In Texas, those field tests provide probable cause to arrest and indict, but they do NOT provide proof sufficient to convict beyond a reasonable doubt.
Also, there is case law that says that if a defense attorney pleads a defendant guilty to any drug offense without a full lab report, it constitutes ineffective assistance of counsel.
So in Texas, you can’t be convicted of a drug offense on the basis of a colorimetric field test alone.
Arrested….yes.
Indicted….yes.
But convicted……no.
So in this State, this is a non-issue.
Take it from a felony prosecutor who has prosecuted dozens, if not hundreds, of drug cases.
I’m guessing those being arrested and indicted would disagree that it’s a non-issue, even if they aren’t convicted.
Our grand jury (fall 2023) would not indict for possession without a lab test.
I mean… she just had to shell out thousands of dollars to prove her innocence due to invalid evidence…
What’s the problem…?/s
She shouldn’t have had to. At our office, if we get the lab back and its negative, we close or dismiss it.
In fact, most of the time we won’t even bring a drug case to the grand jury until we get a lab result back.
I mean, she may have had to pay money to post a bond and bail out, but as far as court, were she indigent, she should have been given a court appointed attorney at no cost to her.
The short & long of it is that anything leading to tens of thousands of wrongful arrests should be done away with for use in the field… period.
If it can’t be used as evidence then you shouldn’t be able to be arrested for it…
You may beat the rap, but you can’t beat the ride.
As evidence for what though?
It is well established that those field tests provide sufficient evidence to establish probable cause to ARREST, even if they don’t provide sufficient evidence to prove guilt beyond a reasonable doubt.
Those are VERY DIFFERENT burdens of proof.
This is the kind of chicanery that makes people not trust PDs around the country and drives the defund movement.
Police, and prosecutors, do all kinds of good work across this country keeping us safe… but stuff like this makes us feel like law enforcement/legislators don’t give a damn about individuals and how false arrests affect their lives.
Well, consider this.
A person who is acquitted at trial because the evidence presented didn’t establish proof beyond a reasonable doubt on every element of the offense in the jury’s mind may still have had more than enough evidence against him/her to justify his/her arrest and indictment.
The fact that a person is acquitted…does NOT necessarily or automatically mean that they were wrongly suspected or even wrongly arrested.
Those are very different burdens of proof.
I’m sure that the person arrested, indicted, and ultimately acquitted will always feel that their arrest affected their life negatively, and I’m sure that it did, but in the end, there may very well have been enough evidence to arrest them, even if there was not necessarily enough to convict them beyond a reasonable doubt.
It’s just like field sobriety tests in DWIs. They don’t provide enough evidence to convict beyond a reasonable doubt…but they definitely provide enough evidence to give probable cause to arrest.
I believe there has to be a balance, but knowingly using a demonstrably flawed test should incur a cost to the prosecutor choosing to use it to arrest and indict someone who isn’t convicted. They’re used largely because they’re cheap, and this shifts the burden of legitimate testing back to the accused.
I don’t know exactly how unreliable this test is, but these failure rates are unacceptable to use as the basis for arresting and charging people.
“But the UPenn researchers believe the actual rate is much higher, from 15% to 38%. And a study by the New York City Department of Investigation showed test error rates from 79% to 91% in some correctional settings.”
15% to 38% inaccuracy rates would put them at not too far below the same inaccuracy level as DWI field sobriety tests, which are believed to be between 65% and 91% accurate (9% to 35% inaccurate).
Obviously not enough to convict beyond a reasonable doubt, but certainly enough to provide probable cause to arrest in the case of SFSTs.
Probably a tough case to make against field drug tests given that they are only slightly less accurate than SFSTs which definitely provide probable cause to arrest.
It’s unfortunate that more grand juries don’t take their responsibilities that seriously (or that judges don’t so instruct them to do so). Burden-shifting to defendants on something like this, particularly those who can’t afford an attorney, is fundamentally unfair and results in trapping these folks in the criminal justice system.
Not sure I agree there.
I’ve seen public defenders that were better than high paid private defense attorneys.
“Public defenders” aren’t available everywhere. Court-appointed attorneys are at an extreme disadvantage, especially in rural areas where they aren’t fairly compensated to begin with. And I’m not even getting into whether one attorney is “better” than another - this is a matter of resources.
When I say public defenders, that includes court appointed attorneys.
And in a rural county like the one I’m a DA in, they are VERY well compensated. There’s no public defenders “office” as such, but at any given time, up to five attorneys are “on the contract” for taking court appointments. Being on the contract for court appointments in this county is worth over $5K per month, and that’s generally only a portion of their practice.
And I gotta tell ya, we’ve seen those guys get better outcomes that some of the biggest Houston private defense attorneys.
I’ve beaten highly paid private attorneys from Houston, and lost to court appointed rural attorneys in court.
Given that, I disagree that justice is all about who can afford the priciest attorneys.
I’ve seen court appointed attorneys that were better.
It’s not the same everywhere - I’ve lived it.
And I didn’t say “justice is about…blah blah blah” - you’re doing your normal deal of trying to create an argument to argue against. Not worth my time.
Then you’ll have to tell me where, because in Washington County, I have definitely “LIVED IT” to the contrary.
Were you in some place even less rural, because believe me, this is pretty damned rural.
I take home over $5k every 2 weeks AFTER taxes & maxed out 401k…
That’s not well paid at $5k per month…
Now if they’re just collecting that to be on the contract then that’s not bad as a portion of their income…