SAVANNAH, Ga. (WTOC) - A $2 drug test kit used routinely by law enforcement is still sometimes leading to wrongful arrests.
Experts say the problem is how the tests are being used, and that it defies police training and needs to stop. The kit even says it can be unreliable on the packaging.
Portable drug test kits are mostly used by police. They give officers a convenient way to test a substance in the field. But that convenience also can have life-altering consequences.
"Our position has always been that they are just a tool in a toolbox of law enforcement. And these presumptive tests alone are not enough to make an arrest and build a case off. You have to have more,” Georgia’s Prosecuting Attorneys Council Executive Director Pete Skandalakis said.
Because those tests can get it wrong, as shown during a lab demonstration at Savannah State University.
The blue color indicates the presence of cocaine. But there is no cocaine, says the university's interim forensic science department chair and professor Karla-Sue Marriott,
"A lot of over-the-counter substances that you can get at CVS or Walgreens could give you a false positive even some of your household products,” Dr. Marriott said.
Dr. Marriott teaches students how to properly administer the tests as a part of the university's law enforcement program and understand their limitations.
"They are presumptive test kits, so they indicate the presence of something, but they do not confirm it. And as you can see from the demonstration, they can be pretty difficult to interpret. You go through multiple steps,” she said.
A false positive or even difficulty reading the color test has put innocent people behind bars.
We saw that in July when a Saluda County, S.C. deputy arrested Georgia Southern quarterback Shai Werts during a traffic stop. The entire incident was captured on police body cam and dash camera video.
You can see deputy Charles A. Browder handcuff Werts while he and other deputies search the car. Then he notices a white substance on the hood and decides to test it.
And that's where things took a bizarre turn.
Charles A. Browder III: “Is that turning pink? It turned pink, man.”
Other deputy: “You're kidding me?”
Charles A. Browder III: “What in the hell?”
Other deputy: “It’s cocaine, ain't it?”
That's when he confronts Werts who tells him:
Werts: “I swear to God that’s bird doo doo.” Browder: “I swear to God it's not because I just tested it and that turned pink.” Werts: “You can see it on the windshield.” Browder: “That's not bird poop.” Werts: “I swear to God that's bird doo doo."
Browder steps away to call his supervisor. He documents the evidence and seems perplexed by the situation.
“If anything, I think it would be like a one in a thousand case for these things to be faulty. But I don't think they just turn pink out of nowhere,” Browder said.
He arrested Werts and charged him with possession of cocaine.
Eight days later, the South Carolina Law Enforcement Division state crime lab showed the white substance was in fact not cocaine.
The 11th Circuit Solicitor's Office says it dropped the drug charge against Werts even before then, after it reviewed the dash and body camera videos.
The case made national news.
In Georgia, it was something closely followed by Skandalakis. He's seen the entire video.
"I've never seen cocaine over a hood. I mean, I've never seen that. And I don't know a lot of law enforcement officers who have seen that, especially in the manner that it seemed to be spread out,” Skandalakis.
Skandalakis has been a prosecutor for 35 years. A profession that works closely with police when deciding to pursue criminal charges. He said portable drug test kit should not be used as a basis for arrest. It's a stance also taken by the National Association of Police Chiefs.
"It shouldn't be the foundation of your case. You must have something more. So, if you're make an arrest just based upon the positive test of a presumptive test. That's not enough,” Skandalakis said. "If you get a positive test. Go ahead and get the information from your suspect. Go ahead and release your suspect and send your substance to the crime lab."
Cases like the one in Saluda County have increased awareness among law enforcement, who don't want to make a mistake. Departments like Savannah, which last year performed an audit of its own drug arrests.
In 2018, the Savannah Police Department found its officers are following department policy not to arrest based on the results of the portable test. But our review of that audit found something surprising.
One in five of those portable tests got the results wrong, as later confirmed by a state crime lab.
According to the audit, there were 42 cases reviewed by Savannah Police. For nine of them, the portable test got it wrong. Six cases had a false positive for cocaine and ecstasy. Three of them gave a false negative, meaning there actually were drugs present, but the portable test couldn't detect it.
Dr. Marriott says that's because tests are limited.
"Once again, the color tests are only indicators. They do not confirm, so that we cannot jump to the conclusion that just any old substance such as melted cotton candy is crack or cocaine, so we want to give the benefit of the doubt to the individual,” Dr. Marriott said.
Werts’ attorney Townes Jones IV has said out of respect for his client he will wait until the Georgia Southern football season is over before deciding how to proceed with possible legal action.
Jones IV said what happened to his client that night in Saluda County was "inappropriate treatment.” He said Werts’ has been uplifted by the support of his college football community, family and friends, “but he’s in a position that a lot of young man are not, and it creates an injustice for them because either a faulty roadside drug analysis or ill-equipped, ill-trained police officers who mis-read the information that they’re supposed to be prepared to address. One of the two happened to him and we’ll get to the bottom of it in good time. Right now, he wants to be focused on his team and success in the classroom, which he’s done in his entire career.”
The Saluda County Sheriff’s Office did not respond to questions for this story about whether the portable drug test kit was properly used or if Deputy Browder was trained how to use it.
Last month, the sheriff’s office said it will no longer arrest based on the results of field drug test kits, and will limit their use, instead relying on a drug analysis by the state certified crime lab.
There is no one agency that tracks the reliability of field drug test kits and wrongful arrests.