Benham v. State
| Decision Date | 02 October 2015 |
| Docket Number | No. 36A04–1504–CR–132.,36A04–1504–CR–132. |
| Citation | 40 N.E.3d 1281 (Table) |
| Parties | Elizabeth BENHAM, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Brooke N. Russell, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
MAY
, Judge.
[1] Elizabeth Benham appeals the revocation of her probation. She argues the trial court erroneously admitted evidence of a positive oral swab drug screen. Finding no reversible error in the admission of that evidence, we affirm.
[2] On March 20, 2014, Benham entered a plea of guilty to Class D felony receiving stolen property1 as part of a written plea agreement in which the State agreed to drop other charges. The plea agreement provided Benham would be sentenced to one year, with ah but time already served suspended to probation. On April 17, 2014, the court accepted the plea agreement and Benham was sentenced in accordance therewith.
[3] One of the terms of Benham's probation was that she would not use or possess controlled substances or legend drugs, unless prescribed by a physician. Another term was that she would permit any type of test or sample to be taken from her for the purpose of discovering the presence of banned substances.
[4] During the course of her probation, Benham admitted to her probation officer, Jacob Findley, she had ingested banned substances, including heroin. The State filed a petition to revoke her probation, and the court held a hearing on February 4, 2015. At the hearing, Benham admitted violating her probation and also reported she had prescription medications on record. Benham, the State, the probation department, and the trial court reached an agreement whereby Benham would submit to a drug screen and the result thereof would determine her sanction for drug use. If she tested negative for drugs, she would be allowed to continue on probation; however, if she tested positive, she would be ordered to execute her previously suspended sentence.
[5] Immediately following the hearing, Findley collected a sample of Benham's saliva using an oral swab and sent the sample to the Redwood Toxicology Laboratory in California for testing. Findley later obtained the test result from the Redwood Toxicology Laboratory website, and it was positive for heroin or opiates. Findley telephoned the laboratory, and a toxicology support representative confirmed the positive result could not be due to Benham's prescription medications.
[6] The court held another hearing to determine Benham's sanction. At the hearing, Findley testified the probation department tests for drugs using either saliva or urine samples. He testified he followed the normal procedures for collecting the saliva sample from Benham, shipping the sample to Redwood Toxicology Laboratory for testing, and retrieving the results from the laboratory web site. Findley also testified to his knowledge of the laboratory testing procedure based on a video he had viewed. The drug test results were accompanied by a standard certifying statement from the laboratory's chief toxicologist, which indicated the test was performed according to standard procedure, and the results had been reviewed by a scientist. Benham objected to the admission of the test results based on the reliability of the test and the adequacy of the chain of custody of the sample. The court admitted the positive drug test into evidence over Benham's objection, revoked her probation, and ordered her to serve her previously suspended sentence incarcerated.
[7] We find no reversible error in the admission of Benham's oral fluid drug screen results at her probation revocation and sanctions hearing. “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.2013)
(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007) ). The conditions for probation and whether to revoke probation when those conditions are violated are left to the discretion of the trial court. Id. We review probation violation determinations and sanctions for abuse of discretion. Id.
[8] A probation revocation proceeding is civil in nature and a probationer is not entitled to all of the rights afforded to a criminal defendant. McCauley v. State, 22 N.E.3d 743, 748 (Ind.Ct.App.2014)
, reh'g denied, trans. denied. The due process requirements for probation revocation hearings are more flexible than in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind.2007). This flexibility allows courts to enforce lawful orders, address an offender's personal circumstances, and protect public safety. Id. As such, courts may admit evidence during probation revocation hearings that would not be admissible in criminal trials. Id.
[9] To admit hearsay evidence in a probation revocation hearing, the proponent must demonstrate its substantial trustworthiness. Id. at 442
. Under this test, a court should evaluate the reliability of the hearsay and explain why it is sufficiently reliable to supply good cause for not producing live testimony. Id. Thus, if a drug test is substantially trustworthy, the State is not required to produce an affidavit or scientific opinion before a drug test result is admissible. Warn, 997 N.E.2d 1103, 1105–1106 (Ind.Ct.App.2013) (), reh'g denied.
[10] Here, Benham had already admitted violating her probation by ingesting banned substances including heroin. As the State notes, the trial court could have revoked her suspended sentence based on her admission without...
To continue reading
Request your trial