Big questions are swirling around Colorado’s ability to carry out blood tests and prosecute offenders in driving under the influence cases after a policy switch that could jeopardize cases and put a private lab out of business.
The Colorado Bureau of Investigation on July 1 began testing blood drawn during DUI investigations for free in an attempt to ease the financial strain on smaller law enforcement agencies and to collect better data on marijuana use among motorists. The idea was to encourage agencies that were not submitting samples for testing because of cost to reconsider.
The testing by a private lab costs $300 or more a case.
In doing so, however, CBI produced the unintended effect of siphoning business from ChemaTox, a lab that had been handling thousands of cases for Colorado law enforcement for years and that’s now slated to close because of the lost revenue. That means the Boulder lab’s workload will now likely shift to the state and prosecutors are worried their cases could be thrown out if the CBI can’t complete testing in a timely manner.
ChemaTox picked up the slack when the Colorado Department of Public Health and Environment’s lab closed in 2013 amid concerns about the accuracy of its testing. Two years later, CBI began testing blood samples, but handled far fewer tests than ChemaTox.
When CBI dropped its testing fees at the start of this month, as first reported by Colorado Sun partner CBS4, business that had flowed to ChemaTox was redirected toward the state. “I cannot compete with free,” ChemaTox owner Sarah Urfer tearily testified to state lawmakers on Friday.
Some state lawmakers, like Longmont Democratic Rep. Jonathan Singer, are upset that the CBI has effectively created “a state monopoly.”
“It was never our intention to negatively impact a private business,” John Camper, who leads the CBI, testified before the legislature’s Joint Budget Committee on Friday as they worked to untangle the mess. “I’m embarrassed and I’m responsible. Where we failed was to do the stakeholder outreach that I expect our agency to do and that I should have done in this case to reach out to ChemaTox.”
But likely more serious than the closing of a small business is the impact the shift in testing load could have on the prosecution of cases.
There are now fears that CBI won’t be able to keep up with the sharp rise in testing. There are also worries about whether it will have the necessary resources to send experts to court for expert testimony.
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The CBI could see its DUI test case load increase by 6,000 annually if ChemaTox closes, according to documents reviewed by the Joint Budget Committee. Turnaround on testing could jump to an average of 45 or 60 days from 25 days currently.
“We’re only a couple days into this so we have more research into what kind of volume were going to be talking about,” Camper said. “I do believe that’s going to be an issue and we’re going to have to address it.”
Concerns are mounting about the ability of the CBI to get testing done in time to meet speedy trial requirements that defendants are entitled to. That could mean charges are dropped.
“That’s a legitimate concern,” said Tom Raynes, who runs the Colorado District Attorneys’ Council. “It’s not just the testing time, it’s also the availability of toxicologists that cause us concerns related to speedy trial issues.”
Urfer said it could cost up to $4.8 million for CBI to handle all of the new workload, an amount that could leave taxpayers on the hook to cover. Making things more difficult is the fact that the Colorado legislature isn’t in session, which complicates its ability to give the agency more funding outside of an emergency supplemental request for Gov. Jared Polis’ administration.
Finally, as the debate about the future of testing has come to the forefront so has news that the state has been carrying out full-panel testing of blood samples drawn in DUI cases to see what impact marijuana has on the issue. That’s even in cases that are just submitted for alcohol analysis.
The agency said so far it’s found that about 70 percent of all the blood they’ve tested in DUI cases have a marijuana component.
Colorado’s DUI law is not specific to alcohol or drugs, which gives law enforcement latitude to test for either, though the CBI admits it could be challenged on the practice and Singer is questioning the constitutionality around it.
Prosecutors say it’s a better practice to run the full panel, even though it’s 10 times more expensive, because sometimes officers are guessing that someone is under the influence of alcohol when they could be using a combination of substances.
“If the intent here is to actually do full, multi-panel tests on every blood sample — which is a different standard operating procedure than I think what we saw before even before this situation began — I’m wondering if there is even a constitutional question,” Singer said during the Joint Budget Committee hearing on Friday. “If we’re looking for substances that weren’t the initiating or even the secondary reason for an arrest or a charge, are we wandering into any federal constitutional concerns about custody of evidence?”
Camper said those anxieties appear to be unfounded, but he suggested it could still become an issue down the line. “Whether we get challenged on that or not, I think that remains to be seen,” he said.
Meanwhile, Urfer says her ChemaTox business — which has 25 full-time employees — is likely to shut down within a few months. Camper said the CBI would try to work with her. Elsewhere in the U.S., states contract with private labs to do DUI testing. But Urfer said she’s already lost a significant amount of business.
“Overnight, the state took away everything I’ve worked for for my entire career,” she testified. “I will likely lose everything I have. I don’t know how I will rebuild.”
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