urine test rule or for use during the appeals process. Any individual contesting the tests or test results may have a hearing regardless of whether it constitutes his first, second, or third violation.
33. On May 24, 1985, the Commission proposed amendments to the urine testing regulation. (See Amendments attached hereto as Appendix C). A public comment period and formal adoption must follow. TR, Garland at p. 49. The Commission seeks to widen the scope of the rule by testing -- in addition to jockeys -- officials, trainers, and grooms. N.J.A.C. 13:70-14A.11(c), (c) and (d) (proposed). The confidentiality guidelines will be expressly broadened to include any and all information obtained pursuant to the rule. No disclosure of these materials could be made without the approval of the Executive Director of the Commission or his designee. N.J.A.C. 13:70-14A.11(e)(proposed). The Commission would store any information and reports collected for up to a year, after which they would be destroyed. An exception is provided to permit the Commission to maintain records for those "who have violated this rule" without time limit, for the purpose of recording "the number of violations and the results of supervisory treatment and for use should future violations occur." N.J.A.C. 13:70-14A.11(f)(proposed).
34. The Commission is preserving the confidentiality of all information collected under the urine test rule as if the proposed amendments had already been adopted.
35. A jockey may be required to provide a urine sample a maximum of three times within a seven day period. Should a jockey's name turn up in excess of three times, the steward disregards the selection and draws another name. Jockeys subject to mandatory testing due to past violations are not included in this group. At Garden State Park, no rider was selected more than three times in a fifteen day period. TR, Boulmetis at p. 12. At Monmouth Park, plaintiffs McCauley and Bracciole were tested three times within a twenty-four hour period. Id.
36. Many jockeys have been unable to provide urine samples when requested. Jockeys "reduce," or lose weight quickly, by eliminating excess bodily fluids so as to lighten the load the horse must carry during the race. This lessens their ability to provide post-race urine samples. TR, Boulmetis at p. 11.
37. The Commission has detained jockeys unable to give urine samples for up to an hour. If the steward determines that a jockey is unable to provide a sample, he is excused and retested the next day he participates, or on a day he is not reducing so heavily. If a jockey leaves without giving a sample or being excused, the state steward contacts him and gives him a hearing. Failure to follow procedures as mandated by the urine test rule can subject jockeys to the penalties provided in N.J.A.C. 13:70-31-1. In one case, a steward fined a jockey for failing to provide a urine sample and for leaving the race track without being excused. Tr, Garland at p. 47.
38. "Positive" test results may measure not only use of drugs at the race track, proximate to race time, but private use of drugs, off regulated premises. For example, marijuana may engender a positive test result even though a jockey did not use it for a week prior to the race and is not presently impaired. The state is using "special procedures" for evaluating positive tests results indicating marijuana use. TR, Garland at p. 55.
39. The State of Delaware has had a drug testing program for its harness racing drivers since 1982. It uses a spot-check "EMIT" test, which is administered on a random basis. If a test result is positive, the sample is taken for a full laboratory analysis overnight. Over 500 harness drivers have been tested under this program. Approximately 14.2% of the samples have turned out positive for drug use. TR, Deputy at p. 34.
40. The Delaware Harness Racing Commission found that the average age for positive test results was 26. Delaware began to test more heavily in this age group. As a result, the number of positive tests has increased to 18.2% of the total number of tests. Id.
41. Since April 1, 1985, the New Jersey thoroughbred racing urine tests have resulted in one positive for cocaine use by a jockey. Two harness drivers in New Jersey have tested positive for cocaine.
42. The Commission chose to implement the urine tests in this manner in order to maximize their value as a deterrent, to promote the public's perception of the industry's ability to regulate itself, to reduce the adversarial nature of the test by treating all jockeys equally, and because jockeys would be reluctant to report or confront peers whom they suspected of being impaired. TR, Boulmetis at pp. 6-7. The jockeys testified that they had sufficient incentive to police themselves, given, that they too, would be riding alongside the impaired person and could be subject to increased risk of a serious accident.
