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Harris County Abandons Faulty Roadside Drug Tests

On December 8, 2016, the Harris County Sheriff's Office issued a press release announcing that District 5 Patrol deputies were credited with arresting and charging a 24-year-old Cypress man and seizing nearly a half a pound of methamphetamine when a bag was found with small clear, blue and gold colored “nuggets” that tested positive in field tests for methamphetamine. "This is another example how a routine traffic stop turned into a significant narcotics arrest in our community and may have kept our children and loved ones free from being introduced to drugs," the release stated. 

As it turned out, the nuggets police found were actually a sock filled with cat litter—a trick the alleged offender's father used to defog the windows in the vehicle. According to the Houston Chronicle, the alleged offender's case was dismissed on January 4 in a Harris County Court document that states "not a controlled substance" as the reason—after the alleged offender's parents paid $10,000 to bail him out of jail. 

On July 14, the Chronicle reported that the Houston Police Department and more than a half a dozen other local police agencies are ending the use of controversial roadside drug testing blamed for hundreds of wrongful drug convictions in Harris County. At a press conference announcing the change, Houston Police Chief Art Acevedo said the department was abandoning the use of the chemical field tests because of the dangers testing certain controlled substances could expose police officers to. 

"Substances like Fentanyl and Carfentanil have changed the entire dynamic," Acevedo said. "We can't take the chance of losing a first responder or a member of the community because we failed to place safety above process." 

Acevedo did not address the increased scrutiny that the roadside drug tests had fallen under in recent years. Major news stories have included: 

  • On April 19, 2014, the Austin American-Statesman reported that it had identified 21 cases in which alleged offenders were arrested and charged with minor drug possession offenses, samples of the confiscated substances were sent to public labs for conclusive identification, and alleged offenders pleaded guilty and began serving their jail or prison sentences before test results came back—possibly months or, in a handful of cases, years later. 
  • On July 7, 2016, the New York Times and ProPublica reported that former prosecutor Inger Chandler, who oversaw the conviction-integrity unit of the Harris County district attorney’s office, found that the district attorney’s office had failed to correct 416 “variants” between January 2004 and June 2015, all of them in cases that ended in guilty pleas. The Times and ProPublica's examination of the 416 variants showed 301 of the variants began as arrests by the Houston Police Department and 212 of those 301 arrests were based on evidence that lab analysis determined was not a controlled substance. 
  • On July 16, 2016, the Houston Chronicle reported that a far-reaching audit of drug cases by the Harris County District Attorney's Office showed 298 people were convicted of drug possession even though crime lab tests later found no controlled substances in the samples.

Houston Lawyer for Drug Possession Arrests

As the Times and ProPublica piece noted, the drug tests used by police officers that cost about $2 each "have changed little since 1973 — are far from reliable." Much of that story focused on the ordeal of Amy Albritton, a woman who was arrested and pleaded guilty to possession of a controlled substance after police officers used a roadside test to determine that a white crumb on the floor of her car was crack cocaine. 

As the Times and ProPublica noted: 

The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumb on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question — but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street — flashing police lights, sun glare, street lamps — often prevents officers from making the fine distinctions that could make the difference between an arrest and a release. 

In February 2011, a Houston forensic scientist used gas chromatography-mass spectrometry analysis (GC-MS), "the gold standard in chemical identification," to examine the crumb found in Albritton’s car. "The crumb’s fragmentation pattern did not match that of cocaine, or any other compound in the lab’s extensive database," the Times and ProPublica reported. "It was not a drug. It did not contain anything mixed with drugs. It was a crumb — food debris, perhaps." 

The GC-MS procedure did not occur until five months after Albritton had completed her sentence and returned home as a felon. When a form letter was mailed to Albritton stating that the Harris County district attorney’s office had learned that the drug evidence in her case was not a controlled substance and she had been prosecuted for a criminal drug offense and convicted in error, Albritton never received the letter because she had already lost her job and been evicted because of the conviction. 

Even without convictions, arrests for alleged drug crimes can have serious consequences for alleged offenders. It is important to remember that a prosecutor must prove an alleged offender's guilt beyond a reasonable doubt, and it is in the best interest of any person arrested for allegedly possessing a controlled substance to make sure that accurate tests are performed if the alleged drug was in fact not a controlled substance. 

Matt Horak is an experienced Houston criminal defense attorney who has handled all kinds of illegal drug cases on both sides of the aisle. As a former Assistant District Attorney in the Harris County District Attorney's Office, he understands what kinds of issues can be raised to possibly get criminal charges reduced or completely dismissed. 

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Matt Horak Matt Horak is Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2014