References & Downloads

Since Director Harry Anslinger of the Bureau of Narcotics and Dangerous Drugs and a number of attorneys and scientists first met in Washington, D.C. in 1937 to figure out how to convince the US Congress to pass the Marijuana Tax Control Act the same question has lingered and never been answered.  That question has been: Can scientists uniquely identify marijuana to the exclusion of all other plants utilizing a forensic analytical protocol which was in place at the time? The protocol which was proposed required the use of microscopic analysis to determine the presence of specialized cell structures on the surface of alleged marijuana leaves as well as the subjection of the plant material to a chemical test referred to as the Duquenois-Levine test.  No attempt was made to determine if the protocol gave the correct answer until Dr. George Nakamura's 1969 paper describing a limited validation.  Quickly following his paper however, Marc Kurzman published a review of Nakamura's work and found that despite his efforts, Nakamura still had not answered the fundamental question: "Is this marijuana to the exclusion of all other plants?"

To date, in a country which arrests between 800,000 and 1,000,000 citizens per year for marijuana related charges, 80% of which are for mere possession for use, this question still has not been answered.  In other words, no one knows in any court of law if the material which is being "identified" as marijuana is actually marijuana.  After years of research I found myself very frustrated with this situation and, armed with a large cache of scientific literature sought a manner in which I could enter these thoughts and receive feedback from other interested parties.  I have found that law enforcement personnel, whether they be on the street or in the lab, have absolutely no interest in addressing this issue and will not speak about it.  But they are paid by the rest of us and will listen if their pay checks depend upon them listening. 

    It was in the middle of this search for reason that I met Guy Peterson, coincidentally, on a plane.  Guy and I entered into this discussion openly, I opposing legalization and he for legalization of marijuana.  Guy immediately saw that the issue was not legalization but truth in justice.  With skills from a generation behind me, Guy devised this web site, www.marijuanamanifest.com on which we could discuss this issue.  Not legalization but truth in justice.  Our hope is that we can draw attention to the problem that this inability to identify marijuana represents.  The plant actually allows us a window into the soul of our justice system.  We can prove with sound logic that we do not know if the material we have is marijuana and yet we will not present that in court.  All we know is that the characteristics that we observe are observed when we have marijuana but we don't know how many other plants would also pass this test and give us false positives. 

    My hope is that this website might be helpful in finding the answer to the questions Guy and I and others continue to ask about this issue.  We invite others to weigh in on this, to offer suggestions, to take away from the site a more educated understanding, educated by scientific literature on the issue. 

Frederic Whitehurst, J.D., Ph.D.

Attorney at Law, Forensic Consultant

PO Box 820, Bethel, NC  27812

252 825 1123

 


The lab determined that it is not MJ. The State Atty is dropping the case! Thanks for all the assistance. You gave me the scientific base to have confidence to go forward.

Bill Ullman

(Bill Ullman was the attorney representing Robin Brown in Florida -- See Actual Dismissals and Acquittals of Marijuana Charges)


---------- I recently applied procedures prescribed in this website and used information provided by Frederick Whitehurst to successfully challenge the sufficiency of evidence of the Duquenois-Levine test and the microscopic exam as well as the testing of the prosecutor's drug analyst in a marijuana case. Following an evidentiary hearing and my cross examination of the prosecutor's drug analyst, I filed a motion to exclude the government's evidence. Even before the judge rendered a decision, the prosecutor withdrew all charges, and the case was dismissed.
Mike Nichols


Nichols Lawyers.com


---------- Marijuana Manifest has provided an invaluable resource -- for both attorneys and laymen -- exposing the fallacies of marijuana analysis. In many ways, there are similarities to the continuing reliance upon unreliable and inaccurate breathalyzers in DUI investigations -- and involving many of the same violations of constitutional rights.
Lawrence Taylor, author of Drunk Driving Defense, 7th edition

