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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 

65(D), this Memorandum Decision 

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

Brooke N. Russell

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Elizabeth Benham,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 2, 2015

Court of Appeals Case No.

36A04-1504-CR-132

Appeal from the Jackson Circuit 

Court;

The Honorable Frank W. Guthrie, 

Senior Judge;

36C01-1310-FD-427

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 2 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 property1 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).
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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 
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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. 
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[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 
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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. 
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[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.