                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0068

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Peter James Trumble,
                                      Appellant.

                                Filed August 15, 2016
                                      Affirmed
                                    Reilly, Judge

                           Hennepin County District Court
                             File No. 27-CR-12-23407

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and

Reilly, Judge.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges the district court’s revocation of his probation and execution

of a previously stayed 42-month sentence for first-degree driving while impaired (DWI).

He argues that the state failed to prove that he violated a condition of probation. We affirm.

                                          FACTS

       Appellant Peter James Trumble pleaded guilty to first-degree DWI in October 2012.

The district court stayed execution of a 42-month sentence and placed Trumble on

probation for five years with several conditions. When reciting the conditions of probation,

the court stated: “You are ordered not to consume any alcohol or any drugs unless

prescribed. If there’s a positive test or refusal to submit to testing, then you would be

required to complete a chemical health assessment and follow any recommendations for

treatment or care recommended by probation.” Trumble and the court signed a sentencing

order stating that the conditions of probation included “[d]o not use any alcohol or illegal

or non-prescribed mood-altering drugs; testing as Probation determines” and “[i]f there is

a positive test or a refusal to submit to testing, then, at a minimum, complete a chemical

health assessment and follow all recommendations as directed by Probation.” The court

also signed a warrant of commitment stating that the conditions of probation included “[n]o

alcohol/controlled substance use.”

       The corrections department filed a probation-violation report in June 2013, asserting

among other violations that Trumble violated conditions of probation by consuming

alcohol. Trumble admitted that he violated a condition of probation by consuming alcohol,


                                              2
and the court ordered him to complete chemical-dependency treatment and continue on

probation. During a review hearing, Trumble admitted that he left treatment before its

completion and agreed to submit to urinalysis. The court placed him at the workhouse or

on other monitoring as available pending a chemical-health assessment and the next review

hearing. During the following review hearing, the district court ordered Trumble to

complete a new chemical-dependency-treatment program.

       The corrections department filed a second probation-violation report in February

2014, asserting that Trumble violated conditions of probation by failing to complete

chemical-dependency treatment and abstain from consuming alcohol. Trumble’s probation

officer claimed that Trumble had “submitted positive/diluted urine samples” 13 times since

the previous review hearing. During a failed attempt to resolve the violation without a

contested probation-violation hearing, Trumble admitted that he “provided a number of

UAs that were diluted” and stated “I guess in the eyes of the court and the law, it’s

positive.” Trumble admitted during a subsequent hearing that he violated conditions of

probation “by failing to complete [his] treatment program,” “us[ing] alcohol while . . . on

probation,” and “provid[ing] either positive or diluted urine samples [on] a number of

dates.” Trumble’s probation officer then mentioned that he “did talk to [Trumble] about

the dilute UAs . . . several times and about . . . what a diluted UA is.” The district court

ordered Trumble to serve one year on electronic-home monitoring and to continue on

probation.

       The corrections department filed a third probation-violation report in June 2015,

asserting that Trumble violated a condition of probation by “[p]rovid[ing] [p]ositive [d]rug


                                             3
[s]creens” through “diluted drug tests” nine times. The corrections department filed an

amended report pending a contested probation-violation hearing, asserting that Trumble

was continuing to “[p]rovide[] [p]ositive [d]rug [s]creens” by “submit[ing] diluted drug

tests” and that he submitted one test that “was positive for alcohol.”

       During the contested probation-violation hearing in October 2015, the district court

received a report indicating that Trumble had one positive test in August 2015 and 15 drug-

test results of “POSSIBLE DILUTE” due to low creatinine levels between February and

August 2015. Trumble’s probation officer testified that Trumble was “continu[ing] to

submit diluted urine specimens” and had “a positive drug test for alcohol” in August 2015.

The probation officer testified that a test result of “possible dilution” is “consider[ed] . . . a

positive specimen” because the result indicates a “low creatinine level,” which “means . . .

that someone is trying to flush their system, and by drinking a large amount of liquids . . .

my understanding is it’s harder for technology to detect if there’s any drugs in the system.”

A supervisor of the drug-testing and drug-court unit of the corrections department testified

that creatinine is “a naturally occurring substance in human urine, and if it is below the

level that’s the standard testing level . . . then it would be considered positive for possible

diluted sample.”     The supervisor testified that a test result of “possible dilute” is

“consider[ed] . . . a positive sample” because the sample is “invalid . . . and by not

submitting a valid sample it would be considered positive.” The supervisor acknowledged

that a medical condition may “contribute to this type of sample being provided” but stated

that “we leave that up to the individual to bring . . . his medical proof or medical condition




                                                4
. . . to the probation officer” and that, “as far as [he] kn[e]w,” Trumble “never provided

any medical information.”

       The district court stated that “given the history in this case I think it is a reasonable

conclusion to draw that [Trumble’s urine samples showing results of possible dilute were]

diluted given the prior violations in this case” and that “the numerous instances . . . of

possible dilutions are sufficient to show a pattern of possible dilutions that makes me

believe that it was actual dilution.” The court found that Trumble “violated the term of his

probation that requires him to abstain from the use of alcohol and drugs and that especially

because it involves dilution, that it was intentional and not excusable and repeated in the

past.” The court further found “that the policies favoring probation give way to the need

for confinement,” reasoning, “I do view dilution of samples as in effect a fraud on the court.

