of this part, NIK® Tests list.
(f) The individual performing the test shall have been appropriately trained in the use of the testing materials and shall follow the procedures recommended by the manufacturer. The testing sequence followed and the results obtained shall be noted on the contraband test procedure form (see [subdivision [i]] section 1010.8(b) of this part [section]).
(g) Any substance remaining after testing at the facility may, but need not, be forwarded to a State Police laboratory for further testing.

Repeal sections 1010.4(h) Form 2080 and 1010.4(i) Form 2081.

Amend Section 1010.5 and add new section 1010.5(e) as indicated below:

In a subsequent disciplinary hearing, the positive result of a test of suspected contraband drugs may be used as evidence that the suspected substance is what the test result indicates. In addition to the misbehavior report, the inmate shall be served with the following documents and the record of the hearing must include:
(a) the request for test of suspected contraband drugs form , see section 1010.8(a) of this part ;
(b) the contraband test procedure form, see section 1010.8(b) of this part;
(c) the test report prepared by an outside agency subsequent to testing of the substance; if any;
(d) a statement of the scientific principals and validity of the testing materials and procedures used (for the Public Safety, Inc. NIK® system, see [below] section 1010.8(c) of this part.

(e) a photocopy of the individual test instructions for each test used.

Repeal the remaining text in current section 1010.5(d).

Create a new section 1010.6 as follows:

§ 1010.6 LEFTOVER DRUG SUBSTANCES. Substances remaining after testing and/or disciplinary proceedings should be disposed of in accordance with NYSDOCS Departmental Directive #4910, “Control of and Search for Contraband.”

Create a new section 1010.7 as follows:

§ 1010.7 POSITIVE TEST REPORTING. A positive test for suspected contraband drugs must be reported as an Unusual Incident in accordance with Directive #4004, when any one of the following conditions apply:

- A positive test result for cocaine, heroin, or marijuana, even if no perpetrator is identified.
- Any positive test result in which an inmate has been identified as a perpetrator of the incident.
- Any positive test result which results in the arrest of any individual, i.e., visitor, volunteer, contractor, employee, etc., by the Department’s Inspector General’s Office or any outside police agency.

Create a new Section 1010.8 as indicated below:

1010.8 Forms.

(a) Form 2080, Request for Test Of Suspected Contraband Drug
Rules Form 2080
(b) Form 2081, Contraband Test Procedure
Rules Form 2081

(c) NIK® System, statement of principals, procedures and tests

NIK® Public Safety developed the NIK® System of Narcotics Identification as a means of rapidly screening and presumptively identifying substances suspected of being abused drugs, narcotics and hallucinogens. Designed to be a completely self-contained system, the kit in its several configurations, provides all necessary elements to perform chemical color tests for the commonly known and most frequently abused narcotics and dangerous drugs.

Each test pack contains the chemical required to perform the desired test in pre-filled, hermetically sealed glass ampoules. This eliminates the need for measuring, mixing and dispensing of reagents while affording a maximum of protection to the investigator. Reagent shelf life is also substantially prolonged by this method of packaging. Chemicals used are ACS grade or better, providing the highest rate of accuracy.

The NIK® System is designed to function as a transportable-mininarcotics identification laboratory. It may be carried with you and is, therefore, available for use wherever and whenever the need may arise.

“COLORIMETRIC CHEMICAL TESTING”

The NIK® System employs chemical colorimetric comparison as the means by which narcotics and other controlled substances are screened and presumptively identified. Each test pack contains one or more chemical reagents which will predictably develop a color or a series of colors in the presence of the most commonly known narcotics and dangerous drugs. When the predicted color reaction occurs while following the recommended test sequence, a positive identification is presumed. A positive identification is considered a component of probable cause and generally recognized within our legal system as being presumptive in nature.

“NIK® POLYTESTING SYSTEM”

The NIK® System of Narcotics Identification is based upon a poly testing procedure whereby a suspect material is subjected to a series of progressively discriminating screening tests. The results of a single test may or may not yield a valid result. However, the sequential results of several tests, if they all indicate a positive reaction for a particular substance, provides a high degree of certainty that the suspect material is in fact what the NIK® Poly testing System indicates it to be.

