What Colorado Probationers Need to Know About Drug Testing

Key Takeaways

• Colorado law does not require any one testing method. Urine, hair, breath and saliva tests are all possible, and no Colorado statute sets how far back a test can detect use.
• Testing may be periodic or random, and how often you are tested is supposed to depend on your substance abuse assessment.
• Complying with the court’s testing orders is a condition of every Colorado probation, so failing, missing or refusing a drug test can be treated as a violation.
• Colorado law calls for a range of responses to a positive test before revocation is considered. If probation is revoked, the court may impose any sentence it could have imposed originally, including jail or prison if the original offense allowed it.
• Do not rely on products sold to hide drug use. Disclose your prescriptions, keep proof of them, and contact your probation officer before a test you cannot make.

What Colorado Law Provides

• Assessment first. C.R.S. 18-1.3-209 requires everyone convicted of a felony, misdemeanor or petty offense who is to be considered for probation, or for a deferred judgment supervised by the probation department, to be assessed for use of controlled substances or alcohol. The court orders you to comply with the assessment’s recommendations. The assessment and the recommendations are at your own expense unless you are indigent.
• Testing is a condition of every probation. C.R.S. 18-1.3-204(1)(a) makes it an explicit condition of every probation sentence that you comply with any court orders on substance abuse testing and treatment. If you were sentenced for a felony, C.R.S. 18-1.3-211(1) also requires periodic testing and treatment based on your assessment, at your own expense unless you are indigent.
• How often. C.R.S. 16-11.5-102(1)(b) calls for “periodic or random” chemical testing, at a frequency appropriate to you based on your assessment. Testing can change if you are reassessed (C.R.S. 16-11.5-105(1)).
• Who collects the sample. Under C.R.S. 16-11.5-106, your probation officer or any contract testing provider may collect any type of sample.
• After a positive test. C.R.S. 16-11.5-105(2) requires a system of structured and individualized responses, including sanctions, incentives and services, and states the legislature’s intent that a positive test be addressed with a range of responses before revocation is considered. C.R.S. 16-11-215 requires probation departments to use such a system.
• Revocation. A complaint alleging a violation must identify the condition you allegedly violated and summarize your violation history and the responses already applied (C.R.S. 16-11-205(5)). At the hearing there is no jury. The prosecution must prove the violation by a preponderance of the evidence, except that a violation that is itself a new crime must be proven beyond a reasonable doubt unless you have already been convicted of it (C.R.S. 16-11-206(1), (3)). If probation is revoked, the court may impose any sentence it could have imposed originally (C.R.S. 16-11-206(5)).
• Prescriptions, medical marijuana and natural medicine. C.R.S. 18-1.3-204(2)(a)(VIII) lets the court order you to refrain from excessive use of alcohol, unlawful use of controlled substances, and use of any other dangerous or abusable drug without a prescription. The court may not prohibit authorized natural medicine. It may not prohibit medical marijuana unless you were sentenced for a crime under the Colorado Marijuana Code, or the court finds from material evidence that the prohibition is necessary and appropriate to accomplish the goals of sentencing.

Types of Drug Tests Used in Colorado Probation

Colorado law does not require one testing method. The assessment procedure allows a chemical test or any other test the supervising agency considers appropriate (C.R.S. 16-11.5-102(1)(a)), and any type of sample may be collected (C.R.S. 16-11.5-106). Urine and hair tests are two of the methods you may encounter.

In a urine test, you provide a sample that is screened for drugs. A hair test uses a small sample of hair and is generally used to look for drug use over a longer past period than a urine test. No Colorado statute sets detection periods for either kind of test, and the figures that circulate online vary. If a result is used against you, ask what method was used, whether the result was confirmed by a laboratory, and what period of use it is said to show.

Understanding the Testing Schedule

Colorado law ties testing frequency to the individual. Testing may be periodic or random, and its frequency is supposed to be appropriate to you based on your assessment (C.R.S. 16-11.5-102(1)(b)). If you were sentenced for a felony, periodic testing based on your assessment, or on later recommendations from the supervising agency, is part of the sentence (C.R.S. 18-1.3-211(1)). Frequency can change if you are reassessed (C.R.S. 16-11.5-105(1)).

