Alcohol and Drug Testing (Probation Condition) Case Law in California

Alcohol Testing: In People v. Kiddoo (1990) 225 Cal. App. 3d 922, the court struck a probation condition that the defendant not possess or consume alcohol or frequent places where alcohol was sold after concluding that there was no connection between the probation condition and the defendant's conviction for methamphetamine possession. (Kiddoo, at pp. 927-928.) The court noted that because there was no evidence indicating that alcohol was related to the defendant's crime, and because alcohol possession and consumption and frequenting places where alcohol is sold are not illegal activities, "there is no factual indication in the record that the proscribed behavior, in the defendant's case, is reasonably related to future criminal behavior. (Id. at p. 928.) The People v. Balestra (1999) 76 Cal.App.4th 57 court criticized Kiddoo as being "inconsistent with a proper deference to a trial court's broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws." (Balestra, at p. 69.) However, as defendant notes, Balestra is distinguishable because the probation report in that case noted that the victim smelled alcohol on the defendant when the defendant came home, and the defendant admitted she had consumed "a couple of" glasses of wine on the night of the offense. (Id. at pp. 61-62.) Drug Testing Condition: The drug testing probation condition regulates criminal conduct. Since the use of illicit substances is criminal, a probation requirement that the probationer undergo testing for illicit substances relates to conduct that is criminal. (In re Kacy S. (1998) 68 Cal.App.4th 704, 710 upheld two minors' drug and alcohol testing probation condition where drug and alcohol use were not involved in minors' offense or social histories.) The court in Kacy S. reasoned that the drug testing condition "is designed to detect the presence of substances whose use by minors is unlawful. Thus, the testing ' "relates to conduct which is . . . in itself criminal." ' " (Id. at p. 710.) Since unauthorized possession of the substances pertinent to the drug testing condition is criminal for adults as well as for minors (see, e.g., Health & Saf. Code, 11377) the rationale in Kacy S. also applies to adult probationers. Since the drug testing condition imposed by the trial court relates to drug use that is otherwise criminal, the condition is valid under the second Lent factor. As noted in Balestra, the drug testing condition is intended to aid the probation officer in ensuring that the probationer comply with "the fundamental probation condition, to obey all laws." (People v. Balestra, supra, 76 Cal.App.4th at p. 69.)