This is not uncommon. The most common type of roadside test police use to test substances they suspect may be illegal drugs sometimes gives false positive results. In other words, substances sometimes test positive even when they are not illegal, or when they are not drugs at all.
This information isn’t new. In 2016, the nonprofit newsroom ProPublica began a series of investigative articles about these field tests being unreliable. According to one of the articles, this $2 roadside test sends tens of thousands of people to jail every year.
An unacceptable number of those people are completely innocent.
How unreliable are these tests?
The tests are so likely to test falsely positive that ProPublica called it “routine.” In one case, a judge called the results of his type of test “arbitrary and unlawful guesswork.”
Other courts are beginning to take notice. Many have disqualified this type of field test from being admitted into evidence in jury trials. Many jurisdictions now require a confirmation by a more accurate test before a person can be tried.
Unfortunately, that confirming test result comes far too late for many defendants. The second test is a lab test, and police labs are often backlogged. It could be months before that confirmatory test comes in.
Meanwhile, the prosecutor may try to convince you to plead guilty right away. They will act as if there is no doubt you are guilty and offer you a shorter sentence if you agree to plead guilty.
Don’t do it without talking to a defense lawyer first.
A guilty plea is forever. Protect yourself by hiring an attorney.
Understand that the police and prosecutor probably think you are guilty. Worse, they need to resolve around 95% of their cases though plea bargaining.
Even if you’re 100% sure the second test will come back negative, a defense lawyer is crucial in this situation. You will have important decisions to make right away – perhaps long before the second, more accurate test results come back.
You need to decide whether to wait for the results of the second test and what the consequences of waiting might be. If you plan to fight the charges, you need a plan that can win. At the very least, you need to understand all of your options before you make any decisions.