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State Failed to Prove a Violation of Probation with Hearsay Evidence From Probation Officer

When a defendant in Florida is arrested and charged with a crime and then decides to enter a guilty or no contest plea, or has a trial and is found guilty, he/she will be sentenced by the judge. The judge will likely have a few options when sentencing the defendant. The judge can sentence the defendant to incarceration, probation, both or neither (time served). If the defendant is sentenced to a term of probation, there will be certain conditions that the defendant must follow. If the defendant fails to comply with one or more of the conditions of his/her probation, the judge may issue an arrest warrant for a violation of probation. If it is determined that the probationer violated his/her probation, the judge will likely sentence him/her again to incarceration and/or more time on probation.

There are a few conditions that are fairly standard for anyone on probation. For instance, a person on probation will likely be required to avoid possessing or using any drugs, except those prescribed by a doctor. If the original charge was a drug related charge, the probationer might have to have to take random drug tests. If the probationer is found with an illegal drug like cocaine or marijuana in his/her system, a violation of probation warrant is likely. If the probationer is found with a drug like Hydrocodone or Xanax in his/her system, the probationer should be safe as long as he/she can show that he/she has a valid prescription for the drug. Normally, the probationer will inform the probation officer of all of his/her prescription drugs at the beginning of the probation. However, if the probationer cannot produce a valid prescription, it will likely be treated as if the probationer is using any other illegal drug.

In a recent case near Jacksonville, Florida, a defendant received a probationary sentence and was required to avoid possessing or using any drugs, except a prescription drug with the appropriate prescription from a doctor. After a random drug test, the probationer’s sample tested positive for opiates and Oxycodone, according to his probation officer. A warrant for a violation of probation was issued. At the probation violation hearing, the state’s only witness was the probation officer. He testified that he performed an informal field test on the probationer’s urine sample that resulted in the positive results. The sample was then sent off to a drug testing lab for more formal testing. At the hearing, the probation officer brought the more thorough lab test result document that also indicated the probationer provided a urine sample positive for opiates. Finally, he testified that he received an anonymous call indicated he should drug test the probationer because he was using drugs he bought off the street.

None of this evidence was sufficient to establish a probation violation. It was all hearsay evidence and evidence from someone who was not competent to interpret lab and drug tests results. In order to properly establish that that the probationer provided a urine sample that was positive for illegal drugs, the state needed to present a witness who was qualified to perform drug tests and interpret the results to properly show the probationer had drugs in his system. For instance, the state should have had an expert from the drug testing lab to testify at the hearing. Since the probation officer was not qualified to provide the expert drug test testimony, the court found that the state did not meet its burden to prove a probation violation.