Experiments have been and continue to be conducted with hundreds of licit and illicit chemical compounds in a continuing effort to eliminate false positive results. No chemical reagent system, adaptable to field use exists, that will completely eliminate the occurrence of an occasional invalid test result. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance. In absence of such a laboratory facility, the NIK® System, utilizing the recommended Poly testing procedure, is your best assurance that the presumptive results of a positive identification are what they appear to be.

“NIK® TESTING CAPABILITY”

The NIK® System will presumptively identify most substances which fall within the following general groups of abused drugs:

A. Cannabis sativa L.
B. Depressants
C. Hallucinogens
D. Narcotics
E. Stimulants

NIK® NARCOTICS IDENTIFICATION SYSTEM - NIK® TESTS

Test A Marquis Reagent - for the presumptive identification of Opiates (Morphine, Codeine or Heroin), Demerol, Black Tar, Amphetamine-type compound, including Methamphetamine & Methylenedioxymethamphetamine (MDMA or Ecstacy), Amphetamines and as a general screening agent for other drugs
Test B Nitric Acid Reagent - always used with test A for the confirmation
of Opiates (Morphine, Codeine or Heroin) and Amphetamine-type compound as
well as well as a general screening test for other drugs
Test C Modified Dille-Koppanyl Reagent - for the presumptive identification of Barbiturates
Test D Modified Ehrlich’s Reagent - for the presumptive identification of LSD (Lysergic Acid Diethylamide)
Test E Nitric Acid Reagent - always used with test A for the confirmation
of Opiates (Morphine, Codeine or Heroin) and Amphetamine-type compound as
well as well as a general screening test for other drugs
Test F Duquenois-Levine Reagent - for the presumptive identification of Marijuana, Hashish and "Hash Oil"
Test G Modified Scott Reagent - for the presumptive identification of Cocaine, Crack or Free Base
Test H Proprietary formula - for the presumptive identification of Methadone
Test I Proprietary formula - for the general screening to presumptively identify PMA, Ketamine, Barbiturates and Methadone
Test J Proprietary formula - for the presumptive identification of PCP (Phencyclidine)
Test K Proprietary formula - for the presumptive identification of Heroin, Black Tar, Codeine and Morphine, (easier to distinguish between the four Opiates, than using test B) -test screens out Methapyrilene and Propoxyphene
Test L Modified Mecke’s Reagent - for the presumptive identification of all forms of Heroin, including White, Brown and Black Tar, and Ecstacy (MDMA), as well as detecting the presence of certain dye combinations designed to give false positives with the Marquis Test (Test A)
Test M Proprietary formula - for the presumptive identification of Methaqualone (Quaaludes, Sopor, Somnafac, Opitimll and Parest are the trade names)
Test N Proprietary formula - for the presumptive identification of Pentazocine, cornmonly known under the trade name Talwin Nx or Talacen
Test O Proprietary formula - for the presumptive identification of GHB (gammahydroxybytyrate)
Test P Proprietary formula - for the presumptive identification of Propoxyphene
Test Q Proprietary formula - for the presumptive identification of Ephedrine and Pseudoephedrine
Test R Proprietary formula - for the presumptive identification of Valium (Daizepam), Rohpnol (Flunitrazepam) and Methcathinone
Test T Propietary Formula - for the presumptive identification of Ketamine
Test U Proprietary formula - for the presumptive identification of secondary amines, such as Methamphetamine and MDMA (Ecstacy)
Test W Proprietary formula - for the presumptive identification of amphetamines and Methadone, as well as screening for PMA and Ketamine with Test I

Changes in the proposed text are indicated by underlining new text and [bracketing] text to be deleted. Rules that are new are presented as regular text without underlining or brackets. New and/or repealed rules are noted in the description heading at the top of the document.

The complete listing of New York Codes, Rules, and Regulations (NYCRR) is available online through the NYS Department of State website.