Commerce City, Colo. (KDVR) – Colorado has become the first state to pass a law banning arrests based on a color drug test, a common tool police use to identify drug suspects in the area.
The tests, which rely on chemical reactions that change color when certain substances are present, are widely used by police because they are quick and cheap. Authorities can test samples and get results in minutes, but experts say the tests can produce false positives, leading to false charges and arrests in drug possession cases.
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Research by the University of Pennsylvania’s Quattron Center for the Fair Administration of Justice estimates that approximately 30,000 people are falsely implicated and arrested each year because of false field test results.
One of those cases involved Holly Bennett, a 65-year-old Commerce City woman who said she was accused of possessing cocaine in 2022 while recovering from surgery at a hospital. She said when she woke up, an officer allegedly found cocaine in her purse.
“I understood 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 crumbled to look like dust in her purse. A colorimetric test incorrectly indicated the pills were cocaine.
Bennett said she felt pressured to accept the plea even though she knew she was innocent, in part because of the expense and difficulty of fighting the charges in court.
“You kind of feel guilty, like, well, maybe something’s wrong or maybe I’ve done something wrong,” she said. “It’s really hard to be accused of something you didn’t do.”
Bennett fought the charges in court, and his record was expunged, but attorneys said that’s not always the result of a false accusation.
Jeanne Segill, assistant director of the Corey Wise Innocence Project, said many defendants accept plea deals to avoid lengthy detention or legal costs.
“If someone is on pretrial probation, it’s a lot easier to plead guilty and get out for the time being than it is to fight the case,” Segill said. “And because people beg, a confirmatory test never happens.”
Colorimetric tests are not admissible as evidence in court, due to their known risk of false positives, but the test was previously sufficient evidence for an officer to make an arrest.
“They can be taken into custody, and the impact it has on a person’s life is just terrible,” Segill said. “The ripple effect is where if someone is in jail they can lose housing, they can lose their job, they can lose custody rights.”
Colorado’s new law changes that. For municipal or misdemeanor drug possession charges based only on colorimetric testing, officers can now issue a court summons instead of making an arrest.
The law also requires courts to inform defendants that colorimetric tests can produce false positives and that they have the right to request confirmatory testing by a forensic laboratory before accepting any plea agreement.
Segill, who helped draft the legislation, said the measure is meant to ensure defendants understand their rights and the limitations of a regional trial.
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“For someone who is innocent, they will say, ‘I’m not alone in this. Now I understand why it happened,'” she said. “And you know what? I want a confirmatory test.”
The bill passed unanimously through the state legislature and was signed into law by Governor Jared Polis on March 26.
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