This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Melvin John Przyborowski,




Filed July 20, 2004

Klaphake, Judge


Benton County District Court

File No. K5-02-798



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Robert Raupp, Benton County Attorney, Karl Schmidt, Assistant Benton County Attorney, Courts Facility, P.O. Box 189, Foley, MN  56329 (for respondent)


Stephen V. Grigsby, 210 North Second Street, Suite 50, Minneapolis, MN  55401 (for appellant)


            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from an order revoking his probation, appellant Melvin John Przyborowski argues that the district court violated his constitutional right to confront witnesses when it admitted hearsay evidence in the form of lab reports that confirmed his use of non-prescription mood-altering drugs in violation of the terms of his probation.  Because the Sixth Amendment Confrontation Clause is not implicated in probation revocation hearings and because a defendant’s due process right to confront witnesses is not offended where, as here, reliable hearsay is admitted, we affirm.


            Appellant pleaded guilty to felony controlled substance crime in the fifth-degree.  He was sentenced to 15 months, stayed, and placed on probation subject to a number of conditions, two of which were to abstain from all alcohol and non-prescription drugs and to submit to random drug testing.

            Appellant submitted urine samples on four different dates:  December 9, 2002, May 20, 2003, June 20, 2003, and October 23, 2003.  All the samples, which were collected under the supervision of Department of Corrections Agent Lori Sowada, field tested positive for amphetamines.  After each test, appellant denied using any drugs that might yield positive results for amphetamines, so Sowada sent the samples to Medtox Laboratories, Inc., a lab that Sowada stated “contract[s]” with the department.  Further testing by Medtox confirmed that the samples tested positive for amphetamine and methamphetamine.  Sowada filed probation violation reports on May 29, July 17, and October 27, 2003.

            At the probation revocation hearing, Sowada testified to the chain of custody for each of the tests.  Appellant objected to admission of the lab reports, claiming that it violated his right to confront witnesses against him.  Each lab report had a chain of custody form, and degreed medical technicians certified the results.  The district court overruled his objection and determined that “the State has met its burden to prove by clear and convincing evidence that [appellant] violated the terms of his probation by using non-prescribed mood altering drugs.”[1]


            Whether to revoke probation is within the district court’s discretion, and we will reverse a probation revocation only if there is an abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed.   Minn. Stat. § 609.14, subd. 3(2) (2002).  Hearsay statements, if reliable, are admissible in a probation revocation hearing.  See Minn. R. Evid. 1101(b)(3) (stating rules of evidence, other than rules regarding privileges, do not apply to probation revocation proceedings); State v. Johnson, 679 N.W.2d 169, 174 (Minn. App. 2004) (concluding that “when the defendant has had ample opportunity to present evidence in a probation revocation proceeding, the rules of evidence do not preclude admission of hearsay evidence”).

            Appellant argues that the district court abused its discretion by admitting the Medtox lab reports over his objection.  He claims that his right to confront witnesses was violated because he was not allowed to cross-examine the Medtox lab technicians who conducted the tests and prepared the reports.

            The Sixth Amendment applies to “all criminal prosecutions” and gives an accused a number of rights, including the right to confront the witnesses against him or her.  U.S. Const. amend. VI.  A defendant has a right to due process at revocation hearings, including a minimum right to confront and cross-examine witnesses.  See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973); Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 2604 (1972).  In Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604, the Supreme Court held that parolees in parole revocation proceedings are afforded minimum rights to due process, including the right to confront and cross-examine adverse witnesses,” but that such proceedings should not be equated to “a criminal prosecution in any sense” and that “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”  In Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759-60, the Court confirmed that probationers are entitled to the same rights as those given to parolees in Morrissey and reiterated that “[p]robation revocation, like parole revocation, is not a stage of a criminal prosecution.” 

            Thus, Gagnon and Morrissey do not hold that the Sixth Amendment Confrontation Clause bars the state from presenting hearsay evidence in a probation revocation proceeding.[2]  Rather, the defendant’s right to confront witnesses is one involving a due process balancing of the defendant’s right to be heard and present evidence, against the grounds asserted by the government for not requiring confrontation.  United States v. Redd, 318 F.3d 778, 783-84 (8th Cir. 2003).

            Here, the district court recognized the impracticality of requiring lab technicians to appear and testify at probation revocation hearings.  The district court was entitled to consider the Medtox lab reports as reliable on their face and based on Sowada’s testimony that the department contracts with Medtox to confirm field tests of this type.  See United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986) (holding that it was not error to allow government to introduce urinalysis lab results through probation officer who had not prepared report and without live testimony from lab technicians because hearsay was reliable and proposed testimony was of little value).  Given the record here, including Sowada’s testimony regarding the taking of the samples, the four positive field tests, appellant’s lack of an alternative explanation for any of the positive results, the procedure Sowada followed each time to send the samples to Medtox, and the four Medtox lab reports confirming that the samples tested positive for illicit drugs, we cannot conclude that the district court abused its discretion in admitting the lab reports as reliable hearsay in this probation revocation hearing.

            The district court’s order revoking appellant’s probation is therefore affirmed.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note that the district court’s findings mistakenly state that the samples were sent to the “BCA” rather than to “Medtox,” for testing.  These misstatements, however, are relatively harmless and do not require a reversal in this case.


[2] In a recent case involving an appeal from a conviction, the United States Supreme Court held that out-of-court testimonial statements are barred under the Confrontation Clause.  Crawford v. Washington, 124 S. Ct. 1354 (2004).  But Crawford was released after appellate briefing in this case was completed and neither party mentioned Crawford in their arguments before this court.  We decline to rule on the applicability or inapplicability of Crawford to probation revocation proceedings, other than to note that at least one federal court has held that Morrissey only established a due process right to confront a witness in a revocation proceeding and that Crawford does not apply to revocation proceedings, which are not “criminal prosecutions” within the meaning of the Confrontation Clause.  United States v. Barazza,     F. Supp. 2d ___, ___ (S.D. Cal. 2004).