A Violation Based Upon Dirty Urine, Proof is Now Optional

“Know the rules well, so you can break them effectively.” — Dalai Lama XIVlab2

Every country on Earth has criminal rules, and they all sound remarkably similar.    We Americans enjoy a “presumption of innocence”, and Article 37 of the Constitution of the Islamic Republic of Iran states that “Innocence is to be presumed”.   Two countries, both with a “presumption of innocence”.  Do you think they mean the same thing?   It is our court’s interpretation of these words that given them teeth and meaning. Trust me, you would rather be presumed innocent in Florida, versus Tehran.

From time to time, American courts chip away at the meaning of our criminal laws, and as such, we are creeping towards interpretations more in line with Tehran than Miami.  To demonstrate this slow erosion, let’s review the recent Florida Supreme Court case of Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

This article may start to sound a bit like an episode of Inside Baseball, because the erosion of our rights can be subtle, and it’s buried deep within how our courts define (and re-define) legal concepts.  The bad decision in Queior arose out of a violation of a probationer because he tested positive for drugs.  Let’s begin with a bit of background on how a violation of probation works.  It all begins with the old saying, “Come to Florida on vacation, leave on probation.”  

As we all know, a condition of probation is that you must not use illegal substances. This sounds obvious, but you’d be surprised to know that the vast majority of probation violations (VOPs, for short) arise out of dirty urine violations.   So, how is a probationer violated via a positive drug test?

Probation officers utilize cheap little portable urine test kits to screen for such violations—but up until now–no probation officer was qualified to discuss the scientific outcome of such a test result.  After all, what sort of proof can a probation officer really give the court, other than witnessing a wet urine stick turn a certain color?  And, our legal system only protects citizens when their defense attorney can conduct a meaningful cross-examination.  The truth revealing engine of cross-examination grinds to a standstill when a probation officer can say nothing intelligent about the scientific test he performed.  he rules of evidence would prohibit testimony from a probation officer regarding the scientific result given by a chemical analysis of a probationer’s urine.  In a very general way, such protections are afforded by our constitutional right to due process when facing prison time.  As of today, those rights are just about out the window.

Violation of probation hearings are a relaxed event, legally speaking. By relaxed I mean you have about the same chance of being convicted as you would in some middle eastern countries (depending on the defense attorney and judge, of course).  One relaxed rule in a VOP hearing involves the use of hearsay testimony.  Hearsay is horrible evidence, not much better than when you were bored in Sister Mary’s 8th Grade English lit class, and Sarah told you that Mike had heard that you kissed Billy on the playground.  Sure, it may be true, but a little eyewitness testimony would be far better proof than middle school gossip.  Unfortunately, our courts have begun to accept gossip as proof, they’re just repackaging it to make it legally acceptable.  Hearsay is banned from criminal trials, but tolerated during violation of probation hearings–so long as the prosecutor presents some evidence that is not hearsay.  So, that’s how things used to be before the Florida Supreme Court’s decision in Queior.

Most violation of probation cases arise out of positive drug tests.  What constitutes a positive drug test?  Well, a probation officer dips a urine test strip into a cup of the probationer’s urine, and if that dipstick turns a certain color, that’s what we call a positive drug test.  Next step, jail on a violation of probation.  Now, it used to be the Florida law would not permit probation officers to testify as to what the color on the urine test strip “means”.  Why, you ask?  Because, these probation officers don’t really “know” what the color means.  They have been “told” what it means, much like what you were told in Sister Mary’s 8th Grade class.  The officer was “told” by the test kit instructions that “Red = Cocaine” or “Green = Marijuana”, but in the end, the probation officer really has no idea what the colors on the test strip mean.

In other words, if you have to read the test kit bottle to figure out what the color means–it’s hearsay. But, it’s not hearsay if you’re a chemist, because the testimony would not be based upon what is written on the bottle, it’s based upon the chemist’s understanding of the chemical reactions taking place within the urine test kit.  The law has been in Florida that, to prove a violation using scientific evidence like those derived from chemical reactions within a drug test kit, somebody with knowledge of such things must testify at the violation hearing.

Are you with me so far?  By now, you’ve probably figured out what the Queior case says.

Queior violated his probation with a positive drug test.  Basically, this means that his probation officer read the side of a bottle on his “field test kit”, and that bottle indicated a certain color dip stick “means” the urine contained opiates.  The probation officer then sent the bottle of urine to a laboratory for re-testing, and the lab report also stated that Queior had opiates in his urine.  So, we all know that a lab report is not admissible to prove this, it’s hearsay.  The Florida Supreme Court admits that the lab report is hearsay.  If you want to prove the contents of a lab report, have a live person on the witness stand explain the test and the test results.  This happens all day, every day, throughout the United States.  It’s called “evidence”.  It’s called “due process”.  Yes, I know, such concepts don’t always apply when someone is facing prison on a violation of probation.  Our court system seems bent on making life easier for the prosecution.  Police work is easy in a police state, for sure.  We’re not there yet, but pretending that probation officers have some sort of scientific knowledge about chemical tests is a bit of a stretch.

Back to concepts of “evidence,” and what it takes to convict a citizen of a VOP.  It used to be that, to admit test results, a live witness was placed on the stand by the prosecution to back up the reliability of the test.  The defense could then cross examine the witness.  A probation officer’s testimony as to what was “read” from the side of a test kit bottle has always been considered hearsay.  The reason we have a Florida Supreme Court case for Queior is because the lower court said just that–the lower court did not accept the probation officer’s testimony regarding the drug test kit as actual evidence, and considered it hearsay.  As such, they overturned Queior’s violation of probation conviction.  The prosecutors appealed to the Florida Supreme Court, and the Supreme Court overturned the lower court, holding that the probation officer’s testimony was “nonhearsay”.  Yikes.

The lower court had it right.   The lower court rejected the probation officer’s testimony regarding the positive drug test, holding that such testimony is scientific in nature, and the reliability of a field test kit cannot be established by a probation officer that knows nothing about the kit.  Furthermore, heaping on hearsay lab reports doesn’t cure probation’s lack of knowledge.  Furthermore, the fact that the probation officer has dipped a stick in warm urine a 1,000 times doesn’t get us any closer to establishing the reliability of the test.  The lower court called out such bad logic, ruling that the prosecution “incorrectly equates the probation officer’s expertise in performing a field test with scientific testimony about how the test works to establish the test’s reliability”.  Queior v. State, 157 So. 3d 370, 375 (Fla. 2nd DCA 2015)

So, how do you transform a probation officer’s reading from the side of a test bottle from hearsay to nonhearsay?  “Know the rules well, so you can break them effectively.”

[If this analysis was vaguely interesting, I go deeper in an article entitled “Dirty Urine Shenanigans“]