Colo. Rev. Stat. » Title 16
Colorado Revised Statutes

Colo. Rev. Stat. § 16-3-309 (2026)

Admissibility of laboratory test results

✓ current as of July 2026
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(1) When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant.

(2) The trial court shall consider the following factors in determining, pursuant to subsection (1) of this section, whether the state has met its obligation to preserve the evidence:

(a) Whether or not a suspect has been identified and apprehended and whether or not the suspect has retained counsel or has had counsel appointed for him at the time of testing;

(b) Whether the state should have used an available test method more likely to preserve the results of seized evidence;

(c) Whether, when the test results are susceptible to subjective interpretation, the state should have photographed or otherwise documented the test results as evidence;

(d) Whether the state should have preserved the used test samples;

(e) Whether it was necessary for the state agency to conduct quantitative analysis of the evidence;

(f) Whether there is a sufficient sample for the defendant's expert to utilize for analysis and the suspect or defendant has made a specific request to preserve such sample;

(g) If paragraph (f) of this subsection (2) cannot be complied with, in view of the small amount of evidence, or when the state's duty to preserve the evidence would otherwise be enhanced, whether it was reasonable for the state to have contacted the defendant to determine if he wished his expert to be present during the testing.

(3) With regard to testing performed on blood, urine, and breath samples which form the basis for a conclusion upon which a statutory presumption arises, it is hereby declared to be the public policy of the state of Colorado that when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because the testing destroyed evidence which might have been favorable to the defense, it shall be open to the proponent of the evidence to urge that the testing in question was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defense, and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.

(4) For all other types of blood analysis, breath analysis, and urine analysis and for laboratory testing, such as serial number restoration, firearms testing, and gunpowder pattern testing, it is hereby declared to be the public policy of the state of Colorado that, when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because of the destruction of evidence upon which the test was performed, it shall be open to the proponent of the evidence to urge that the testing in question was performed in a reasonable, good faith belief that it was proper and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.

(5) Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least fourteen days before the date of such criminal trial.

(6) In no event shall evidence be suppressed which results from laboratory testing performed before identification of a suspect for the sole reason that the later identified suspect or his attorney was not present at the time of the testing.

(7) This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.

Source: L. 84: Entire section added, p. 483, § 1, effective July 1. L. 2012: (5) amended, (SB 12-175), ch. 208, p. 844, § 61, effective July 1.

Cross references: For statutory presumptions in alcohol-related traffic offenses, see §§ 18-3-106, 18-3-205, and 42-4-1301.

16-3-310. Oral advisement and consent prior to search of a vehicle or a person during a police contact. (1) (a) Prior to conducting a consensual search of a person who is not under arrest, the person's effects, or a vehicle, a peace officer shall comply with paragraph (b) of this subsection (1).

(b) A peace officer may conduct a consensual search only after articulating the following factors to, and subsequently receiving consent from, the person subject to the search or the person with the apparent or actual authority to provide permission to search the vehicle or effects. The factors are:

(I) The person is being asked to voluntarily consent to a search; and

(II) The person has the right to refuse the request to search.

(c) After providing the advisement required in paragraph (b) of this subsection (1), a peace officer may conduct the requested search only if the person subject to the search voluntarily provides verbal or written consent. Other evidence of knowing and voluntary consent may be acceptable, if the person is unable to provide written or verbal consent.

(2) A peace officer providing the advisement required pursuant to subsection (1) of this section need not provide a specific recitation of the advisement; substantial compliance with the substance of the factors is sufficient to comply with the requirement.

(3) If a defendant moves to suppress any evidence obtained in the course of the search, the court shall consider the failure to comply with the requirements of this section as a factor in determining the voluntariness of the consent.

(4) This section shall not apply to a search conducted pursuant to section 16-3-103, a valid search incident to or subsequent to a lawful arrest, or a search for which there is a legal basis other than voluntary consent. This shall include, but not be limited to, a search in a correctional facility or on correctional facility property, a detention facility, county detention facility, custody facility, juvenile correctional facility or any mental health institute or mental health facility operated by or under a contract with the department of human services, a community corrections facility, or a jail or a search of a person subject to probation or parole by a community supervision or parole officer when the person has consented to search as a term and condition of any probation or parole.

Source: L. 2010: Entire section added, (HB 10-1201), ch. 176, p. 638, § 1, effective April 29.

