Liability for False Positive Drug Test Results

NARK IIDasha Fincher spent more than three months in jail because law enforcement officials found a bag of cotton candy in her car. A deputy who conducted a field test of the cotton candy decided it was actually methamphetamine, leading to Fincher’s arrest and incarceration. She has joined the ranks of individuals who are suing for the harms inflicted by unreliable drug test results.

Fincher was driving a car that she borrowed from a friend on New Year’s Eve. Monroe County, Georgia deputies stopped the vehicle, allegedly because the tint on her car windows was too dark. The county has since admitted that the tint was legal, suggesting that the deputies used a pretext to stop the driver in the hope that they would find evidence of an actual crime.

The deputies spied a bag of blue cotton candy next to Fincher. Apparently believing that cotton candy is a dangerous drug, the deputies used a notoriously unreliable roadside test to confirm their suspicions. The test result was positive for methamphetamine — or that, at least, was the deputy’s interpretation of the test result.

Fincher’s Ordeal

One might think that experienced law enforcement officers would know the difference between methamphetamine and cotton candy, but the deputies arrested Fincher for drug trafficking. A judge imposed bond in the ridiculous amount of $1 million. Fincher could not afford to post the bond, so she sat in jail.

The Georgia Bureau of Investigation crime lab got around to testing the cotton candy almost three months after Fincher’s arrest. The crime lab notified prosecutors that the cotton candy contained no illicit substances. It took prosecutors another two weeks to decide that they should release the innocent defendant.

Fincher has sued the Monroe County Sheriff's Office for violating her civil rights. The suit contends that the Sheriff's Office was negligent and reckless in basing an arrest on an unreliable test. They also contend that the officers violated Fincher’s civil rights by arresting her without probable cause to believe she committed a crime.

The suit alleges that the Sheriff’s Office used a roadside drug test, cleverly named the NARK II, that has a long history of returning false positives. In this case, food coloring in the cotton candy likely caused the positive test result. The lawsuit also contends that Monroe County failed to train its officers to recognize false positives.

Unreliable Drug Tests

Investigative journalists at ProPublica and the New York Times Magazine discovered that roadside drug tests routinely produce false positives. Ignoring that evidence, police agencies continue to base tens of thousands of arrests every year on doubtful test results.

The NARK II by Sirchie and other roadside tests return false positives when they detect a variety of legal substances, from vitamins to breath mints. Part of the problem stems from the nature of the $2 test. A police officer must interpret the color of the solution into which the suspected drug is placed. Different people perceive colors in different ways, and a subtle variation in shade might mean the difference between a substance that is illicit and one that is legal.

To be certain of a chemical test result, laboratories use sophisticated test instruments. The most reliable (and also the most expensive) device performs a gas chromatography-mass spectrometry (GC-MS) analysis. But backlogged crime labs take months to perform confirming tests while innocent defendants languish in jail.

Rather than waiting months for test results, innocent defendants often strike quick plea bargains so they can be released on probation, adding a criminal conviction to their record in exchange for regaining their freedom. The ProPublico investigation revealed that thousands of people every year are convicted of drug crimes on the basis of false positives. Prosecutors and police departments score the conviction as a “win” whether the defendant was guilty or innocent.

Liability for Incorrect Drug Test Results

Fincher joined Sirchie in the lawsuit, arguing that it marketed a dangerous or defective product. The court dismissed that claim, although her claims against Monroe County and the deputy who arrested her are pending. The judge accepted the company’s defense, which amounted to: “Hey, we never said we were perfect.”

Sirchie argued that the field tests merely provide a “data point” to inform an officer’s decision whether probable cause exists to make an arrest. According to Sirchie’s lawyers, the tests “give officers a real-time, science-based (if not infallible) method for deciding whether they can constitutionally arrest someone.” Sirchie, after all, didn’t arrest Fincher and didn’t tell the arresting officer to rely on the “data point” provided by its field test.

Sirchie seems to be trying to have it both ways by claiming it gives officers a science-based method for deciding whether they have probable cause to make an arrest and then arguing that it is not responsible when officers actually rely on the “science-based” test results to arrest an innocent person. But courts that are reluctant to protect the rights of ordinary people often allow companies to have it both ways. A different judge might rule that the company recklessly encourages arrest decisions to be based on a test result that cannot distinguish cotton candy from methamphetamine and that it should be liable for foreseeable harms that result when officers decide “they can constitutionally arrest someone” based on a dubious test result.

Lawsuits have met with more success when they are filed against laboratories that claim to perform rigorous testing and still report false positives. Several courts have allowed “negligent testing” lawsuits to proceed when labs fail to prevent false positives and incorrect test results are used to terminate employment or to incarcerate a probationer.

While lawsuits against the government are always an uphill battle, a strong argument can be made that law enforcement agencies cannot reasonably base an arrest decision on a field test result when the test manufacturer admits that their tests are “not infallible.” Given the substantial risk of false positives, the line between “not infallible” and “not reliable” should be recognized as too thin to justify basing a deprivation of freedom on an unconfirmed field test. If courts hold police departments accountable for relying on unreliable tests, perhaps taxpayers will demand that police departments stop using them.


Photo Credit: Sirchie, The NARK II Fentanyl field drug testing kit by Sirchie.

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