Study: Field Drug Tests Generate Nearly 30,000 Bogus Arrests A Year

Failures

from the too-big-to-fail,-too-cheap-to-care dept

Field drug tests often seem to be more a triumph of imagination than a triumph of science. They’re cheap. Some popular tests run less than $3/per. That’s the literal selling point. When in doubt, a cop can get probable cause by grabbing a substance, dumping it into a field test, and deciding whatever results are generated are evidence of guilt.

It rarely is. Sure, if you run enough tests, you’re bound to have some of these field tests confirmed by lab tests that are far more precise and less likely to be interpreted subjectively by the person performing the test. (Theoretically. There’s plenty of evidence out there showing lab drug tests can be just as faulty as field drug tests, although in these cases, the problem is usually the person performing the testing [or not!] than the test itself.)

Cheap, fast, and easy. And wrong. So very very often wrong. Field drug tests have labeled everything from bird poop (on a car’s hood!) to donut crumbs to honey to the ashes of a deceased loved one as contraband, resulting in the immediate arrest of people not actually in possession of anything illegal.

This is just what’s been observed by those challenging these results in court during criminal trials or filing civil rights lawsuits following wrongful arrests. It’s happened often enough that even a few courts are taking notice, in some cases refusing to accept plea deals predicated on nothing more than field drug tests results.

Data on field drug tests is difficult to obtain. Cops are in no hurry to turn this information over and the patchwork of public records laws across the nation often allows law enforcement to refuse disclosure simply by stating the results are relevant to a criminal investigation (even if the investigation has long since been closed).

What data can be obtained has been collected and parsed by the Quattrone Center for Fair Administration of Justice at the University of Pennsylvania. What’s long been assumed based on mainly anecdotal evidence now has at least some scientific backing: field drug tests aren’t worth what we’re paying for them, even if it is only $3/per. According to the Center’s report [PDF], nearly one third of the money spent on field drug tests is misspent. (h/t C.J. Ciaramella at Reason)

Utilizing a nationwide survey of agencies, the report offers national estimates on the frequency of test usage, finding that each year approximately 773,000 drug-related arrests involve the use of presumptive tests. Using the survey data and national estimates of drug arrests, this report examines the impact of the tests on wrongful arrests, racial disparities in their use, and their subsequent impact on drug possession prosecutions and dispositions.

Although the true error rate of these tests remains unknown, estimates based on the imperfect data that are available suggest that around 30,000 arrests each year involve people who do not possess illegal substances but who are nonetheless falsely implicated by color-based presumptive tests.

Not great. Not even good. Not even close to good. I don’t know where it’s acceptable to rack up a false arrest rate of nearly 4%, but America shouldn’t be one of those places. I realize it’s only probable cause at the point of arrest rather than the courtroom standard of “beyond a reasonable doubt.” But 30,000 bogus arrests a year from a single cause — field drug tests — is unacceptable.

Here’s how that works out in the greater scheme of things, in terms of criminal justice:

The use of presumptive field tests in drug arrests is one of the largest, if not the
largest, known contributing factor to wrongful arrests and convictions in the United States.

It’s not just arrests. It’s also convictions. And those convictions aren’t happening in bench trials or jury trials. They’re plea agreements where people weigh their options and decide that the best option is to “admit” to a crime they haven’t committed rather than subject themselves to indefinite detention and the full weight of prosecutorial forces that love to punish people for insisting on their innocence and/or seek to have their rights respected.

The whole system is stacked against defendants, beginning with the tests that cops treat as actual probable cause when they realistically should be considered nothing more than a hunch. This is the depressing reality of criminal justice in the United States when it comes to field drug tests and people falsely accused by faulty tests.

In our survey, 89% of prosecutors reported that guilty pleas are permitted without confirmatory testing (i.e., follow-up testing by a lab to verify that a field test “positive” result accurately detected an illegal drug).

67% of drug labs in the U.S. report that they are not asked to review samples when there are plea agreements, and 24% do not receive samples for confirmatory testing when there are field test results available.

Even when labs receive samples, 46% report that they will not conduct a confirmatory test if there has been a guilty plea, and 8% report that they will not retest if there has been a presumptive identification

This isn’t justice. This isn’t even a polite hat tip in the direction of justice. This is railroading, aided and abetted by drug labs beholden to cops and almost as disinterested in what happens to people facing criminal charges possibly predicated on incorrect test results. On the law enforcement side, the fact is no one cares and no one cares that no one cares. Courts are the last hope, and even most of those are more than willing to clear dockets quickly and easily by signing off on any plea deal placed in front of them.

As the report notes, it’s not as though cops and prosecutors aren’t aware of the limitations of field drug tests. It’s that they don’t care. All tests come packaged with plenty of verbiage stating how any field test should be verified with a lab test, how dozens of legal substances can trigger false positives, and how tests can be rendered useless by exposure to UV light or elevated temperatures.

But none of that is legally binding. It’s not like improper use results in a voided warranty. It’s not like field drug test makers are going to stop selling to cops just because cops ignore every single instruction printed on the package. Again, this is up to the courts. And low level courts that handle a large percentage of possession cases aren’t going to increase their own workload by forcing prosecutors to verify tests or refuse plea deals based on nothing more than what a cop claimed to have observed while misusing a cheap test prone to false positives.

It’s not that better field drug test tech doesn’t exist. It does. Portable Raman spectrometers, which are capable of producing results comparable to lab equipment (at least according to the Scientific Working Group for the Analysis of Seized Drugs), very few law enforcement agencies are going to trade in cheap drug tests they can buy in bulk with actually accurate testing equipment than can cost up to $20,000 per device.

As the report states, the 30,000 wrongful arrests is an extreme undercount. Its survey managed to only find 93 law enforcement agencies willing to discuss field drug test use and only 82 of those actually provided enough information to warrant being included in this report.

Of the few that did respond, there’s even more bad news. This is quite the pair of sentences:

Twelve agencies recently stopped using the tests due to concerns about fentanyl exposure (i.e., a belief that physical contact with fentanyl is, by itself, dangerous for the officer), and two agencies reported that the tests were an unnecessary expense as suspects were arrested and charged regardless of the test outcome.

Did you get all of that? Twelve agencies have gone full fainting goat and two agencies flat out admitted they arrested people whether or not the tests indicated illegal substances. And if arrest is the inevitable outcome, why blow money on field drug tests?

There’s nothing positive in this report, other than the recommendations it suggests, like refusing plea deals backed by nothing but field tests and ensuring all field tests are verified by lab testing. But if very little of this is happening yet, it’s hard to believe there will be widespread adoption in the future. So, we’ll just get what we’ve been getting for years: tens of thousands of bogus arrests every year — arrests that will be touted by those performing them as indicative of their tireless service to the War on Drugs. The reality, however, will be tens of thousands of destroyed lives and violated rights by tests so questionable they should never have been considered evidence of anything.

Filed Under: drug tests, evidence, false arrest, field drug tests