                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

JOEY DAWSON,

      Appellant,

v.                                     CASE NOS. 1D14-4630/1D14-4631
                                       CORRECTED PAGES: pg 10
STATE OF FLORIDA,                      CORRECTION IS UNDERLINED IN RED
                                       MAILED: October 21, 2015
                                       BY: NMS
      Appellee.

_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney
General, Tallahassee, for Appellee.



WOLF, J.

      We deny the State’s motion for rehearing, reconsideration, and certification

of conflict, but we grant the State’s request for a certified question of great public

importance, withdraw our previous opinion, and substitute this opinion in its place.

      We consolidate these cases for purposes of this opinion. Appellant pled nolo

contendere to criminal charges in both cases, and the circuit court imposed
concurrent sentences of probation. Appellant challenges orders revoking his

probation in both cases based on the court’s finding that appellant violated the

terms of his probation by testing positive for cocaine. Appellant argues the orders

must be reversed because the State’s evidence was entirely hearsay. We agree.

      The only evidence presented by the State to prove appellant’s violation was

his 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. Case law is

clear that laboratory test reports are hearsay. See Hogan v. State, 583 So. 2d 426

(Fla. 1st DCA 1991). We find the probation officer’s testimony regarding her lack

of expertise in conducting the test she performed in her office to be

indistinguishable from the officer’s testimony in Bray v. State, 75 So. 3d 749 (Fla.

1st DCA 2011), and thus her testimony was also hearsay. Because the State’s

evidence consisted entirely of hearsay evidence, the orders revoking appellant’s

probation must be reversed.

      In its motion for rehearing, the State argues this court should grant rehearing

because (1) the issue should not be characterized as one of hearsay, but instead as a

question of whether the officer had sufficient experience for her testimony to

constitute competent, substantial evidence; and (2) the officer had sufficient

expertise. Alternatively, the State asks this court to certify conflict with a similar

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case out of the Fifth District and certify a question of great public importance. We

deny rehearing and certification of conflict, but we grant certification of a question

of great public importance, for the following reasons.

             (1) Whether the Issue Should be Framed as One of Hearsay

      The State argues this court mischaracterized the issue here as whether the

officer’s lack of expertise would render her testimony hearsay. The State argues

the officer’s testimony regarding the results of the field tests cannot be considered

hearsay because the field test is not an out-of-court statement. Instead, the State

argues the issue should be framed as whether the officer had sufficient expertise in

conducting the field test such that her testimony would provide competent,

substantial evidence to support the trial court’s finding of a violation of probation.

The State concedes this court and others have framed this issue as a hearsay issue.

See Bray, 75 So. 3d at 750 (finding “the testimony of the community control

officers was hearsay” because “neither testified as to any expertise as to narcotics

or drug testing”); 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.”). However, the State asks this court to

“revisit” its prior opinions to “clarify” that this is not a hearsay issue.




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       We decline to do so for two reasons. First, the State failed to raise this

argument in its answer brief, and thus, it is an inappropriate argument to raise on

rehearing. See Blinn v. Fla. Dep’t of Transp., 781 So. 2d 1103, 1110 (Fla. 1st DCA

2000) (denying a motion for rehearing based on “the long-established rule that . . .

issues not raised in the briefs . . . cannot be raised for the first time on motion for

rehearing”). Second, in order for this court to “revisit” the holdings in these cases,

we would have to go en banc, which the State does not request. Thus, we continue

to consider this issue as one of hearsay.

                               (2) Officer’s Expertise

       The State asks this court to reconsider our finding that the officer did not

have sufficient expertise in conducting the urinalysis. It argues the standard used

by this court in Bray, 75 So. 3d at 750, and by the Fifth District in Terry v. State,

777 So. 2d 1093 (Fla. 5th DCA 2001), is that an officer needs only to have “some

expertise” in conducting the urinalysis, which the officer demonstrated here.

