TODD WILLIAM MCGATHEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation based on single positive drug test, holding that one positive test is insufficient to prove use of intoxicants to excess under probation condition seven.
A single positive drug test is insufficient to establish that a probationer violated the condition prohibiting use of intoxicants to excess.
[1] A single positive drug test is insufficient to establish violation of a probation condition prohibiting use of intoxicants to excess, though admission of drug use may vio…
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Join FLexlaw to unlock all legal intelligence“a single positive drug test is insufficient to show that a probationer used an intoxicant to excess”
Court's holding based on Alston v. State precedent regarding probation violation standards.
McGathey tested positive for cocaine after admitting he took two puffs the night before his drug test when someone offered it to him. The violation al…
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In this appeal of the order revoking his probation, Todd McGathey argues that the trial court abused its discretion in finding that he violated condition seven based on one positive test showing that he had used cocaine. The affidavit of violation of probation alleged that McGathey violated condition seven by using intoxicants to excess or possessing any drugs or narcotics. At the revocation hearing, McGathey testified that the night before his drug test someone offered him cocaine and he took two puffs and told them they had to leave. There was no testimony regarding the possession element of condition seven.
We reverse based on Alston v. State, 646 So.2d 184 (Fla.1994), in which the supreme court held that a single positive drug test is insufficient to show that a probationer used an intoxicant to excess. As did the supreme court in Alston, we note that McGathey’s admission to using cocaine violates condition five, which directs that the probationer live without violating the law, and that nothing in this opinion precludes the State from initiating new revocation proceedings against McGathey prior to the expiration of his probation. See id. at 185; Blackshear v. State, 838 So.2d 1228 (Fla. 1st DCA 2003).
Reversed and remanded for further proceedings consistent with this opinion.
KHOUZAM and BLACK, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vernia Smith v. State, 100 So. 3d 253 (Fla. 3d DCA 2012)…s faculties to the point where he was “using intoxicants to excess” in violation of condition seven of his probation. [*255] Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion. . McGathey v. State, 71 So. 3d 224 (Fla. 2d DCA 2011); Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003); Blair v. State, 745 So. 2d 496 (Fla. 1st DCA 1999); Ross v. State, 701 So. 2d 635 (Fla. 2d DCA 1997). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1…
Authorities Cited
- Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003)
- Alston v. State, 646 So. 2d 184 (Fla. 1994)