               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3834-17T4

KEVIN BLANCHARD,

     Appellant,                       APPROVED FOR PUBLICATION

                                               October 29, 2019
v.
                                          APPELLATE DIVISION
NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

          Submitted September 23, 2019 – Decided October 29, 2019

          Before Judges Ostrer, Vernoia and Susswein.

          On appeal from the New Jersey Department of
          Corrections.

          Kevin Blanchard, appellant pro se.

          Gurbir S. Grewal, Attorney General, attorney for
          respondent (Melissa Dutton Schaffer, Assistant
          Attorney General, of counsel; Tasha Marie Bradt,
          Deputy Attorney General, on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.

     In this 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.

                                       I.

      During 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 evident ly did

not happen.     The record contains no results or other indication of a

confirmatory test.

      On the basis of the field test, Blanchard was charged with asterisk

offense *.203, "possession or introduction of any prohibited substances such as



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                                       2
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.

        The 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. 1


1
  The adjudication form that the hearing officer prepared noted that Blanchard
did not request the production of any witnesses, and presented no documents.
Blanchard's counsel substitute acknowledged that on the form. However,
Blanchard's request for a confirmatory test was a request to create evidence
that did not yet exist.



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                                         3
      The 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.

      In his 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

unreasonable.

      The 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 violation.




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                                         4
                                       II.

                                       A.

      Our 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 conclusion that
            could not reasonably have been made on a showing of
            the relevant factors.

            [In re Carter, 191 N.J. 474, 482 (2007) (quoting
            Mazza v. Bd. of Tr., 143 N.J. 22, 25 (1995)).]

      Substantial evidence has been defined alternately as "such evidence as a

reasonable mind might accept as adequate to support a conclusion," and

"evidence furnishing a reasonable basis for the agency's action." Figueroa v.

N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations

omitted); see also N.J.A.C. 10A:4-9.15(a) (stating that "[a] finding of guilt at a




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                                        5
disciplinary hearing shall be based upon substantial evidence that the inmate

has committed a prohibited act"). 2

      We recognize that "[p]risons are dangerous places, and the courts must

afford appropriate deference and flexibility to administrators trying to manage

this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576,

584 (App. Div. 1999). In particular, inmates' unauthorized narcotics use and

possession seriously threaten prison safety and security.      Hamilton v. N.J.

Dep't of Corr., 366 N.J. Super. 284, 289 (App. Div. 2004). A reviewing court

"may not substitute its own judgment for the agency's, even though the court

might have reached a different result." In re Stallworth, 208 N.J. 182, 194

(2011) (quoting Carter, 191 N.J. at 483).

      Yet, our review is not "perfunctory," nor is "our function . . . merely [to]

rubberstamp an agency's decision[.]" Figueroa, 414 N.J. Super. at 191. "We

are constrained to engage in a 'careful and principled consideration of the

agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197,

204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.


2
   To satisfy minimum federal due process requirements, a reviewing court
need only determine that there was "some evidence" supporting a disciplinary
decision to revoke good time credits. Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455 (1985). That is less demanding than the
"substantial evidence" standard of review. Henderson v. Carlson, 812 F.2d
874, 879 (3d Cir. 1987).


                                                                         A-3834-17T4
                                        6
85, 93 (1973)). We cannot exercise this function unless the agency provides a

reasonable record and statement of its findings. Balagun v. N.J. Dep't of Corr.,

361 N.J. Super. 199, 203 (App. Div. 2003); Blyther v. N.J. Dep't of Corr., 322

N.J. Super. 56, 63 (App. Div. 1999).

                                       B.

      Applying these principles, we are persuaded that the Department's

refusal to procure a laboratory test was arbitrary, capricious, or unreasonable.

As a result, so is the order affirming the *.203 violation.

      Before discussing the basis for that holding, we highlight what we do not

decide. We do not ground our decision in federal constitutional guarantees of

due process. Nor do we find that existing regulations entitled Blanchard to a

confirmatory laboratory test.    Nor do we hold that the field test does not

suffice as substantial evidence of guilt. Avant v. Clifford, 67 N.J. 496, 530

(1975).

