Fraudulent drug test bill fails in committee

Republican-sponsored legislation would've fined those who cheat tests


A Senate committee on March 5 rejected a bill that sought to impose legal penalties in cases where employees try to cheat on company-mandated drug tests.

The Republican-sponsored effort had previously passed the House, but Democrats on the Senate's State, Veterans and Military Affairs Committee killed the legislation.

The committee chairman wondered how accusations involving a fake or diluted drug test would hold up in a court of law if there were no actual visual proof that the employee was trying to cheat by using a urine-cleansing device.

“Is it eye witness testimony that (determines that) this person used a Whizzinator or video proof that this person used a Whizzinator?” said Sen. Jesse Ulibarri, D-Commerce City. “I don't believe that government belongs in the bathroom or the bedroom.”

House Bill 1040 would have created a petty offense penalty for employees who attempt to defraud a drug test for occupations where the testing is required by law.

Police, corrections officers, and commercial vehicle drivers are a few of the professionals who would have been impacted by the bill. Under the bill, those who try to hide their drug use through fake or diluted urine samples would have been subjected to fines of up to $5,000, depending on how many times they tried to cheat.

The bill would not have applied in cases where business-mandated drug testing is not legally required.

Some who testified in opposition to the bill said the legislation is clearly aimed at targeting marijuana users, with one witness calling it “the marijuana testing bill.”

Sen. Mark Scheffel, R-Parker, acknowledged that Amendment 64's legalization of recreational pot use has created a “vast unknown in a new permissiveness,” but said there needs to be some teeth in cases where employees knowingly attempt to defraud drug tests.

“As it stands now, other than (employee) dismissal, there is no penalty for what is described here,” Scheffel said.

The original version of the bill would have created new criminal misdemeanor drug offenses for those who cheat on drug tests, which could have resulted in jail time. However, prior to passing the House, the bill was amended to create only petty offenses that carry fines, rather than time behind bars.

Deputy Attorney General David Blake said the penalty would have been “a logical extension” of law that requires drug testing in certain professions. Blake also reminded those in the audience that employers are allowed to penalize workers for marijuana use, even though pot consumption is now legal.

But opponents of the effort said the bill is unfairly aimed at pot users. Terry Robnett, a medical marijuana patient and advocate, told the committee that because TCH metabolites are stored in fat cells, the drug leaves the body at a much slower rate than other substances. So, in many cases, marijuana will remain in a person's blood 30 days after initial impairment.

“You can go out on a Friday night and paint the town red with meth or cocaine and come in Monday morning and test perfectly clean,” Robnett said. “But, with marijuana, you're screwed.”

Denise Maes of the American Civil Liberties Union of Colorado wondered why the government should be involved in this process to begin with.

“There is a lot of discretion on the part of employer to fire at will,” she said. “It's a matter left to the employer and employee.”

Ulibarri agreed, saying that the loss of income from being fired “is a significant penalty” and that the legislation attempts to “solve a problem that doesn't exist.” The bill failed in the Democrat majority committee following a 3-2 party-line vote.

Afterward, the bill's House sponsor, Rep. Frank McNulty, R-Highlands Ranch, blasted the committee's vote.

“It is unfortunate that Senate Democrats continue to choose criminals over the safety of Colorado citizens,” he said. “They refuse to admit that those falsifying drug tests are putting the rest of us at risk.”