Colorado State Patrol troopers are participating in a pilot program to test portable devices that detect drugs, including marijuana, during a DUI investigation. These portable devices are similar to portable breath tests currently used by many officers during DUI alcohol investigations. With the legalization of marijuana in Colorado, there has been a push by law enforcement to catch stoned drivers. Using portable drug testing devices would assist officers in completing their investigation.
The devices are still in their test stages, so the reliability of the results is still in question. To date, no test results have been used in court. There are multiple devices being tested. Even after the pilot program ends and even if it results in officers carrying portable drug testing devices, the results may not be admissible in court. Portable breath test results are not admissible in court for alcohol related DUI or DWAI cases because PBT’s are not reliable. PBT results are only admissible in certain types of hearings to prove the officer had probable cause to believe a person committed a DUI. The results are not admissible in trial. Unless the technology for the portable drug testing device is more advanced than that of the PBT, then drug results from a portable device will likely be inadmissible at trial, but could be used in certain hearings to support the officer’s probable cause determination. Aside from general reliability concerns, the current devices can only detect THC that has been smoked. THC ingested through edibles cannot be detected with the device.
Given the current state of the law, it seems unlikely that the results from a portable drug testing device would be admissible in a DUI or DWAI case. What is less clear is whether these portable results could be used in trial in other types of cases. For example, PBT results for alcohol are admissible in underage drinking or possession of alcohol. The PBT’s are reliable enough to detect the presence of alcohol, so because a person under age 21 has disobeyed a law by drinking or possessing any alcohol, the results are admissible. Another example would be in a case with a violation of a protection order. Some protection orders prohibit the restrained person from consuming any alcohol or controlled substance. Similar to the underage situation described above, a judge might allow a PBT result to be introduced into evidence in a protection order violation case to prove the presence of alcohol. Essentially, the law recognizes that PBT results are reliable enough to prove the presence of alcohol, but not reliable enough for a jury to use those results.
As the pilot program for drug PBT’s progresses, whether those test results can be used against a person in trial will be litigated. Keep in mind that taking a PBT, whether for alcohol or drugs, is voluntary. And, taking a PBT is not a substitute for taking a blood test.