Positively Wrong: Unreliable Roadside Drug Tests Lead Innocent People to Plead Guilty

Over the the weekend, ProPublica published a gripping story in the New York Times Magazine about how roadside drug tests used by law enforcement in many cities have become the sole source of evidence used to secure thousands of guilty pleas all around the country. And as the investigation reveals, if it weren’t enough that these on-the-spot drug tests administered by officers have taken the place of tests in actual crime labs conducted by scientists, they’ve also proven to be highly unreliable, resulting in an unknown number of wrongful convictions.

According to the news story, field tests for drugs are not new. They were first used on the late 1960s, but became popular in the early 1970s with the establishment of the Drug Enforcement Agency and Nixon’s efforts to win America’s “war on drugs.” Police departments across the country began ordering the tests in mass, mainly because, as the story points out, they were simple to use—“just a glass vial or vials inside a plastic pouch. Open the pouch, add the compound to be tested, seal the pouch, break open the vials and watch the colors change.”

But within a few years, the reliability of the tests came into question. As reported by ProPublica, by 1974, the National Bureau of Standards cautioned in a study that the tests “should not be used as sole evidence for the identification of a narcotic or drug of abuse.” And four years later, the Department of Justice (DOJ) echoed that warning. The agency determined that the tests “should not be used for evidential purposes.”

Though these tests are used nationwide as evidence to convict people, there is no government agency regulating their manufacturing, nor is there in-depth documentation about their use. According to the ProPublica investigation, the tests yield varying results depending on a long list of factors including the weather, the surrounding lighting and the accuracy with which officers administer the tests and interpret their results.

The error rates of these tests are unknown, but the ProPublica investigation revealed some startling statistics. For example, when Las Vegas authorities reviewed a sample of cocaine field kits spanning a three-year period, they found that 33 percent of them were false positives. And when ProPublica investigated the sheriff deputy records from Hillsborough County, Florida, which produced 15 false positive results for methamphetamines in a seven-month period, it discovered that the reason behind the errors was simple: the officers administering the tests were confused over which color indicated a positive result.

Surprisingly, if these dismal results made their way to court, there would be little cause for concern; field tests are inadmissible at trial in nearly every jurisdiction. But, the majority of drug cases never see a courtroom. When ProPublica surveyed the court records from the 40 largest jurisdictions, it found that “10 percent of all county and state felony convictions are for drug charges, and at least 90 percent of those convictions come by way of plea deals.”

Seeing these statistics, it appears as though the DOJ’s 1978 mandate, that drug field tests should not be used for “evidential purposes” is all but meaningless today. “Prosecutors in nine of 10 jurisdictions . . . surveyed nationwide accepted guilty pleas based solely on the result of field tests,” reports ProPublica. To make matters worse, research shows that the majority of crime labs do not re-test the evidence from drug cases in which defendants pleaded guilty.

Inevitably, this means that innocent people are among those pleading guilty based solely on false-positive field test results, and because there are no checks and balances in place to verify the results that judges and prosecutors are so quick to accept, most people will never have the chance to be exonerated. According to ProPublica, Harris County is one of the only places in the country currently re-evaluating the guilty pleas that resulted from drug field tests. The Harris County district attorney’s conviction integrity unit has identified 212 cases in which the evidence identified by a field test as an illegal substance was in fact not a controlled substance—or N.C.S. The unit has exonerated 119 of those convictions. Sadly, for the remaining 172, the unit has been unsuccessful in locating them to alert them of their findings.

For those whose records have been cleared, their lives will remain markedly changed by their wrongful convictions. They bear the scars of those who’ve been convicted of felonies: loss of income, housing and sometimes even family.

“You’re not ever free and clear of it,” says one of the people interviewed for the story. “It follows you everywhere you go.”

Read the full article here.