          Supreme Court of Florida
                                   ____________

                                   No. SC15-367
                                   ____________

                              STATE OF FLORIDA,
                                  Petitioner,

                                          vs.

                                KYLE R. QUEIOR,
                                  Respondent.

                                   [April 21, 2016]

POLSTON, J.

      In an appeal from a violation of probation (VOP) proceeding, the Second

District, in Queior v. State, 157 So. 3d 370 (Fla. 2d DCA 2015), certified direct

conflict with the Fifth District Court of Appeal’s decision in Terry v. State, 777 So.

2d 1093 (Fla. 5th DCA 2001), regarding whether probation officer testimony that

the probationer failed a field drug test personally administered by the officer is

competent, nonhearsay evidence of a probation violation.1 For the reasons below,

we hold that it is and that, in Queior’s case, this evidence together with the hearsay




      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
evidence, including a lab report confirming the presence of opiates in Queior’s

urine, is sufficient to establish that Queior violated the conditions of his probation.

Accordingly, we quash the Second District’s decision to the contrary in Queior.

                                  BACKGROUND

      The State sought to revoke Queior’s probation based upon his alleged illegal

drug use contrary to the conditions of his probation. In support of the alleged

violation, the State presented evidence in the form of a lab report, which was

hearsay because it was not admitted through a records custodian, confirming the

presence of opiates (for which Queior did not have a prescription) in Queior’s

urine. The State also introduced, through Queior’s probation officer, hearsay

testimony that the officer received an anonymous telephone call informing him that

Queior had been buying and using illegal drugs.

      However, the State acknowledged that, even under the lesser burden of proof

and relaxed evidentiary standards applicable in VOP proceedings, Florida law

prevents the trial court from relying solely upon hearsay evidence to revoke

probation.2 Therefore, to corroborate this hearsay evidence, the State introduced




       2. As we have explained, in a VOP proceeding, “the State need only
establish by [the] greater weight of the evidence that the violation of probation
occurred,” and “hearsay evidence is admissible . . . to prove a violation of
probation,” although “[t]he hearsay evidence must be supported by non-hearsay
evidence.” Russell v. State, 982 So. 2d 642, 646 (Fla. 2008).


                                         -2-
the testimony of Queior’s probation officer, who testified that Queior failed a field

drug test that the officer personally administered on Queior’s urine before sending

it to the lab for testing. Queior objected to the probation officer’s testimony

regarding the result of the field drug test “on the ground that the State had not laid

the proper predicate to establish the reliability of the [field drug] presumptive test,

a scientific analysis.” Queior, 157 So. 3d at 372. Relying on the Fifth District’s

decision in Terry accepting similar testimony by a probation officer as sufficient

evidence of a probation violation, the trial court overruled Queior’s objection and

revoked his probation.

      On appeal, the Second District held that the probation officer’s “testimony

about the field test results was not competent, nonhearsay evidence that Mr. Queior

had used an opiate in violation of his probation” and reversed the trial court’s

revocation order because the only other evidence of the violation was hearsay.

Queior, 157 So. 3d at 374. In so doing, the Second District certified direct conflict

with the Fifth District’s decision in Terry. Id. at 375-76.

                                     ANALYSIS

      The State argues that the probation officer’s testimony that Queior failed the

field drug test is competent, nonhearsay evidence properly used to corroborate the

hearsay evidence presented at Queior’s VOP proceeding, including the lab report

confirming the presence of opiates in Queior’s urine. The State further argues that,


                                          -3-
taken together, this evidence is sufficient evidence that Queior violated the

conditions of his probation. We agree.3

      As the Fifth District recently explained, field drug testing “is routine and

ubiquitous, such that judges throughout the state (i.e., the fact-finders in VOP

proceedings) are well-versed in the procedure.” Bell v. State, 179 So. 3d 349, 352

(Fla. 5th DCA 2015). In fact, studies show that field drug testing is “highly

reliable, even when the test is not administered by a trained laboratory analyst.”

Id.

      For example, as the Fifth District explained in Bell, one study found that “the

overall error rates were a low 2.5% when the [field drug] tests were administered by

officers and an even lower 0.8% when administered by trained laboratory

technicians.” Id. (citing Nat’l Highway Traffic Safety Administration. Field Test

of On-Site Drug Detection Devices, Final Report October 2000,

http://www.nhtsa.gov/people/injury/research/pub/onsitedetection/Drug_index.htm).

