What to Expect From Colorado’S Drug Testing Policies for Probationers

Key Takeaways

• Colorado law requires a substance abuse assessment for anyone convicted of a felony, misdemeanor or petty offense who is considered for probation or a supervised deferred judgment, and the court orders you to follow its recommendations.
• The statutes do not require any one testing method. Urine, hair, breath and saliva tests are all possible.
• How often you are tested is supposed to depend on your assessment, and testing may be random.
• Complying with testing orders is a condition of every Colorado probation. A positive result is supposed to be met first with a range of structured responses, but it can lead to a revocation complaint.
• You cannot simply refuse an ordered test. You can contest an alleged violation at a revocation hearing, where the prosecution must usually prove it by a preponderance of the evidence (beyond a reasonable doubt if the violation alleged is a new crime you have not been convicted of), and you can ask the court to change your conditions.

What Colorado Law Provides

• Assessment before sentencing. C.R.S. 18-1.3-209 requires everyone convicted of a felony, misdemeanor or petty offense who is considered for probation or a deferred judgment supervised by the probation department to be assessed for drug and alcohol use. The court orders you to comply with the assessment’s recommendations. Both 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 the court’s 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.
• Who collects the sample. Under C.R.S. 16-11.5-106, your probation officer or a contract testing provider may collect any type of sample.
• What happens 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 used (C.R.S. 16-11-205(5)). At the hearing, the prosecution must prove the violation by a preponderance of the evidence; if the alleged violation is a new crime, it must be proven beyond a reasonable doubt unless you have already been convicted of it, and there is no jury (C.R.S. 16-11-206). If probation is revoked, the court may impose any sentence it could have imposed originally.
• Medical marijuana, natural medicine and prescriptions. 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 other dangerous or abusable drugs without a prescription. The court may not prohibit legal 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 to meet the goals of sentencing.

Overview of Colorado’s Drug Testing Policies

In Colorado, the rules for testing people on probation come from statutes in Title 16 and Title 18. The process starts with the substance abuse assessment required by C.R.S. 18-1.3-209, which evaluates whether and how much you use drugs or alcohol and recommends treatment. The court then orders you to follow those recommendations, and complying with testing and treatment orders becomes a condition of your probation.

Your probation officer supervises you and reports to the court on your conduct (C.R.S. 16-11-209(1)). Testing frequency and methods are supposed to be based on your assessment and any later reassessment, not set the same for everyone.

Types of Drug Tests Used for Probationers

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). The sections below cover urine, hair, breath and saliva tests.

Urinalysis Testing Procedures

In a urine test, you provide a sample that is tested for drugs. No Colorado statute sets detection periods or accuracy standards for urine tests, and the figures that circulate online vary. If you dispute a result, ask whether the sample was sent to a laboratory for confirmation testing, and ask for the records showing how it was collected and handled.

Hair Follicle Analysis

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 or accuracy standards for hair tests. If a hair result is used against you, the period of use it is said to show can matter, and it is worth raising with your lawyer.

Breathalyzer and Saliva Tests

A breath test measures alcohol in your breath. A saliva test uses a mouth swab to look for recent drug use. Whether alcohol use is restricted for you depends on your written conditions. The statute lets the court order you to refrain from excessive use of alcohol (C.R.S. 18-1.3-204(2)(a)(VIII)), so read your conditions to see exactly what they say.

Common Substances Tested in Colorado

The statutes speak of testing for “controlled substances or alcohol” (C.R.S. 16-11.5-102(1)(a)). They do not list which drugs a testing panel must include. That is set by the testing program, so ask your probation officer what you are being tested for.

Standard Testing Substances

Drug panels may look for substances such as these:

• Marijuana, including THC from products that are legal to buy in Colorado.
• Cocaine.
• Opiates, which include heroin and prescription pain medications.
• Amphetamines, including methamphetamine.

Knowing what you are being tested for helps you avoid surprises and raise questions about your prescriptions before a test, not after.

Prescription Drug Considerations

The probation condition in C.R.S. 18-1.3-204(2)(a)(VIII) is aimed at drugs used “without a prescription.” Medication you take as prescribed is not what that condition forbids. Drug tests can still detect prescription medications such as opioids and benzodiazepines, so tell your probation officer about every prescription, keep proof of it, and take the medication as prescribed. A result that goes beyond what your prescription explains can still be alleged as a violation.

