treatment and it was the drug testing was only to determine if mr walker had reverted to the use of drugs again nothing to do with alcohol so when the probation officer in the central district of california amended the court's condition to prohibit any use of alcohol that was an unlawful modification under thirty five thirty three as well as rule thirty two point one thirty now the government argues that probation have the authority to order total abstinence because well that's the policy in the central district of california but it's probation doesn't get to decide what the conditions of release are the court jesters like that and if they believe that total abstinence was necessary in this case then we only needed to can't smoke or caffeine isn't appropriate so he's not allowed to have coffee or consistent with the twelve step policy philosophy because which says that he's not allowed to enter into a relationship with someone necessity of the absence of policy in which it notes that a special condition with need to be imposed in order to just in order to impose this absence policy yet probation did not do that in this case so because all of the conditions of release go back to this unlawfully modified condition mr walker's motion to dismiss the petition should have been granted probation certainly under the court's orders have the authority to do one drug tests within fifteen days of his release under the statute and two drug test at some point they're after during the course of supervision positive on four different occasions over the course of two and a half years all right and he admitted one of them was that he had actually been seen by a probation officer having a glass of wine with dinner one of the violations is that after he had drank a can of all dools which is nonalcoholic beer he understood it's you know alcoholic beer probation now says well if you look at the can it says it may contain a small amount of alcohol but he understood it's been an alcoholic beer and the fact these five occasions and that's it but again probation did not have the authority to prohibit him from drinking alcohol only the court can do that it was an unlawful modification on the rules he w the word excessive from a court's order and wrote you can throw in the word and and and mr walker protested and said the judge didn't say i couldn't have alcohol and the probation officer directed him to sign the conditions saying it is our policy correct and those standard conditions are certainly one that you can few must follow the instructions of the probation officer or probation that doesn't mean the probation has the right to change the judge's conditions to impose greater conditions than what the judge had imposed to begin once you've got good morning may please the court my name is ann gannon and this is united states attorney for the central district of california and i represent the united states in this matter this case presents the issue of whether probation officer has the discretion to implement a court ordered drug testing and treatment program in this case the sentencing court did order that his condition is the revised release that the defendant participate in the court approved drug testing in treatment program at the direction of the allegations because at least two of the allegations occurred when defendant was participating in the most formal drug testing and treatment program the record indicates that central district of california since  address what what what i find a little confusing is that the standard conditions of supervision from page twenty six of the has the excessive crossed out in the does that mean that they never change the are what it was a standard condition in minnesota the defendant refrain from excessive use of alcohol that is also the state or condition of the central district of california so one jurisdiction was transferred and defendant began being supervised he had an initial meeting with the probation officer work he was presented with a series of forms one of those forms i believe you are referring to is the conditions of probation the probation officer didn't cross out excessive and ri any that's that's forth that's only for the subset of defendants that are ordered to participate in drug testing and treatment a standard defendant with no such special condition is only required to abstain from because the document signed by judge real in nineteen ninety refers only to excessive that's standard condition that's correct for all defendants and then you saying that in the record is the explanation that for which subset any defendant has ordered to participate in drug testing in treatment ok not the statutory drug testing but the special court ordered where  thousand five letter i believe that elaborate i believe maybe on page seventy seven of the r say it says this district is a total abstinence program including use of alcohol and marijuana and this is the form provided to defendants that are subject to the detection and treatment resources drug what the district court found when it was a hearing on this this was a standard policy part of a yes and there was also testimony at the june twentieth two thousand and five hearing from the probation officer and in fact the district a drug treatment and testing programs in which they explained to the court that during the entire pendency of the defendant supervised release if the court had ordered drug testing and treatment specifically that they were be required to abstain from alcohol during the entire period the government's position is supported by the stevens decision in which the court found that probation officer should have discretion to implement a specific court ordered drug testing and treatment program the court case recognize that probation officers as professionals should have some limited discretion in deciding what treatment options and testing options were appropriate in this case the court probation there's one that does the pre sentence reports which calculates the guidelines and other factors and there's a separate unit which handles supervision within nasa provisioning and there's even a smaller subset of why pervasion officers receive special training and are considered drug treatment coordinator and so she was elevated within a probation officer so i believe she did receive training and that these defendants with a special court order conditions are referred to specialized probation officers to oversee their testing and treatment you tell me i'm i'm trying to get this straight and virus again and the first two charges you know what she agreed to go through this testing as part of that testing program there's  some federal jagger's provision for testing that the person is going through testing abstain from all drugs and all alcohol that's the first to charge is that right yes your honor and the other charge to the community corrections placement which was separate that was the last violation only that did not apply to any of the previous four violations but with respect to some things counsel said there is no court ordered policy in terms of a no alcohol condition when there is a drug testing condition it is a special condition that probation recommends the court impose and in most cases the district court judge always imposing this condition defense counsel subjected to no alcohol and often we say well all right we're just want to get rid of the no alcohol condition because it's not necessary that still prefer for the government  a standard condition that's just simply false and the page the counsel pointed to page seven eight of the record that's not a court's condition where it says the district is a total abstinence program that is merely instructions from that testing program