Another report found “[l]ittle difference in the performance of [field drug tests]




       3. A trial court’s decision to revoke probation is reviewed for abuse of
discretion. Russell, 982 So. 2d at 646. While hearsay is admissible in a VOP
proceeding, it must be supported by competent, nonhearsay evidence. Id. Whether
evidence is competent, nonhearsay evidence is a legal question subject to de novo
review. See Thomas v. State, 125 So. 3d 928, 929 (Fla. 4th DCA 2013)
(explaining that, while evidentiary rulings are reviewed for abuse of discretion,
“whether testimony is hearsay is reviewed de novo”).


                                          -4-
between tests conducted by laboratory technicians and laymen who had been

trained in the proper procedures for conducting and reading the tests.” Id. at 353

(quoting 1 Drug Testing Law Tech. & Prac. § 5:5 “On-site Drug Testing,” (quoting

Substance Abuse & Mental Health Servs. Admin., “Proposed Revisions to the

Mandatory Guidelines for Federal Workplace Drug Testing Programs,” (April 13,

2004))). Further, as the Fifth District explained in Bell, the State of Florida’s

general practice is to prove violations of probation based upon illegal drug use by

“confirm[ing] the result of the field test by sending the sample to a laboratory for

independent testing (using an even more accurate and sophisticated technology).”

Id. at 354.

      Despite the prevalent use and documented reliability of field drug tests, our

district courts are split on the issue of whether probation officer testimony of the

results of a field drug test personally performed by the officer constitutes

competent, nonhearsay evidence that may be used to corroborate a hearsay lab

report confirming the probationer’s drug use. Compare Queior, 157 So. 3d at 374-

75 (holding this evidence is insufficient evidence of a probation violation), with

Bell, 179 So. 3d at 358 (holding this evidence is sufficient evidence of a probation

violation).

      Further, the district courts that have rejected this testimony as competent

evidence have done so for different reasons, with some concluding the testimony is


                                         -5-
hearsay and with others taking issue with the officer’s expertise. Compare Dawson

v. State, 177 So. 3d 658, 659 (Fla. 1st DCA 2015) (concluding probation officer’s

testimony “that she conducted a urinalysis at her office that indicated appellant

used cocaine, and then she sent a urine sample to a laboratory which issued a

report indicating the urine tested positive for cocaine” was hearsay because the

officer “lack[ed] expertise in conducting the test”), Rothe v. State, 76 So. 3d 1010,

1011 (Fla. 1st DCA 2011) (“[T]he officer’s testimony about the results of the drug

test she performed . . . is hearsay for she admitted on cross-examination that she

has no specialized training, expertise or certification in drug testing.”), and Bray v.

State, 75 So. 3d 749, 750 (Fla. 1st DCA 2011) (finding “the testimony of the

community control officers was hearsay” because “neither testified as to any

expertise as to narcotics or drug testing”), with Carter v. State, 82 So. 3d 993, 996

(Fla. 1st DCA 2011) (holding the State failed to “put on sufficient, competent

evidence to prove that [the probationer] used or possessed cocaine or any other

drug or narcotic” because the probation officer “did not demonstrate any expertise

concerning or understanding of the workings of the test, and could not offer an

opinion about the significance of the test results”), and Weaver v. State, 543 So. 2d

443, 443-44 (Fla. 3d DCA 1989) (holding probation officer’s testimony regarding

the results of a field test the officer conducted was not hearsay but was

nevertheless insufficient, standing alone, to support a finding of a probation


                                         -6-
violation where the officer “could not remember the name of the field test[,] did

not know whether such a test is reliable[, and] could not say, independent of the

test, whether the substance he tested was heroin”).

      In Queior’s case, it is not entirely clear whether the Second District held that

the probation officer’s testimony was incompetent evidence because the court

concluded the testimony was hearsay or because the court concluded that the

officer was not qualified to opine on the scientific workings of the test or its

reliability, or all of these things. Compare Queior, 157 So. 3d at 371 (“Because the

State failed to present competent, nonhearsay evidence of Mr. Queior’s use of a

drug or narcotic not prescribed by a physician, we reverse the order revoking

probation and the resulting sentences.”) (emphasis added), with id. at 375

(concluding that the certified conflict case, Terry, “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”). It is also not clear to

what extent the Second District’s observation in Queior that there was “no

indication that the State of Florida played any role in either the training or the

issuance of the [probation officer’s] certificates” relating to the field drug test

impacted its holding that the State failed to produce sufficient evidence that Queior

violated the conditions of his probation. Id. at 372 n.1. However, none of these

issues prohibited the trial court from relying on the probation officer’s testimony to


                                          -7-
corroborate the hearsay evidence of Queior’s illegal drug use and revoke his

probation as a result of this violation.

