*1 STEINER, Appellant, Elizabeth
Defendant, Appellee-Plaintiff. Indiana, STATE 47A05-0103-CR-123. No. of Indiana. Appeals Court 7, March
OPINION
VAIDIK, Judge. Summary
Case Elizabeth A. Steiner appeals the trial court's denial of her Motion to Terminate Pretrial Drug Urine Sereens. Specifically, Steiner argues that the trial court abused its discretion when it imposed random drug sereens as a condition of her bail. Because the Indiana statute governing conditions allows for impo- sition of reasonable restrictions designed to assure the presence defendant's in court or the physical safety of the community and there was no individu- alized determination made by the court that Steiner would use drugs while she trial, released pending we reverse and remand with instructions for the trial court to vacate the bail condition imposing ran- dom drug sereens.
Facts and History Procedural 24, On 2000, June the Lawrence County police arrested Steiner for possession of marijuana. Steiner posted a cash $500 bond the day next to secure her release from the County Lawrence Jail. On June 26, the State posses Steiner with sion of marijuana as a Class A misdemeanor .1 day, same the trial court found probable cause for arrest and set Steiner's bail at $5,000 cash or $500 surety. At Steiner's initial hearing 2, held on July pled Steiner guilty to the charge, and the trial court ordered that "Tll con your tinue bond on condition you no law violations. A further condition is Jeffrey Eakins, Greenfield, W. IN, At- you submit to sereens at torney for Appellant. all you times told by the Lawrence Carter, Steve Attorney General of County Supervision Intensive Program." Indiana, Christopher Lafuse, L. Deputy Tr. P.5. The court also Steiner to General, Attorney Indianapolis, IN, Attor- pay the cost of each drug sereen when neys for Appellee. they were administered. Ind.Code 35-48-4-11. bond her consequence test, and as submit- hearing, Steiner initial her After revoked. urine eight least
ted to On the tests. a total paid $160 reduction a dramatic exchange for a Motion filed January accepted bond, Harvey amount Drug Sereens. Urine Pretrial *3 Terminate of a condition testing as drug of imposition denied court trial the January On until she challenge did not she which interlocutory ap- This motion. Steiner's Pre the test. to to submit instructed was peal ensued. new to the objected Harvey had sumably, Decision hearing, and Discussion reduction her bond at condition at kept her bail would the court I. Waiver condi therefore, the by accepting $25,000; the matter, address we initial As an propriety to its objecting not and tion waived that Steiner contention State's her, Harvey re to offered it was when the random of propriety the challenge to drastically lower aof the benefit ceived aas by the court imposed present was the issue By the time bond. because bond continued her of condition already court, Harvey had the trial ed to at her that condition object to did not she violated and had test take the to refused its conten of support In hearing. initial us leading bail; thereby, her of condition to attention our directs tion, the State does a defendant "[wlhen to note (Ind.Ct. State, 254 N.E.2d 751 Harvey v. trial to the objection an bring properly "that concluded we in which App.2001), court trial the so attention court's trial the object when to failure Harvey's time, appropriate it at the upon may rule testing as drug random imposed court possible have waived to is deemed she subsequent waived probation of (citing Brown Id. at 259 error." appel well as testing, as to such objections (Ind.Ct.App.1992)). N.E.2d at N.E.2d issue." of late review al- however, had case, Steiner In this cireumstances However, find that we time objec jail by the of of out ready bonded surrounding the screening Harvey drug in imposed conditions trial court the bail tion to did not that are those Steiner from of bond. a condition readily distinguishable as object to failing us. from advantage before in the case an receive present hearing be- initial her at the condition to was the defendant Harvey, Stein- bond. already posted had she cause feet of within in cocaine dealing sereens drug numerous to er submitted felony. A a class complex, housing family to Terminate Motion filed her she before felony of this consequence aAs at 256. Id. did Steiner Drug Sereens. Urine Pretrial Harvey's bond set charge, screens, and drug to to submit not refuse to not able Harvey was $25,000. Id. of her the revocation until not wait she did incarcer- being amount, after post this at- she certainty before a near months, Har- ten approximately ated In- condition. of the propriety tacked Id. reduction. for bond a motion vey filed trial court's to the brought stead, Steiner reduced hearing, At the per- she to what objection attention $2,500but also to Harvey's bond of amount Steiner ongoing error. an as ceived testing drug to to submit Harvey required ample opportuni- court with vided day Id. of bond. a condition as future appropriateness on the ty to rule hearing, pre-trial final Harvey's There- of bail. a condition as take immediately Harvey to brought her that Steiner fore, find we take Harvey refused drug test. challenge to drug future sereens at an presence in court or physical safety appropriate time and conclude that Steiner or the community. did not waive her challenge 85-83-8-8.2(a2)(8) Ind.Code (emphasis sereens a condition of her bail. added). This provision catch-all provides Statutory II. Authorization for that a trial court can impose any other Imposing Conditions of type of condition for bail to assure a defen- Bail presence dant's in court protect or to argues that the trial court community if that condition is reasonable. erred in imposing drug screens as a condi Therefore, we address whether imposi- tion of her bail because the blanket use of tion testing as a condition of bail permitted tests is not by the statuto reasonable this case. *4 ry provision governing conditions of bail. In determining whether a trial Because we find Steiner's statutory argu court can impose