FIELD DRUG TESTS DEFECTIVE by NORM KENT
Norm Kent, Esquire
This stunning YouTube Video prepared with the help of Dr. Bronner's soaps is a legal basis for throwing out a commonly used field test by hundreds of police agencies across the country called NarcoPouch.
In fact, it was instrumental in dropping charges against a band member in Southern California who was wrongly prosecuted based on the false presumption that his liquid soap was GHB. The false positive in the street field test led to his arrest. The crime lab's testing eventually exonerated the accused musician.
It appears that the testing equipment utilized to ascertain GHB, a controlled substance, also tests positive for ANY natural or organic soap, such as Dr. Bronner's Hemp-Pure Castille soap, readily available at Whole Foods markets locally. Further testing subsequently revealed that the popular NarcoPouch unit also tests positive on many colognes and perfumes.
Like the Intoxilyzer machines that have fallen under scrupulous legal review, if you can successfully show in a pre-trial motion that field-testing equipment is inherently compromised, the arrest itself can fail. Last week, the UK Guardian reported that a popular street side test for marijuana has also been compromised.
Known as the Duquenois-Levine, or D-L Test, it is produced by various for-profit manufacturers, and the standards to create the product are not exactly supervised by health agencies or homeland security. Not to be sarcastic, but you have to persuade a court that these companies have their own best pecuniary interests at heart, not the public good. We need to get the courts to presume fallibility.
Many of us already remember what happened to Robin Rae Brown on March 20, 2009, in Weston, here in Broward County, Florida. She parked her pickup truck and went for a hike off the beaten path along a remote canal and into the woods to bird watch and commune with nature. “I saw a bobcat and an osprey,” she recalls. “I stopped once in a nice spot beneath a tree, sat down and gave prayers of thanksgiving to God.”
Robin had packed a clay bowl and a “smudge stick,” a stalk-like bundle of sage, sweet grass, and lavender that she had bought at an airport gift shop in Albuquerque, New Mexico. Under the tree, she lit the end of the smudge stick and nestled it inside the bowl. She waved the smoke up toward her heart and over her head and prayed.
Spiritual people from many cultures, including Native Americans, consider smoke to be sacred, and believe it can carry their prayers to the heavens. Law enforcement does not so abide. I learned that on Star Island in the 1980's counseling members of the Ethiopian Coptic Church, whose daily rituals of religious marijuana use were not accepted by the DEA, who raided and arrested them, chasing them from Florida.
Robin Brown's bird watch became a nightmare leading to an illegal arrest. When she returned to her pickup truck, a Broward deputy and a Florida Fish and Wildlife lieutenant confronted her. One spotted her incense and asked if he could see it. He took the bowl and incense, asking whether it was marijuana.
Robin told the police it was her 'smudge.’ “Smells like marijuana to me,” said the deputy, who admitted he had never heard of a smudge stick. He then took the incense back to his car and conducted a D-L field test, which proved ‘positive for marijuana.’ She was eventually arrested.
Robin’s case has gained notoriety because she later learned that her incense had never been subjected to a confirmatory lab test. The Broward state attorney negligently filed a criminal charge without the subsequent testing, and was sued after the charges against her were dropped. Robin’s lawyers so far have not prevailed based on statutory immunity. Sadly, the state is immune from its carelessness, but innocent citizens go to jail because of it.
The test itself works fine. The problem is that, in addition to identifying marijuana or hashish, the D-L test frequently reads positive for tea, nutmeg, sage, and dozens of other chemicals—including ‘resorcinols,’ a family of over-the-counter medicines, which, includes Sucrets throat lozenges.
In a 2008 article for the Texas Tech Law Review, Frederic Whitehurst, Executive Director for the Forensic Justice Project and formerly with the FBI, concluded: “We are arresting vast numbers of citizens for possession of a substance that we cannot identify by utilizing the forensic protocol that is presently in use in most crime labs in the United States.”
As renowned drug expert author, John Kelley, has pointed out in Alternet articles, there are many flaws emerging with these tests. In fact, the problem of "false positives" in drug tests isn't just limited to substances that appear to resemble marijuana or GHB. In Canada, the owners of a family-based chocolatier business were fingered as dangerous drug dealers by a Duquenois field test and found themselves in jail. Incarceration by Chocolate!
The test, as shown in the Bonner soap video, above, is a simple chemical color reagent test. To administer the test, you simply break a seal on a tiny micropipette of chemicals, and insert a particle of the suspected substance. If the chemicals turn purple or green or a particular color, this indicates the possibility of marijuana or maybe GHB. But ‘possibility’ is not automatically, ‘reliability.’
As scientific examiners unearth new drug testing techniques, the defense bar needs to maximize ways to bust them for their fallibility.
Don’t walk your clients to the plea counter. Plead their case instead with pre trial motions that require the state to authenticate the drug testing sources that provided the basis for the initial arrest. You may have the fruits of a poisonous tree. Suck it dry for everything it is worth.
Supreme Court News Clippings - August 18th, 2011 (click on "Click here to start download from MediaFire.." to read today's articles distributed to Florida's judges).
Hey Sheriff Al - time to bring back Al Pollack!
Who knew? - it turns out PWBC is actually good for Broward County, since viewers now know how out of control the cops are. Just check out the comments following the Sun Sentinel's article on Andrea Penoyer's refusal to answer deposition questions ...
Hey rookie! - fighting with judges and winning is easy, if you follow a few simple rules. Hopefully Kevin Gleason learned a lesson after his humiliating defeat at the hands of John Olson, and next time comes to us for a little schooling before biting off more than he can chew. In the meantime, we'll be following up on the "Fraudulent Corruption Of The Judical Process" lawsuit involving Olson, having forgotten all about it 'til today's article ...
11th Circuit PD's Motion To Dismiss (Scriven Order)