Objection to the Polygraph Condition in California

In Brown v. Superior Court (2002) 101 Cal.App.4th 313, the defendant objected to the polygraph condition imposed by the trial court mandating that the testing be at his own expense. (Id. at p. 321.) The reviewing court stated the following: "A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant's ability to pay and the amount of payment. Here, however, the requirement that the defendant pay for periodic polygraph testing is an integral part of polygraph condition 10(o) which requires the defendant to 'undergo periodic polygraph examinations at defendant's expense . . . .' As such, payment of the costs of the polygraph testing is not collateral, but a condition of probation. . . . Pursuant to section 1203.1b, however, before requiring the defendant to pay all or a portion of the reasonable costs associated with periodic polygraph testing, the court must make an inquiry and determination regarding his ability to pay, and issue a separate order for the payment of such costs. This order can be enforced through a civil action--not through contempt proceedings, or the threat, express or implied, of revocation of probation. " (Brown, supra, 101 Cal.App.4th at pp. 321-322.)