And so a person who does that is really not amenable to probation because there’s no trust

between the probation officer and the probationer as well as the court . . . .” The court

executed Trumble’s prison sentence. This appeal follows.

                                      DECISION

       Trumble argues on appeal that “[t]he district court did not impose a drug testing

condition on [him]” and that the prosecutor and his probation officer simply “assume[d

that he was] subject to such a condition.” Alternatively, Trumble argues that “the district

court never imposed any condition related to the dilution of urine samples nor was [he]

ever informed by the court that his probation could be revoked based on ‘diluted’ drug test

results,” and therefore his submission of diluted samples was not a probation violation.




                                               5
       The state has the burden of proving a probation violation by clear and convincing

evidence. State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008). “[B]efore revoking

probation, the court must: ‘1) designate the specific condition or conditions that were

violated; 2) find that the violation was intentional or inexcusable; and 3) find that [the]

need for confinement outweighs the policies favoring probation.’” State v. Finch, 865

N.W.2d 696, 704-05 (Minn. 2015) (alteration in original) (quoting State v. Austin, 295

N.W.2d 246, 250 (Minn. 1980)). “A district court has ‘broad discretion in determining if

there is sufficient evidence to revoke probation and should be reversed only if there is a

clear abuse of that discretion.’” State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005)

(quoting Austin, 295 N.W.2d at 249-50). “Inherent in [an appellate court’s] consideration

of the specific condition designated as having been violated is the question of whether the

condition was actually imposed as a condition of probation.” State v. Ornelas, 675 N.W.2d

74, 79 (Minn. 2004).

       A district court pronouncing a sentence must “[s]tate precisely the terms of the

sentence.” Minn. R. Crim. P. 27.03, subd. 4(A). If the court stays execution of the sentence

and “lawful conduct could violate the defendant’s terms of probation, the court must tell

the defendant what that conduct is.” Id., subd. 4(E)(3).

              It is an essential component of due process that individuals be
              given fair warning of those acts which may lead to a loss of
              liberty. This is no less true whether the loss of liberty arises
              from a criminal conviction or the revocation of probation.
              When the acts prohibited by the probation conditions are not
              criminal, due process mandates that the petitioner cannot be
              subjected to a forfeiture of his liberty for those acts unless he
              is given prior fair warning. It follows that before a probation



                                             6
              violation can occur, the condition alleged to have been violated
              must have been a condition actually imposed by the court.

Ornelas, 675 N.W.2d at 80 (quotations and citations omitted).

       Trumble’s more general argument—that “[t]he district court did not impose a drug

testing condition on [him]”—is without merit. Trumble and the court signed a sentencing

order that stated that “testing as Probation determines” was a condition of probation. And

during the sentencing hearing the court discussed potential consequences of “a positive test

or refusal to submit to testing.”

       Trumble’s principal argument is that the district court did not inform him that

submitting urine samples that were not diluted was a condition of probation, that diluted

samples would be viewed as positive for the presence of a drug or alcohol, or that

submitting diluted samples was a probation violation. Trumble therefore maintains that

submitting diluted samples was not a probation violation. But the court actually found that

Trumble “violated the term of his probation that requires him to abstain from the use of

alcohol and drugs” and based this finding on the diluted samples and Trumble’s history.

Trumble does not dispute that abstaining from consuming alcohol and non-prescribed

drugs was a condition of probation, nor does he assert that he did abstain from consuming

alcohol and non-prescribed drugs.

       Moreover, the corrections department could implement the probation conditions

that Trumble abstain and submit to testing by interpreting a test result of “possible dilute”

as a positive test. “Determining conditions of probation is exclusively a judicial function

that cannot be delegated to executive agencies.” State v. Henderson, 527 N.W.2d 827,



                                             7
828-29 (Minn. 1995). However, “some flexibility in the administrative implementation of

probation conditions is desirable and . . . trial judges should not be burdened with

administrative issues relating to the implementation of conditions of probation.” Id. at 829;

see also State v. Bradley, 756 N.W.2d 129, 133 (Minn. App. 2008) (stating that “under

Henderson, administrative implementation of probation conditions is appropriately

delegated to an administrative body” and concluding that court could permit chemical-

health assessor to determine whether appellant needed treatment and appropriate type and

level of treatment); State v. Anderson, 720 N.W.2d 854, 863 (Minn. App. 2006)

(concluding that probation department could compel appellant to sign agreement requiring

him to “remain law abiding, avoid possessing firearms or illegal narcotics, inform his

probation officer before leaving the state, and submit to searches of his residence”), aff’d

on other grounds, 733 N.W.2d 128 (Minn. 2007).

       The corrections department interprets a diluted urine sample as an invalid and

positive sample due to the unreliability of testing a diluted sample, and dilution is seen as

intentional unless a probationer provides a medical reason for the dilution. The record

reflects that Trumble was well aware of this interpretation. The district court’s failure to

specifically inform Trumble about the consequences of a diluted urine sample did not

preclude the court’s finding that Trumble violated a condition of probation.

       Affirmed.




                                             8
