Junk Science in Colorado Courtrooms

This week, I will be testifying before the Colorado legislature in support of House Bill 26-1020, sponsored by Representatives Jennifer Bacon and Lindsay Gilchrist, with Senate sponsorship from Senators Matt Ball and Lisa Frizell. This bill is one of the most consequential pieces of criminal justice legislation Colorado has seen in years, and it doesn't cost the state a dime.

If you've never heard of a colorimetric field drug test, you're not alone. Most Coloradans haven't. But if you've ever been arrested for a drug offense in this state, there's a real chance your arrest was triggered by a small plastic bag filled with a chemical reagent that changed color when it touched a substance found on you or in your car. That color change, subject to lighting conditions, the individual officer's interpretation, and a false-positive rate approaching 40%, may have been the only "evidence" used to arrest you, charge you, and pressure you into a guilty plea.

What Colorimetric Tests Are and What They're Not

Colorimetric field drug tests are quick, cheap (about $3 per kit), and widely used by law enforcement across Colorado to identify suspected controlled substances at the scene of an arrest. The test works by exposing the unknown substance to chemical reagents that change color in the presence of certain drug compounds. A blue result? Cocaine. Orange? Methamphetamine.

The problem is that these tests cannot distinguish between specific chemical structures, only broad chemical families. As a result, they produce false positives for substances as common as soap, chocolate, vitamin supplements, and bird droppings. A 2024 study from the University of Pennsylvania Quattrone Center for the Fair Administration of Justice, one of the most rigorous examinations of the issue ever conducted, concluded that colorimetric field drug tests represent "one of the largest, if not the largest, known contributing factor to wrongful arrests and convictions in the United States."

Nationally, an estimated 30,000 Americans are wrongfully arrested every year based on false-positive field drug test results.

In Colorado, that number is approximately 300 people per year, and those are just the cases we can estimate.

The False Positive Is Invisible Until It's Too Late

Here's the part that makes this issue so corrosive: the false positive almost never comes to light. Lab confirmation only happens when a case goes to trial. And almost no drug possession cases go to trial.

When a person is arrested and charged based on a field test, they face a choice that is not really a choice at all. They can sit in jail, sometimes for months, waiting for a laboratory result that confirms or refutes the field test. Or they can accept a plea deal and go home. Most people, particularly those who cannot afford bail or extended time away from work, family, and housing, choose the plea.

The Colorado working group convened under last year's HB25-1183 surveyed prosecutors in all 23 of Colorado's judicial districts. Only four responded. Every one of them confirmed the same thing: lab confirmation is only sought when a case goes to trial.

The result is that thousands of Coloradans have almost certainly pleaded guilty to drug possession they didn't commit, carrying criminal records they don't deserve, because the system was structured to make the truth invisible.

What HB26-1020 Actually Does

The bill makes two targeted, common-sense changes to Colorado law.

First, for Level 1 misdemeanor drug possession (DM1) charges, which currently carry a mandatory minimum of six months in county jail and fines between $500 and $5,000, law enforcement would no longer be permitted to arrest a person based solely on a colorimetric field test result. Instead, the officer would issue a summons requiring the person to appear at a later date, after lab confirmation. The summons is explicitly not an arrest warrant.

Second, before a court may accept a guilty plea to Level 4 felony drug possession (DF4) or any lesser possession charge where a colorimetric test was used, the judge must advise the defendant that: (1) colorimetric tests are subject to false positives; (2) the results are inadmissible in court; and (3) the defendant has the right to change their plea and request lab confirmation.

That's it. No prohibition on field tests. No mandated replacement technology. No new state expenditures, as the bill's fiscal note is $0. Just a requirement that the system be honest with the people it is processing.

What This Means for Criminal Defense in Colorado

The consequences of drug possession charges, even when pled down, are not minor. Criminal records affect housing applications, employment background checks, immigration status, professional licensing, and child custody proceedings. The stakes for getting this wrong are serious and long-lasting.

HB26-1020 doesn't fix everything. Notably, the bill does not address the use of colorimetric tests in correctional settings, where the Colorado Department of Corrections has a confirmed false-positive rate of approximately 32.9% and where inmates face sanctions including placement in higher-security housing, loss of commissary and visitation privileges, and loss of earned time credits. That fight continues.

But HB26-1020 is a critical first step, and it passed the Colorado House Judiciary Committee and the full House unanimously. It now moves to the Senate.

Why Colorado Has a Chance to Lead

Most states have tried to address this problem by outright prohibiting colorimetric tests and failed. California's bill failed. North Carolina's bill hasn't moved. Colorado's approach, born from a genuinely cross-stakeholder working group process established by HB25-1183, is different: it doesn't eliminate the tests, it simply changes what can happen because of them.

That approach has garnered broad support precisely because it doesn't ask law enforcement to give up a tool, only to use it responsibly.

I'll be in the Senate chambers to testify in favor of this bill. If you or someone you know has been affected by a wrongful drug arrest, I encourage you to reach out. And if you want to track the bill's progress or submit written testimony, you can do so at leg.colorado.gov.