Model Policy to Regulate the Use of the Colorimetric Presumptive Field Drug Test

Policy Status

  • Type: Model Policy
  • Status: Final
  • Date Introduced: December 5, 2024
  • Date Finalized: December 31, 2024

Issues

  • Criminal Justice

    • Task Forces

  • Judiciary

    • Tags

  • SNPS 2024

    • Summary

    This model seeks to limit the harm enabled by error-prone colorimetric field drug tests. The widespread use of presumptive field drug test kits is generating tens of thousands of wrongful arrests in which innocuous substances are misidentified as illegal drugs, leading to the conviction of innocent people. While there have been many reports of errors with field drug test kits over the years, the extent and scale of their impact has only recently been quantified.  In January of 2024, a national study released by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, found that tests like these – presumptive, colorimetric drug tests used in the field vs. controlled tests in a crime lab – are used in approximately half of America’s 1.5 million drug arrests, and in 30,000 of these arrests innocent people are wrongfully implicated by false positives from these colorimetric tests.  As a result, it appears that plea agreements based on these error-prone drug tests are the single largest known cause of wrongful convictions in the United States.
    Draft

    Model Policy to Regulate the Use of the Colorimetric Presumptive Field Drug Test

    MODEL POLICY TO REGULATE THE USE OF THE COLORIMETRIC PRESUMPTIVE FIELD DRUG TEST

    (a) For purposes of this section, the following term has the following meaning:

    (1) “Colorimetric field drug test” means a field-testing drug kit that consists of color test reagents for the preliminary identification of narcotics in their pure and/or diluted forms. It does not apply to kits that use thin layer chromatography as the identification procedure nor to kits that identify drugs in body fluids.

    (b) All law enforcement agencies and prosecutorial entities shall adopt regulations governing the arrest and prosecution of simple possession drug arrests as defined in [RELEVANT CRIMINAL PROCEDURE CODE] to ensure reliable and accurate identifications of controlled substances and maintain the integrity of convictions. In order to do so, law enforcement agencies and prosecutorial entities shall adopt, at a minimum, the following provisions:

    (1)  Results of a colorimetric field drug test conducted by a law enforcement agency shall not be considered for the determination of probable cause for arrest, the institution of charges for drug possession, conviction, or sentencing prior to a confirmatory test from a crime laboratory.

    (2) When a colorimetric field drug test has been conducted but there has been no confirmatory test from a crime laboratory, in the absence of any conflicting statutory provision, individuals charged with simple possession as defined in [RELEVANT CRIMINAL PROCEDURE CODE] shall be cited and released.

    (3) Any individual charged with simple drug possession shall be entitled to plead to the offense of simple drug possession, as defined in [RELEVANT CRIMINAL PROCEDURE CODE] but shall be entitled to withdraw their plea and move for dismissal of charges in the event of a confirmatory laboratory test that finds that there was no controlled substance in the sample of the material for which they are arrested and charged. The defendant may request a confirmatory test at any time during the pendency of the case or subsequent to the entry of the plea.