Alternatively, to the extent Bray conflicts with Terry, the State asks this court to

certify conflict.*




*
 Counsel actually asks this court to certify conflict with Queior v. State, 157 So.
3d 370 (Fla. 2d DCA 2015), but in context, it appears that was a typo because
counsel asserts that this court’s opinion is consistent with Queior. Instead, it seems
counsel meant to request conflict to be certified with Terry v. State, 777 So. 2d
1093 (Fla. 5th DCA 2001).
                                           4
       As will be discussed below, “some expertise” is not the standard set forth in

Bray, and Terry is factually distinguishable from this case and Bray.

       In Bray, this court found that two officers’ testimony concerning a urinalysis

they conducted in their office was hearsay because, “[w]hile both officers testified

that they had conducted hundreds of urinalyses, neither testified as to any expertise

as to narcotics or drug testing. . . . Had [they] demonstrated some expertise in the

matter, their testimony may have possibly survived a hearsay challenge.” 75 So. 3d

at 750. Thus, Bray did not hold the standard was “some expertise,” but instead

indicated that the testimony “may have possibly survived a hearsay challenge” had

the officer had at least “some expertise.” Id. (emphasis added).

       The Bray opinion did not go into detail as to what kind of expertise might be

required, but more discussion on this issue was given in Carter v. State, 82 So. 3d

993, 995 (Fla. 1st DCA 2011). In Carter, this court found an officer lacked

sufficient expertise after his testimony revealed that “he did not know the name of

the field test he performed or how it worked scientifically; he only knew ‘if it

comes back positive or if it comes back negative.’” Id. He also testified he had

little experience, conceding he had only performed the test once before, which

resulted in a false positive. Id.

       The Carter court noted the officer “gave no indication that he was certified

to administer the test, or had in fact administered it with any frequency.” Id. Carter

                                          5
parenthetically compared Terry, 777 So. 2d 1093, in which the Fifth District found

the testimony of an officer regarding a field test was sufficient because although he

was untrained in pharmacology or chemistry, “he testified as to the nature of the

field test and how it was performed. He further testified that he administers the test

fifty times a month, and was certified by the State to administer the test.” Terry,

777 So. 2d at 1094. Unlike in Terry, the Carter officer could not “testify to any

independent ability to identify cocaine or its metabolites in urine.” Carter, 82 So.

3d at 995.

      The Carter court concluded the 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.” Id. at 996. Thus, the court

concluded the officer “was not qualified to interpret the results of the field test.” Id.

(emphasis added).

      This court similarly distinguished Terry in Rothe, 76 So. 3d at 1011, which

held an officer’s testimony was hearsay because she admitted she “has no

specialized training, expertise, or certification in drug testing.” This court

compared Terry, noting the Terry officer “possessed state certification to

administer such tests.” Id.

      Here, the officer failed to demonstrate expertise as required by Bray and

Carter. When asked if she had any “specialized training,” she testified she had only

                                           6
“basic training.” When asked to explain how the test works, she likened it to a

pregnancy test “in that you submit the test into the urine specimen. One line is

indicative of a positive result, two lines is indicative of a negative result.” She

testified that she did not know the name of the company that made the test, and she

did not know the test’s actual process or how it worked scientifically. Instead, she

stated, “[t]he training that I have is only on conducting the tests with the equipment

that we have.” Her testimony was very similar to that of the officer in Carter, who

“did not know the name of the field test he performed or how it worked

scientifically; he only knew ‘if it comes back positive or if it comes back

negative.’” 82 So. 3d at 995. As in Carter, the officer here “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.” Id. at 996 (emphasis

added). Thus, as in Carter, she “was not qualified to interpret the results of the field

test.” Id.

       The State is correct that the officer here differs from the one in Carter in that

she has more experience in administering the test. The Carter officer had

performed the test only once before and received a false positive, whereas the

officer here stated she had performed the test over 100 times. However, the officers

in Bray, 75 So. 3d at 750, had also conducted hundreds of urinalyses, and this court

held that experience was insufficient where the officer lacked expertise about the

                                           7
test that he or she had been performing. For those reasons, we decline rehearing

and continue to hold that the officer lacked sufficient expertise.