Illicit Drug Identification

Probation testing also looks for illegal drugs. Substances that may be included are:

• Marijuana: adult use is legal in Colorado, but your conditions may still restrict it (see the marijuana section below).
• Cocaine.
• Methamphetamine.
• Heroin and other opioids.

Because a positive result can lead to a violation complaint, the accuracy of the test and the handling of the sample matter. Those are the issues to raise if you believe a result is wrong.

Frequency of Drug Testing for Probationers

Colorado law ties testing frequency to the individual, not to a fixed schedule. C.R.S. 16-11.5-102(1)(b) says testing may be periodic or random and that its frequency should be appropriate to you based on your assessment. If you were sentenced for a felony, C.R.S. 18-1.3-211(1) requires periodic testing based on your assessment or on later recommendations from the supervising agency. Frequency can change if you are reassessed (C.R.S. 16-11.5-105(1)). Keeping in contact with your probation officer and asking what your testing schedule is based on can make it more manageable.

Procedures for Administering Drug Tests

The details of collection and testing are set by the testing program rather than by statute. Points to know:

• Notice: Testing may be random (C.R.S. 16-11.5-102(1)(b)), so do not assume you will get advance notice of each test. Follow the call-in or check-in instructions you are given.
• Sample Collection: Your probation officer or a contract testing provider may collect the sample (C.R.S. 16-11.5-106).
• Chain of Custody: A documented record of who handled your sample, and when, is what shows it was not mixed up, tampered with or contaminated. Ask for it if you dispute a result.
• Testing Methodology: If a screening result is disputed, ask whether it was confirmed by a laboratory and what method the laboratory used.

Knowing these points helps you spot problems early and raise them promptly.

Understanding the Consequences of Positive Test Results

A positive test is not automatically a revocation. Colorado law requires probation to respond with a system of structured and individualized responses, including sanctions, incentives and services, and 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 still lead to a revocation complaint.

If a violation is found, the court must either revoke or continue probation within seven days after the hearing (C.R.S. 16-11-206(5)). Knowing these steps helps you and your lawyer respond before a complaint is filed, not only after.

Rights of Probationers During Drug Testing

Testing is a court-ordered condition of probation, so your protections come mainly from the written conditions themselves, the limits the statutes place on those conditions, and the procedure for a revocation hearing.

Privacy Rights Explained

Key points:

• Written Conditions: You must be given a written statement of your probation 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)).
• Results Are Reported: Colorado’s probation statutes do not promise that test results stay private. Your probation officer reports to the court on your conduct (C.R.S. 16-11-209(1)), and a revocation complaint must summarize your violation history (C.R.S. 16-11-205(5)).
• Limitations on Testing: Probation conditions must be reasonably necessary to help you lead a law-abiding life (C.R.S. 18-1.3-204(1)(a)), and testing frequency is supposed to match your assessment (C.R.S. 16-11.5-102(1)(b)).
• Challenge Rights: At a revocation hearing you can plead not guilty, the prosecution must prove the violation by a preponderance of the evidence; if the alleged violation is a new crime, it must be proven beyond a reasonable doubt unless you have already been convicted of it, and you must be given a fair opportunity to rebut hearsay evidence (C.R.S. 16-11-206(2), (3)). You can also ask the court to change a condition for good cause (C.R.S. 18-1.3-204(4)).

Consent Requirements Clarified

You may be asked to sign forms or agreements when testing begins, but testing does not depend on your consent. 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 refusing an ordered test, or failing to show up for one, can be alleged as a violation. Read every form before you sign it, keep a copy, and ask your lawyer about anything in it that goes beyond the conditions the court actually ordered.

The Role of Legal Representation in Drug Testing Issues

At a revocation hearing, the court must advise you of your rights, including the right to counsel (C.R.S. 16-11-206(1); C.R.S. 16-7-207(1)(b)). A lawyer can help in several ways:

• Understanding Probation Rights: Explaining what your written conditions actually require and what they do not.
• Challenging Unfair Practices: Contesting how a sample was collected, handled or tested, and holding the prosecution to its burden of proof at a revocation hearing.
• Navigating Consequences: Explaining the range of responses to a positive test, including treatment and changed conditions, and what revocation could mean in your case.
• Developing Defense Strategies: Asking the court to modify a condition that is not working, or presenting evidence of treatment and progress before a complaint is decided.

