Submitted on August 21, 2013.
Washington County Circuit Court,
No. D100514T D. Charles Bailey, Jr., Judge.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jake J. Hogue, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
This case requires us to determine whether, at a probation revocation hearing, defendant had a federal due process right to confront the lab technician who prepared two urinalysis reports indicating that defendant had consumed alcohol. The state introduced the urinalysis results through the testimony of defendant's probation evaluator. Over defendant's objection, the trial court concluded that the state did not need to produce the lab technician for cross-examination, and it found that defendant had violated her probation. For the following reasons, we reverse and remand.
The facts are not in dispute. Defendant had been sentenced to a term of probation that prohibited her from consuming alcohol. An employee of Evaluation Services--the organization in charge of monitoring defendant's compliance--required her to submit a urine sample. The sample was sent to Sterling Reference Laboratories (Sterling) in Tacoma, Washington. Sterling returned a urinalysis report stating that defendant's sample had tested "positive" for "ethylglucuronide (ETG), " "negative" for nitrite, and "normal" for creatinine and pH. It also contained a "Certification" that consisted of the words "Certified True and Complete, " beneath which lay the signature of Ryan Jorgensen, who was identified as an "MS Certifying Scientist." Defendant denied consuming alcohol and asked for a confirmatory test; Sterling retested the same sample and issued an "amended report." Unlike the first, it indicated that the analysis was performed by "High Performance Liquid Chromatography/Tandem Mass. Spectrometry." Also unlike the first, it specified that defendant had tested "positive" for "Ethyl Glucuronide" in the amount of "3126 ng/mL" and "Ethyl Sulfate" in the amount of "1815 ng/mL." The second urinalysis report contained the same "Certification" as the first.
The trial court held a hearing to determine whether defendant had violated her probation. At the outset of that hearing, defense counsel announced that defendant would deny the allegation of alcohol consumption. The state's only witness was defendant's probation "evaluator"; she stated that both of the tests indicated alcohol usage. Defense counsel objected to the evaluator's testimony, arguing that the state was required to produce the lab technician who performed the tests to testify about the results. The trial court immediately agreed to reschedule the hearing to give the state sufficient time to produce the technician. The state declared that two weeks would give it enough time to do so.
Approximately two weeks later, the court held a second hearing. The state began by noting that it had reviewed State v. Wibbens, 238 Or.App. 737, 243 P.3d 790 (2010), and concluded that it did not need to produce the lab technician to testify. The court asked defense counsel whether he wished to subpoena the technician; defense counsel replied that he believed it was the state's duty to make the technician available to testify. The court then proceeded to hear the testimony of defendant's probation evaluator. During that testimony, the state moved to admit both of the reports containing the urinalyses results. Defense counsel objected, citing the Fourteenth Amendment to the United States Constitution and Wibbens.
Without ruling on defendant's objection, the court asked the evaluator how the chain of custody worked with regard to the urine samples. She stated that an employee of Evaluation Services fills out a form requesting the test, collects the urine sample in a bottle, and places a signed and dated security seal over the bottle, which is then sealed in a bag along with the request form and mailed to Sterling. The request form was admitted into evidence; it included a section in which defendant provided her consent to test the sample for alcohol and an acknowledgment by defendant that it was her urine sample that was submitted. After hearing the evaluator's testimony about the collection procedures, defense counsel argued that defendant was being denied a meaningful opportunity to refute the state's evidence and that the state lacked good cause for not producing the lab technician to testify. The court then overruled the objection.
On cross-examination, the evaluator stated that she was not present at the taking of defendant's sample and that someone else in her office had handled the collection of defendant's sample and its submission to Sterling. She also testified that her assertion that the standard collection procedure had been adhered to in defendant's case was based on her review of the information contained in the request form. At the first hearing, the evaluator stated that the two tests were "positive for alcohol, " but provided no information about how she had derived that conclusion from the information presented in the urinalysis reports.
The court concluded that defendant was in violation of her probation terms. In a subsequent judgment, the court ordered defendant to serve 21 days in jail, extended the duration of her probation, and assessed a fine and attorney fees. This timely appeal followed.
The two urinalysis results and the evaluator's testimony about those results were the only pieces of evidence to support the finding that defendant had consumed alcohol, and it is the admission of that evidence that defendant assigns error to. Defendant's sole contention in this appeal is that the admission of those tests and testimony violated her right to confront adverse witnesses under the Fourteenth Amendment. We review for legal error. See State v. Johnson, 221 Or.App. 394, 400-06, 190 P.3d 455, rev den, 345 Or 418 (2008) ...