How you learn that a test is due is set by the testing program, not by statute. Some programs may call or text you. Others require you to call in or check in to find out whether you must test that day.

Because testing may be random, do not assume you will get advance notice. Follow the instructions you are given exactly, and ask your probation officer what your testing schedule is based on.

Consequences of Failing a Drug Test

A positive test can lead to a probation violation. Colorado law calls for a range of responses first, but a violation can end in revocation, and a revoked probationer can receive any sentence that could have been imposed originally.

Legal Ramifications

Complying with the court’s testing and treatment orders is an explicit condition of every Colorado probation sentence (C.R.S. 18-1.3-204(1)(a)), so a positive test can be treated as a violation. Probation must respond through a system of structured and individualized responses, including sanctions, incentives and services. The legislature’s stated intent is that a positive test be addressed with a range of responses before revocation is considered (C.R.S. 16-11.5-105(2); C.R.S. 16-11-215).

A positive test can also follow you. The statute calling for sanctions provides for responses “to each occurrence of a positive test by an offender, each of which shall become a permanent part of the offender’s record” (C.R.S. 16-11.5-102(1)(c)). A violation can also create problems with work and housing.

Probation Violation Consequences

If probation decides a revocation petition is necessary, the probation officer generally must issue a summons requiring you to appear in court rather than ask for a warrant. The exceptions include reason to believe you would not appear, would interfere with the court process, or pose a substantial risk of serious harm to others (C.R.S. 16-11-205(2), (6.5)).

The complaint must identify the condition you allegedly violated and summarize your violation history and the responses already applied (C.R.S. 16-11-205(5)). At the hearing, the court must tell you the charges and the possible penalties, and you plead guilty or not guilty (C.R.S. 16-11-206(2)). There is no jury (C.R.S. 16-11-206(1)). The prosecution must prove the violation by a preponderance of the evidence, except that a violation that is itself a new crime must be proven beyond a reasonable doubt unless you have already been convicted of it (C.R.S. 16-11-206(3)).

The possible outcomes range more widely than extra supervision or a short jail stay:

If the court finds a violation, it must either revoke or continue probation within seven days after the hearing (C.R.S. 16-11-206(5)).

What Happens if You Miss a Testing Appointment

A missed test can be treated as a violation, because complying with the court’s testing orders is a condition of every probation (C.R.S. 18-1.3-204(1)(a)). Probation is supposed to respond first through its structured system of responses (C.R.S. 16-11-215), but a missed test can also be included in a revocation complaint (C.R.S. 16-11-205(5)).

If you know you cannot make a test, contact your probation officer before it happens and keep a record of that contact. If something like a medical emergency causes you to miss a test, get documentation and give it to your officer promptly.

If you receive a summons to appear in court on a violation, go. Failing to appear as a summons requires is itself treated as a violation of probation (C.R.S. 16-11-205(2)). The court can also change or add conditions for good cause (C.R.S. 18-1.3-204(4)(a)).

Preparing for a Drug Test: Best Practices

Preparing for a test is mostly about knowing your conditions and keeping records:

• Know the test types. You may be given a urine, hair, breath or saliva test. Colorado law allows any type of sample to be collected (C.R.S. 16-11.5-106).
• Read your written conditions. You must be given a written statement of your conditions (C.R.S. 18-1.3-204(3)), and your probation officer must give you the conditions in writing and explain them (C.R.S. 16-11-209(1)). Check whether alcohol is restricted for you. The court may order you to refrain from excessive use of alcohol (C.R.S. 18-1.3-204(2)(a)(VIII)).
• Disclose prescriptions. Tell your probation officer about every prescription, keep proof of it, and take the medication as prescribed.
• Keep a record of each test. Note the date, time, place and who collected the sample.

Do not rely on detox drinks, cleansing products or other products sold to hide drug use. Diluting, substituting or tampering with a sample can be alleged as a failure to comply with the court’s testing orders (C.R.S. 18-1.3-204(1)(a)). If you have used a substance, talk to your lawyer before your next test. Treatment may be the better route, and the law calls for treatment and other responses before revocation is considered (C.R.S. 16-11.5-105(2)).

