Pago Pago, AMERICAN SAMOA — The court has already issued an oral decision rejecting Iosefo N. Sagote’s challenge — that the LBJ Hospital’s test results disprove the positive results of a drug test that was conducted by the Probation Office — and Chief Justice Michael Kruse issued a Memorandum of Decision on Sagote’s Order To Show Cause (OSC) hearing, last week.

Sagote is scheduled to appear in High Court this morning for a Disposition Hearing on probation violation.

According to the Memorandum, Sagote pled guilty to — and was convicted of — unlawful possession of marijuana, and he was sentenced Oct. 26, 2018 to one year in jail.

The sentence, however, was suspended, and Sagote was placed on probation for five years with conditions that included: reporting to the Probation Office (PO) monthly or as often as directed; remaining sober; and submitting to random testing.

The court states that Sagote admittedly failed to visit the Probation Office Nov. 2018 and the next month, he was drug tested.

The collected urine sample came up positive for tetrahydrocannabinol (THC) — the active ingredient in marijuana — and methamphetamine.

The PO subsequently moved to revoke probation. An OSC was issued and heard Jan 24, 2019 in court.

During that hearing, Sagote asserted that after being tested by the PO, he went to the hospital for a second drug test, which came back negative for THC and meth.

“For the reasons, stated below, we find defendant’s claim to be unreliably grounded and, therefore reject the same,” according to the Memorandum which also states that a court may revoke probation if it finds, by a preponderance of the evidence that the defendant violated a term or condition of probation. Proof beyond a reasonable doubt is not required.

The court is not persuaded that the hospital testing takes anything away from the reliability of the PO’s test results.

First, the Memorandum notes, the key term in defendant’s condition of probation is ‘random’. It not only serves as a deterrence against the continued drug use by a probationer, but it enhances the integrity of the collection and testing process.

“In other words, the testing process is in the total control of the testing official and not the person to be tested; thus minimizing sample substitution, sample adulteration or tampering, and the timely testing, thereof. Here, defendant’s hospital drug test was undertaken at a time and place he determined and was not, therefore, random. Consequently, we view the results of defendant’s second tests in a light less favorable than the random test conducted by the PO,” the court said.

Moreover, "the defendant’s own evidence regarding the hospital’s urine collection protocol, while perhaps adequate for clinical purposes, was woefully short for forensic use. Whereas the evidence regarding the PO’s collection protocol left little room for doubt that the sample tested was indeed collected from defendant and then timely tested… the evidence as to the Hospital’s actual process employed invites speculation."

Additionally, defendant’s claim that he had his urine and blood tested at the hospital on the same day he was tested by the PO is not without doubt.

“According to page one of the results, the date of the drug test was Dec. 18, 2018. The second page, however states that the sample (it is unclear on either page whether these were urine or blood samples) was collected on Dec. 20, 2018. Thus, it is unclear whether the test was conducted on Dec. 18 as defendant states, or on Dec. 20,” the court said.

Regardless, even if we assumed that a urinalysis testing occurred on Dec. 18, the test remains questionable since it was not randomly undertaken nor was the hospital’s collection process sufficient to dispel doubt that the sample tested was indeed from the defendant.

“Which brings us to our second point, the integrity of the sample is crucial in deterring whether the results are valid. The forensic process established by law enforcement to ensure a sample’s integrity is a clear chain of custody,” the court said.

For example, the PO’s chain of custody is beyond reproach. The PO witnessed defendant urinate into the bio cup and then read the immunoassay testing results on the spot. There is no reason to doubt the validity of the test.

In contrast, no one witnessed defendant urinating into the cup at the hospital. Likewise, no one would verify that the sample from the defendant went directly to the laboratory or testing facility. Thus... adulteration of the tested urine sample cannot be ruled out, making results less credible.

“Defendant asserts that the sample was not tainted and called three witnesses to testify about the hospital’s protocol. None of the witnesses, however, could testify as to whether the protocol was actually followed. Consequently, we reject the defense’s challenge that the hospital’s testing results disproved that of the PO. We find PO’s drug testing results to be more credit worthy and thus conclude defendant violated his probation,” the court said, adding that unlike the probationer, the sick patient has no motive to degrade in any way his or her doctor-ordered-testing outcome.

Dr. Gonzales claimed during the OSC hearing that the collection date on the second page was a clerical error based on the record book at the hospital. He however was not on island the day of the testing and any official record was neither tendered nor admitted into evidence. Therefore, defendant’s assertion is hearsay and speculative.

The written order of the court was delivered by Chief Justice Michael Kruse, along with Associate Judges Faamausili Pomele and Muasau T. Tofili.

Sagote was presented by private counsel Marcellus Talaimalo Uiagalelei during his OSC hearing, while prosecuting the case was Assistant Attorney General Christy Dunn.