Monday, July 14, 2014
Law enforcement hope new field testing cuts court backlog
Posted: Monday, July 14, 2014
For more than a month, a 35-year-old Falls man was locked up in Bucks County prison after he was arrested on misdemeanor drug possession charges.
Twice, his preliminary hearing was continued because test results weren’t available on the suspected narcotics police confiscated. At his third court appearance last month, the man learned the results were still not ready.
The problem, Bucks County prosecutor Seth Lupton explained, is the volume of drug evidence that needs to processed has caused a three-month backlog at the county lab. The district judge in the Falls case continued the hearing again and reduced the man’s bail from 10 percent of $10,000 to unsecured bail (no money needed) so he could be released.
Repeated long delays involving pending county crime lab test results have caused frustration among the county’s legal community and have prompted other Bucks County district court judges recently to dismiss some drug cases, forcing prosecutors to re-file charges. The delays also tie up the police officers who must be in court to testify rather than being on patrol, according to police officials.
“The backlogs have created significant scheduling problems,” Morrisville District Judge Michael Burns said. “With the labs not being ready on time, if the commonwealth doesn’t timely request a continuance it results in a huge waste of resources.”
But soon the situation is expected to change, in large part because of common — though controversial — on-site police drug screenings that until recently were rarely used for preliminary hearings in Bucks County, according to police.
Field drug testing — also called NIK testing — can initially identify suspected narcotics. Most local police departments have field drug testing kits, but officials said few performed the tests regularly since they’re considered insufficient evidence for a conviction and require followup lab testing.
Earlier this year, the Bucks County Minor Judiciary distributed a memo to magisterial courts informing them that case law has found that on-site drug field test results should be admissible evidence at a preliminary hearing for cases involving possession of a controlled substance. However, there’s no policy requiring that district court judges accept those test results, said Bob Pollack, deputy court administrator for Pennsylvania’s Minor Judiciary.
Bucks County’s chief of prosecution, Matt Weintraub, said as long as police officers have the proper formal training to perform the tests and a background in narcotics, it’s the DA’s position that the test results are admissible, but that the judges will have the final discretion at the preliminary hearing level. He also said district courts in at least 11 other Pennsylvania counties — including neighboring Montgomery County — accept field test results.
“We are just using these tests to confirm what we already know and the probable cause already supports,” he said.
But the tests are not without controversy over their reliability.
A 2008 study funded by the Marijuana Policy Project alleged that field drug tests can produce false positive results with legal substances that include motor oil, natural soap and soy milk. The study focused on the most common type of field tests, which use color test chemical reagents.
Newtown Township criminal defense attorney Keith Bidlingmaier is among those who believe the tests aren’t foolproof.
“I still believe that a defendant should have the right to challenge a chemical test even at a preliminary hearing,” he said.
Weintraub said he believes the field test kits are accurate.
“I don’t have any concerns about false positives because this is — and will be for the foreseeable future — a preliminary test,” he said. “We will always serve to be backed up by the crime labs results.”
Generally, local police departments have used field test kits only to initially identify what drugs are involved so they know how to charge suspects.
Some had seen the test as a waste of time and money since they believed the court wouldn’t accept the results, Morrisville Police Chief George McClay said.
After he became chief in February, McClay, a former Philadelphia police officer, said he was shocked to learn about the months’ long holdups with drug-related cases.
“I was amazed we weren’t doing this (field tests),” he said. “This isn’t rocket science.”
Drug field tests are standard practice in the Philadelphia Police Department and the city’s municipal court system as long as lab tests confirm the results, according to McClay and other law enforcement officials.
McClay said he reached out to law enforcement officials about conducting formal countywide police training in the correct use of drug field tests. The first training session was held in Morrisville on June 19 and attended by police from around the county. The Sirchie Finger Print Labs in North Carolina held the training.
More training sessions are planned and McClay said he anticipates all Bucks County police departments will have officers trained by the end of the summer.
“This should work out really well,” he added. “This should be helping the local district judges.”
Lower Southampton Detective Shane Hearn was among the officers who attended the June training.
“As long as you are reading the test, it’s just about idiot-proof,” he said.
All Bristol Township narcotics officers are trained in field testing, Lt. Terry Hughes said. He said false positives are always a concern, but only a small one.
“For the most part, they (field test kits) are very reliable for preliminary purposes,” he said.