Buting ,Williams & Stilling ,S.C. | A Criminal Defense Law Firm

Call Today for a FREE Consultation


False positives common in drug field tests; the innocent at risk

by | Feb 12, 2019 | Criminal Defense

Matthew C. was charged with possessing 92 grams of heroin after a baggie full of white powder was discovered in his van. The powder allegedly tested positive for heroin in a field test. In reality, it was laundry detergent.

Matthew was innocent but was charged with crimes that could lead to 15 years in prison. His bail was set at $500,000, an amount he couldn’t possibly afford. Even his family doubted him. He spent 41 days in jail awaiting the official lab results that would exonerate him.

Matthew was released after it was discovered that the arresting officer had been turning in a lot of false positive test results. It looks as if he simply lied about the results. As many as 80 cases are under review and may be tossed out. The officer has been fired and may be criminally charged with false arrest.

Drug field tests are known to be inaccurate

According to a 2016 report by ProPublica and the New York Times Magazine, American police arrest an estimated 1.2 million people each year for drug possession. In most of those cases, the arrest is justified by a field test.

Yet field tests are so notoriously inaccurate that both the National Bureau of Standards and the Justice Department have warned that they should never be used as the sole evidence in drug cases. In fact, field tests are inadmissible in virtually every U.S. jurisdiction.

The tests, which have changed little since the 1970s, are known to be problematic. One Florida study found, for example, that 21 percent of substances police identified as methamphetamine were not. Further, of those misidentified substances, half weren’t illegal. Nevertheless, the field tests undoubtedly resulted in arrests.

There is no agency tasked with regulating the tests or how they are to be administered. Yet heat, cold and even lighting can affect their accuracy. Police officers may receive little training on how to perform the tests, and they can — and do — make mistakes.

What is the harm done by relying on questionable field tests? After all, only a lab test can be admitted as evidence. Doesn’t that mean that no one can be convicted on the basis of a field test alone?

Unfortunately, that is not the case. The vast majority of U.S. criminal cases are resolved through plea bargaining, and that usually takes place before the lab test results are in.

As we’ve discussed before, there is tremendous pressure to plead guilty, especially when someone is being held in jail because they can’t afford bail. Moreover, even if the case is later dismissed when a lab test determines the substance is not illegal, as Matthew C.’s case illustrates, people can sit in jail for a long in time before that happens. They may have lost jobs, become estranged from their own family, or lost custody or visitation with children due to the false allegations. 

It simply is not justice for people to be jailed or convicted based on field tests known to be unreliable.

Practice Areas

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)