      We reach our conclusion without addressing Blanchard's argument that

constitutional due process entitled him to a confirmatory lab test, since we

shall not reach a constitutional issue "unless absolutely imperative" to resolve

the case. See Donadio v. Cunningham, 58 N.J. 309, 325-26 (1971) (citation

omitted). Prisoners have a limited due process right "to call witnesses and

present documentary evidence in their defense when such procedure will not



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                                            7
be unduly hazardous to institutional safety or correctional goals." See Avant,

67 N.J. at 529; see also McDonald v. Pinchak, 139 N.J. 188, 196 (1995). 3

These standards apply to "disciplinary matters which may subject an individual

to 'grievous loss' by way of punishment for serious misconduct." Avant, 67

N.J. at 519 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

      The New Jersey Supreme Court derived these standards not only from

federal constitutional notions of due process, but also the Court's inherent

power "to strike down arbitrary action and administrative abuse and to insure

procedural fairness in the administrative process." Id. at 520.4 However, it is

not essential that we decide the extent to which the constitutional due process

right entitles a prisoner to procure forensic analysis of evidence.      But see

Engel v. N.J. Dep't of Corr., 270 N.J. Super. 176, 180 (App. Div. 1994)

(holding that "considerations of minimal due process" entitled prisoner to

3
   Consistent with these principles, agency regulations recognize a prisoner's
right to call "fact witness(es) . . . and present documentary evidence" subject to
enumerated exceptions. N.J.A.C. 10A:4-9.13(a). A "fact witness" is someone
with personal knowledge of "the incident or aspects thereof" including an
officer "who administers a test for prohibited substances" if a dispute arises
about the test. N.J.A.C. 10A:4-1.3. Rather than present a document or call a
witness, Blanchard asked the agency to create a document – a confirmatory
laboratory report – and a fact witness – the lab technician.
4
  In view of that dual source, New Jersey procedural standards may be more
expansive than those the United States Supreme Court grounded solely in the
constitutional Due Process Clause of the Fourteenth Amendment in Wolff v.
McDonnell, 418 U.S. 539 (1974).


                                                                         A-3834-17T4
                                        8
polygraph test where informant against him was given one with a positive

result).   Rather, we apply our authority to correct arbitrary action and "to

insure procedural fairness in the administrative process." Avant, 67 N.J. at

520.

       We also assume, for the purposes of this decision, that agency

regulations do not entitle Blanchard to a confirmatory test. Prison officials are

authorized to test inmates for prohibited substances. N.J.A.C. 10A:3-5.10. "If

the initial test result is positive, the specimen shall be subject to a confirmation

test of equal or greater sensitivity than the initial test."      N.J.A.C. 10A:3-

5.11(d). The Department therefore lacks textual support for its argument that

this provision applies only to urine testing. Yet, we presume the regulation is

nonetheless limited to "specimens" drawn from an inmate's body, such as

urine, blood, or saliva, and not substances the inmate actually or constructively

possesses.5


5
   The regulation previously referred solely to the "[c]ollection, storage and
analysis of urine samples." See 29 N.J.R. 362 (Jan. 21, 1997). The
Department broadened testing to cover "specimens," explaining that "[t]he
deletion of certain references to 'urine' represents the intent of the Department
to conduct testing on other types of specimens as new technologies make
advanced testing available." See 31 N.J.R. 3577(a) (Nov. 15, 1999); see also
32 N.J.R. 303 (Jan. 18, 2000) (adoption of regulation). However, as we
discuss below, the presence of a confirmatory testing regime supports our
conclusion that it was arbitrary, capricious or unreasonable to deny such
testing under the circumstances.


                                                                           A-3834-17T4
                                         9
      We also do not decide in this case whether a field test alone would

constitute substantial evidence of a violation.         A fair proceeding is a

prerequisite to determining whether substantial evidence supports the agency's

decision. As we held in Jones v. Department of Corrections, 359 N.J. Super.

70, 75 (App. Div. 2003), "Application of the substantial evidence rule

presupposes an adequate opportunity by the party against whom a decision has

been rendered to have marshalled and offered evidence." The sole issue is

whether, in a case with a single positive field test of unproved reliability, and

no other corroborating evidence, procedural fairness compels a second,

confirmatory test, to assure that the field test did not produce a false positive.

                                        C.

      To determine that the agency acted arbitrarily, capriciously, or

unreasonably, we are guided by the principle enunciated in Ramirez v.

