Law enforcement has long relied on using tiny bags of chemicals to test whether substances discovered during traffic stops and other situations are controlled substances. After studies showed alarmingly high numbers of false positives in test results that led to innocent people becoming victims of wrongful arrests, one state decided to do something about it.
Colorado became the first state in the nation to legally declare that the colorimetric field tests used by law enforcement agencies aren’t making the grade. House Bill 26-1020 was passed by Colorado lawmakers and signed into law by Governor Jared Polis to address the false positive rates for illegal drugs being returned by the presumptive field drug tests. The new Colorado law no longer permits a positive result from the test kits, by itself, to serve as the basis for an arrest. Instead, police officers can issue a summons.
It also requires trial courts, before accepting a plea deal on a drug possession charge (including for level 4 drug felony possession and lower) to advise the defendant that, due to the error rates of colorimetric field tests, the evidence is inadmissible, and that they can request confirmation of the result through an accredited forensic laboratory test. The hope is that the new law cuts down on wrongful drug arrests. It boasts a Boulder County district attorney among its loudest proponents.
You Had One Job
More often than not, police departments will equip their officers with colorimetric field tests to use during roadside drug tests and other incidents where there’s a need to identify a substance. Kits contain pouches filled with reagents that, when mixed with illegal drugs like fentanyl, will cause the chemicals to turn a certain color. Use of these kits has led to countless arrests, as well as contested readings in correctional facilities.
As recent studies have revealed, that might not be in the best interests of the criminal justice system. While manufacturers of kits cite a 4% error rate, other research suggests that mistakes occur in nearly 40% of tests indicating the presence of illicit substances. The problem is that the pouches can also show positive results when other, non-illegal substances are detected. Certain compounds can elicit the same condemning colors as narcotics. This has included the chocolate chip cookies testing as THC and, in the case that spurred Coloradans to change the law, a grandmother who had her Ritalin pills identified as cocaine instead.
Since a false positive can lead to a wrongful conviction on a drug charge, it’s not surprising that many are alarmed at the potential violations of the Fourth Amendment. So why do so many law enforcement agencies depend on a test that appears to be inherently flawed?
It’s Money That Matters
As is often the case with government entities that don’t have unlimited funds at their disposal, colorimetric field drug tests are popular because they’re cheap. Each test usually costs under $10 per use and provides instantaneous results. While portable digital scanning devices have proven far more accurate than colorimetric tests, high-end versions can cost as much as $80,000. Even lower-end models command as much as $24,000, hence the reluctance of many jurisdictions to opt for an upgrade.
To make matters worse, confirming the presence of a controlled substance at a verified testing laboratory is both time-consuming and expensive. In Colorado, the state testing lab was so overwhelmed that district attorneys often wouldn’t send samples for verification unless the case had a firm trial date. For the accused who couldn’t afford bail, it meant being detained until the results exonerated them.
Being given a summons for a substance that’s not actually an illegal drug isn’t optimal, but it’s preferable to being tossed in jail over a mistake. While Colorado has been lauded for its trailblazing approach, some complain that it took too long to get to this point. In fact, one colorimetric field test company’s packaging bears a disclaimer noting that all results gleaned from its products “MUST BE CONFIRMED” by an approved analytical laboratory.
Related Resources
- When Can I Sue the Police for False Arrest? (FindLaw’s Law and Daily Life)
- 6th Circuit: Use Common Sense, Seeing Drugs Is Probable Cause (FindLaw’s Federal Courts)
- Can Police Forcibly Collect Urine in Drug Cases? (FindLaw’s Law and Daily Life)