Resources for Support and Guidance

Colorado law calls for education and treatment programs for people on probation, which may include self-help groups, group counseling, individual counseling, outpatient treatment, inpatient treatment, day care, or treatment in a therapeutic community (C.R.S. 16-11.5-102(1)(b)). If the court orders treatment for alcohol or drug abuse, it generally must be at a facility or with a person approved by the behavioral health administration (C.R.S. 18-1.3-204(2)(c)(I)).

Local support groups, such as Narcotics Anonymous, offer contact with people who have been through similar experiences. Online meetings and recovery resources can help between in-person meetings.

Records showing that you attended treatment or support meetings can also help if you need to show the court your progress.

Frequently Asked Questions

Can I Refuse a Drug Test During Probation?

You cannot simply refuse an ordered test. Complying with the court’s testing orders is an explicit condition of every Colorado probation (C.R.S. 18-1.3-204(1)(a)), so a refusal can be alleged as a violation. If you think a testing order is unfair or unworkable, the proper route is to ask the court to change the condition, which it may do for good cause (C.R.S. 18-1.3-204(4)(a)). Talk to your lawyer before refusing anything.

How Can I Contest a Positive Drug Test Result?

Colorado’s probation statutes do not create a separate appeal process for a test result. The place to contest a positive result is the revocation hearing. There, the prosecution must prove the violation by a preponderance of the evidence, except that a violation that is itself a new crime must be proven beyond a reasonable doubt unless you have already been convicted of it. The court receives any evidence with probative value, even evidence that would not be admissible at a trial, as long as you have a fair opportunity to rebut hearsay evidence (C.R.S. 16-11-206(3)). Useful evidence includes your prescriptions, whether a laboratory confirmed the result, and the records of how the sample was collected and handled. At the hearing, the court must advise you of your rights (C.R.S. 16-11-206(1)). Talk to a lawyer as soon as a positive result is reported.

Are Prescribed Medications Exempt From Drug Testing?

In part. The probation condition covers use of dangerous or abusable drugs “without a prescription” (C.R.S. 18-1.3-204(2)(a)(VIII)). A test can still detect a prescribed medication, so tell your probation officer about every prescription and keep proof of it. A result that goes beyond what your prescription explains can still be alleged as a violation. The court also may not prohibit authorized natural medicine, and may not prohibit medical marijuana unless you were sentenced for a crime under the Colorado Marijuana Code or the court finds from material evidence that the prohibition is necessary (C.R.S. 18-1.3-204(2)(a)(VIII)). That protection is written for medical marijuana, not adult-use (recreational) marijuana, so whether you may use adult-use marijuana depends on your written conditions.

What Are the Costs Associated With Drug Testing?

Colorado law generally puts testing and treatment costs on the person on probation, with exceptions for people who are indigent:

• The substance abuse assessment, and complying with its recommendations, are at your own expense unless you are indigent (C.R.S. 18-1.3-209(2), (3)).
• If you were sentenced for a felony, testing and treatment are at your own expense unless you are indigent (C.R.S. 18-1.3-211(1)).
• The probation supervision fee is $50 a month, and the court may lower or waive court costs and supervision costs for an indigent defendant (C.R.S. 18-1.3-204(2)(a)(V)).

If you cannot afford testing, tell your probation officer and your lawyer early, and ask whether you qualify as indigent. At a revocation hearing, evidence that you failed to pay probation fees or court costs is prima facie evidence of a violation (C.R.S. 16-11-206(3)).

Can I Switch My Probation Officer for Testing Issues?

Colorado’s probation statutes do not give you a right to choose a different probation officer. If problems with your officer over testing are affecting your compliance, keep a written record, raise them with the officer’s supervisor, and talk to your lawyer. The court sets your conditions, and for good cause it may change them (C.R.S. 18-1.3-204(4)(a)). Probation officers must also use suitable methods, consistent with the court’s conditions, to help people on probation (C.R.S. 16-11-209(1)).