Department of Corrections, 382 N.J. Super. 18, 24 (App. Div. 2005), that an

inmate may be entitled to the creation of forensic evidence to assure the

"fundamental fairness" of the proceeding. In Ramirez, we addressed whether a

prison official arbitrarily denied a request for a polygraph. We recognized that

a prisoner did not have an unqualified right to a polygraph. Id. at 23 (citing

Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997)).

Consistent with N.J.A.C. 10A:3-7.1, the decision to order a polygraph is



                                                                           A-3834-17T4
                                        10
within an administrator's discretion. Id. at 24. Nonetheless, that "discretion

must be guided by whether the request for a polygraph if denied will impair

the fundamental fairness of the disciplinary proceeding." Ibid.

      We identified various factors that would tend to show the impairment or

preservation of such fundamental fairness. "Impairment may be evidenced by

inconsistencies in the [corrections officer's] statement or some other extrinsic

evidence involving credibility, whether documentary or testimonial, such as a

statement by another inmate or staff member on the inmate's behalf." Ibid. On

the other hand, a polygraph would not be required to assure fundamental

fairness "when there is sufficient corroborating evidence presented to negate

any serious question of credibility." Ibid.

      In assessing the fundamental fairness of a proceeding to determine

unauthorized narcotics possession without a confirmatory test – a proceeding

that may result in such "grievous loss," see Avant, 67 N.J. at 519, as the

substantial loss of commutation time and other serious sanctions – it is

appropriate to consider the initial field test's reliability; the presence or

absence of other direct or circumstantial evidence to corroborate the field test;

the availability of a confirmatory testing regime; the reasons, if any, the

Department may provide for denying a confirmatory test under the

circumstances; and any other relevant factors.



                                                                         A-3834-17T4
                                       11
                                        1.

      We turn first to the field test's reliability. If the test were proved to be

scientifically reliable and rarely susceptible to false positives, then that would

reduce or obviate the need for confirmatory testing.           The proponent of

scientific testing bears the burden to establish its general acceptance. State v.

Cassidy, 235 N.J. 482, 492 (2018). The issue is not the admissibility of the

field test results; the Rules of Evidence do not apply in a Corrections

disciplinary hearing. N.J.R.E. 101(a)(3). But, the test's reliability is pertinent

to whether the agency has provided a fundamentally fair hearing, and met its

burden of proof. See Avant, 67 N.J. at 540 (recognizing that the agency bears

the burden of proof).

      We are unaware of any published authority of our courts – and the

agency provides none – that the reagent field drug test used in this case is

generally accepted in the scientific community as a reliable indicator of the

presence of cocaine. 6      Rather, there is persuasive authority in other

jurisdictions that, as a condition of admissibility, a drug field test must sati sfy

the applicable standard for scientific reliability.       See Commonwealth v.

Fernandez, 934 N.E.2d 810, 820-21 (Mass. 2010) (affirming decision to admit

6
   We address the reliability of the specific test used here. Presumably, no t all
field tests are created equal. Some may be more accurate and reliable than
others.


                                                                           A-3834-17T4
                                        12
results of field test for cocaine where State presented evidence of scientific

reliability, albeit "weak," particularly where trial judge instructed jury about

risk of false positives) 7; Commonwealth v. Rodriguez, 94 N.E.3d 861 (Mass.

App. Ct. 2018) (holding it was error to admit results of field test for heroin

absent proponent establishing scientific reliability); In re Angel A., 704 N.E.2d

554, 556-57 (N.Y. 1998) (holding, in juvenile delinquency case, the presenting

agency could rely on a reagent test for heroin in a preliminary proceeding, but

general acceptance within the scientific community would have to be shown at

trial); State v. Tate, 265 S.E.2d 223, 226 (N.C. 1980) (affirming exclusion of

results of Duequenois-Levine color test for marijuana where trial judge found

it was not "scientifically accepted, reliable or accurate" because it also

produced positive reactions to coffee and aspirin).