 Law Offices of Lawrence Taylor

Practice limited to DUI defense exclusively Los Angeles, California


---------- I am a NC and World advocate of Legalizing Cannabis for All purposes and peoples. Cannabis is a botanical herb that has been proven non toxic, and too many people have suffered incarceration for a harmless plant because we have had no defense.
I am so proud to see a site willing to help educate, inform and provide us with the information we need to fight the unjust Cannabis Laws that have been imposed upon us by greed and ignorance. Keep up the great work.. the site is looking wonderful.. and I truly look forward to working with you on other ventures as well!!!
Thanks to those caring enough to share this valuable information and help us in our fight to free Cannabis for the People.
Sincerely,

Rebecca Forbes
CCC Executive Director
NC officer for Legalise Cannabis International

Carolina Cannabis Coalition


----------From the NACDL Champion, April 2009

'False Positives' Report Calls Drug Field Tests Useless; 'Untold Thousands of Wrongful Arrests'
By Jack King


Possession of chocolate can get you arrested and could cost, you thousands in legal expenses. So can oregano, thyme, and a host of other harmless food, drug, and cosmetic items. Unfortunately, some people find that out the hard way.

Ron Obadia and his partner Nadine Artemis, co-owners of Living Libations Inc., a Canadian organic products business, are not drug smugglers. But on Aug. 22, 2008, they were arrested, handcuffed, and interrogated for hours at the Toronto airport after a brick-sized sample of their raw organic chocolate product field-tested positive for THC with the most widely used color reagent test.

A Royal Canadian Mounted Police officer accused the couple of attempting to smuggle hashish, which it resembled somewhat, into New York. They were locked in separate rooms and their one-year-old baby was taken away from them, which particularly upset Artemis. The RCMP told them they faced life in prison. Each was told the other had already confessed. Both adamantly denied their chocolate contained any marijuana.

Eventually they were released on bond and their child returned to them. “We’re not the kind of people who have a criminal lawyer on speed-dial,” Artemis said later.

Still eager to market their products in New York, the couple tried again three weeks later to enter the United States, this time by car near Buffalo. Knowing that they were now suspected smugglers, they hired an immigration lawyer to drive ahead of them and let U.S. Immigrations and Customs Enforcement (ICE) know that they were entering on legitimate business. Agents were waiting with a narcotics canine, which went over the car and their belongings and alerted on a bottle of tea tree oil, an organic plant product from Australia. The oil tested positive and, knowing that the couple had been arrested for trying to smuggle hashish, ICE decided it was “hash oil.” Of the 40-odd other products in their sample cases, the chocolate again tested positive.

Subsequent laboratory tests found that none of the products seized contained illicit drugs.

Their two attempts to break into the U.S. market have cost Obadia and Artemis $20,000 in legal fees.

Reagent Field Tests Not Specific to Drugs
What is going on here?

To answer that, Obadia and Artemis joined forensic science writer John Kelly, chemist Krishna Addanki of Claflin University, and a representative of Dr. Bronner’s Magic Soap Company at a news conference held by the Marijuana Policy Project on March 3 at the National Press Club in Washington, D.C. The event was the release of Kelly’s report, False Positives Equal False Justice, with actual demonstrations of drug field testing in order to raise public awareness of the false-positive problem. Kelly claims the widely marketed field test kits are worse than useless, and that even when used properly can cause great harm to innocent persons. According to his report, thousands of common foods, over-the-counter drugs, cosmetics, and household products will falsely test positive in police drug field tests because the reagent tests themselves are not drug-specific.

For example, the 70-year-old Duquenois-Levine reagent test — the one that caused all the grief for Obadia and Artemis — is used by nearly every federal, state, and local police agency in the United States and the RCMP in Canada. According to tests done by Addanki and his advisor Dr. Omar Bagasra, besides cocoa products, the D-L test also reacts positively to eucalyptus, patchouli, and cypress. Another test, the ODV Inc. KN Reagent test (NarcoPouch 909, “A Test for Marijuana, THC, or Hashish,” according to the packaging), not only reacts positively to cannabis products, but also to numerous aromatic herbs and essential oils, including thyme, oregano, anise extract, vanilla, peppermint, ginseng, and (in a test conducted by NACDL) even a strip of newspaper.

