Sen. Wiener Introduces Bill To Limit Use Of “Often Inaccurate” Roadside Drug Tests By Police

State Senator Scott Wiener, D-San Francisco, introduced a bill on Tuesday that would prohibit law enforcement from making arrests or filing charges based only on certain field tests that assess whether a suspected substance is illegal.

Senate Bill 912, or the Requiring Objective and Accurate Drug Testing Act (ROAD Testing), concerns colorimetric drug tests, which involve assessing the presence of things like heroin, methamphetamine or cannabis in suspected substances. Officers can use the tests in the field, often while a suspect is initially detained.

But according to Wiener, such tests have “extremely high” error rates and are a leading cause of wrongful convictions. His legislation would not ban the tests, but would simply prevent law enforcement from using them as the basis for an arrest or booking decision without further verification from more accurate tests.

Wiener cites a study done by the University of Pennsylvania Quattrone Center for the Fair Administration of Justice, which found that the tests can have a false positive rate of up to 38 percent in some contexts and that “cotton candy, powdered milk, sugar, lidocaine, folic acid vitamins, bird feces, and even a loved one’s ashes have produced positive results on colorimetric tests,” according to Wiener.

San Francisco, Santa Barbara and Tracy police departments no longer rely on these tests, according to Wiener, along with Kings, Madera and Siskiyou county sheriff offices as well. California Highway Patrol also does not rely on these tests and instead uses more accurate hand-held, lab-standard devices that can detect exact substances.

“Of the 216,886 people arrested on drug charges in California each year, approximately 4,099 will be wrongfully arrested and charged based on the results of colorimetric drug tests,” said Wiener’s office on Tuesday.

If California passes this proposed legislation, Wiener said the state will be leading the way nationally.

Wiener also said the use of these inaccurate tests fuels racial inequity in the criminal legal system — Black Americans are subject to erroneous colorimetric drug tests at three times the rate of their white counterparts.

“With accurate, scientific alternatives available, there is no reason to rely on junk colorimetric tests to make arrests when a suspicious substance is discovered in the field,” said Senator Wiener. “Bogus drug tests like these undermine basic principles of justice and fairness. The use of these wildly inaccurate drug tests — already abandoned by a number of major law enforcement agencies — is unacceptable now that the risk of wrongful conviction has been confirmed.”

The use of these tests is particularly problematic given that 95 percent of criminal cases in the U.S. criminal legal system are resolved through plea deals, said Wiener.

SB 912 will preclude law enforcement agencies from using the results of a colorimetric field drug test to establish probable cause for arrest or the institution of charges for drug possession, conviction, or sentencing prior to a reliable confirmatory test from a crime laboratory.