A damning report produced by the New York Times in collaboration with the investigative journalism non-profit ProPublica last week reveals the intrinsically flawed nature of a tool regularly used by law enforcement – roadside drug tests. An investigation conducted by the authors of the report found that the results of roadside drug tests, which are inadmissible in court, are nonetheless often the deciding factor in felony convictions.
Plaintiffs facing serious possession charges based on roadside test results often enter into plea deals before their cases ever get to court. The evidence is never tested in a lab. Thousands of people have received felony convictions for possession in cases where the presence of the alleged controlled substance was never confirmed.
Multiple studies cited in the report show that the roadside drug tests regularly used to make the initial arrest on possession charges are prone to error. Some estimate that up to one out of every three positive results produced by these tests is a false positive, in which the presence of a controlled substance is indicated when in fact none was collected.
This error margin, when considered in light of the fact that operator error, temperature, and lighting also effect the accuracy of these test, has staggering consequences. The data collected shows that in some jurisdictions, potentially a third of the people convicted were not actually in possession of an illegal substance at the time of their arrest.
First time offenders, as well as people accused of possessing only minute amounts of controlled substances, are especially quick to accept plea deals. The report chronicles the nightmarish experience of Amy Albritton, who was arrested during a trip to Houston on felony drug possession charges after a roadside test indicated a crumb found on the floor of her vehicle was crack cocaine.
Overwhelmed by the charges against her and unaware of her legal rights, she quickly accepted a deal on the advice of her court-appointed public defender, pleading guilty to possession. As a result, Ms. Albritton served less than a month in jail, but discovered her entire life was torn apart by her status as a felon upon her release.
Nearly six months after her arrest, the substance that the roadside test determined was cocaine was finally tested in a forensic crime lab, which confirmed it contained no drugs of any kind. As there is no requirement that law enforcement labs confirm evidence is in fact a controlled substance following entry of a guilty plea, Ms. Albritton’s innocence may never have been discovered.
However, by the time the district attorney’s office realized their mistake, the damage done by her conviction was irreversible – she had lost her home and job during her time in jail, and her felony conviction had prevented her from finding new employment and jeopardized her custody of her disabled son.
The roadside testing kits currently used by law enforcement officers across the country were originally introduced in the early 1970s, as part of President Nixon’s “war on drugs.” The outdated and cheaply produced tests were never meant to replace true forensic testing, although in practice they are often the only chemical analysis performed when the presence of illegal drugs is suspected.
The kits were designed to expedite arrests for possession of controlled substances by allowing officers to perform a simple and instant chemical test to determine the presence of illegal drugs, but were never meant to support a conviction. In jurisdictions that do not test evidence after the entry of a guilty plea, it is impossible to know how many false positives were the only evidence for sending innocent people to jail.
The tests cost roughly two dollars to produce, and are comprised of a clear bag containing vials of chemically reactive liquids. When evidence is placed into the bag and the vials are broken, the liquid is supposed to change color to indicate whether or not a controlled substance is present. The color the liquid turns indicates what type of drug has been detected.
However, many factors can affect the chemical reaction taking place when the test is performed, resulting in positive results even when substances containing no drugs are introduced. Some perfectly legal materials may also result in a positive reaction for certain controlled substances. As the manufacture of these tests is not regulated, no established error rates exist.
Operator error and confusion regarding the results also affects the accuracy of the test kits. After learning about planned report, one of the three major manufacturers of these tests changed their product labeling to clarify that reactions may occur with both, “legal and illegal substances.”
Although the continued reliance on these deeply flawed tests is a serious problem that must be addressed, the report also illustrates a more insidious issue in the use of systematic plea deals.
Defense attorney Kush Arora commented, “The routine offering and acceptance of plea deals by district attorneys’ offices for possession charges has obscured the high numbers of false positives produced by roadside tests for nearly half a decade, and likely resulted in countless citizens being labeled as felons for crimes which they did not commit.”
Studies showing that first time offenders are likely to accept plea deals within 48 hours of their arrest indicate that they lack an understanding of the ramifications of a guilty plea. Innocent people accused of possession often feel helpless to rebut the chemical “proof” of the roadside test, and accept a diminished sentence in exchange for a guilty plea to avoid the possibility of serving years in prison.
However, as illustrated by Ms. Albritton’s case, her ordeal did not end when she had completed her jail time. Her felony status effectively destroyed her life, in addition to restricting her constitutional rights. While the well written and impeccably researched article should be read in its entirety, the deeper question of how to address the systematic failure of our justice system to fully inform the accused of their rights, and provide them with engaged and competent public defenders, remains unanswered.