Notes of Decisions
Cited in 28 cases (2 in the last 5 years), 1991–2025 · leading case: Cropper v. People, 251 P.3d 434 (Colo. 2011).
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Cropper v. People, 251 P.3d 434 (Colo. 2011). · cites it 151× “In this case, we review the constitutionality of section 16-3-309(5), C.R.S. (2010), as applied to petitioner, David Lee Cropper.”
Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007). · cites it 35× “(2) Whether section 16-3-309(5), CRS. (2006), is unconstitutional on its face and as applied to petitioner because petitioner did not voluntarily waive his right to confront and cross-examine the criminalistics lab technician.”
People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003). · cites it 26× “We determine that section 16-3-309(5) does apply in a DUI case and is constitutional on its face.”
People v. Barry, 349 P.3d 1139 (Colo. Ct. App. 2014). · cites it 7× “168 Defendant nevertheless contends that her pretrial request under section 16-3-309(5), C.R.S.2014, for live testimony from the "employee or technician of the crim-inalistics laboratory who accomplished" the analysis of her blood was sufficient to preserve this issue.”
Cardman v. People, 2019 CO 73 (Colo. 2019). · cites it 3× “The trial court ruled against the defendant because a statute, section 16-3-309(5), C.R.S. (2006), authorized the admission of the report without the responsible technician's testimony and set out pretrial procedures a defendant would have to follow to question the technician at…”
Phillips v. People, 2019 CO 72 (Colo. 2019). · cites it 2× “at 665 (quoting § 16-3-309(5), C.R.S. (2006) ). In holding that Hinojos-Mendoza waived his right to confront at trial the technician who prepared the report, we pointed to his counsel's failure to make a timely request under the statute, inferring that such signified "a decision…”
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). · cites it 2× “2007), Colo.Rev.Stat. § 16-3-309 (2008) (defendant must give notice 10 days before trial); Georgia: Compare Miller v.”
People v. Wartena, 156 P.3d 469 (Colo. 2007). · cites it 23× “§ 16-3-309, C.R.S. (2006). The statute mandates that the trial court take account of various factors when considering whether to suppress test results if the testing will not leave a sufficient sample for independent analysis.”
People v. Walters, 148 P.3d 331 (Colo. Ct. App. 2006). · cites it 2× “We decline to address defendant’s contention that § 16-3-309(5), C.R.S.2005, is unconstitutional because he did not raise the issue in the trial court.”
People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. Ct. App. 2006). · cites it 6× “However, he denied knowledge of the cocaine, explaining that the informant had used his truck the night before.”
People v. Hill, 228 P.3d 171 (Colo. Ct. App. 2009). · cites it 6× “" He contends that section 16-3-309 requires the prosecution to produce laboratory personnel who handled the sample.”
People v. Cruthers, 124 P.3d 887 (Colo. Ct. App. 2005). · cites it 5× “Section 16-3-309(5), C.R.S.2004, states: Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee…”
Show all 28 citing cases →
— Colo. Rev. Stat. § 16-3-309(2) — 1 case
People v. Wartena, 156 P.3d 469 (Colo. 2007). “§ 16-3-309, C.R.S. (2006). The statute mandates that the trial court take account of various factors when considering whether to suppress test results if the testing will not leave a sufficient sample for independent analysis.”
— Colo. Rev. Stat. § 16-3-309(2)(g) — 1 case
People v. Wartena, 156 P.3d 469 (Colo. 2007). “§ 16-3-309, C.R.S. (2006). The statute mandates that the trial court take account of various factors when considering whether to suppress test results if the testing will not leave a sufficient sample for independent analysis.”
— Colo. Rev. Stat. § 16-3-309(5) — 25 cases
Cropper v. People, 251 P.3d 434 (Colo. 2011). “In this case, we review the constitutionality of section 16-3-309(5), C.R.S. (2010), as applied to petitioner, David Lee Cropper.”
Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007). “(2) Whether section 16-3-309(5), CRS. (2006), is unconstitutional on its face and as applied to petitioner because petitioner did not voluntarily waive his right to confront and cross-examine the criminalistics lab technician.”
People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003). “We determine that section 16-3-309(5) does apply in a DUI case and is constitutional on its face.”
People v. Barry, 349 P.3d 1139 (Colo. Ct. App. 2014). “168 Defendant nevertheless contends that her pretrial request under section 16-3-309(5), C.R.S.2014, for live testimony from the "employee or technician of the crim-inalistics laboratory who accomplished" the analysis of her blood was sufficient to preserve this issue.”
Cardman v. People, 2019 CO 73 (Colo. 2019). “The trial court ruled against the defendant because a statute, section 16-3-309(5), C.R.S. (2006), authorized the admission of the report without the responsible technician's testimony and set out pretrial procedures a defendant would have to follow to question the technician at…”
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