Does the following drug test seem acceptable for Police to utilize?
- The kit utilizes a single tube of a chemical (cobalt thiocyanate), which turns blue when exposed to cocaine. However, cobalt thiocyanate also turns blue when it is exposed to over eighty (80) other compounds (including methadone, acne medications, and common household cleaners).
- Other kits use three tubes. The Police officer must break the tubes in a specific order to rule out everything but the drug in question. If the officer breaks the tubes in the wrong order, the error can invalidate the results.
- With either above-noted kits, various problems remain. Cold temperatures slow the chemical reactions, while hot temperatures speed them. Extreme temperatures can negate the proper chemical reaction. Various lighting issues also interfere with proper analysis of the results, including: poor lighting at the scene, Police lights, glare from various light sources, etc. Furthermore, the distracted officer is often addressing numerous issues on the scene while simultaneously conducting this science experiment.
- No central agency regulates the manufacture or sale of the testing kits.
- No comprehensive records are kept about the use of the testing kits.
- At least nine different companies manufacture / sell testing kits to identify cocaine, heroin, marijuana, methamphetamine, LSD, MDMA, etc.
- In 2000, The Justice Department issued guidelines calling for test-kit packaging to carry warning labels, including “a statement that users of the kit should receive appropriate training in its use and should be taught that the reagents can give false-positive as well as false-negative results,”. As of 2016, three (3) of the largest manufacturers had not printed such a warning on their packaging.
- In the past three years, people arrested based on false-positive field tests have filed civil lawsuits in Tennessee, Pennsylvania, Georgia, and California. Three of the four cases also named the manufacturers Safariland Group or Sirchie as defendants. The plaintiffs in each of the suits were arrested based on this testing, refused to plead guilty, and were detained for at least a month. Three of the cases have already settled.
- “Police officers aren't chemists. We shouldn't be doing field tests on the hood of patrol cars.” —Charles McClelland, former Houston Police Chief
- "In such drug-possession cases, when the prosecutor doesn't have a lab report, if I'm that judicial officer, this case is continued — adjourned — until everybody can do their job. David LaBahn, president of the Association of Prosecuting Attorneys.
Various examples of errors actually exist:
- In Las Vegas, Nevada, cocaine testing between 2010 and 2013 resulted in thirty-three percent (33%) false positives.
- A study from Florida revealed twenty-one percent (21%) of substances Police charged as methamphetamine was not actually methamphetamine. Fifty percent (50%) of these same cases were actually not any sort of illegal substance.
- One Florida Sheriff's Office had an issue of false positives because of ambiguous directions on the testing kits. Simply stated, the officers didn't know which color indicated a positive result!
- The Harris County, TX District Attorney's conviction integrity unit worked to resolve their issue with reliance upon these inaccurate tests. Their District Attorney recognized that Brady v. Maryland requires prosecutors to provide Defendants with exculpatory evidence, even after a conviction. The District Attorney's office had failed to correct 416 “variants” between January 2004 and June 2015, all of them in cases that ended in guilty pleas. While some variants were legally ambiguous, the results were simple in 251 cases: “No Controlled Substance.” 251 people pled guilty to drug charges based on these inaccurate tests, and they did not possess any illegal drug.
So why is this such an issue?
- In 2011, RTI International determined prosecutors in ninety percent (90%) of jurisdictions surveyed were accepting guilty pleas based solely upon the results of these testing kits. This process continues today, as confirmed by Propublica, in major cities around the United States.
- While there is no comprehensive database for state court convictions, the National Archive of Criminal Justice Data at the University of Michigan maintains an extensive sampling of court records from the forty (40) largest jurisdictions. Their data indicates over ten percent (10%) of all county and state felony convictions are for drug charges, and at least ninety percent (90%) of those convictions result from pleas.
- The Justice Department is seemingly on both sides of the issue. The Justice Department has also encouraged Police officers to administer these field tests on a large scale. Its curriculum taught Police the field tests remove the need for lab testing because the field test may factor into obtaining an immediate plea agreement.
- As many know, a felony conviction has serious implications (particularly a serious drug conviction). Such limits an individual's opportunities for housing, employment, education, etc. For a very real perspective, read Mrs. Albritton's story.
It seems to me this issue is pretty simple. These tests seem to be inherently unreliable. Meanwhile, Police strategically rely upon the tests because they are (a) cheap, and (b) effective to secure arrests and subsequent quick convictions. While the expectations of Police should be much higher, real world experience as a criminal defense attorney in Charlotte, North Carolina has taught me to expect much less from local Police. However, a Prosecutor / District Attorney actually has an ethical obligation to seek justice, not just a conviction. While North Carolina Prosecutors too often fail to meet this standard, the defense bar and our society at large should continue to demand such. These cases are examples of the State failing to act in an ethical manner in the prosecution of such cases, assuming the State had any notice of the issues with this testing. It is my hope our Charlotte / Mecklenburg County District Attorney will meet the appropriate ethical standard, and demand the same of every employee.