Democratic lawmakers are looking to address a controversial but commonly used drug test with an estimated false-positive rate of up to 40%. Rather than outright prohibit the tests, as other states have unsuccessfully attempted, the bill proposes creating a working group composed of legislators, law enforcement, state agencies, defense attorneys, and other stakeholders.

House Bill 1183, sponsored by Reps. Lindsay Gilchrist, D-Denver, and Jennifer Bacon, D-Denver, and Sens. Lindsay Daugherty, D-Arvada, and Matt Ball, D-Denver, references a recent study by the University of Pennsylvania that found presumptive field drug tests were used in about half of all drug arrests nationwide. To conduct these tests, which are also known as colorimetric field drug tests, the suspected substance is placed into a small bag and shaken. The bag contains chemical reagents that change color if an illicit substance is identified. 

While these tests are intended for presumptive purposes only, some law enforcement agencies use them as cause for arrest, said Jeanne Segil of the Korey Wise Innocence Project at the University of Colorado. The tests are prone to inaccuracies because they can only identify aspects of chemical compounds of substances, not specific chemical structures. Everyday items like sugar, soap, and over-the-counter medications have all produced false-positive results.

“When we heard about the use of these presumptive test kits and their unreliability and the ways in which they can coerce innocent people into pleading guilty, it really felt like it required a policy solution,” Segil said.

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According to the UPenn study, over 30,000 Americans are falsely arrested every year because of inaccurate field drug test results. While some Colorado departments like Denver, Centennial, and Castle Pines have stopped using the tests and replaced them with more accurate alternatives, Gilchrist estimates that about 300 Coloradans each year are wrongfully arrested for drug charges in areas that still use them.

Under the bill, the task force would investigate the prevalence of colorimetric field drug tests in Colorado and recommend potential alternatives.

Despite supporters’ desire for a diverse advisory board, the Colorado Association of Chiefs of Police has expressed opposition to the bill, though the sponsors are unaware why.

CACP did not return Colorado Politics’ request for comment. 

Gilchrist said she contacted CACP several times but hasn’t heard back. “I’m hopeful that once we connect the dots, we can figure out their sticking point and how we can make sure that we’re reflecting all stakeholders’ interests in the task force,” she said.

Segil said she was disappointed that CACP opposes the bill. She hopes to have input from parties across the criminal justice system, from attorneys to law enforcement to reform advocates.

“It’s hard to understand why they would feel the need to oppose it; the goal is really to work together,” she said. “I think we really want and value everyone’s input, and I would hope that everyone would be open to that and looking forward to working together. I know that can be hard to find in today’s day and age, but we think it’s important and we really want everyone’s voices to be heard.”

Bacon said, “Law enforcement’s gonna have to reckon with the tools that they’re using and when you confront them with the data, I want to believe they cannot publicly sit in a room and argue for it being wrong. So maybe we’re not gonna be like, see, I told you so, but maybe we’re gonna be like, it’s all in our interest to get this better, and hopefully they’ll come on board.”

While there are countless stories of people serving decades in jail for crimes they did not commit, wrongful convictions for misdemeanors are often ignored despite being more common, Segil said.

She hopes the bill will help draw people’s attention to the serious harm being wrongfully convicted of a crime can have on a person, regardless of the severity of the charge.

“The consequences for people can be devastating, and holding people who are innocent in jail pre-trial for even a few days can have a devastating impact on their lives and their families’ lives, so it was really important for us to raise awareness about this issue,” she said. “Even if people aren’t held pre-trial, just the consequences of having these court cases drag on and on can be devastating.”

About 95% of drug convictions are obtained through a plea agreement, as defendants are often encouraged to enter a guilty plea to shorten their sentence — even if they know they are innocent.

Segil said being jailed, even for a few days, can have severe consequences. When people are charged with misdemeanors they did not commit, they can lose their homes, jobs, and custody of their children. It can be an entry point into the criminal justice system, potentially paving the way for future incarcerations, she said.

To fully illustrate the harms false misdemeanor charges can have, Keli Young of the Innocence Project told the story of Amy Albritton, a Louisiana woman who was pulled over by a Houston police officer in 2010. The officer performed a colorimetric drug test on a white substance found in Albritton’s car, and when the test came back positive for cocaine, Albritton was arrested. At the recommendation of her public defender, Albritton took a plea deal and served 21 days in jail. As a result, she lost her job and was evicted from her home. Six months after her arrest, a crime lab test determined that the substance found in Albritton’s car was not cocaine. Albritton filed a lawsuit against the department in 2017, but it was ultimately dismissed.

“To anyone who says that this is a minor concern, if they haven’t spent a day in jail for a crime they didn’t commit, I don’t think that they have a right to say that,” added Selig.

Like other facets of the criminal justice system, wrongful convictions disproportionately impact poor people and people of color, Young said.

“Just looking at our carceral system as a whole across the country, it is always going to disproportionately impact Black communities, communities of color, and poor communities,” she said. “That is true across all offenses, from low levels to murder, and at every kind of decision point within our criminal legal system, there are disparate impacts on communities of color and on poor communities.”

According to Young, the California legislature introduced a bill last year that prohibited the use of colorimetric tests unless a crime lab test was also conducted. The bill failed.

Advocates are hopeful that Colorado’s unique task force approach will be more successful, as it seeks to include all parties involved, from law enforcement to representatives of organizations like the Innocence Project.

“We believe that if we bring all the stakeholders together, we can address this problem comprehensively and ensure that innocent people are not pleading guilty on the basis of these test kits,” said Segil.

Segil said the bill intentionally leaves out specific recommendations or suggestions because she believes having everyone’s input before making any decisions is essential. Gilchrist agreed, adding that she hoped the bill’s practical approach would garner all stakeholders’ support.

“I think it’s digestible for folks that maybe aren’t as reform-minded, and that’s why I think the stakeholder groups coming behind this are pretty diverse,” said Gilchrist. “Not to say that I don’t believe we should be doing big things in the reform space, but I think the environment is a little bit tougher than it used to be.”

While many conversations about criminal justice tend to be ideological, Bacon said this bill is rooted in science.

“I think it’s interesting that the conversation that we’re gonna have here is about science and not necessarily that the police are biased directly,” she said. “I think indirectly we can see that the system isn’t infallible, and maybe this is a neutral way to confront all of that.”

The bill will be heard by the House Judiciary Committee on Feb. 26.