Duquenois-Levine tests (ODV NarcoPouch 908) conducted by NACDL staff indicated strong positive reactions to a Hershey’s Dark Chocolate Kiss, the inside contents of a plain chocolate M&M, and shavings from a chocolate Thin Mint Girl Scout cookie.

Rob Kampia, executive director of the Marijuana Policy Project, explained why false positives on common food products like chocolate are a “big deal” for innocent citizens, particularly in the 13-odd states where medical use of marijuana is recognized. California, for example, has about 300 storefront dispensary operations. Many sick people do not smoke and consume THC products orally in confections and baked goods obtained at the medical marijuana dispensaries.

“If you look at their counter space, about half is taken up with whole marijuana, which people will buy to smoke or vaporize, and about half is food products — cookies, brownies, et cetera, for patients who don’t want to inhale marijuana. They’d rather eat it. It’s legal to eat it under state law in California, but it’s illegal under federal law, and illegal for recreational users to be carrying around these ‘edibles.’ So when you have faulty field tests being used all across the country, including California, you have a situation where police come upon someone and they have to test the cookies.” Innocent people could be detained, arrested, held, and even prosecuted because a food product tested positive for an illicit drug.

“No one should be using these faulty field tests that we’re experimenting with here today, and the companies producing them should be probably put out of business,” Kampia opined. Until a confirmation test proves negative for drugs, “you’re guilty until proven innocent.”

Such was the case of punk musician Don Bolles.

“I first became aware of this issue in 2007, when a customer of Dr. Bronner’s soap had soap that tested positive for GHB, the date rape drug,” said Adam Eidinger, the soap company media consultant at the news conference. Newport Beach, Calif., police field-tested a bottle of the soap found in Bolles’ van and concluded the contents were GHB. Bolles was charged with felony drug possession and spent three days in jail before being released on bond. Over two months later, subsequent crime lab analysis concluded the seized substance was just soap, not dope, and the charge was dismissed, Eidinger said.

Bolles’ arrest and his subsequent exoneration were widely reported in the media at the time, but the case was considered a curiosity, an outlier, and the problem of bogus drug field tests quickly fell out of the news cycle.

“At that time, we looked into the issue more, and we found out that virtually every product we make will give a false positive to some drug test. Then we looked at other brands and we found there were false positives. At that time, we decided we needed to fund more investigation into this, and we found that there were no validation tests of these drug tests.

“Originally we thought it was just organic products … but it’s everything,” Eidinger said. “You can have organic chocolate or you can have the cheapest chocolate around, it doesn’t matter — chocolate’s going to give a false positive. Cocoa Puffs will give a false positive.”

In a test at the NACDL offices, the upper outside corner of page B3-B4 of the Mar. 6 Washington Post metro section quickly showed a positive reaction to a KN reagent test (NarcoPouch 909) for THC, marijuana and hashish. The KN reagent test uses a strong base, sodium hydroxide (NaOH), and turns from clear to orange in color when positive. While even the most credulous police officer would not mistake a newspaper for cannabis, the KN reagent test has a more serious false-positive problem. At the news conference, Addanki demonstrated that both oregano and thyme, either of which could be visually mistaken for marijuana, react positively to the KN test, oregano almost immediately, like high-quality pot. Thyme was more slow to change color, as though it were a poorer quality — but still illegal — product.

Not Even Probable Cause — But Evidence of Guilt
The problem of non-specific field tests has led to their being excluded as evidence at trial, although there have been few successful challenges to their use in establishing probable cause to arrest and hold suspects pending trial. And the “War on Drugs” has created serious backlogs in forensic laboratories in general, and in gas chromatography/mass spectrometry analyses in particular. The common result of these field tests is that citizens are forced to pay large money bonds and attorney fees, or, even more commonly, they are held in local jails for months until lab results come back. Field test versus lab report discrepancies are well known to the prosecution. State and federal prosecutors ordinarily hold those results until the next court date or discovery deadline, or even try to extort an early “generous” plea offer if the defendant waives lab analysis.

The unreliability of reagent field tests has led to their exclusion at trial as evidence of guilt in the majority of U.S. courts. But not everywhere.