drug testing as a reason ment to be dispositive, it is unnecessary able pre-trial condition of release we have for us to address the constitutional chal been referred to jurisdictions other that lenges against the sereens that Stein considered this same question. er also raises in her appeal. While we are not by bound decisions from The determination for imposing a foreign jurisdictions, it appropriate is to condition of bail in particular case is look to the decisions of jurisdictions other within the trial court's discretion and is that interpret statutory language that is reviewable for an abuse of that disere identical or of similar import. Tinsley, 496 tion. Tinsley v. 1306, 496 N.E.2d N.E.2d at 1308. The determination of 1308 (Ind.Ct.App.1986). However, the whether a restriction is "reasonable" as set conditions that a trial court may impose by out hinges statute in part on the when admitting an person accused to bail actual nature of the restriction. Where governed by statute. at the condition involves Fourth Amendment $ Indiana Code 35-33-8-8.2 governs the rights, the determination of what is "rea conditions that a trial court can order sonable" under the statute must factor in when admitting a defendant to bail. While rights. those Because the use of urine § Indiana Code 85-33-8-3.2 does spe drug sereens as a condition of bail impli cifically provide for of drug cates the constitutional protections against tests as a bail, condition of it does contain unreasonable seizures, searches and in de an omnibus clause that pertinent reads in termining what is a "reasonable restric part: tion" under Indiana Code 35-33-8-3.2 (a) A may admit a defendant to we turn to analysis of "reasonableness" bail impose any of the following employed by jurisdictions other in their conditions to assure the ap- defendant's discussion of the constitutional issues sur pearance stage legal rounding bail conditions. ceedings, or, upon a showing clear and convincing evidence that the Although general defen- assump poses dant physical risk danger to may very tion well be true that an individ person another or the community, to ual on bail who uses drugs is likely more to assure the public's physical safety: fail to appear at another stage of legal proceedings pose or to physical risk of
(8) Impose any other reasonable danger restric- or the communi tions designed to assure the ty, defendant's we find that the trial court must make
1028 lead that would introduced evidence determination individualized
an an individualized to make trial on bail while drugs to use likely is accused use would that Steiner restrictions determination place it is reasonable before trial. pending released contingen she was drugs while on based the individual on not reason- it was Therefore, find that we of a condition reasonableness cy. "[The random relationship impose court to upon able necessarily depends or crimes of Steiner's crime a condition to the condition of the and to its is trial court abused the defendant and that with which including his condition. background, ordering by the defendant's discretion In re conduct." criminal prior instruc- with and remand Thus, reverse we Cal.Rptr.2d 1133, 40 York, the condi- Cal.4th court vacate 9 that the tions (1995), quoted n. 10 P.2d sereens. imposing tion States, A.2d v. United Oliver instruc- with remanded Reversed Ullring, 741 (D.C.1996); also State see tions. denied, (Me.1999), cert. 1065, 1073 A.2d 2664, 147 L.Ed.2d 1232, 120 S.Ct. 530 U.S. FRIEDLANDER, J., concurs. testing as (2000). ordering separate BARNES, J., dissents de must *5 opinion. ba is a reasonable there whether termine arres- that assumption sepa- dissenting with apparent BARNES, Judge, sis for testing program into tees opinion. rate Berry v. District drug users. potential of majori- disagree with respectfully I (D.C.Cir. 1031, 1035 Columbia, F.2d ty's conclusion. likely more 1987). will testing program A 35-33-8-8.2(a) is Section Indiana Code if the reasonable found not be than It our state. for statute the bond treat testing and drug finds that may the court part, that vides, in relevant is an there when required ment are restrictions reasonable any other "impose arres- that an determination individualized pres- the defendant's assure designed to pending released while drugs use tee will maintains majority . .." The in Court. ence Oliver, A.2d at 193. Id.; also see trial. this defen- case with specific that in this based be suspicion should "Individualized that she submit dant, requirement use, such drug prior of on evidence made without testing pay for and self-reported or convictions drug-related determina- "individualized of a finding a F.2d at drug use." Berry, statutorily al- testing was that such tion" not reveal does record The lowable. to determine attempt made of illicit phenomenon The cultural cireum- facts particular whether well known and society is well in use our imposition justified this case of stances over majority opinion documented. of as a condition of case, the defen in this the fact looks misdemeanor accused of bail. Steiner the crime of with formally charged dant is however, rec- marijuana; of possession substance. controlled possession abuse history of substance no reveals ord sense, experience, common Common convictions prior any other nor by to make allow the statute history of aof evidence arrests. While case, that, specific in a ar- alcohol drug or determination prior use or of by a defen appear a failure danger of imposing basis proper would be rests use of escalates bail, dant no such potential as a controlled substance. Tinsley 3.2(a), to find that Cf. this (hold N.E.2d 1306 (Ind.Ct.App.1986) condition in this case with this charge ing the condition of persons ar pending is purview outside the of what the rested at theatre for engaging in allegedly statute contemplates. performance
obscene could go "on or about premises" theatre, was improper because it was not related to assuring per appearances
sons' legal future proceed ings).
I unable, am given the broad discretion afforded to trial judges § L.C. 35-33-8-