{1} Dеfendant’s probation was revoked. The basis of the revocation consisted of laboratory tests indicating the presence of controlled substances in Defendant’s urine. We take this opportunity to institute a threshold test for determining the admissibility of laboratory tests used for purposes of probation revocation. For the reasons discussed below, we affirm in part, but reverse the trial court’s finding that the laboratory forms constituted sufficient evidence to support revocation of Defendant’s probation. We remand for a new hearing on the рetition to revoke probation.
BACKGROUND
{2} Defendant was indicted on eleven charges, including four counts of residential burglary, six counts of larceny, and one count of receiving stolen property. On April 30, 1997, Defendant entered into a plea agreement before District Judge James Hall whereby he pled guilty to four counts of burglary, all third-degree felony offenses. As part of the agreement, Defendant admitted that he was the same person who committed previous crimes of voluntary manslaughter, trafficking cocaine, and trafficking heroin. Among other things, the State agreed to a sentence of twelve years, to be suspended, and Defendant was placed on five years’ probation. One of the terms of the probation was that Defendant submit to random body fluid testing. The State agreed
A. Violates the terms and conditions of his probation; or
B. Commits another crime (of any type) while on probation; or
C. Is found to have used a controlled substance while on probation as a result of a chemical test of body fluids; or
D. Fails to abide the terms and conditions of this agreement.
{3} The agreement also stated:
It is specifically stipulated thаt in the event habitual offender proceedings are filed in this case against the defendant that the presentation of this agreement to the Court evidencing the admitted prior felony convictions of the defendant is and will be sufficient evidence to prove the Defendant’s status as a FOURTH HABITUAL OFFENDER subjecting the defendant to a mandatory term of incarceration of EIGHT (8) years on offenses pled to herein. It is understood that because the sentences in this case are to be served consecutive to each other that a conviction as a FOURTH HABITUAL OFFENDER will result in а sentence of THIRTY TWO (32) years which cannot be suspended or deferred in part or in total. AND, it is understood that habitual offender proceedings may be brought for ANY violation of the conditions listed herein or in the Probation Agreement which the Defendant signs and that the State may seek habitual offender . proceedings and sentencing whether or not the Court revokes the Defendant’s probation the [sic] underlying offenses contained herein.
{4} In November 1998 the State filed a motion to revoke Defendant’s probation. In support of the motion, the State attachеd a “Preliminary Probation Violation Report” prepared by Defendant’s probation officer, Sharon Morgan. The report stated that: (1) on May 13, 1998, a urine specimen was obtained from Defendant which tested positive for alcohol, benzodiazepine, and opiates; (2) on October 15, 1998, a urine specimen was obtained from Defendant which tested positive for marijuana; and (3) when the urine was collected on October 15, Defendant admitted using marijuana. Ms. Morgan testified that, when she advised Defendant in October that she needed to take a urine sample, and before the urine sample was taken, Defendant told her that the sample would test positive for marijuana.
{5} After submitting the positive urine test in May, Defendant signed a “Letter of Reprimand” stating that the positive test allowed Ms. Morgan to initiate revocation proceedings, but she would instead recommend continued supervision. The letter stated that, “Should any future urine tests prove positive, indicating your failure to remedy the problem, stronger measures will be pursued.” Defendant signed the letter on October 14, one day before he submitted the second urine specimen. As part of the “Preliminary Probation Violation Report,” Ms. Morgan recommended that Defendant be allowed to remain on probation and enroll in and complete a counseling program. After receiving and reviewing a copy of Ms. Morgan’s report, Defendant signed a “Preliminary Violation Report Advisement” stating that he understood his right to a hearing before any additional conditions of probation would be implemented, and that the State would have to prove the violation. Based on that statement, Defendant agreed to comply with the recommendation by Ms. Morgan and to waive his right to a hearing.
{6} In response to the State’s motion to revoke probation, Defendant filed a motion to dismiss the probation violation or to suppress statements he may have made to Ms. Morgan. Defendant claimed that the revocation proceedings in connection with the urine specimen collected in May were unduly delayed, and he was prejudiced by the delay. Defendant further claimed that he was led to believe that Ms. Morgan’s recommendation of continued supervision was an agreement that his probation would not be revoked if he sought counseling. The motions were denied. Defendant’s written motion did not address the admissibility of the laboratory test results.
{7} The test results were included on two report forms from the drug screening laboratory indicating levels of various compounds in Defendant’s urine. The forms were admitted at the motions hearing as State’s Exhibits 1 and 2. Accompanying each report form was
{8} Exhibits 3 and 4 consist of forms that provide areas for the person collecting a laboratory sample to note if the sample was observed or unobserved, the temperature of the sample, the date and time of the collection, the collector’s signature, delivery of the sample to a courier, and delivery of the sample to a laboratory processor. That portion states: “TO BE COMPLETED BY COLLECTOR — THIS SECTION MUST BE COMPLETE!.” Another area on the forms provides spaces for recording chain of custody for the sample, and whether the seals were intact when the laboratory processor received them. The area for chain of custody was not completed. The chain of custody at the testing facility and the condition of the sample upon arrival at the laboratory were not indicated. Ms. Morgan testified that if the sample was observed, the temperature is not taken; however, Exhibit 4 did not indicatе that the sample was observed. Neither party presented evidence or testimony at the motions hearing as to the information required to be reported on the chain-of-custody forms or as to the testing procedures for urine samples.
