Attorneys for Appellant

Robert J. Bratch

Jerry T. Drook

Marion, Indiana	

Attorneys for Appellee

Jefferey A. Modisett

Attorney General of Indiana

John B. Herriman

Deputy Attorney General 

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

JIMMIE L. CARTER,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

)

)	Supreme Court No.

)	27S02-9712-CR-00656

)

)	Court of Appeals No.

)	27A02-9610-CR-662

)

)

)

	APPEAL FROM THE GRANT SUPERIOR COURT  COURT

	The Honorable John Porter, Judge

	Cause No. 27D03-9507-DF-630

ON PETITION TO TRANSFER	

MarcMarch 3, 1999[INSERT HAND DOWN DATE]

SULLIVAN,  Justice.

	Defendant Jimmie Carter’s probation was revoked based on urinalysis results

indicating marijuana use.  The Court of Appeals found the urinalysis evidence inadmissible. 

Because strict evidentiary standards do not apply in probation revocation hearings, this evidence was admissible.  Accordingly, we affirm the trial court. 

Background

	On October 16, 1995, Defendant pled guilty to the charge of Operating a Motor

Vehicle While Intoxicated, a Class D Felony. 1  The Defendant was given a one and one half year jail sentence with all but thirty (30) days suspended.  In addition, Defendant was given

a $300.00 fine and placed on probation for one and one-half years.  Under the terms of his

probation, Defendant was to refrain from committing any future crimes, including the use

of illegal drugs, and submit to drug testing at the request of his probation officer.  On

January 19, 1996 and again on March 22, 1996, Defendant submitted urine samples which

tested positive for the presence of cannibinoids, a metabolite of marijuana. 

	Based on these test results, Defendant’s probation officer filed a Petition for Revoca

tion of Probation.  On June 18, 1996, the trial court conducted a probation revocation

hearing at which the State presented its evidence showing that Defendant tested positive for

marijuana use.  Among those who testified for the State was Tom Pulley (“Pulley”), the

laboratory technician who administered Defendant’s urine screen.  Pulley testified as to his experience and training in the use of urinalysis equipment and the procedures used in

administering the urinalysis.  When the State sought to introduce the results of the urinalysis

into evidence as part of Pulley’s testimony, Defendant objected to its admission on the

grounds that Pulley was not qualified to render expert testimony.  However, the trial court

admitted the testimony over Defendant’s objection.  At the conclusion of the hearing, the

trial court found that, by twice testing positive for marijuana use, the Defendant had violated

the terms of his probation.  Subsequently, the trial court terminated Defendant’s probation

and ordered him to serve an additional one year of his suspended prison sentence. 

	Defendant appealed.  The Indiana Court of Appeals reversed, holding that the trial

court erred in its admission of Pulley’s testimony because the State failed to provide a

sufficient evidentiary foundation for the qualifications of Pulley and for the reliability of the

urinalysis equipment used.  Carter v. State, 685 N.E.2d 1112, 1115 (Ind. Ct. App. 1997). 

Discussion 

	The Court of Appeals concluded that to furnish the requisite foundation for the

admission of expert testimony at probation revocation hearings, the State must establish that

(1) the technician performing the test understands the urinalysis procedure, and (2) the

equipment used to perform the test is generally accepted in the urinalysis field.  Carter, 685 N.E.2d at 1114.  The second prong of this two-part test, requiring that the equipment used be “sufficiently established to have gained general acceptance in the particular field in

which it belongs[ ],” is taken from Frye v. United States, 293 F. 1013,1014 (D.C. Cir. 1923).  The State contends that the Court of Appeals employed the wrong standard of evidence

governing the admission of expert testimony at probation revocation hearings.  We agree.  

	It appears that the Court of Appeals decided to apply the Frye “general acceptance” test for scientific evidence based on the following reasoning:  First, Indiana Rules of

Evidence 403 and 702 supersede the Frye test.  Second, the Rules of Evidence provide that “[t]he rules, other than those with respect to privileges, do not apply in . . . [p]roceedings

related to . . . sentencing, probation, or parole.”  Ind. Evidence Rule 101(c)(2).  Third,

because the Rules of Evidence do not apply, common law rules in effect prior to the adop

tion govern.2  And because the Frye test was the applicable common-law rule, the Court of Appeals reasoned that “reliance on Frye is still valid for probation matters.”  Carter, 685 N.E.2d at 1115 n.3. 

	We have disapproved such reasoning in another opinion decided today.   In Cox v. State, No. 48S02-9802-CR-93 (Ind. DATEMar. 3, 1999), we make clear that in probation revoca tion hearings, judges may consider any relevant evidence bearing some substantial indicia

of reliability.  This includes expert testimony and scientific evidence.  Of course, as we made clear in Cox, judges are not bound to admit all evidence presented to the court.  And, in the absence of strict evidentiary rules, judges carry a special responsibility in assessing

the weight, sufficiency and reliability of proffered evidence.  Id., slip op. at 9.

	The Court of Appeals held that the State did not establish that the lab technician

qualified as an expert and failed to establish the scientific reliability of the urinalysis

equipment itself.  Specifically, the Court of Appeals rejected Pulley’s qualification as an

expert because he “could not explain the scientific basis for the test.”  Carter, 685 N.E.2d at 1115.   As a lab technician responsible for the operation of urinalysis equipment, Pulley

testified that he had been employed in this capacity for more than five years.  In this period,

Pulley testified that he tested more than ten thousand samples.  Pulley further testified that

he had received all of the training necessary to become an operator of the CIVA3 urinalysis machine, attending CIVA schooling in California for four weeks.  Moreover, he demon

strated that he possessed expertise in the use of the equipment, testifying as to the how the

CIVA machine worked, how it was operated, how often it was tested, the substances it

tested, and how the results of such tests were interpreted.  Regardless of whether these

credentials are sufficient to qualify Pulley as an expert under either the Frye test or the Rules of Evidence, we find them adequate for consideration by a trial court under the

evidentiary standards applicable to probation revocation hearings.

	As for the Court of Appeal’s conclusion that the State failed to establish the scientific

reliability of the urinalysis equipment, we note Judge Friedlander’s dissent whenre  he

observesd, “[i]t is beyond debate that urinalysis has achieved a sufficient level of scientific

reliability to be accepted into evidence by our courts.” Carter, 685 N.E.2d at 1117 (Freidlander, J., dissenting).  Urinalysis technology is hardly novel and has become a

conventional means of drug-testing, the results of which have been deemed reliable in

Indiana courts.  Cf. Penrod v. State, 654 N.E.2d 653, 654 (Ind. Ct. App. 1993)(ADX Abbott and EMIT urinalysis systems have reached level of general acceptance in scientific

community to be generally admissible).4  Given the evidentiary standards applicable to probation revocation proceedings, we find no basis for reversing the trial court’s admission

of the test results.

Conclusion

	Having previously granted transfer, thereby vacating the decision of the Court of

Appeals, Ind. Appellate Rule 11(B)(3), we now affirm the trial court’s revocation of Defen

dant’s probation. 

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.