Violation of Probation: Using Dirty Urine as the Basis

If an individual is on probation, one of the conditions of that probation is that the probationer is not permitted to use any type of illegal drugs or substances. Most people know and understand that, yet, a large majority of probation violations stem from dirty urine. A recent Florida Supreme Court Case, Florida v. Queior, discusses the issue further.

Probationers are typically tested by their probation officers. Those officers use a portable urine test to screen for violations. Until recently, probation officers were not qualified to talk about the outcome of those test results.

A Brief Look Inside a Violation of Probation Hearing

As just about any Sarasota probation violation attorney can tell you, violation of probation hearings (or VOP hearings, for short) are not like typical court hearings. The rules are a bit more “relaxed,” particularly as they relate to the use of hearsay evidence. Hearsay is normally not allowed in criminal trials, but it may be used in VOP hearings as long as the prosecutor offers evidence that is not hearsay in nature as well — or at least that was the rule before the Florida v. Queior decision.

Many VOP cases stem from positive drug tests. But what can be deemed a “positive drug test?” As stated earlier, probation officers usually test probationers by using a portable urine test — meaning, the officer takes the urine test strip, dips it into a cup that contains the probationer’s urine sample and waits to see if the stick turns a certain color. If the stick changes colors, that usually counts as a positive drug test and ultimately, the probationer could be sent to jail for violating his or her probation.

In the past, Florida law did not allow for probation officers to testify with respect to the “meaning” of the urine strip’s color, mainly because they didn’t really know what it meant. Rather, probation officers know what they were told the color meant, which ultimately amounts to hearsay since the officer would have to refer to a set of kit instructions that may say, “If the stick turns red, that means the probationer tested positive for cocaine, or if the stick turns green, then marijuana was in the probationer’s system.”

However, non-hearsay evidence could be obtained from a chemist who does not have to base his or her testimony merely on what the instructions state. A chemist has the ability to understand how chemicals react within urine tests. That said, the law required someone with knowledge of scientific evidence to testify at VOP hearings in order to prove that a violation related to a urine test had occurred.

The Court’s Findings in The Queior Case

Queior took a drug test that was administered by his probation officer and the test came back positive for opiates (based on what the officer read on the side of the kit that contained interpretations of the meaning of the possible colors that could appear). The officer gave the probationer’s urine to the lab to be re-tested and their report stated that the urine contained opiates.

The Florida Supreme Court in this case notes that the lab report is indeed hearsay. Proving the information contained in a lab report is best done by an individual who can testify in court as to the meaning of the test and the results. In fact, the lower court agreed, noting that the probation officer’s testimony in Queior’s case was hearsay and they overturned Queior’s VOP conviction.

However, the prosecutors appealed to the state Supreme Court who overturned the lower court decision, finding that the officer’s testimony to be “nonhearsay.” The argument was made that the probation officer had performed such urine tests thousands of times; however, the lower court deemed this to be “bad logic,” noting that the prosecution improperly compared the probation officer’s “expertise in performing a field test with scientific testimony about how the test works to establish the test’s reliability.”

So what does this mean for probationers in the future? That remains to be seen. The potential for change is there, given the outcome of this particular case. That is why it is imperative for probationers to work with skilled probation violation lawyers who will ensure their legal rights and options are preserved. If you are facing a VOP hearing, contact the Fowler Law Group today by calling (941) 900-3100.

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