Words are important, right? And, everybody thinks they have the right to free speech, but that’s not so inside the confines of a court room. For criminal cases, what can be “said” is limited to what the witness actually knows. Typically, a witness is not permitted to talk about things of which they do not have personal knowledge. For example, a cop cannot tell a jury that a pill found in the defendant’s pocket is Hydrocodone, even though the pill is inscribed with “Watson 853”, and the officer looked up the writings on the pill at drugs.com to discover that a “Watson 853” is 10mg Hydrocodone and 325mg of tylonol. You see, the officer has no personal knowledge of what the pill is, he is only testifying to what he read from a website. That’s hearsay, and it cannot be admitted into evidence.
Unfortunately, the hearsay rule is somewhat lax in violation of probation hearings. In a violation of probation hearing, hearsay is admissible–and should still be objected to–but hearsay cannot be the sole basis of the violation. [practice tip: It’s kind of weird, if you don’t object to hearsay in a violation hearing, it’s as though the evidence is not even hearsay. But, if you do object, it is acknowledged as hearsay but admitted anyway for a limited purpose] Now, lab results are almost always hearsay, so how does the government prove that a urine sample tested positive? Can the probation officer testify to this? Let’s take a look at how this plays out in court.
The case is Wagle v. State, 951 So.2d 114 (Fla. 5th DCA 2007). Wagle was convicted of violating his community control for two reasons, the second reason being that he failed a drug test. He was sentenced to five years department of corrections. Here’s how the “positive drug test” went down. His probation officer conducted a field test on Wagle’s urine, and the test was positive for cocaine and barbiturates. Fortunately, Wagle denied using any illegal drugs after being questioned (the mere admission to using drugs can get you violated, even if the drug tests are suspect. Don’t admit! Don’t lie, but don’t admit, does that make sense? Good.). So, based upon this denial, the probation officer decided to run a second drug test on the urine. This time, the test results were negative, no dirty urine this time. Boy, these tests are real accurate, aren’t they? Real “scientific”. Anyway, after getting conflicting results, the probation officer decides to send the urine to the lab for further testing. The laboratory report came back as follows: “Specimen Drug Status: NEGATIVE: Specimen Validity Status: DILUTE.” For all those out there unaware, it is a violation of probation to dilute urine while on probation. But, how can they ever prove someone intentionally diluted their urine?
Here’s the issue on diluted urine cases: WHAT substance is diluting the urine? All sorts of things can dilute a human being’s urine, so even if the prosecution has the lab analyst show up and testify as to the “diluted” lab results, this sort of evidence is not enough to find a violation where, as indicated by the 5th District Court of Appeals, “[t]here [is] no evidence as to how the sample was allegedly dilute or the degree of the alleged dilution. There [is] no competent evidence as to whether the laboratory result reflected an intentional effort by appellant to dilute his urine sample. The evidence was simply insufficient to support a finding that appellant had violation Condition (10) (positive/diluted urine test)”. Id at 116. You see, the government must show the court how the urine was diluted. Simply telling the court that it “was” diluted is not enough to violate probation, because there was no scientific showing as to why.
A further problem with this case, and so many other positive drug test vop’s, can be summed up nicely by the Wagle court as follows: “[t]he record reflects the probation officer was clearly not qualified to give an expert opinion with regard to the meaning of a ‘dilute’ result”. Id. I think this bears repeating: “the probation officer was clearly not qualified to give an expert opinion with regard to the meaning of a ‘dilute’ result“. Id. Some judges, some prosecutors just don’t understand the above sentences, believe me.
There you have it, plain and simple. So we learned today that there are two ways to attack a dirty urine/dilute urine result. First, if the lab analyst actually shows up to court to testify (rare), will the analyst be able to jump the hurdle thrown up by the Wagle court requiring testimony “as to how the sample was allegedly dilute or the degree of the alleged dilution”? Id at 115. I doubt it. But, the even better line of attack, and the more common scenario, is where the prosecution attempts to admit the hearsay lab report results through their probation officer. Really? Are they requiring a masters degree in chemistry to become a probation officer these days? If so, then the drug test results may be coming into evidence. But, to quote the appeals court, typically, probation officers are “clearly not qualified to give an expert opinion with regard to the meaning of a ‘dilute’ result.” Id. And there you have it, you can beat this allegation in at least one of two ways, take your pick.