Impact of Marijuana Legalization on Drug Testing

Legal marijuana does not mean marijuana use is allowed on probation. Colorado law treats medical marijuana differently from adult-use marijuana:

• Medical marijuana. The court may not prohibit possession or use of medical marijuana, authorized under the Colorado Constitution, as a condition of probation unless you were sentenced for a crime under the Colorado Marijuana Code, or the court finds from material evidence that the prohibition is necessary to meet the goals of sentencing (C.R.S. 18-1.3-204(2)(a)(VIII)). Authorized medical marijuana use is also not treated as “another offense” that violates probation, unless you were sentenced under the Marijuana Code (C.R.S. 18-1.3-204(1)(b)).
• Adult-use marijuana. The statute’s protection is written for medical marijuana. It does not give the same protection to adult-use (recreational) marijuana, so whether you may use it depends on the conditions in your written probation order.
• Natural medicine. The court may not prohibit possession or use of natural medicine that is authorized under Colorado law (C.R.S. 18-1.3-204(1)(c), (2)(a)(VIII)).

Read your conditions carefully and ask your lawyer before assuming any use is allowed.

Resources for Probationers Facing Drug Testing Challenges

Colorado law calls for education and treatment programs for people on probation, which may include self-help groups, group counseling, individual counseling, outpatient treatment and inpatient treatment (C.R.S. 16-11.5-102(1)(b)). Resources to consider:

• Counseling Services: Professional guidance can help you manage substance use and the stress of testing. Court-ordered treatment for alcohol or drug abuse is generally provided by a facility or person approved by the behavioral health administration (C.R.S. 18-1.3-204(2)(c)).
• Support Groups: Connecting with others facing similar challenges can help you stay on track.
• Educational Programs: Programs on drug policies and testing can help you understand what is expected of you.
• Legal Assistance: A lawyer can explain your conditions and your options if a test result is disputed.

Using these resources can also help if you ever need to show the court your progress.

Frequently Asked Questions

Can Probationers Appeal a Positive Drug Test Result?

There is no separate appeal process for a test result under Colorado’s probation statutes. The place to contest a positive result is the revocation hearing. There, the prosecution must prove the violation by a preponderance of the evidence; if the alleged violation is a new crime, it must be proven beyond a reasonable doubt unless you have already been convicted of it, and 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)). Gather your prescriptions, treatment records and any evidence about how the sample was collected and handled, and talk to a lawyer as soon as a positive result is reported.

Are There Exceptions for Prescribed Medications During Testing?

Yes, in the sense that the probation condition covers drugs used “without a prescription” (C.R.S. 18-1.3-204(2)(a)(VIII)). A test may still detect a prescribed medication, so disclose every prescription to your probation officer and keep proof of it. The court also may not prohibit medical marijuana except in the circumstances the statute lists, and may not prohibit authorized natural medicine (C.R.S. 18-1.3-204(2)(a)(VIII)).

What Happens if a Probationer Misses a Drug Test?

Complying with testing orders is a condition of every Colorado probation (C.R.S. 18-1.3-204(1)(a)), so a missed test can be treated as a violation. Probation is supposed to respond 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). If you know you cannot make a test, contact your probation officer before it happens and keep a record of that contact.

How Is Confidentiality Maintained During Drug Testing?

Colorado’s probation statutes do not create a general confidentiality rule for test results. Results go to your probation officer, who reports to the court on your conduct (C.R.S. 16-11-209(1)), and a revocation complaint must summarize your violation history (C.R.S. 16-11-205(5)). Ask your probation officer and the testing provider who receives your results.

Can Probationers Request a Retest After a Positive Result?

Colorado’s probation statutes do not create a right to a retest. Whether a sample can be retested or sent to a laboratory for confirmation depends on the testing program. Ask right away, and tell your lawyer so the request can be raised with the court if a revocation complaint is filed.