{9} At the hearing, Defendant objected to the admission of the laboratory forms and to their use as proof of his probation violation. After considering Defendant’s arguments, the trial judge overruled the objections, holding that the State established the accuracy of the tests, “under the probation hearing standard that allows hearsay.” The trial judge set a second hearing date in order to allow Defendant an opportunity to obtain evidence to attaek the validity of the sample tests. The trial judge stated, “I’ll give you that opportunity, but short of that I think that the case has been made for violation of probation.” Defendant did not present additional evidence at the second hearing, and the trial court proceeded to sentencing. The trial court determined that Defendant’s sentence should be thirty-two years as expressed in the plea agreemеnt.
DISCUSSION
{10} Defendant’s issues on appeal concern (1) the sufficiency of the evidence to support revocation of his probation, (2) the sufficiency of the evidence to support a finding that Defendant had three prior felonies for habitual offender proceedings, and (3) whether a sentence of thirty-two years was appropriate in this case. Defendant has also filed a request for oral argument, which we deny. See State v. Manuelito,
Evidence Supporting Probation Revocation
{11} Defendant argues that the lаboratory tests should not have been admitted because they lacked the proper foundation. Therefore, Defendant argues, the laboratory results were unreliable and could not be the basis for his probation revocation. The State points out that the current rule in New Mexico is that proof presented at probation revocation hearings need only establish reasonable certainty to satisfy the trial court of the truth of the violation, and need not be proof beyond a reasonable doubt. See State v. Baca,
{12} Contrary to the State’s argument, however, at the sentencing hearing, the trial court specifically stated that Defendant’s probation was being revoked, “because he tested positive.” The trial court referred to evidence presented by Defendant to the effect that, in making various statements, he had relied on statements or representations
{13} With respect to the positive urine tests, the State does not try to defend their admission or their sufficiency to support the revocation of Defendant’s probation. However, since the trial court relied on those tests to support its decision, we address the issue. As pointed out by the State, the rules with regard to evidence are relaxed in proceedings involving revocation of probation. Even if the rules are relaxed, however, evidentiary requirements remain. As stated above, the evidentiary requirement for violation of probation is that the violation be established with reasonable certainty. Baca,
{14} Other jurisdictions have struggled with the question of what standard to apply when confrontation rights are implicated in connection with laboratory tests used to revoke probation. In many cases, the courts have required more than mere submission of laboratory results. See, e.g., United States v. Caldеra,
{15} Other courts, however, have held that positive drug test results are admissible without supporting evidence concerning their reliability. See Harris v. United States,
{16} In New Mexico, in the administrative context of license revocation, we have held that, where extensive information concerning procedures used in testing a blood sample was included on a laboratory report form, the form was sufficient to establish a foundation for admission of the laboratory test. See Bransford v. State Taxation & Revenue Deft,
{17} Probation revocation hearings involve a conditional liberty interest in that, if probation is revoked, the defendant could face incarceration. We believe that a higher standard thаn mere submission of laboratory results should apply to such proceedings. In particular, we agree with the Fifth Circuit Court of Appeals statement of the minimum requirements for reliance on laboratory test results in revocation proceedings. See United States v. Grandlund,
(1) copy of the report of each relevant laboratory test[;]
(2) [A] copy of the report on the chain of custody of each sample, including the date of collection, name of person(s) collecting and labeling same, and a description of the label[;]
(3) [A] copy of an affidavit by a responsible laboratory employee attesting to laboratory procedures, including laboratory chain-of-eustody routines, whether all required procedures were followed regarding the subject sample(s), and the result(s) of the testing.
Id. at 511.
{18} We believe these minimum requirements will safeguard the rights of probationers in revocаtion proceedings. It is obvious that these minimum requirements were not met in the case before us. Therefore, remand is appropriate in order to allow a new hearing at which these procedures may be followed, if the necessary information is available. Of course, in such a hearing the trial court may consider any evidence which may properly be admitted.
{19} Because the remaining issues are likely to recur if Defendant’s probation is revoked, we address them at this time.