      Other courts have accepted a field test to establish a presumption that

drugs are present, or that there is probable cause to arrest, but not, by itself, to

establish actual possession because of reliability concerns.8 In a violation-of-


7
   For the reliability standard, the court referred to Commonwealth v. Lanigan,
641 N.E.2d 1342, 1349 (Mass. 1994), which accepted the standard in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
8
   In another context, we have distinguished between a scientific test that may
be admissible to establish probable cause, but, absent satisfaction of the Frye
standard, is inadmissible as substantive proof. See State v. Doriguzzi, 334 N.J.
Super. 530, 546 (App. Div. 2000) (reversing DWI conviction because
                                                                    (continued)

                                                                           A-3834-17T4
                                        13
probation case, Connecticut's appellate court held "there were facts to support

probable cause," but the court rejected the State's position that "the officer's

field test . . . was sufficient proof by a preponderance of the evidence that the

substance contained illegal narcotics." State v. Singleton, 840 A.2d 36, 40

(Conn. App. Ct. 2004), vacated on other grounds, 876 A.2d 1 (2005). The

appellate court noted there was no evidence presented as to reliability of the

test, or the training of the officer who administered the field test. Id. at 39-40.

The Connecticut Supreme Court held that the field test, plus other

circumstantial evidence – the defendant possessed multiple cell phones and

secreted the substance in his buttocks – was sufficient to support finding the

substance was cocaine. Singleton, 876 A.2d at 9. The court declined to decide

"[w]hether a field test alone would be sufficient to establish, beyond a

reasonable doubt, that the substance tested was crack cocaine." 9 Id. at 10.



(continued)
horizontal gaze nystagmus test did not yet pass muster under Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), although it could be used to establish
probable cause to arrest). We recognize that the Supreme Court has molded
the test for admissibility of scientific tests in civil proceedings, drawing
principles from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). In re Accutane Litigation, 234 N.J. 340, 387 (2018).
9
  We are unpersuaded by the Connecticut Supreme Court's reasoning that the
other evidence was also sufficient to establish the field test was reliable.
Singleton, 876 A.2d at 10. The corroborating evidence may demonstrate that
                                                                (continued)

                                                                          A-3834-17T4
                                        14
      Other courts have recognized limitations in the reagent test for cocaine

and other field tests. See e.g., L.R. v. State, 557 So.2d 121 (Fla. Dist. Ct. App.

1990) (holding that positive field test and officer's testimony based on his

experience that the substance was cocaine was insufficient to support

adjudication of delinquency where the state presented no laboratory report or

chemist's testimony). New York's highest court determined that a reagent test

for heroin provided a sufficient evidentiary basis for a grand jury to return an

indictment, but stated, "we do not hold that a defendant may be proven guilty

beyond a reasonable doubt based solely on the results of a NIK field test."

People v. Swamp, 646 N.E.2d 774, 778 (N.Y. 1995).

      Other courts have accepted reliance on field tests, without confirmatory

tests, but other corroborating evidence of a violation was presented.          For

example, in Cook v. Edgewood Management Corp., 825 A.2d 939 (D.C. 2003),

the court affirmed an eviction based on the tenant's drug activity. The court

held that the trial court properly admitted the results of a color reagent test,

which local police widely used to establish probable cause. Id. at 952. The

court noted that the investigator who performed the field test was "trained and

certified to conduct field tests, and . . . had performed over 500 field tests by

(continued)
the test was accurate in a particular case; but that does not establish that the
test is reliable in cases generally.


                                                                         A-3834-17T4
                                       15
the time of trial." Id. at 949. The drug activity was corroborated by evidence

of controlled buys by a police informant. Ibid.; see also People v. Gaston, 334

N.E.2d 823, 825 (Ill. App. Ct. 1975) (holding that unidentified cocaine field

test along with observation of drug transactions proved by a preponderance of

evidence that substance was a narcotic in violation of probation proceeding).

      Here, the test's own manufacturer, Sirchie, noted in its product literature

the test may be used to establish probable cause, but "[a] forensic laboratory is

required to qualitatively identify an unknown substance." Singleton, 840 A.2d

at 40 (quoting Sirchie Finer Print Laboratories On-Line Catalog).             The

manufacturer's warning is consistent with standards for color test reagents, like

the one used here, issued by the National Institute of Justice (NIJ) of the

United States Department of Justice.         See Nat'l Inst. of Justice, Law

Enforcement and Corrections Standards and Testing Program, Color Test

Reagents/Kits for Preliminary Identification of Drugs of Abuse, NIJ Standard-

0604.01 (July 2000). The federal standard refers to such reagents as tests "for

the preliminary identification of drugs of abuse."     Id. at 1.   The standard

requires tests to include "[a] statement that the kit is intended to be used for

presumptive identification purposes only, and that all substances tested should

be subjected to more definitive examination by qualified scientists in a

properly equipped crime laboratory." Id. at 7.



