State v. Hayes
| Decision Date | 19 December 1978 |
| Docket Number | No. 12711,12711 |
| Citation | 587 P.2d 1248,99 Idaho 713 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Larry Kenneth HAYES, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Nicholas Chenoweth of Chenoweth & Kinney, Orofino, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., Arthur J. Berry, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
On defendant's plea of guilty to possession of amphetamines, judgment of conviction and imposition of sentence were withheld and a 3-year probation ordered. Hayes' attorney prepared for the court's signature a carefully drawn order of probation. Special conditions of the order included one that Hayes voluntarily submit to urinalysis upon the request of law enforcement personnel. The order specified that he also be subject to the rules of probation specified by the Board of Corrections and district court. In accordance with this last directive, Hayes signed an agreement of probation, containing the usual provision that he obey the laws, and one that he could not purchase or operate a motor vehicle without written permission of the court or Probation Department. Ten months later he was charged with violating the terms of that probation:
1) Operating a motor vehicle without written permission of his probation officer;
2) Throwing a beer can at a sheriff's vehicle;
3) Use of a controlled substance.
Following hearing, at which testimony was taken, he was adjudged to be in violation of his probation on each of the above counts, and his probation was revoked. He was adjudged convicted pursuant to his earlier plea of guilty, sentence was imposed, and this appeal followed.
Defendant admitted operating a motor vehicle, but claimed oral permission to drive was given by his first probation officer. Both of his probation officers denied giving such permission and insisted he was told he would have to show a license and proof of insurance first. A Sheriff's Posse member claimed defendant committed the second violation in his presence (and that of two other peace officers, neither of whom testified) in August, 1976. Defendant testified he did not commit the act and presented two witnesses who stated that one Steve Johnson threw a beer can and was arrested for the offense. However, the witnesses admitted that they had not watched defendant continuously and that there might have been a second incident. Defendant emphasizes that no criminal charge was made against him, and that the incident was not brought to the court's attention at the time it allegedly happened, some 7 months previously. The third violation stemmed from an incident in which the defendant on request gave a urine sample to a deputy sheriff. This was analyzed by a state criminalist, who testified that he found therein the presence of meprobamate, a controlled substance. While he admitted that other drugs could cause the same positive reaction, the witness stated his belief that all such drugs are only available by prescription. Defendant testified that he had not used controlled substances, and also that he had not used any prescription drugs.
Because we sustain the trial court's order revoking probation on the third charged violation, we comment only briefly on the first two charges. Defendant contends that the imposition of the prohibition on operating a motor vehicle was error....
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