CURTIS DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that admitting a laboratory report as a business record in a probation revocation hearing does not violate due process or the Sixth Amendment right of confrontation, even if the technician who performed the test is unavailable for cross-examination.
[1] Laboratory reports are admissible as business records if the statutory criteria are satisfied and no lack of trustworthiness is demonstrated.
[2] The admission of laboratory reports under the business records exception does not violate the Sixth Amendment right of confrontation when the exception is firmly rooted i…
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was revoked based on a laboratory report showing a positive test for cocaine. The report was admitted as a business record throu…
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NIMMONS, Judge.
Appellant appeals the order revoking his probation on the basis of his unlawful possession of cocaine. At the revocation hearing, the state introduced into evidence the laboratory report from National Health Laboratories in Tampa. The report showed that a urine sample obtained from appellant tested positive for cocaine. We reject the appellant’s various attacks on the admissibility of the report and the trial court’s reliance thereon. We discuss only the issue of whether revocation on the basis of such report was violative of due process and the Sixth Amendment right of confrontation.
A National Health Laboratories toxicologist supervisor testified at the hearing on behalf of the state. As custodian of records, her testimony qualified the laboratory report as a business record under the provisions of Section 90.803(6), Florida Statutes, and the statutory criteria therein provided were satisfied. Moreover, no lack of trustworthiness of the report was demonstrated. Nevertheless, the appellant claims that he was denied a fair hearing because he was not afforded the opportunity of inquiring into the accuracy of the lab report because the person who actually conducted the test was not called to testify and the person who was called, i.e., the records custodian, was not present when the actual test was performed on the subject sample.
Similar claims were made and rejected in United States v. Baker, 855 F. 2d 1353 (8th Cir.1988). The court stated:
The defendants contend the district court committed error by admitting into evidence several laboratory reports that identified controlled substances connected to the defendants. We disagree.
When made on a routine basis, laboratory analyses of controlled substances are admissible as business records under Federal Rule of Evidence 803(6). See United States v. Scholle, 553 F. 2d 1109, 1124 & n. 4 (8th Cir.) (The court referred to the business records exception then contained in the Federal Business Records Act, 28 U.S.C. § 1732(a) (1970); that exception is now contained in Federal Rule of Evidence 803(6).), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977); see also United States v. Parker, 491 F. 2d 517, 520-21 (8th Cir.1973). Here, the St. Louis Police Department Laboratory made these reports in the ordinary course of its business and kept the records under its care, custody, and control. The defendants do not challenge the reliability of these reports; nor do they claim the reports were made on other than a routine basis. We conclude the district court properly admitted the reports.
The defendants’ also maintain that the admission of the laboratory reports violated their rights under the confrontation clause of the sixth amendment. We disagree. Firmly rooted exceptions to the hearsay rule do not violate the confronta tion clause. See Bourjaily v. United States, 483 U.S. 171, 181-84, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). When admitting the laboratory reports under the business records exception, the district court acted under a firmly rooted exception. Roberts, 448 U.S. at 66 n. 8, 100 S.Ct. at 2539 n. 8; United States v. Miller, 830 F. 2d 1073, 1077 (9th Cir. 1987), cert. denied, 485 U.S. 1033, 108 S.Ct. 1592, 99 L.Ed.2d 907 (1988).
Id. at 1359, 1360.1
Moreover, in a probation revocation case wherein the defendant was accused of possessing cocaine and cannabis on the basis of a lab report containing the results of a urinalysis test, our sister court in Williams v. State, 553 So. 2d 365, 366 (Fla. 5th DCA 1989) stated:
Lab tests or other kinds of hearsay evidence may be admissible pursuant to various exceptions to the hearsay rule. See e.g., § 90.803(6), Fla.Stat. (1987). In such a case, evidence properly admitted pursuant to such an exception, could sustain an order revoking probation. See Walker v. State, 426 So. 2d 1180 (Fla. 5th DCA 1983). However, as the record in this case demonstrates, no effort was made to authenticate the lab report as a business record; nor was any other exception to the general rule excluding hearsay evidence established.
See also, City of Fort Lauderdale v. Florida Unemployment Appeals Commission, 536 So. 2d 1074 (Fla. 4th DCA 1988).
Appellant points to the unavailability of the sample for retesting2 and asserts that such unavailability, combined with the unavailability for cross examination of the technician who actually tested the sample, deprived him of an adequate opportunity to challenge the accuracy of the laboratory report. Appellant cites to California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Houser v. State, 474 So. 2d 1193 (Fla.1985), in which the courts, respectively, held that due process is not denied by police destruction of or failure to preserve breath samples (Trom-betta) and blood samples {Houser). Appellant points out that in those cases the courts observed that the defendant retained the right to cross examine the officer administering the Breathalyzer test {Trombetta) and the technician who actually performed the test {Houser). Appellant takes the position that Trombetta and Houser are materially distinguishable because such an opportunity is unavailable in the instant case. We reject appellant’s interpretation of these cases, which we construe as requiring only that the defendant be provided an adequate opportunity to inquire into the accuracy of the lab report, which need not take the form of cross examination of the technician who actually performed the test.
AFFIRMED.
ERVIN, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur. . Rule 803(6), Federal Rules of Evidence, is sufficiently similar to Section 90.803(6) such that the issues resolved by the Eighth Circuit in Baker are the same as those involved in the instant case.
. Pursuant to the policy of National Health Laboratories, a sample which tests positive for illegal drugs is retained for three months, and during that time is available for retesting at the request of the client (in this case the probation officer). The probation officer who obtained the urine sample from appellant was not informed of this policy, and the affidavit of violation of probation was filed four months after the testing.
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Cited By (14 total)
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Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991)…vocation proceedings, but cannot be the sole basis for revocation. Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985). The business records exception may apply to lab test results if section 90.803(6), Florida Statutes, is satisfied. Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990). In other words, the lab reports must have been “kept in the course of a regularly conducted business activity,” and the making of the reports must be a “regular practice of that business activity.” If it is not in the regular co…
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Baber v. State, 775 So. 2d 258 (Fla. 2000)…edent, it should be noted that section 90.403(6) is based on Federal Rule of Evidence 803(6). See Love v. Garcia, 611 So. 2d 1270, 1280 (Fla. 4th DCA 1992)(Warner, J., dissenting), quashed on other grounds, 634 So. 2d 158 (Fla.1994); Davis v. State, 562 So. 2d 431, 433 n. 1 (Fla. 1st DCA 1990). . Federal courts have noted the practical reality that cross-examination of technicians who perform these tests is unlikely to yield meaningful information since the tests are routine and repeatedly performed, such th…
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Peters v. State, 919 So. 2d 624 (Fla. 1st DCA 2006)…d his constitutional right to confrontation as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We reject that contention because Crawford did not abrogate the rule enunciated by this court in Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990), that written laboratory reports from independent labs setting forth the results of drug tests are admissible in community supervision revocation proceedings. In July 2003, the trial court placed appellant on twelve months’ comm…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Ohio v. Roberts, 448 U.S. 56 (U.S. 1980)
- Bourjaily v. United States, 483 U.S. 171 (U.S. 1987)
- California v. Trombetta, 467 U.S. 479 (U.S. 1984)
- United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977)
- Berry v. Judiciary Comm'n of La., 434 U.S. 940 (U.S. 1977)
- Ramsey v. State, 474 So. 2d 1193 (Fla. 1985)
- Houser v. State, 474 So. 2d 1193 (Fla. 1985)
- United States v. Baker, 855 F.2d 1353 (8th Cir. 1988)
- United States v. Parker, 491 F.2d 517 (8th Cir. 1973)
- Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989)