Chad Wilcox v. State of Arkansas
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DIVISION II
CACR06-1313
JUNE 13, 2007
CHAD WILCOX
APPELLANT
V.
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. CR2004-371]
HON. JOHN. H. WRIGHT, JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED AND DISMISSED
SAM BIRD, Judge
Chad Wilcox appeals the revocation of his suspended sentence for possession of drug
paraphernalia with intent to manufacture methamphetamine. Evidence at the revocation
hearing concerned the State’s allegation that Wilcox had violated a condition of his probation
as shown by a positive drug test of a urine sample. He asserts that speculation and conjecture
were required to support the trial court’s finding that he had willfully and inexcusably violated
a condition of his probation. He argues that his revocation should be overturned because
proper guidelines and instructions were not followed so as to ensure accurate testing, and
because he was taking a medication documented to show a false-positive. We agree with his
first argument; therefore, the revocation is reversed and the State’s petition is dismissed.
Evidence at the revocation hearing focused on the positive test results of a urine sample
taken from Wilcox on March 29, 2006. The printed directions for the chemical used in the
testing process were introduced through the testimony of Wilcox’s probation officer, Patrick
Langley. Those instructions state that samples should be at room temperature of 64–77 °F for
testing, that urine samples with the normal pH range of 4.5–8 do not require prior adjustment
of pH, and that samples outside the normal pH range should be suspected of adulteration.
Langley testified that Wilcox’s sample was stored overnight in a refrigerator. Langley
said that he tested the sample the next day at the Hot Springs Drug Court on a machine on
which he had been trained, following operational instructions to first return the sample to
room temperature by setting it out for approximately an hour to an hour-and-a-half. The test
produced positive results for methamphetamine. Langley took the sample to the Benton
Department of Community Correction, where he observed its retesting on a different
machine. Again, the results were positive. Langley admitted that no thermometer was used
to determine the temperature at the time of the initial test, that the sample was again
refrigerated overnight before being taken to Benton, and that again there was no
determination of the temperature before retesting. Langley said that the printed instructions
included directions for pH levels outside normal parameters but that no determination was
made for the pH level of Wilcox’s sample.
Langley also testified that instructions for the testing chemical stated that Zantac, an
over-the-counter medication, could cause a false-positive reading. He testified that he did not
remember specifically telling Wilcox not to take Zantac but was “positive” that Wilcox had
been told by drug-court counselors or the judge not to take it. Langley said that Wilcox had
attempted to inform the drug court that he was taking certain medications but had never
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mentioned Zantac. Langley said that in the previous month an initial test of a sample from
Wilcox was positive but was negative upon retesting at St. Joseph’s Hospital.
Wilcox testified that he had taken numerous prescriptive medications throughout his
life for stomach conditions that began when he was twelve years old. He said that he
continued to have gastrointestinal problems such as peptic ulcers and colitis, and in March
2006 had taken Zantac each day for acid reflux. He denied using amphetamines or ever being
told not to take Zantac. He stated his belief that Zantac could cause a false-positive test result,
and he said that he was never asked to provide a list of substances that he was taking. He
testified that he had passed numerous drug tests from his employer from March 30, 2006 until
the date of the hearing on July 24, 2006.
In order to revoke probation or a suspension, the trial court must find by a
preponderance of the evidence that the defendant inexcusably violated a condition of that
probation or suspension. Ark. Code Ann. § 5-4-309(d) (Repl. 2006); Harris v. State, ___ Ark.
App. ___, ___ S.W.3d ___ (Apr. 4, 2007). The trial court’s findings will be upheld on appeal
unless they are clearly against the preponderance of the evidence; because a determination of
a preponderance of the evidence turns on questions of credibility and weight to be given to
the testimony, we defer to the trial judge’s superior position. Jones v. State, 355 Ark. 630, 144
S.W.3d 254 (2004).
It was the duty of the trial court, rather than this court, to resolve conflicting evidence
regarding whether Wilcox was told not to take Zantac and on the possibility of false-positive
readings. However, we agree with Wilcox’s argument that the State did not establish that
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proper procedures were followed to ensure accurate test results. Even if the temperature of
the urine sample was somehow within protocol, there was a lack of proof regarding the pH
level, and the testing instructions directed that a sample not within a prescribed pH range
should be suspected of adulteration. A drug sample that has been handled and tested in an
unreliable manner cannot yield a reliable result that will enable a trier-of-fact to determine
that it is more likely than not that a person used a controlled substance. See, e.g., City of Little
Rock v. Hudson, 366 Ark. 415, --- S.W.3d --- (2006) (holding that evidence supported the
trial court’s finding that breathalyzer results were not reliable where the hospital attendant
failed to ask whether the firefighter had been eating mints containing sorbitol, a form of
alcohol).
We hold that the trial court’s finding that Wilcox violated a condition of his probation
was clearly against the preponderance of the evidence.
Reversed and dismissed.
P ITTMAN, C.J., and G RIFFEN, J., agree.
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CACR06-1313
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