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U.S. v. Perez, No. 07-10289 (5-16-08). The defendant was on SR and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. Defendant protested vigorously. Watched while she gave the sample, the sample, when tested, registered "diluted". Despite some questions about accuracy of the test, procedures, and dilution, the court refused to let counsel cross examine the lab tech. The court found defendant guilty of drug use. The 9th (Bea joined by Berzon and Gibson) reversed. The 9th held that the test results here were shown to be unreliable given the observing of the defendant while providing the sample, and questions as to the accuracy, and so cross examination of the lab tech was needed. Denial of that right was error. She needed the chance to contest the results. The government tried to argue that the reputation of the national lab for probationer drug testing and the expense (it was in Virginia and the defendant in Hawaii) did not require the lab tech to be in person. Yet, as the 9th pointed out, the lab itself had raised questions about the sample given the unexplained "dilution." The 9th wondered why the government did not provide a video feed, or arrange for a depo in Virginia, or even a phone cross-exam. Moreover, the district court erred in disbelieving the defendant solely because of past offenses or drug use. The focus has to be on the present violation, and not what had happened in the past. The 9th keeps stressing that this is an unusual case because the test result on its face was unreliable. Still, it establishes again that proof is required for a violation and defendant has a right to contest it.

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