43. The jockeys believe that the urine tests, as administered, unfairly single them out as a group and encourage the public to infer that they use controlled dangerous substances at the race track. They testified that all impaired persons who had access to horses -- including owners, trainers, grooms, and the gate crew -- posed a risk of serious injury to the participants and should be tested. The state argues that it selected only jockeys for urine testing because of the heightened chance for accidents during the running of a race. TR, Boulmetis at p. 25.
II. Conclusions of Law
Plaintiffs allege that N.J.A.C. 13:70-14A.10 and 14A.11 violate their rights guaranteed by the Fourth, Fifth, and Ninth Amendments and the Due Process and Equal Protection Clauses of the United States Constitution. Specifically, plaintiffs argue that the regulations:
(a) subject jockeys to unreasonable searches and seizures in violation of the Fourth Amendment;
(b) fail to provide a hearing during which plaintiffs can challenge the results of the breathalyzer and urine tests in violation of the due process clause of the Fourteenth Amendment;
(c) discriminate against jockeys as a group by singling them out for breathalyzer and urine testing in violation of the equal protection clause of the Fourteenth Amendment; and
(d) require the disclosure of private medical information, potentially relevant to violations of the criminal law of the State of New Jersey, without adequate safeguards for maintaining its confidentiality in violation of their privacy rights under the Fourteenth Amendment.
The court will address the plaintiffs' claims seriatim.
A. Search and Seizure Claim
Plaintiffs argue that because the regulations allow the administration of the breathalyzer and urine tests without some degree of individualized suspicion, they are unreasonable under the Fourth and Fourteenth Amendments.
The Fourth Amendment provides that:
The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
Defendants argue that Fourth Amendment considerations are not implicated in this case because any searches made pursuant to the Commission's policy would not be used in any criminal investigation or prosecution and are merely conditions of licensure. This contention is without merit. "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, 387 U.S. 523, 530, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). All of us are protected by the Fourth Amendment all of the time, not just when the state suspects us of criminal conduct. McDonell v. Hunter, 612 F. Supp. 1122, Slip op. at 4 (S.D. Iowa, Vietor, C.J.). Likewise, licensure is merely a factor which must be included in the court's evaluation of the constitutionality of a search.
The Fourth and Fourteenth Amendments are implicated in this case because the detaining and testing of an individual for the use of alcohol by means of a "breathalyzer" test and use of controlled dangerous substances by means of a "urinalysis" are searches within the meaning of these amendments. See Storms v. Coughlin, 600 F. Supp. 1214, 1218 (S.D.N.Y. 1984). These two tests are essentially indistinguishable from blood tests, which have been held by the Supreme Court to "plainly constitute searches of 'persons,' and depend antecedently upon the seizures of 'persons,' within the meaning of that Amendment." Schmerber v. California, 384 U.S. 757, 767, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). All three searches involve the forced extraction of bodily fluids -- albeit by different means. Storms, supra, 600 F. Supp. at 1218. Breathalyzer and urine searches implicate the interests in human dignity and privacy found to be at stake in Schmerber.
It is well settled that the Fourth Amendment protects people, not places, Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); SEC & Law Enforcement Emp. District Council 82 v. Carey, 737 F.2d 187, 200-01 (2nd Cir. 1984), and prohibits only unreasonable searches. Carroll v. United States, 267 U.S. 132, 147, 69 L. Ed. 543, 45 S. Ct. 280 (1925). The Fourth Amendment vests individuals with the right to be free from "unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977); SEC & Law Enforcement Emp., supra, 737 F.2d at 200-01. See also Bell v. Wolfish, 441 U.S. 520, 558-59, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).
Regulatory officials, as government agents, must act reasonably in their discretion, thereby safeguarding "the privacy and security of individuals against arbitrary invasions. . . ." Marshall v. Barlow's, Inc, 436 U.S. 307, 312, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967); Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). As the Supreme Court has held,
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need of the particular search against the invasion of personal rights that the search entails.