Submitted September 23, 2019
appeal from the New Jersey Department of Corrections.
Blanchard, appellant pro se.
S. Grewal, Attorney General, attorney for respondent (Melissa
Dutton Schaffer, Assistant Attorney General, of counsel;
Tasha Marie Bradt, Deputy Attorney General, on the brief).
Judges Ostrer, Vernoia and Susswein.
Department of Corrections disciplinary appeal, we hold that
the Department acted arbitrarily, capriciously or
unreasonably in denying a confirmatory laboratory test of a
powder, seized from the inmate, which a field test indicated
contained cocaine. We reach this conclusion in light of the
field test's inherent limitations; the lack of other
direct or circumstantial evidence that the inmate possessed
drugs; the department's regulation compelling routine
confirmatory tests of drug specimens; and the absence of any
reasoned explanation for the Department's refusal to
subject the seized powder to a confirmatory laboratory test.
a search of inmate Kevin Blanchard's property, a
corrections officer discovered a white powdery substance in a
folded or rolled piece of paper that was tucked in a
paperback book. According to a special custody report, an
investigator "field tested the substance which tested
positive for cocaine." The test kit used was
manufactured by Sirchie and labeled "07 Scott Reagent
(Modified) A test for cocaine, HCl & cocaine base."
A senior investigator separately wrote that "[t]he CDS
is being sent to the New Jersey State Police Forensic
Laboratory for conformation [sic]," but that evidently
did not happen. The record contains no results or other
indication of a confirmatory test.
basis of the field test, Blanchard was charged with asterisk
offense *.203, "possession or introduction of any
prohibited substances such as drugs, intoxicants or related
paraphernalia not prescribed for the inmate by the medical or
dental staff." See N.J.A.C. 10A:4-5.1(o)(1).
Prison officials found no other evidence of drug possession.
A strip search of Blanchard conducted immediately after
officials seized the powder uncovered no contraband. Urine
specimens he produced the day before and shortly after the
seizure also yielded negative results. Officials found no
contraband upon searching Blanchard's cell.
hearing officer found the violation based on the field test
results. In his administrative appeal, Blanchard insisted the
field test result was a false positive. He wrote that the
white powder was a generic coffee sweetener. A fellow inmate
gave him the sweetener, which he poured into a cup that had
remnants of Tang powder. He retained the sweetener for future
use. He explained that the sweetener was sold at the canteen,
but he could not easily afford it, as he earned $17 a month
and received no financial help from others. Blanchard said he
asked the hearing officer to send the powder to the State
Police Laboratory, but the request was denied.
Assistant Superintendent affirmed the hearing officer's
decision that Blanchard violated *.203 and upheld the
recommended sanction. Blanchard lost 120 days of commutation
time and thirty days of recreation privileges; and received
120 days of administrative segregation. The Assistant
Superintendent cited only the field test for evidential
support, and did not address the lack of confirmatory
laboratory test results. This appeal followed.
pro se brief, Blanchard contends the Assistant
Superintendent's finding lacked substantial credible
evidence, because the Department had not established the
field test's reliability. He contends the Department
adopted a policy of laboratory testing urine specimens and
seized narcotics because of the field test's lack of
reliability. He argues that the refusal to subject the powder
to confirmatory testing in his case violated departmental
policy; and denied him his due process right to present
exculpatory evidence. He also contends the Assistant
Superintendent's decision was arbitrary, capricious and
Department responds that the policy of confirmatory testing
applies only to urine specimen testing, and Blanchard
presented only "self-serving testimony" that the
field test was unreliable. The Department argues that the
field test constituted substantial credible evidence of the
standard of review is well-settled. We will disturb an
agency's adjudicatory decision only upon a finding that
the decision is "arbitrary, capricious or
unreasonable," or is unsupported "by substantial
credible evidence in the record as a whole." Henry
v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In
determining whether an agency action is arbitrary,
capricious, or unreasonable, a reviewing court must examine:
(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency follow
the law; (2) whether the record contains substantial evidence
to support the findings on which the agency based its action;
and (3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a ...