Positive Drug Test Not Enough to Support VOP Conviction

Say What?

Defendant on probation. Check. Defendant tests positive for marijuana. Check. Defendant not guilty of VOP. The devil’s in the details here. Let’s face it, in Orlando, a large percentage of probation violations are based upon a positive drug test for marijuana. So, why can some folks get away with this, and other’s not? Let’s take a look at the recent case of Melton v. State, 2011 WL 2473049 (Fla. 1st DCA 2011).

Melton was found guilty of violating his probation and appealed. At his violation hearing, a probation officer testified that a drug test was administered and the test registered positive for marijuana. Melton never admitted to smoking weed, so the only evidence of such was the drug test. The state did not have the actual officer that administered the test ‘testify’ (sorry). And this was the fatal error here, as the First District found that the testimony of another probation officer regarding the results of the test were merely hearsay. Now, to be fair, hearsay is admissible in a VOP hearing, but it cannot be the sole basis of the violation, as it was here.

From a criminal defense attorney perspective (what else would you expect?), the key to this case involved Melton not ever admitting that he smoked. No, I’m not suggesting that people lie to probation, I’m merely pointing out the fact that, had Melton admitted to such, the court would not have overturned his VOP conviction. I’m just saying….