MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision                             Oct 02 2015, 9:09 am
shall not be regarded as precedent or
cited before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Brooke N. Russell                                   Gregory F. Zoeller
Indianapolis, Indiana                               Attorney General of Indiana

                                                    Lyubov Gore
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elizabeth Benham,                                        October 2, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A04-1504-CR-132
        v.                                               Appeal from the Jackson Circuit
                                                         Court;
State of Indiana,                                        The Honorable Frank W. Guthrie,
                                                         Senior Judge;
Appellee-Plaintiff.                                      36C01-1310-FD-427




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 1 of 7
[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.


                                     Facts and Procedural History
[2]   On March 20, 2014, Benham entered a plea of guilty to Class D felony

      receiving stolen property 1 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 all 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




      1
          Ind. Code § 35-43-4-2(b) (2009).


      Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 2 of 7
      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

      Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 3 of 7
      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.


                                     Discussion and Decision
[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.


      Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 4 of 7
[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.

       Wann, 997 N.E.2d 1103, 1105-1106 (Ind. Ct. App. 2013) (probation officer’s

       hearsay testimony and the Redwood Toxicology Laboratory report were

       substantially trustworthy after officer testified to the administration, handling

       and transmission of the drug screen), 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

       performing any test. Nevertheless, the trial court agreed to allow Benham to

       undergo a drug screen and, if she tested negative, to give her a reprieve from

       execution of her previously suspended sentence. Benham, along with the

       probation department and prosecutor’s office, were parties to that agreement

       with the trial court. If Benham was concerned about the reliability of some

       forms of drug testing, she could have objected to the saliva test before she

       agreed to testing. Her failure to do so resulted in this error being waived for

       appeal. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005)

       (Under the doctrine of invited error, “a party may not take advantage of an




       Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 5 of 7
       error that she commits, invites, or which is the natural consequence of her own

       neglect or misconduct.”).


[11]   Waiver notwithstanding, Benham has not demonstrated error in the admission

       of the test result. The State provided evidence that it had followed the normal

       procedure of collecting the saliva sample, transmitting the sample to the testing

       laboratory, and retrieving the results. The State then verified with a Laboratory

       toxicology support representative that the positive result could not be due to

       Benham’s prescription medications. The State also testified that it is standard

       practice for the trial court to admit oral swab drug screen results at a probation

       hearing.


[12]   Urinalysis has been accepted as a means of drug-testing and deemed reliable by

       Indiana Courts. Carter v. State, 706 N.E.2d 552, 554 (Ind. 1999). We have held

       that testimony by a case manager as to the proper procedures followed for a

       urine drug screen was substantially reliable in a probation revocation hearing.

       Bass v. State, 974 N.E.2d 482, 487 (Ind. Ct. App. 2012). The absence of a

       toxicologist’s or laboratory’s affidavit in light of the case manager’s testimony

       did not render the drug test results inadmissible. Id. Oral fluid tests have been

       found to be comparable to urine tests. 1 DRUG TESTING LAW TECH. &

       PRACTICE. § 5:16 (West 2015). As such, we hold that in a probation revocation

       hearing, the same standards apply for admitting oral fluid drug screens as does

       for admitting urine analysis drug screens.




       Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 6 of 7
[13]   Based on the foregoing, the testimony provided by the State as to Benham’s

       oral swab test results provided sufficient proof that the results were substantially

       reliable to render them admissible. Accordingly, we affirm.


                                                 Conclusion
[14]   The trial court did not abuse its discretion in revoking Benham’s probation. We

       accordingly affirm.


[15]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015   Page 7 of 7
