Court Backlogs Could Disappear With This Drug Test

The wait for drug test results can bring the criminal justice system to a slow crawl. There's a faster test, but few are using it.
by | August 24, 2017
Hand holding a baggie of drugs.
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When the courts are backed up -- as they typically are -- it takes months, even years, for cases to be heard and justice to be served. In the meantime, low-income, nonviolent people often wait for hearings in jail, unable to afford bail. All of this costs the criminal justice system.

One of the culprits of court backlogs is drug tests. The results take months, and waiting for them brings the system to a slow crawl.

There is a type of drug test that has the potential to eliminate backlogs, speed up cases and reduce the amount of time people sit in jail awaiting court dates -- but it's only used in a few pockets of the country. It could be welcome news for many at a time when the opioid epidemic has reached a nationwide state of emergency, overwhelming courts, health care and child welfare systems.

In Minnesota alone, the crime lab handled almost twice as many drug cases in 2016 compared to 2011 -- and each case includes multiple, sometimes dozens, of pieces of evidence to test, says Jill Oliveira, public information officer for the state's public safety department.  

Last year, Hennepin County, Minn., switched from the confirmatory drug test to the microcrystal drug test and has since seen its backlog of 700 drug cases drop to zero. It used to take several months to get results back. Now it takes less than one. Faster results have in turn led to fewer hearings being canceled because drug tests weren't completed in time.

“It's at least as reliable as anything we've used in the past, and it takes one third of the time,” says Mark Thompson, the assistant county administrator of public safety in Hennepin County. “As a taxpayer or a prosecutor or a public defender, you’ve got to be interested in that.”

The Minnesota crime lab has plans to roll out microcrystal drug testing for all Minnesota counties. Hennepin County Attorney Mike Freeman, who is president of the National District Attorney’s Association, says he’s also encouraging his peers in other states to use it.

The test is new to Minnesota but has been used for decades by the California counties of San Francisco, San Diego and San Bernardino. In fact, the microcrystal drug test used to be ubiquitous 30 years ago. Why, then, did it fall out of favor?

According to Eric Person, a professor of forensic and analytical chemistry at California State University, Fresno, microcrystal tests became less common as other tests became available that are easier for many to interpret and usable for a wider range of drugs. Microcrystal tests are only considered reliable for testing heroin, methamphetamine and cocaine. In addition, chemistry schools tend to teach students how to interpret results based on confirmatory tests, not microcrystal tests. Chemists need special training on how to read microcrystal results for each drug, says Person.

"I think the reason that a lot of labs don't use [microcrystal tests] more frequently," he says, "is that they're uncomfortable explaining them."

But the drawback to confirmatory tests, of course, is the time they take to process, which contributes to delays and backlogs in places with a high demand for drug tests.

Either test -- microcrystal or confirmatory -- is widely seen as superior to field tests administered by law enforcement. When officers find drugs to be used for evidence, they run a simple color test in the field. Public defenders, however, typically challenge the reliability of such field tests and request a more in-depth test in a state drug lab. There's a famous incident in Florida, for example, where an officer mistook doughnut flakes for meth crystals, and the field test came back positive for an illegal substance.

Mary Moriarty, the Hennepin County public defender, says she was initially skeptical of the microcrystal test, in part because it requires special training and equipment, and in part because some detractors don't like that they lack an easy way for a third party to double-check the results. But she came to realize that it could provide reliable results in less time than confirmatory tests.

In cases that go to trial, though, the county still uses the slower but more widely accepted method of confirmatory testing.

Moriarty's satisfied with how the new drug test is working, but she wishes the county would also change how they use error-prone field tests. She wants county prosecutors to stop charging people with a drug crime based on the initial field test conducted by police officers.

“That would be a better way to do it," she says, "because once somebody's charged with a crime, it's on their record, even if it's dismissed."