THE PROBLEM
Each year, according to the 2023 landmark study from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania, over 750,000 people are arrested based on field drug test kits, known to give false positives. Although the true error rate of field drug tests on a national basis could not be determined, the study found that approximately 30,000 people are arrested each year, falsely implicated by a presumptive color-based test kit. The study noted that false positive rates of 15% and as high as 38% have been observed and determined that field drug test kits are likely the largest contributing factor in wrongful arrests and convictions in the United States.
https://www.law.upenn.edu/institutes/quattronecenter/reports/field-drug-test-study/
The appalling impact of these error-prone tests had previously been identified on a local basis in Harris County, Texas, where 94 of 140 drug possession exonerations in 2016 and 2017 resulted from prosecutions involving roadside/field tests that inaccurately identified illegal substances. http://www.law.umich.edu/special/exoneration/Documents/Drug_Cases_2016.pdf
In 1974, the Commerce Department’s National Bureau of Standards stated that roadside drug test kits “should not be used as sole evidence for the identification of a narcotic or drug of abuse”. In 1978, the Department of Justice determined that “field tests should not be used for evidential purposes”. Following a 2016 Pro Publica investigation by Ryan Gabrielson and Topher Sanders, Sirchie, one of the leading roadside/field drug test manufacturers, added a warning label to its printed cocaine test instructions stating “ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY”. In virtually all jurisdictions, due to their known inaccuracy, the $2 roadside/field drug tests are inadmissible at trial. Instead, for trial purposes, prosecutors must obtain a much more reliable laboratory test.
However, over 90% of drug possession cases never go to trial. For the many defendants who cannot afford bail, remaining in jail for weeks or months awaiting a laboratory test will likely result in loss of employment, housing and, in extreme cases, the removal of children into the foster system. As a result, the majority of those jailed accept plea deals that leave them burdened with a drug possession conviction. Often, these defendants are entirely innocent, and their lives are derailed based on a drug test that is known to give inaccurate results. This is a needless tragedy for those individuals, their extended families and communities, and also for our criminal justice system and taxpayers due to the substantial cost of unnecessary prosecution and incarceration.
In addition, it is clear that the harm done by inaccurate roadside drug tests disproportionately impacts minorities in general, and African Americans in particular. Numerous studies have shown that Black drivers are stopped more often than White drivers relative to their share of the driving-age population. Also, that following a traffic stop, Black drivers and their vehicles are more likely to be searched. This combination becomes particularly corrosive when combined with a flawed drug test that is known to give false positives. In fact, the Quattrone Center study found that Black people experienced erroneous drug arrests due to inaccurate drug test kits at a rate 3x higher than their white counterparts.
See the Fox 13, Tampa Bay, Florida investigation showing how roadside/field drug tests falsely identify common household items as illegal drugs.
Read Pro Publlca’s report by Ryan Gabrielson and Topher Sanders in the New York Times magazine.
"How a $2 Roadside Drug Test Sends Innocent People to Jail".
THE SOLUTION
We believe there are two practical ways to minimize the tragic impact of inaccurate color-based field test kits:
stop using roadside/field drug test kits as a basis for arrest, prosecution and detention. Instead, adopt a cite-and-release policy pending an accurate laboratory test.
alternatively, convert to using portable, electronic field test devices that use technology such as mass spectrometry or Raman spectroscopy. Although not as accurate as full laboratory test equipment, the ability of these devices to determine the chemical structure of unknown substances means they are much less prone to false positives.
In 2018, the Forensic Technology Center within the National Institute of Justice, stated that “color-based tests are not always accurate” and issued a comprehensive study of other more accurate portable electronic field test devices. In the conclusion to their study, the NIJ summarized that these devices “offered significant advantages over traditional color-based testing, including comprehensive one step testing, objectivity, specificity, safety, chain of custody corroboration, technical support, and versatility.” Here is a link to the full NIJ Study of Field Portable Devices for Presumptive Drug Testing:
For those law enforcement agencies that continue to use color-based roadside/field tests as a basis for further investigation, they should follow the Department of Justice test-kit packaging guidelines issued in 2000 that called for users of drug test kits to “be taught that the reagents can give false-positive as well as false-negative results”. Police officers should not arrest people based on inaccurate roadside drug tests but instead, issue a citation and release the person, while sending the suspected substance to a laboratory for testing. Similarly, it is within the power of each District Attorney’s office to determine that they will not seek pre-trial detention or negotiate a plea deal for drug possession in the absence of a laboratory drug test confirming an illicit substance.
The adoption of these simple solutions will result in justice for thousands of innocent people each year and conserve millions of dollars and other resources currently spent incarcerating people based on inaccurate roadside/field drug tests.
WHAT WE’RE DOING
A challenge in seeking reform in this area has been obtaining comprehensive data on the extent of use and impact of roadside/field drug tests. To fill this information gap, we commissioned an independent, national study by the University of Pennsylvania’s Quattrone Center for the Fair Administration of Justice. This study was released in January 2024 and exposed the tragic impact of these inaccurate tests. To read the full study, please click on this link.
https://www.law.upenn.edu/institutes/quattronecenter/reports/field-drug-test-study/
In addition, we are actively working, individually and with other organizations, on legislation and other initiatives to restrict the harm done by field drug test kits. In January 2024, we sponsored a bill in the California legislature, introduced by Senator Scott Wiener (D-San Francisco), to limit the use of inaccurate roadside drug tests. SB912, the Requiring Objective and Accurate Drug (ROAD) Testing Act will preclude law enforcement agencies from using the result of a colorimetric field drug test to establish probable cause for arrest or the institution of charges for drug possession, conviction or sentencing prior to a reliable confirmatory test from a crime laboratory.
We also act as an information resource for those facing prosecution based on these faulty drug tests and offer support to those who may be eligible for exoneration due to a post-conviction laboratory test finding that the substance identified in a field test was not, in fact, a controlled substance.