Individual Privacy Interests and the `Special Needs' Analysis for Involuntary Drug and HIV Tests.

Since the late 1980s, federal and state courts have addressed numerous Fourth Amendment challenges to government programs imposing mandatory blood or urine tests to detect the presence of drugs, alcohol, or the human immunodeficiency virus (HIV). Persons subject to such tests have included government employees, private employees in regulated industries, accused and convicted sex offenders, and accused and convicted prostitutes. Following the United States Supreme Court's lead, these courts have analyzed such testing programs using the "special needs" analysis, in which the program's intrusion upon Fourth Amendment interests is weighed against the governmental interest behind the testing, the necessity of the testing to that interest, and the procedural safeguards built into the testing program. This Comment contends that the special needs analysis affords courts too much discretion in balancing the various factors, thereby rendering each case a class by itself. At the same time, however, the special needs approach tends inexorably toward approving ever more intrusive drug and HIV testing programs, because it assigns excessive importance to the governmental interests asserted to justify testing, credits too easily government arguments concerning the necessity of testing to serve those interests, and allows procedural regularity in the imposition of tests to substitute for substantive protection against the intrusion the tests embody. As a result of these shortcomings, the author proposes an analysis that looks primarily at the blameworthiness of the conduct or status that would trigger drug or HIV testing. Such an approach, the author argues, would better protect the individual interests that the Fourth Amendment ought properly to defend.