A story in USA Today tells of the many people who are being arrested, handcuffed and taken to jail because innocent items in their possession test positive for narcotics in a field test. One couple in the story was arrested at an airport and had their baby taken away from them because the chocolate in their luggage came up positive for hashish. Another man in the story sat in jail for 2 months because his deodorant came up positive for cocaine. This is crazy.
What happens in your typical drug case is that when suspected drugs are found, the person in possession of them is immediately charged with a crime. The contraband is sent off to the crime lab where it is tested to confirm that the confiscated material is actually the illegal drug it appears to be. These lab tests, in Kansas drug possession cases, usually take 6 to 8 weeks, sometimes longer. While the confirmation test at the lab is pending, the person from whom the suspected drugs were taken is in jail, or out on bond dealing with the criminal charge against him or her. A lawyer must be obtained by the person and there will usually be a court appearance or two before the lab results come back.
Most people know what a bag of marijuana looks like (a green, leafy substance), and what cocaine looks like (white powder), and what most other drugs look like (pills, rocks, etc.). Usually, there is some paraphernalia involved (pipes, lighters, steel wool, rolling papers) when drugs are found. Why would anyone get arrested for possession of chocolate? It doesn’t look or smell like hashish. Why would anyone get arrested for deodorant? It does not look like cocaine in any way, shape or form. Other people in the story report being arrested for possession of soap that comes up positive for GHB, a date rape drug. One couple’s soap-related arrests have cost them $20,000.00 in legal bills!
Common sense seems to have left the building in these cases. But, that is the problem with “tests”. They are given the imprimatur of “science” when they are not actually good science. Once the test gives a “result”, the blinders come on and chocolate becomes hashish, deoderant becomes cocaine. It is crazy, but obviously a real phenomenon. This problem is not limited to drug cases. In Kansas DUI and Missouri DWI cases, people are routinely taken to jail based on totally unscientific field tests, including preliminary breath tests (PBT) which are screening tests done out on the side of the road before a person is arrested. These PBT’s are not specific for alcohol (in other words, other chemical compounds can be mistaken by the machine for alcohol), are often not calibrated or otherwise tested for accuracy, and are usually not operated according to the requirements of the product manufacturer. In fact, they are so unreliable, the Kansas legislature has made them inadmissible in Kansas DUI cases for most purposes. But, they are enough to get you arrested and taken to the jail.
The breath test that is admissible, the Intoxilizer 8000 in Kansas, raises similar problems. When a person blows into the machine and it spits out a number over the Kansas legal limit of .08, everyone assumes the person is guilty and the blinders come on. This presumption is hard to overcome. However, the Kansas breath test is more like someone’s deodorant testing positive for cocaine than a laboratory test conducted according to scientific principles. The machine is fallible. Everyday products like white bread will give a false positive on the machine for acohol (and no one knows why). You should see what happens with mouthwash, chewing tobacco, asthma inhalers and other innocent products! Other innocent physiological issues like body temperature can cause a person who is not intoxicated to submit a test over the legal limit. Blood tests for alcohol are like the confirmation tests done at the lab on the drugs. They are much more scientific and accurate, if done properly. However, blood tests in Kansas DUI cases are infrequent.
Of course, it costs money to get a blood test and it takes the same 6 to 8 weeks for the results in most Kansas cases. But, if we are going to put people in jail for significant periods of time, and take away driver’s licenses (and therefore livelihoods) for long periods of time, as well as cause people to otherwise lose their freedom and live with the stigma of a DUI, shouldn’t we be basing those decisions on the most reliable and most accurate tests available? Is the cheapiest and easiest test, yet least reliable test, the right way to go? At least Kansas ought to join the overwhelming majority of the states which require 2 breath tests. By doing 2 breath tests a few minutes apart, there is at least a better chance that the one test wasn’t due to a malfunction of the machine, or some innocent product, or some other fluke. Even Santa Claus checks his list twice! The carpenter’s motto is “measure twice, cut once.” Getting two breath tests doesn’t cost anything more. The powers that be just don’t want to do it because it would expose the fallacy of the machine when it spits out two wildly different results taken only minutes apart. Duplicate testing is not just a good idea. It is a scientific requirement for accuracy and precision. Otherwise, these cheap and easy tests turn deodorant into cocaine and sober people into criminals.