      We also deny the State’s request to certify conflict with Terry because Terry

is factually distinguishable, and thus not in direct and express conflict with this

opinion. As noted above, in Carter and Rothe, this court indicated Terry was

factually distinguishable because the officer in Terry was certified, whereas the

officers in those cases were not. Similarly here, the officer is not certified. No court

has gone into detail discussing what is required to become certified or why that

distinction is important. However, by definition, to “certify” means “to recognize

as having met specific qualifications within a field.” Certify, Merriam-Webster

Dictionary (6th ed. 2004). Basic training like that received by the officer here

indicates being taught but not necessarily being required to show proficiency or to

meet specific qualifications. Because the officer here was not certified, this case is

factually distinguishable from Terry, and we decline to certify conflict.

      We note that the Second District followed this court’s line of cases and

certified conflict with Terry in Queior v. State, 157 So. 3d 370, 375 (Fla. 2d DCA

2015) review granted, No. SC15-367 (Fla. Apr. 14, 2015). Queior is factually

similar to Terry because in both cases, the officer testified he was certified to

conduct the field test and he conducted it frequently. However, the Queior court

found the officer’s testimony was not competent, non-hearsay evidence because he

                                           8
was “ignorant of the nature of the chemical” that reacts on the testing strip and

“could not explain the scientific basis for the field test.” Id. at 374. Queior held that

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.” Id. at 375 (emphasis added). “Accordingly,” the Queior court held that

“to the extent Terry conflicts” with First District precedent, including Carter and

Bray, “we follow the latter cases and disagree with the holding in Terry.” Id. at 375

(emphasis added). Queior certified that its decision was in direct conflict with

Terry. Id. The supreme court has accepted discretionary jurisdiction, and briefing

in that case has been completed according to the supreme court’s docket. See State

v. Queior, No. SC15-367 (Fla. Apr. 14, 2015).

      The Queior court also noted that the Fifth District reached a somewhat

different conclusion in a later appeal brought by Terry. Without giving a factual

background or discussion of its reasoning, the Fifth District held, “Test results are

admissible if a state-certified probation officer testifies about the nature of the test,

how it is performed, and the number of times a test is administered; furthermore,

the results will support a finding of probation violation as long as the testing is not

the sole basis for the finding.” Terry v. State, 846 So. 2d 1232, 1233 (Fla. 5th DCA

2003) (emphasis added). That distinction was not made in the first Terry opinion.




                                           9
      Finally, we grant the State’s request for a certified question of great public

importance. Although the supreme court has accepted jurisdiction in Queior, it is

unknown how the supreme court will ultimately dispose of this issue or whether

the reasoning of the supreme court’s ruling in Queior would affect the result of this

case. This issue is one that is obviously recurring, and the State needs guidance on

what it needs to prove in this type of case. Thus, we certify the following question

as one of great public importance:

      WHETHER THE TESTIMONY OF AN OFFICER THAT A FIELD
      TEST URINALYSIS PRODUCED A POSITIVE RESULT, ALONG
      WITH CORROBORATING HEARSAY TESTIMONY IN THE
      FORM OF A LABORATORY REPORT, IS COMPETENT,
      SUBSTANTIAL, NON-HEARSAY EVIDENCE TO SUPPORT A
      TRIAL COURT’S FINDING THAT A DEFENDANT VIOLATED
      THE TERMS OF HIS PROBATION BY USING A CONTROLLED
      SUBSTANCE IF THE OFFICER HAS TRAINING AND
      EXPERIENCE IN CONDUCTING URINALYSES BUT HAS NO
      CERTIFICATION OR UNDERSTANDING OF HOW THE TEST
      WORKS SCIENTIFICALLY?

Rehearing DENIED, question CERTIFIED.

WETHERELL and BILBREY, JJ., CONCUR.




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