New Law on Admissibility of Drug Field Test Result Doesn't Endanger Constitutional Rights

On September 30, 2007 Governor Granholm signed into law an amendment to the Michigan criminal procedure statute. The amendment, called Public Act 89 of 2007, allows the results of a field drug test to be admitted at the preliminary exam in felony prosecutions for the purpose of establishing probable cause that the suspected drug is indeed a controlled substance. This legislation was passed in an effort to reduce the backlog of drug tests swamping state crime labs which at last count number around 24,000. The delay in processing of drug test results is (or was) anywhere from six to nine months.

The problem has been that many prosecutors refuse to issue an arrest warrant until the test results are received from the state lab. This creates an obvious problem with lots of felons running around committing crimes--and doing whatever else it is that drug felons do--for 6-9 months while the police wait around for the test results to arrive. There are no statistics on how many of those undesirables skip town or, even worse, stay in town and continue to engage in bad behavior.

The new law only pertains to preliminary exams. It permits the prosecutor to use the field test results to show that there is probable cause (a lower threshold showing) to believe that the suspicious substance is, in fact, drugs. At a preliminary exam, a finding by the district court judge that there is probable cause to believe that the defendant committed a crime involving drugs and that there is probable cause to believe that the evidence is drugs allows the defendant to be bound over for trial to the circuit court (the next step in the process).

The new law allows law enforcement to go ahead and issue the arrest warrant immediately without the need to wait for the state lab test results and to instead use the field test at the preliminary exam in district court. Then, only if the felon decides to take the case to trial does the prosecutor need to have the suspected drugs tested at the state lab. Since the vast majority of criminal cases are pled out (usually down to a lesser charge) before trial, this should significantly cut down on the number of tests being done by the state lab and allow lab personnel to do other important lab work. This will save the state a lot of money on unnecessary testing.

Law enforcement officers generally carry test kits containing chemical reactants that are used to test substances believed to be drugs. Currently law enforcement officers carry kits to test for a variety of controlled substances, including heroin, cocaine, methamphetamine, and marijuana. If an officer suspects that a substance obtained during a traffic stop or in the course of a search is drugs, he or she can use one the kits to identify the substance. A positive test result can lead to the person's arrest.

So, the question becomes, is there a downside here? That is, is there a constitutional question involved? Are our Fourth or Fifth Amendment rights in danger of being violated? Probably not. The field test kits used are remarkably accurate--up to 99% in most cases. And if there is any doubt on the part of the accused as to the accuracy (oregano being mistaken for hashish, and so on), he or she can still contest the testing, results, training, accuracy and all the rest. By getting these hoods off the streets sooner, fewer people will be victimized. The new law is going to be given prospective application only and will not apply to cases filed or pending before the law passed.

Of course, the law of unintended consequences being what it is, this could lead to another problem--more crowded prisons. As I noted above, there is currently a 6-9 month delay between arrest and receipt of the test results. If there is a propensity during the long delay for drug felons to flee the state or get killed while taking or selling drugs, then a much faster arrest-trial-sentencing-jail cycle may mean more clients for the prison system.

Read more about the new law as well as the full text here: http://www.michiganvotes.org/2007-HB-4228