Court Overturns Termination Of Deputy Who Tested Positive For Steroid Metabolites

Richard Orosco was employed as a Los Angeles County deputy sheriff from 2001 to 2008. In September 2007, officers from the Long Beach Police Department responded to a domestic violence call at the home where he lived with his girlfriend, Veronica Hernandez, and their infant son. The officers determined that Hernandez was the aggressor and arrested her. The police report contained her statement that Orosco was taking illegal steroids to enhance his physique. Orosco reported the incident to his supervisor.

Several weeks later, the Department imposed a 15-day suspension for a previous incident in December 2006. During that incident, Orosco had tried to work a third shift at the end of two consecutive shifts. When told that he could not work three consecutive shifts, Orosco behaved in a threatening and hostile manner toward the supervisor.

Upon returning to duty after the suspension, Orosco was ordered by Lieutenant Daniel Cruz to take a “for-cause” urine test because the Department had a “reasonable suspicion” he was using steroids. The Department sent the urine sample to Quest Diagnostics for a steroid panel.

There are two types of steroids: exogenous steroids which are not naturally produced by the body, and endogenous steroids which are naturally produced by the body. Boldenone, Nandrolone, and Drostanolone are exogenous steroids. In order to test for these steroids, the laboratory looks for metabolites in the urine. Orosco’s urine tested positive for three metabolites: Boldenone Metabolite, Nandrolone Metabolite, and Drostanolone and/or Metabolite.

In an internal affairs interview, Orosco denied using steroids, but acknowledged using over-the-counter dietary supplements, which he claimed explained the presence of metabolites in his urine. He provided the Department with a list of some of the supplements that he used: “AH-89; VNS-9; Tren Extreme; BRN2 Extreme; TT40 Extreme; HGMG Extreme; Methyl 1D; 5D Stack; Equidren; Decanor 50; Test Suspension; Uthapron; Nitrate; N-O Xplod; Nitrex; Lipodrene; and Isopure Protein.”

After a six-day hearing, a hearing officer issued a 56-page report in favor of reinstatement. He found the positive urine test for metabolites “could well have been the result of Orosco’s ingestion of the over the counter dietary supplements he was taking.” The hearing officer concluded the Department did not show that Orosco used steroids, was under the influence of steroids, or made false statements to investigators. He therefore recommended that Orosco be reinstated without a break in service.

By a 3-2 margin, the County’s Civil Service Commission overturned the hearing officer’s conclusions and terminated Orosco. A trial court judge disagreed, and reinstated the hearing officer’s order overturning Orosco’s termination. The County then challenged the trial court’s decision in the California Court of Appeals.

The Court upheld the reinstatement order. The Court found that the County “overstates the test results. According to its own expert, Dr. Sample, a laboratory tests a subject’s urine sample for metabolites, and a positive result, by itself, does not establish whether the subject was using illegal steroids or over-the-counter supplements, either of which can produce a positive result.

“The evidence, viewed in the light most favorable to the judgment, showed that the positive test results for steroid metabolites did not eliminate the use of an over-the-counter supplement as the causal agent. Consistent with Dr. Sample’s testimony that the test results were suggestive that Orosco had consumed either steroids or precursors, the trial court found that the test results were insufficient to prove the charge of illegal steroid use.

“The County’s contention that Orosco never disputed the positive test result, which was an established fact, is unavailing. Orosco consistently denied all use of steroids and asserted a causal link between supplements and the positive test results for metabolites. The evidence relied upon by the Department – Dr. Sample’s testimony that he was not aware of any reports regarding the use of supplements and a positive test for Drostanolone or Drostanolone Metabolites – was not dispositive. The evidence did not foreclose a finding that the positive results were caused by supplements.

“The trial court had the responsibility to determine the weight to be given to Dr. Sample’s testimony. His testimony showed that in general, the test results were suggestive of the use of steroids or precursors, and left open the question whether the presence of Drostanolone Metabolites was due to the use of supplements or steroids. In considering which was the more likely explanation, the trial court was entitled to consider the entire record.”

Orosco v. County of Los Angeles, 2016 WL 6996189 (Cal. App. 2016).