Criminal Defense Attorneys Take Note: False Positive Field Tests For Illegal Drugs

Posted by Alan Childress

False positives for illegal GHB, similar to Rohypnol, are being reported from everyday shampoos and soaps, even some made by Palmolive and J&J.  It may have started from the 2007 arrest -- and nearly four awful days in county jail -- of Germs punk rock drummer Don Bolles for possession of GHB "found" in his peppermint Dr. Bronner's soap, in his van on the way to an AA meeting.  (Profiling?)  GHB was detected by the ODV brand reagent sold for the field, specifically the NarcoPouch 928.  (Yes, the real product name, not an SNL skit.)  A thorough report on the initial story is in L.A. CityBeat here.  See also USA Today. And Orange County Weekly added, the next week, that "the OC district attorney’s office announced that further tests revealed there was, in fact, no GHB in the soap, and all charges against Bolles were dropped."

Follow-up in media stories now repeated on such blogs as Legal Juice today, and Stop The Drug War last year, add this footnote:  this was not an isolated case of a false positive, particularly for the reagent in  ODV's NarcoPouch.  Later testing showed positive results in other, more mundane home supplies.  Though oddly not in any Barry White album.  The Bronner soap president started to look further (as quoted in Punk Rocker's Jailing Raises Questions About Field Drug Tests):

Bronner's campaign isn't ending with Bolles' exoneration. At least four other soaps have resulted in false positives in the Narcopouch 928 GHB test kit, including Neutrogena and Tom's of Maine. "We are testing more products and videotaping those tests. Products from Johnson & Johnson and Palmolive are testing positive, so we'll go to the Cosmetics, Toiletries and Fragrances Association, show them these products are testing positive, and then work through them to explore options for addressing the situation with these field drug test kits. Ideally, we could force a product recall, but we need at least a disclaimer if this product is going to continue to be sold. If they don't know soap tests positive, what else don't they know?"

The other odd part of the CityBeat story is that the initial communication to the Bronner soap company was in a phone message misunderstood by another company exec , who heard it as THC, not GHB, and sort of dismissed it as business as usual.  See why, after the fold.

That's because, in their product, "in fact the drug [THC] is present in such a minute amount it is undetectable and hemp products have been declared legal to sell in the U.S. under a ruling by the Ninth Circuit Court. That case was also brought by Dr. Bronner's Magic Soaps."  The USA Today story quotes the company president as saying "police field tests of Magic Soap have occasionally indicated THC, the active ingredient in marijuana, because the soap includes hemp oil."  Good to know.  Bronner helped pay Bolles' legal fees.

Anyway, Bolles was a pretty good sport about this all, and laughed that a Germ got busted for soap.  But it is, seriously, a cautionary tale for field tests of all kinds, and the notorious judicial and jury over-faith in them.  Criminal defense attorneys should be armed to reply, and prosecutors should not have blind faith.