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How do DUI and Drug Crimes Prosecutors prove a violation of probation using the results of a failed drug test?
In Tampa drug crimes and DUI cases, courts may require appearance of laboratory witnesses to authenticate a failed drug test. Queior v. State, 157 So. 3d 370, 373 (Fla. 2d DCA 2015), rev. granted, No. SC15-367, 2015 WL 1894002 (Fla. April 14, 2015). The Tampa Bay court of appeals found "testimony about the field test results was not competent, nonhearsay evidence that [the defendant] Mr. Queior had used an opiate in violation of his probation." Queior, 157 So. 3d at 374" The court may have reasoned that holding that because the probation officer is not a chemist who could give expert testimony sufficient to explain the science behind the test or render an independent expert opinion regarding its reliability, his testimony was not competent.
Read more about scientific basis behind the testing ...
However, the state prosecutors regularly seek to prove a violation of probation using the results of a failed drug test by calling the probation officer from the Department of Corrections to testify regarding the conditions of probation. The probation officer then testifies as to what he or she did and observed when collecting the urine sample from the defendant and administering the presumptive "field" test, along with the test's positive indication of drug use. Some Florida courts have concluded, "We are satisfied that in the context of a probation revocation hearing, the [lab] . . . report qualified as sufficiently reliable prima facie evidence that [defendant] appellant had tested positive for illegal drug use."
"Florida courts seemed to have generally accepted that the probation officer who conducted the presumptive drug test could testify to the results at the VOP hearing, so long as the officer had the training or experience necessary to understand the test and interpret the results." In felony cases involving the Florida Department of Corrections, the field test in confirmed by a laboratory test. These tests are referred to as gas chromatography/mass spectrometry or immunoassay tests. "[T]he lab report is introduced as hearsay, which . . . is admissible in a violation of probation hearing."
"In Florida, however, the Department of Corrections [also] appears to always confirm the result of the field test by sending the sample to a laboratory for independent testing (using an even more accurate and sophisticated technology). This is clearly the better and more widely accepted practice. See Cathryn Jo Rosen, The Fourth Amendment Implications of Urine Testing for Evidence of Drug Use in Probation, 55 Brook. L. Rev. 1159, 1167-68 (1990) ("Professionals in the field generally recommend that screening test results be confirmed through the use of [gas chromatography/mass spectrometry] or one of the other confirmatory techniques in situations in which positive test results 'have an impact on the life, liberty, property, reputation, or employment of the person being tested.'" (quoting Council on Scientific Affairs, Scientific Issues in Drug Testing, 257 JAMA 3110, n. 24 (1987))). Of course, "confirmatory tests are expensive[,]" which is why "in some jurisdictions, probation officers have sought to revoke probation on the basis of either a single, unconfirmed [screening] test, or a second, 'confirmatory,' [screening] test using the same method on the same urine sample." Rosen, Supra, at 1168."
Hire Casey at (813) 222-2220 and rest easy knowing that Casey has been here before and knows how to convince opponents and jurors to do the right thing.