COMMERCIAL CITY, Colo. (KDVR) – Colorado has become the first state to pass a law banning arrests based solely on colorimetric drug testing, a common tool used by police to identify drug suspects at the scene.
The tests, which rely on chemical reactions that change color in the presence of certain substances, are widely used by police because they are quick and inexpensive. Police can test samples and get results within minutes, but experts say the tests can give false positives, leading to false charges and arrests in drug possession cases.
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Research from the University of Pennsylvania’s Quattrone Center for the Fair Administration of Justice estimates that each year approximately 30,000 people are implicated and arrested because of inaccurate field test results.
One of those cases involves Holly Bennet, a 65-year-old Commerce City woman who said she was wrongly accused of possessing cocaine in 2022 while recovering from surgery at the hospital. She said when she woke up, an officer accused her of having cocaine in her purse.
“I realized what he was saying and I said, ‘I don’t do cocaine,’” Bennett said.
The substance in question was later identified as her legally prescribed Ritalin and she believes some of her pills may have broken apart in her purse to appear like a powder. A colorimetric test incorrectly indicated that the pills were cocaine.
Bennett said she felt pressured to accept the plea deal despite knowing she was innocent, in part because of the expense and difficulty of fighting the charges in court.
“Part of you feels guilty like maybe something is wrong or maybe I did something wrong somehow,” she said. “It’s hard to be accused of something you didn’t do.”
Bennett fought the charges in court and her record was expunged, but advocates say it’s not always the result of a false accusation.
Jeanne Segil, assistant director of the Korey Wise Innocence Project, said many defendants accept plea deals to avoid lengthy detention or having to pay legal fees.
“If someone is detained pretrial, it’s often much easier to plead guilty over time and get out than it is to fight the case,” Segil said. “And because people beg, confirmation checks never happen.”
Colorimetric tests are not admissible as evidence in court due to their risk of false positives, but the former was enough evidence for police to make an arrest.
“They can be detained and the impact that can have on a person’s life is terrible,” Segil said. “The ripple effect is that someone could lose their housing if they go to jail, they could lose their job, they could lose custody of their children.”
Colorado’s new law changes that. For municipal drug possession charges or misdemeanors based solely on colorimetric testing, police can now only issue a court summons instead of an arrest.
The law also requires the court to inform defendants that colorimetric tests may produce false positive results and that they have the right to request confirmatory testing by a forensic laboratory before accepting any plea agreement.
Segil, who helped craft the law, said the measure is intended to ensure defendants understand their rights and the limitations of field testing.
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“For innocent people, they will say, ‘I’m not alone in this. Now I understand why this happened,'” she said. “And you know what? I want confirmatory testing.”
The bill passed the state legislature unanimously and was signed into law by Governor Jared Polis on March 26.
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