In State v. Jackson, 468 N.W.2d 431 (Wis. 1991), the Wisconsin Supreme Court upheld the dismissal of cocaine charges against the defendant based on a chemical reagent test. In a one-page opinion, the court stated, in essence, that it would not have even heard the case had it not expected some evidence that the particular field test for cocaine used by the police, a version of the cobalt thiocyanate test, offered improved reliability and accuracy over other field tests such that the positive result from the test might in itself be sufficient to support a conviction for possession. No such evidence was presented; in fact, the state conceded that the cobalt thiocyanate test is nonspecific and at most raises a presumption of the presence of cocaine. “The evidence presented by the state may have been sufficient for a finding of probable cause. However, it does little to prove beyond a reasonable doubt an element of a crime which would be necessary for a valid conviction, i.e., that the substance recovered was cocaine.”

Other courts try to keep the result out, but allow the jury to hear testimony that a field test was conducted. In a New Mexico case, testimony regarding the field test was held admissible “except for the arresting officer’s statement that the field test kit ‘indicat[ed] a positive test[.]’” State v. McClennen, 192 P.3d 1255, 1260 (N.M. Ct. App. 2008). The problem with that ruling is that it is completely contrary to logic — the factfinder, in this case a jury, could conclude that the result of the field test was positive or the defendant would not have been arrested and charged.

Georgia apparently considers field tests substantive evidence of guilt, shifting the burden of proof to the defendant to rebut field test testimony.

In Lewis v. State, 504 S.E.2d 732 (Ga. Ct. App. 1998), the Georgia Court of Appeals held that a police officer’s testimony indicating that a police field test showing a confiscated substance to be cocaine was sufficient, without expert testimony, for the jury to conclude that it was cocaine. There apparently have been no reported cases in which the results of a chemical field test have been held inadmissible; rather, the reliability of field tests are an appropriate area for defense cross examination and rebuttal, and the weight of the field test evidence is a jury question that may be argued by the defense. Davis v. State, 217 S.E.2d 343 (Ga. Ct. App. 1975).

Last June, in Hinton v. State, 663 S.E.2d 401 (Ga. Ct. App. 2008), the court of appeals appeared to reaffirm that field tests are reliable enough to present a jury question. In Hinton, a search of the defendant revealed a “gram scale” commonly used to measure cocaine that was covered with a white powder residue. Officers field tested the residue, which indicated positive for cocaine, but did not submit it to the crime lab for chemical analysis.

According to the appeals court, defense counsel successfully undermined the field test, establishing through the state’s own expert that it was merely presumptive and lacked scientific certainty. But, the court held, “given the strength of the other evidence supporting Hinton’s conviction, we find no reasonable probability that this questionable test affected the trial result. Simply put, the jury likely would have found Hinton guilty of possessing cocaine even if the field test had been excluded.”

Obviously, the court was saying, the discriminating juror is able to give the skunk in the jury box only the attention it deserves.

Dr. James Woodford, a forensic chemist who has studied false positives, says that most crime lab technicians will acknowledge on cross-examination that the Duquenois-Levine test is also known as the “modified Duquenois” test. Levine’s modification did not make the test more accurate for cannabis; in fact, says Woodford, the opposite is true. Although the D-L test gained general acceptance in some courts under the old Frye admissibility test, it should be found inadmissible under the more restrictive Daubert v. Merrill-Dow Pharmaceutical test.

One final concern, expressed by Eidinger, the Dr. Bronner’s representative, was that anyone can obtain and learn to use these tests. “Anybody can buy these off the Internet. There are parents, with good intentions, who will try to find out if their children are using drugs. They will buy these tests, and they will find something in their child’s closet, and they will test it, and they will believe, maybe [erroneously] that their child is using drugs. … We can’t allow bad science to be marketed as good science.”

The Kelly report, False Positives Equal False Justice, which was funded in part by the Marijuana Policy Project, is available online and can be downloaded free at:


http://www.mpp.org/assets/pdfs/library/Report-Final.pdf.

 


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