316 P.3d 405
Or. Ct. App.2013Background
- Defendant was on probation prohibiting alcohol consumption.
- Urine samples were sent to Sterling Reference Laboratories; first report showed positive ETG and was certified by a certifying scientist.
- Sterling issued an amended report after retesting with HPLC/MS confirming alcohol in specified quantities.
- The trial court postponed the revocation hearing to permit production of the lab technician but the state did not secure his appearance.
- Defense argued the state had to produce the technician for cross-examination; the court allowed admission of the reports and evaluator’s testimony.
- The court found probation violation based solely on the urinalysis reports and evaluator’s testimony, reversed on appeal, and remanded for new proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the right to confrontation required lab technician testimony. | State relied on Wibbens balancing; no need for technician. | Defendant denied alcohol use and needed technician to challenge results. | Confrontation required; admission violated due process. |
| Whether urinalysis reports were admissible under hearsay/business-record rules. | Reports are reliable business records; admissible. | Not shown to meet business-record reliability and personal knowledge. | Not sufficient to justify admission without confrontation. |
| Whether the four-factor Johnson test supports admissibility without the technician. | State argued good cause outweighed confrontation interests. | Defendant’s interest in refuting evidence substantial; no good cause shown. | State failed to show substantial good cause; admission error. |
| Whether the error was harmless given the evidence. | Urinalyses were central to the State's case. | Defendant denied alcohol use and had limited means to refute results. | Reversed and remanded for new proceedings. |
Key Cases Cited
- Johnson v. State, 221 Or App 394 (Or. App. 2008) (probation revocation due process and confrontation balancing factors)
- Wibbens v. State, 238 Or App 737 (Or. App. 2010) (necessity of live witness where hearsay is central to finding)
- Terry v. State, 240 Or App 330 (Or. App. 2011) (no-confrontation error where officer testimony central and unreliable)
- Monk v. State, 244 Or App 152 (Or. App. 2011) (unavailability of test-related witnesses; reliance on hearsay not admissible)
- Mart in v. United States, 984 F.2d 308 (9th Cir. 1993) (balancing test for confrontation in probation revocation; reliability factors)
- United States v. Bell, 785 F.2d 640 (8th Cir. 1986) (reliability considerations in business-record-like evidence)
- State v. Carr, 319 Or 408 (Or. 1994) (whether a statement constitutes an oath or affirmation for hearsay purposes)