                                                                         A-3834-17T4
                                       16
      In sum, the unproven reliability of the reagent test used here, plus the

absence of evidence of the training or experience of the officer who performed

it, support our conclusion that a confirmatory test was required to assure a

fundamentally fair hearing.

                                      2.

      The absence of corroborating evidence of narcotics possession also tends

to justify a confirmatory test.

      The Department did not produce direct or circumstantial evidence of

drug possession to supplement the field test result. Searches of Blanchard's

person and his cell were fruitless.        The Department presented no other

witnesses who observed transactions or other indicia of drug possession.

Unlike in the Connecticut case, Singleton, there was no evidence that

Blanchard secreted the substance in a body orifice, which would bespeak drug

possession.   Although Blanchard did store the powder in folded or rolled

magazine paper inside a book, he apparently possessed the book while in the

mailroom, rather than secrete it where it was less susceptible to discovery.

Blanchard made no self-incriminating statements.        Also, the Department

evidently did not attempt to identify and interview the person who, Blanchard

said, gave him what he said was coffee sweetener.




                                                                      A-3834-17T4
                                      17
      As noted above, urine specimens that Blanchard gave before and after

officials seized the powder from his property produced negative results for

narcotics use. Although Blanchard was not charged with use, his non-use is

circumstantial evidence he did not possess narcotics.

      In sum, the Department's exclusive reliance on the positive field test,

and the absence of any other evidence of guilt, support a confirmatory test to

assure fundamental fairness.

                                       3.

      The presence of a confirmatory testing regime also tends to support the

conclusion that fundamental fairness requires confirmatory testing in this case.

Two inferences may be drawn from the regulatory mandate to confirm the

results of initial tests of specimens. First, the Department evidently recognizes

the limitation of field tests.    Second, confirmatory tests are not unduly

burdensome.    Otherwise, we presume the Department would not routinely

compel them in any case of a positive specimen test, regardless of the

surrounding circumstances.

      Furthermore, the record in this case reflects that at least one official in

the Department intended to submit the seized powder to a laboratory for

confirmatory testing. That official evidently thought the initial test should be




                                                                         A-3834-17T4
                                       18
confirmed. However, the record does not indicate that the testing occurred,

and its result.

                                       4.

      Due process and fundamental fairness require the decision-maker to set

forth his or her reasoning. Avant, 67 N.J. at 524, 531-32. In finding a *.203

violation based solely on the field test results, the Assistant Superintendent

provided no reasons for denying a confirmatory test in this case.         As we

observed in another Department of Corrections disciplinary case, essential to

our deference to the agency's exercise of its expertise is a reasoned explanation

for its decision. Balagun, 361 N.J. Super. at 202-03. In short, "[t]he agency is

'obliged . . . to tell us why'" it reached its result. Id. at 203 (quoting In re

Valley Hosp., 240 N.J. Super. 301, 306 (App. Div. 1990)). The Assistant

Superintendent provided no basis for concluding that a confirmatory laboratory

test in Blanchard's case would be unduly burdensome, or would undermine

security or safety. Nor has the Assistant Superintendent provided any defense

of the field test's reliability, or rationale for providing confirmatory tests of

specimens, but not of suspected contraband.

                                       D.

      We recognize that "a court must weigh any expansion or refinement" of

an inmate's procedural rights "against the safety of all the prisoners and of the



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                                       19
corrections staff."   McDonald, 139 N.J. at 194.     However, we discern no

degradation of safety by requiring, under the circumstances presented here, a

confirmatory test that is routinely ordered in similar cases involving

specimens. In sum, we conclude that denying Blanchard a confirmatory test

was arbitrary, capricious or unreasonable, and deprived him of a

fundamentally fair proceeding under the circumstances.        We reverse the

disciplinary finding and sanction, and we remand for a new hearing only if the

agency preserved the powder and submits it for a confirmatory laboratory test.

      Reversed and remanded. We do not retain jurisdiction.




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                                      20
