Texas Police Departments End Use of Drug-Testing Kits with History of False Positive Results

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.

The chemical field test used by police was first developed in the 1970s. Each kit costs about $2 and allows an officer to test a substance on the spot. In terms of accuracy, it has a terrible track record. An investigation in 2016 by ProPublica and the New York Times found that as many as 100,000 people nationwide pleaded guilty to drug possession offenses, despite being innocent.

Media reporting on this issue led officials in Harris County, Texas to restrict the reliance of prosecutors on field test results. In early 2017, a commission established by the Texas Legislature recommended ceasing the use of chemical field tests. In July 2017, the Houston Police Department announced it would no longer use the test kits, but not because of the test’s lack of reliability. Instead, they cited the risk posed to officers from handling opiate-related substances like Fentanyl while performing the test.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified drug crime lawyer who has practiced in West Texas for more than two decades, defends people against state and federal charges. Contact us today online or at (432) 687-5157 to schedule a confidential consultation with a knowledgeable and skilled criminal justice advocate.

More Blog Posts:

Law Enforcement Tactic Originally Authorized for Anti-Terror Operations Reportedly Being Used in Drug Enforcement Instead, Texas Criminal Lawyer Blog, June 25, 2017

Texas County Establishes Diversion Program for All Misdemeanor Marijuana Offenses, Texas Criminal Lawyer Blog, May 30, 2017

Federal Judge Rules on Homeowners’ Claim that Tea Leaves Did Not Provide Probable Cause for Drug Raid, Texas Criminal Lawyer Blog, May 25, 2017


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