      A probation officer “testifying at hearing, subject to cross-examination, to

what [he or] she personally did and observed. . . . is classic non-hearsay

testimony.” Bell, 179 So. 3d at 356; see also Turner v. State, 179 So. 3d 526, 528-

29 (Fla. 4th DCA 2015) (concluding probation officer’s testimony about a field

drug test he personally conducted and the test results he personally observed “was

based on his own personal observations and knowledge and, therefore, the

testimony was not hearsay”); Isaac v. State, 971 So. 2d 908, 909 (Fla. 3d DCA

2007) (concluding trial court’s finding of a probation violation “was not based

exclusively on [a] hearsay” lab report where probation officer also testified to other

probation violations and that she “personally conducted a field test (positive for

cocaine and marijuana) before the urine sample was sent out for laboratory

analysis”); cf. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) (classifying

“testimony of direct observation of victim injury and attendant circumstances” as

“non-hearsay”); Linic v. State, 80 So. 3d 382, 391 (Fla. 4th DCA 2012)

(concluding witness’s testimony “was not hearsay because it was based on her

personal observations and not on what anyone told her”); see also generally

Charles W. Ehrhardt, Florida Evidence, § 801.2 (2015 ed.) (explaining that

“hearsay,” as defined in section 90.801(1)(c), Florida Statutes, is an out-of-court


                                           -8-
statement offered to prove the truth of the matter asserted and noting that a

witness’s testimony that the witness “saw X buying milk in a supermarket on

January 11 . . . is not hearsay”).

      In addition to not being hearsay, the probation officer’s testimony

concerning the results of the field drug test that the officer personally administered

is otherwise competent evidence, “relevant and material” to the allegation that

Queior violated his probation by using illegal drugs. Gainesville Bonded

Warehouse, Inc. v. Carter, 123 So. 2d 336, 338 (Fla. 1960) (defining “competent”

evidence as evidence that “is relevant and material to the issue or issues presented

for determination”). While relevant and material evidence is generally subject to

exclusionary rules besides hearsay, see Brumley v. State, 500 So. 2d 233, 234 (Fla.

4th DCA 1986) (defining “competent evidence” as “relevant evidence that does not

fit within any rule of exclusion”) (emphasis added), this Court’s long-standing

precedent is that evidentiary rules are relaxed in VOP proceedings. This Court has

never held, for example, that the Florida Evidence Code’s rules regarding expert

testimony apply in a VOP proceeding or that a probation officer must have

scientific expertise to testify to the results of a field test personally conducted by

the officer. To the contrary, this Court has explained that “strict rules of evidence

can be deviated from” and that “a lesser burden of proof [applies] because only the

conscience of the court must be satisfied.” Cuciak v. State, 410 So. 2d 916, 918


                                          -9-
(Fla. 1982); see also Charles W. Ehrhardt, Florida Evidence, § 103.1 (2015 ed.)

(“Judicial decisions [have] spoken to different proceedings in which the strict rules

of evidence, and therefore the Code, are inapplicable. Among these proceedings

are . . . revocation of probation [proceedings].”) (footnotes omitted).

      Accordingly, like the Fifth District in Bell, we find no justification for

holding “that direct testimony from a probation officer who conducted the positive

on-site drug test, confirmed by a report from an independent laboratory, is

insufficient to meet the relaxed burden of proving a probation violation.” Bell, 179

So. 3d at 355. Rather, given the established reliability of field drug tests and their

commonplace use in VOP proceedings, which are subject to relaxed evidentiary

standards and a lesser burden of proof than a criminal trial, requiring the State to

trot out an expert in a case like Queior’s where the field test has been confirmed by

a lab test is unnecessary to satisfy the conscience of the court that a probation

violation has, in fact, occurred. Cf. United States v. Bell, 785 F.2d 640, 643 (8th

Cir. 1986) (explaining that “urinalysis laboratory reports bear substantial indicia of

reliability” as “the regular reports of a company whose business it is to conduct

such tests, and which expects its clients to act on the basis of its reports”).4


      4. The Eighth Circuit in Bell analyzed the reliability of the urinalysis in the
context of determining whether the government had shown “good cause” for
“dispensing with confrontation” and presenting records rather than live testimony.
785 F.2d at 642-43. Under Florida law, relying on testimonial hearsay to prove a
probation violation does not raise confrontation concerns, as this Court has

                                         - 10 -
      Queior argues that simply because the results of such tests, which may not

always be accurate, have long been used to violate probation is not a valid basis for

allowing that practice to continue. However, we reject this argument because a

general rule permitting trial courts to rely on field drug tests to corroborate hearsay

lab reports does not deny a probationer like Queior the “opportunity to be heard

and to show, if he can, that he did not violate the conditions” of his probation.