Evidence for Habitual Offender Proceedings
Identity and Sequencing
{20} Defendant alleges that the supplemental information used in this case to enhance his sentence was lacking in that it did not include conviction dates for the prior voluntary manslaughter and trafficking convictions. Defendant also argues that there was no proof that he was the same person who was convicted of the three prior felonies. As noted above, the plea agreement contained an admission by Defendant that he was the same person convicted of three prior felonies, including voluntary manslaughter, trafficking cocaine, and trafficking heroin. Also, as noted above, Defendant specifically agreed that “presentation of this agreement to the Court evidencing the admitted prior felony convictions ... is and will be sufficient
{21} Defendant did not contest the sequencing of the prior convictions or his identity at the plea agreement hearing. Instead, Defendant waited until he was facing revocation of his probation to make any claim that the prior convictions were not properly presented. Pursuant to the plea agreement, Defendant expressly agreed that he was the same person who had been convicted of three prior felonies; that the prior convictions were for voluntary manslaughter and trafficking controlled substances; that the plea agreement, by itself, would suffice as proof of those prior convictions; and that presentation of the plea agreement would establish his status as a fourth habitual offender. Under these circumstances, Defendant waived his right to contest the validity of the prior convictions, or his status as a fourth habitual offender. See State v. Brown,
Mandatory Nature of Plea Agreement Sentencing Provisions
{22} Defendant claims that the plea agreement is ambiguous because it does not “encompass all the sentencing options” in the event of probation violation. Defendant argues that the plea agreement does not indicate that the State will file habitual offender proceedings, but instead states that it may file such рroceedings in the event that Defendant violates his probation. Defendant claims that a subsequent statement in the plea agreement indicating that the terms of his probation “are subject to modification in the event” he violates the conditions of the agreement, is also a statement of the law under NMSA 1978, § 31-21-15 (1989). Therefore, Defendant argues, the trial court had discretion to sentence him according to the provisions of Section 31-21-15, and was not bound by the language in the plea agreement. Under Section 31-21-15, Defendant argues, when a defendant violates his probation, the trial court may continue the original probation, revoke the probation, order a new probation, or require the defendant to serve the balance of the imposed sentence or any lesser sentence. Based on this, Defendant contends that the trial court had the discretion to sentence him to a sentence less than thirty-two years. Defendant also argues that there is nothing to show that the trial judge who presided over the plea proceedings understood that there would be a mandatory thirty-two year sentenсe in the event of a probation violation.
{23} The language of the plea agreement is quite clear. Defendant agreed to a specific stipulation that, “in the event habitual offender proceedings are filed,” presentation of the agreement would be sufficient evidence to prove that Defendant was a fourth habitual offender “subjecting the defendant to a mandatory term of incarceration of EIGHT (8) years on offenses pled to” in the agreement. Defendant agreed that the sentences would be served consecutive to each other: “a conviction as a FOURTH HABITUAL OFFENDER will result in a sentence of THIRTY TWO (32) years which cannot be suspended or deferred in part or in total.” There is no ambiguity in this language. The State filed habitual offender proceedings. Therefore, under the clear language of the agreement, into which Defendant entered knowingly and voluntarily, the agreement would serve as proof that Defendant was a fourth habitual offender, that the eight-year sentences for the crimes pled to would be enforced and would run consecutively, and that Defendant would be sentеnced to serve thirty-two years. See State v. Mares,
Supplemental Information
{24} Defendant argues that only three prior crimes were included in the supplemental information, but his sentence was based on four prior felonies, including the residential burglary convictions, which formed the basis of the pleа agreement. At the sentencing hearing, the State reported that it forgot to include the last count of residential burglary and stated that it “will file an amended supplemental information that will list the fourth count, there are four counts.” The trial judge responded, “okay.” As indicated, Defendant agreed that the residential burglary conviction would be included in any habitual offender proceedings. Because Defendant was on notice that the fourth offense would be included, he suffered no prejudice by its inclusion. Cf State v. Wesson,
Cruel and Unusual Punishment
{25} As discussed above, under the plea agreement, because Defendant was found to have violated his probation, he was to be sentenced to thirty-two years. Defendant argues that this amounts to cruel and unusual punishment. We review this claim de novo. See State v. Rueda,
{26} As we pointed out above, Defendant specifically agreed that he would be sentenced as a fourth habitual offender in the event that he violated his probation. The language in the agreement regarding Defendant’s mandatory sentence for a probation violation complied with that in the Habitual Offender Act, NMSA 1978, § 31-18-17(D) (1993). Section 31-18-17(D) provides that a person who has incurred three or more prior felony convictions is considered a “habitual offender and his basic sentence shall be increаsed by eight years, and the sentence imposed by this subsection shall not be suspended or deferred.” Under this statutory section, the amount of sentence enhancement is dependent on the number of prior felony convictions. See State v. Haddenham,
{27} Defendant was not punished for his probation violation. Defendant was punished for the underlying offenses. See Jones v. Fraser,
CONCLUSION
{28} For the reasons discussed in this opinion, we affirm in part and we reverse in paid;. We reverse the trial court’s finding that the laboratory tests, as presented at the revocation hearing, constituted sufficient evidence to support revocation of Defendant’s probation. We remand to the trial court for a new hearing on that issue.
{29} IT IS SO ORDERED.