Opinion: Put an end to bad roadside drug tests

Sagiv Galai
California Highway Patrol Sgt. Jaimi Kenyon blows into a breathalyzer held by Sacramento Police Corporal Luke Moseley during a demonstration of devices used to test drivers suspected of impaired driving Wednesday, May 10, 2017, in Sacramento, Calif. Breathalyzers are commonly used to detect alcohol but a new device tested by three of California's largest counties, can detect the presence of drugs in saliva within five minutes. Some officers and lawmakers want the devices used statewide after voters passed Proposition 64 in November, legalizing the recreation douse of marijuana.

Three years ago, Dasha Fincher was arrested in Monroe County, Georgia, after deputies performed an on-the-spot test of a bag containing a blue substance they found in the car in which she was a passenger. The suspicious stuff tested positive for methamphetamines. After her arrest, the judge in her case set bail at $1 million because she was perceived as a drug trafficker.

There was just one problem. The roadside drug-test was wrong. The blue substance wasn’t meth — it was cotton candy. Fincher would spend three months in jail because of the faulty test.

Fincher’s story of cotton-candy-gone-meth isn’t an aberration. The prevalence of false-positive results associated with roadside drug tests is terrifyingly common. ProPublica warned that “a minimum of 100,000 people nationwide plead guilty to drug charges that rely on field-test results as evidence,” and that because the tests are so frequently used this could mean thousands of wrongful convictions.

Despite these gross miscarriages of justice, prosecutors nevertheless continue to seek unaffordable bail and charge defendants with serious crimes on the basis of unreliable roadside drug test results. It doesn’t have to be this way. Local prosecutors can play a pivotal role in preventing these injustices.

For instance, the unmatched power of their office allows prosecutors to end pretrial detention in cases involving roadside tests. Prosecutors who rely on these tests must not set cash bail. Furthermore, prosecutors must ensure that lab confirmations are prompt. No one should be sitting in jail because the labs are backlogged and because the device is defective.

This can be accomplished through robust supervision and screening practices, but even in offices that have these practices more must be done to prevent the incarceration of innocent people. As such, prosecutors and local municipalities should create or expand Conviction Integrity Units to evaluate prior cases in which these tests were used as evidence in one’s conviction. Prosecutors do this already — around the country, prosecutor offices review convictions in which misconduct, bad evidence, or error led to the wrongful incarceration of innocent people. 

Prosecutors must also refrain from pursuing plea deals in cases in which arrest is exclusively supported by a roadside test. This would ensure that individuals who are subjected to wrongful arrest are at least free from the pressure of deciding whether to plead guilty to something they didn’t do — just because the lab hasn’t figured out that they’re innocent yet.

Our war on drugs has been a moral disaster, but even if prosecutors don’t think that decriminalization or even outright legalization is the solution, they should put into place protections to ensure no one’s liberty is jeopardized based on a bad roadside drug test. Instead, they should be released until lab results confirm the presence of illegal drugs to guard against turning another innocent person’s life into a nightmare.

There’s no good reason any person should go through what Dasha Fincher endured, and prosecutors have the power to make sure what happened to her never happens again.

Sagiv Galai is a paralegal for the American Civil Liberties Union Criminal Law Reform Project.