Law enforcement officials in Texas have used a variety of tools to help them investigate suspected drug-related offenses. Some of these tools have resulted in profound injustice in the form of wrongful convictions. A kit used by many officers around the state to test substances they believe are an illegal drug has returned “positive” results for substances later revealed to be innocuous. By the time more accurate test results were available in many of these cases, defendants had already pleaded guilty rather than risk going to trial against what police had represented as incontrovertible evidence of guilt. Now, the Houston Police Department has announced that it will no longer use these field kits, but not because of concerns about justice. Instead, the department cited risks posed to officers from opiate exposure during testing. Still, this is welcome news for Texas criminal defense advocates.
In any criminal prosecution, the state has the burden of proving every element of the charged offense, as it is defined by statute, beyond a reasonable doubt. Field-testing kits are often used by police to test substances believed to be cocaine. The relevant criminal charge would likely be possession of a controlled substance in Penalty Group 1. This would require proof beyond a reasonable doubt of four elements: that a defendant (1) possessed a controlled substance (2) that is included in Penalty Group 1, (3) that the defendant did so “knowingly or intentionally,” and (4) that the defendant did not have a valid prescription for the substance from a medical doctor. Tex. Health & Safety Code §§ 481.102(3)(D), 481.115(a).
In a cocaine possession case, the prosecution must prove beyond a reasonable doubt that the substance is, in fact, cocaine. The requirement of proof beyond a reasonable doubt means that the “finder of fact” concludes that no reasonable doubt exists as to whether the substance is cocaine. The “finder of fact” is either the judge presiding over the case or a jury of the defendant’s peers. Results from a drug-testing kit routinely used by police can appear very convincing, unless the defendant is able to challenge the accuracy or validity of those test results. An innocent defendant without the resources to challenge the test results might choose to plead guilty rather than risk turning the decision over to a jury.