The Houston Police Department and more than a half a dozen other local police agencies are ending the use of controversial roadside drug testing blamed for hundreds of wrongful drug convictions in Harris County over the last decade — but not for the reason one might think.
Instead, police revealed Friday afternoon, the decision comes in response to the influx of two extraordinarily potent opioids into the Houston region capable of causing grave illness or death from exposure to miniscule amounts of the drug.
"It's critical for the first responders and the public we serve," Houston Police Chief Art Acevedo said Friday. "Substances like Fentanyl and Carfentanil have changed the entire dynamic. We can't take the chance of losing a first responder or a member of the community because we failed to place safety above process."
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Flanked by Harris County District Attorney Kim Ogg, top officials from the Harris County Sheriff's Office, and leaders of several other local agencies, Acevedo said peace officers would stop the decades-old practice of using roadside tests Friday at midnight.
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"They've been under fire scientifically for their reliability," Ogg said. "So the fact we're no longer going to use them is really just a sign of the changing times. Officer safety just demands us to look at new ways of presenting evidence and presenting it to the courts."
Local crime lab officials announced in August they'd begun detecting the opioids in testing samples, and Harris County Assistant District Attorney Paul Fortenberry said Friday police have seized more than 11 kilograms of the two drugs over the last two months.
"Words do not give it justice. It's an extremely dangerous substance," he said.
In addition to the Houston police, other agencies announcing the change Friday included the Harris County constables for Precincts 3, 4, 7 and 8; Metro police; Pasadena police; the Harris County Sheriff's Office; and the district attorney's office.
Related: 298 wrongful drug convictions identified in audit
The worries about opioids are just the latest in a series of concerns about roadside drug tests, which allowed officers to use a $2 test to take quick measures on the spot about whether a substance was likely to be illegal.
The tests — developed in the 1970s — have significant error rates and are not allowed to be used as evidence in criminal cases in Texas.
A far-reaching audit from the Harris County District Attorney's Office last year found nearly 300 people had been convicted of drug possession even though crime lab tests later found no controlled substances in the samples.
More than 130 had their convictions overturned in cases that go back to 2004, with dozens more under review for potential dismissal.
The officers had used the tests to help establish probable cause for an arrest, but in many cases prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed.
An investigation from The New York Times Sunday Magazine and ProPublica estimated that as many as 100,000 people across the country make guilty pleas every year in similar circumstances, even when they're innocent.
Then-District Attorney Devon Anderson changed her policies amid the reports of problems and directed prosecutors generally to stop accepting guilty pleas in felony drug cases before receiving lab reports confirming the evidence.
Fortenberry, the assistant district attorney, said similar policies would remain in place to ensure defendants do not make false confessions.
"Before someone can ever be convicted, before someone can ever plead guilty to a narcotics crime, we have to have a laboratory test back," he said. "We do not believe the quality of the cases filed in Harris County will be affected at all."
County Commissioner Rodney Ellis — a vocal supporter of criminal justice reform — said the change will reduce the number of innocent people behind bars.
"It will result in fewer people being wrongfully accused and arrested on drug charges," he said. "This is a positive step toward creating a more fair and equitable criminal justice system."
Kent Titus was working at a Houston convenience story when Houston police officers raiding a laundromat next door grabbed and searched him. The evidence for his drug possession arrest was a cigar that an officer using a field test claimed contained marijuana. Titus could not afford to post bond. He was one of many people arrested on Harris County for misdemeanor drug charges based on the faulty tests who were eventually exonerated – but by then he’d lost his apartment and his job.
Media: Houston Chronicle
At the same time, opioids have ravaged communities across the eastern United States, leading to thousands of overdoses and hundreds of deaths in New England and Pennsylvania in the last few years.
Reports have spread widely of police officers endangered by the drug, including an Ohio officer who became gravely ill in May when he accidentally touched Fentanyl after arresting two men in the middle of a drug transaction.
The officer revived only after receiving several doses of Narcan, an anti-overdose nasal spray that Houston narcotics officers have recently begun carrying. The Houston Police Department hopes to equip all patrol officers with Narcan, officials said.
Pasadena police recently seized 8 kilograms of Fentanyl, leading that department to recently decide to suspend roadside drug testing. A few weeks ago, Houston police seized an additional three kilograms of the drugs.
Each dose requires just 2 milligrams of the substance, meaning the recent drug seizures would translate into more than 5.5 million doses of the drug, said Peter Stout, president of the Houston Forensic Science Center, which performs drug testing for the police department and some other local agencies.
Stout said he has added protections for his employees in the controlled environment of the forensic lab. Officers on the street are substantially more vulnerable, he said.
"Protection for them is not opening the packaging in the first place," Stout said.
Reaction to the change was mixed among the criminal justice community.
Joe Gamaldi, vice president of the Houston Police Officers' Union, supported the change, saying it will give officers more time to do their jobs.
"We support anything that streamlines the process of getting our officers back [in the call-for-service loop] and on the street quicker," he said.
Former Houston Police Chief Charles A. McClelland said testing should take place in a sterile, properly equipped crime lab, not on the side of a road.
"I don't think any law enforcement agency in America should be doing this anymore," he said. "Police officers aren't chemists."
Other worried the change could lead to an increase in false arrests.
"This is a step back," said Nicolas Hughes, a local public defender. "A properly administered field test is much more reliable than an officer's training and experience. This is going to cause a lot of suffering to people who shouldn't be arrested in the first place."
Acevedo, however, said he doesn't believe the shift in policy will seriously change local policing.
"We've over-relied on the field tests," he said. "We need to rely on our training and experience and expertise ... This is a new paradigm. I don't see us ever going back."
Lise Olsen contributed to this report....Read more