Peters v. State, 984 So. 2d 1227, 1234 (Fla. 2008) (quotation omitted). To the

contrary, like the probationer in United States v. McCormick, 54 F.3d 214, 222-23

(5th Cir. 1995) (footnotes omitted), “[i]nnumerable avenues were available to

[Queior] to refute the [State’s] proof; he merely failed to pursue them. For

example, had [Queior] wanted to question the technicians who performed the

analys[i]s, [which the field drug test corroborated,] he could have sought a

subpoena ordering their appearance. But this he did not do. [Queior also] could

have sought to obtain evidence impugning the reliability of the laboratory or its

testing methods. But this he did not do.” See also Bell, 785 F.2d at 643 (“[N]o

evidence was presented to contradict Bell’s drug usage, and . . . Bell has made only



previously held that “the rule set forth in Crawford [v. Washington, 541 U.S. 36
(2004)], which provides that testimonial hearsay is inadmissible in a criminal
prosecution unless the declarant is unavailable and the accused has had an
opportunity to cross-examine the witness, does not apply to probation or
community control revocation proceedings in Florida.” Peters v. State, 984 So. 2d
1227, 1227 (Fla. 2008).


                                         - 11 -
general, unsubstantiated claims that the laboratory tests may have been

defective.”).

      Finally, the Second District appears to suggest that Queior’s probation

officer, who had been a probation officer for over 24 years and testified that he

administered “an average of forty to fifty of the [field drug] tests per month,” may

have lacked the training and certifications necessary to qualify as an expert.

Queior, 157 So. 3d at 371. However, under the relaxed evidentiary rules

applicable to a VOP proceeding, a probation officer is not required to be qualified

as an expert in order to testify about the results of the field drug test that the officer

personally administered. Cf. Bell, 179 So. 3d at 356 (“view[ing] the probation

officer’s testimony as similar to a lay witness, testifying in court, who states that he

saw the traffic signal immediately before an intersection crash and that the light

was green when the plaintiff entered the intersection”).

      Rather, in a VOP proceeding, the officer’s training and experience in

administering field drug tests goes to the weight to be given to the officer’s

testimony, which is an issue for the trial court. See Moore v. State, 788 So. 2d

385, 386 (Fla. 5th DCA 2001) (“The weight to be given the evidence falls within

the province of the trial court and this court will not re-weigh the evidence.”); see

also Turner, 179 So. 3d at 527 (affirming trial court order revoking probation

where probation officer, who had an “extensive background and training in


                                          - 12 -
administering in-office drug tests,” testified that the probationer failed a field drug

test, and “a laboratory report confirm[ed] the results of the in-office test”).

      Accordingly, in Queior’s case, “[b]ecause the hearsay evidence regarding

the independent confirmatory [lab] test was corroborated by the probation officer’s

non-hearsay testimony regarding his field test results, we find no abuse of

discretion in the trial court’s finding that [Queior] violated his probation as

alleged.” Bell, 179 So. 3d at 358.

                                   CONCLUSION

      For the foregoing reasons, we hold that testimony by Queior’s probation

officer that Queior failed a field drug test the officer personally administered is

competent, nonhearsay evidence. Accordingly, the trial court did not abuse its

discretion by relying upon this testimony to corroborate the hearsay evidence

presented, including a confirmatory lab report, to find the probation violation

necessary to revoke Queior’s probation. Therefore, we quash the Second District’s

decision to the contrary in Queior.

      We also disapprove the First District’s decisions in Dawson, Rothe, and

Bray to the extent those decisions hold probation officer testimony about the

results of a field drug test personally administered by the officer is hearsay, and we

further disapprove the First District’s decision in Carter and the Third District’s

decision in Weaver to the extent those decisions require the probation officer to


                                         - 13 -
demonstrate scientific expertise concerning the workings of the field drug test or

its reliability in order for the officer’s testimony regarding personal observations in

administering the test to be considered competent evidence.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY,
JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

      Second District - Case No. 2D13-3261

      (Charlotte County)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; John M. Klawikofsky,
Bureau Chief, and Brandon Robert Christian, Assistant Attorney General, Tampa,
Florida,

      for Petitioner

Howard L. Dimmig, II, Public Defender, and Richard John Sanders, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Respondent




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