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State lab faces massive increase in DUI testing responsibilities 

Bloody hell

click to enlarge The Colorado Bureau of Investigation may be inundated with DUI blood tests. - COURTESY CDOT
  • Courtesy CDOT
  • The Colorado Bureau of Investigation may be inundated with DUI blood tests.

Prosecutors worry that a state move to offer free drug and alcohol testing to law enforcement agencies — meant to allow for more comprehensive evidence in driving under the influence cases — will have the unintended consequence of saddling the Colorado Bureau of Investigation with more blood than it can handle.

That’s because when CBI began offering free blood testing to agencies used to paying for it, many (including the Colorado Springs Police Department) switched to CBI from private lab ChemaTox, and as a result, ChemaTox was forced out of business.

Before July 1, the Colorado Bureau of Investigation’s toxicology program was funded through a fee-for-service model, according to a July memo to the Joint Budget Committee of the Colorado Assembly prepared by committee staff. Local agencies paid $30 for blood alcohol testing and $300 for blood drug screening to cover the costs of operating the state toxicology lab.

In the past, many agencies had their testing done by ChemaTox, which processed more than 8,000 cases last year.

Often, law enforcement only paid for the cost of alcohol testing due to the increased cost of testing for drugs. “This limits the information available not only to the prosecution in [Driving Under the Influence/Driving Under the Influence of Drugs] cases, but also to the state in evaluating the impacts of legalization of marijuana,” the memo explains.

So, the department requested $1.7 million from the Marijuana Cash Tax Fund for financial year 2019 to 2020, to cover the cost of offering free drug and alcohol blood testing to local agencies. Based on a survey of 280 law enforcement agencies and coroners, the department estimated that the change would mean a 75 percent increase in workload, or 2,700 more cases per year.

What they didn’t foresee: With CBI’s offer of free testing, private lab ChemaTox would be forced out of business.

“ChemaTox was not notified about the intended changes by anyone in state government, nor were we consulted in any capacity prior to the change,” reads a statement from the company’s website announcing its closure. “As the primary provider of the law enforcement toxicology testing services in the state of Colorado, this rapid change has had a swift and profound effect on our ability to operate.”

CBI says its intention was not to force Boulder-based ChemaTox out of he market, but admits it did not consult with the company before making the budget request. The result: more than twice the amount of additional cases expected — nearly 6,000 extra a year. The turnaround time for test results could also increase from 25 days to between 45 and 60 days, the department estimates.

Should CBI exceed that 60-day timeframe, “that will start to impact our cases in terms of the prosecutorial timeframe with which we have to prosecute cases,” says Arnold Hanuman, deputy director of the Colorado District Attorney’s Council, which has voiced concern about the change.

In a memo to law enforcement, CBI says it feels “confident that we will be able to keep our turnaround time under 60 days.” Should that prove too difficult, CBI could “return to a partial or sliding fee based system” to help pay for more resources.

Legislators held a special hearing July 26, after the legislative session had ended, to gather testimony from CBI Director John Camper, ChemaTox CEO Sarah Urfer and other witnesses. But for the time being, there’s nothing state lawmakers can do to mitigate the situation.

In El Paso County, the blow of suddenly strained resources for testing may be somewhat softened — at least when it comes to forensic blood testing — given that the El Paso County Coroner’s Office handles postmortem toxicology. Drug and alcohol tests for deceased people don’t often come into play in DUI cases, but can still present valuable court evidence.

“[Test results] can have ramifications ultimately in homicide cases when we’re trying to sort out what happened — what were the events that led up to the lethal injury,” County Coroner Dr. Leon Kelly explains.

As the only coroner’s office in the state with its own toxicology lab, Kelly’s office performs autopsies and conducts postmortem blood testing for 20 other counties, and does testing only for Pueblo and Arapahoe counties, Kelly says. Though CBI’s offer included free postmortem testing in addition to DUI-related testing, Kelly says he won’t allow counties that have their autopsies done with his office to get toxicology results from CBI.
“If you’re paying to bring your body here and we’re autopsying it, I’m not allowing that tox to go someplace else,” Kelly says. “[I’m] offering my opinion to that coroner about why I think that person died. I want to be able to trust those results.”

Pueblo County has indicated it will continue using the El Paso County Coroner’s Office for postmortem toxicology work, Kelly says, and Arapahoe County is still evaluating whether it wants to switch to CBI.

Meanwhile, the Colorado Springs Police Department could feel the impact of ChemaTox’s closure. It was among the agencies that switched DUI testing from the private lab to CBI a few weeks ago, a spokesperson confirmed.

“We don’t do any non-death-related toxicology,” Kelly says, and confirms his office won’t take on any DUI testing for law enforcement agencies to lighten the load for CBI. “I think our resources, as the coroner, are better served kind of operating on just figuring out why people have died.”

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