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Unreliable Drug Tests Standard for Law Enforcement and Prisons

by Keith Sanders

Illicit drugs pose a serious problem for both prisoners and officials inside America’s prisons and jails. To combat smuggling, many state and federal prisons use field test kits to evaluate substances introduced into the facilities. These kits allow prison officials to detect the presence of meth, amphetamines, cocaine, opiates, and other illegal substances.

One test in particular, Safariland’s NIK, is commonly used by law enforcement and prison guards to test suspicious substances.

The NIK test kit relies on a two-step, color-coded process: Test A is for general screening and if the substance turns a different color then Test LI is administered to determine a presumptive positive. In Safariland’s kit, if Test A turns orange then brown and Test LI becomes blue, the substance is possibly methamphetamine; if Test LI turns burgundy, it could indicate amphetamine.

Because the results of such tests are “presumptive,” an outside laboratory is required to verify the kit’s results.

Nevertheless, the NIK, and others like it, is preferred by law enforcement and prison officials because it is portable, does not require someone with a chemistry degree to use, and, at $2.00, dirt cheap.

But the old adage “you get what you pay for” has led many critics to voice their concerns about the kits’ disadvantages. The color-codes are entirely subjective; the kits are subject to user error; and they are prone to “false positives.”

According to Heather Harris, an assistant professor of forensic science at Arcadia University, the kits react to the presence of meth, for example, as a “functional group” of atoms.

However, that functional group is “not specific to methamphetamine. It’s common in the world, so there’s a variety of substances, some of which we know, but some of which we don’t know, that are going to possess this group and allow this color test to produce a color,” Harris pointed out.

The result is that these kits can test positive, not only for illegal drugs, but for everyday items and over-the-counter medications that are legal. Although not admissible as evidence in most U.S. courts, a “presumptive positive” result with a field test kit is enough to constitute probable cause and arrest.

The inaccuracy of the kits has led to the arrest of innocent people. In 2020, a college football player in Georgia was arrested after an officer tested bird poop on the player’s car and concluded it was positive for cocaine. Another Georgian, Dasha Fincher, was arrested in 2016 when a bag of cotton candy tested presumptive positive for methamphetamine; while a Florida man was wrongfully arrested and jailed in 2017 after a field test claimed that glaze on the man’s donut was meth.

In many instances, individuals confronted with “evidence” from these questionable test kits pleaded guilty to possession. An investigation by ProPublica and the New York Times in 2016 discovered 212 people in Houston, TX pleaded guilty to drug possession between January 2004 and June 2015 as a result of “presumptive positive” test results. The investigation noted that the tests, conducted by the Houston Police Department, were later invalidated by crime labs outside the department. Consequently, the Houston Police Department discontinued the use of such field test kits in 2017.

The situation is worse, however, for prisoners. Incarcerated people are routinely disciplined on the basis of presumptive positive results. American courts have traditionally afforded detention facilities a large degree of freedom from oversight and the rule of law concerning security and operations. The Supreme Court in 1985, for example, ruled in Superintendent v. Hill that the federal Bureau of Prisons (BOP) was required only to provide “some evidence” to support disciplinary action against a prisoner. This is a substantially lower bar than “beyond reasonable doubt” for criminal cases and the “preponderance of evidence” required in civil cases.

This lower standard had led to myriad prisoners losing good time credits, privileges, and being thrown in solitary confinement for dubious test results. More concerning, courts have ruled that prisoners do not have the right to demand the test results be verified independently.

The story has been more positive in some state courts. In People v. Charon, the Superior Court of Imperial County, CA, ruled in 2018 that “unverified NIK tests were not admissible evidence in grand jury proceedings.” Testimony in the case revealed that “presumptive positive” was an essentially meaningless term.

The Court noted that NIK testing errors have mistakenly claimed chocolate presumptively positive for heroin, concluding in its ruling that the “NIK Color test for heroin does not meet any recognized forensic scientific standard.” 



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