Cochise Drug Testing, Constitutionality Of Prison-Mandatory Law Challenged

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(Photo by Tim Evanson/Creative Commons)

A Cochise County man sentenced to prison after his probation for a drug charge was revoked has asked the Arizona Court of Appeals to order a new revocation hearing, arguing that probation officers failed to follow state drug testing protocols and that the law mandating he be sentenced to prison is unconstitutional.

Robert Allen Brown is appealing a November 2019 ruling by Judge James Conlogue of the Cochise County Superior Court which sent the Benson man to 2.5 years in prison for possessing methamphetamine for personal use back in June 2018. The Arizona Attorney General’s Office has until June 1 to file a response with the court of appeals.

Court records show Brown, 60, has a string of minor felony convictions dating back to 1977. After he pleaded guilty to the possession of meth charge, Conlogue placed Brown on intensive probation supervision (IPS) for four years.

In Arizona, IPS requires probationers to obtain pre-approval from a probation officer for their place of employment, residence, and most activities outside their residence. IPS can also include mandated drug testing and treatment, and it requires probationers to maintain a crime-free lifestyle.

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According to court records, Brown successfully completed a residential treatment program in July 2019 and appeared to be doing well on IPS until late summer. On Sept. 30 his probation officer filed a petition to revoke probation, alleging there was “reasonable cause to believe” Brown recently used meth on two occasions.  The probation department submitted results of urinalysis tests to the court as evidence of the allegation.

Judge Conlogue held a hearing on the petition at which time Brown’s public defender objected to the admissibility of the test results due to concerns with the probation department’s urinalysis testing protocols. In the end, the judge ruled the testing “was reliable, there was no evidence of cross-contamination, and the procedure used by the officers was aimed at avoiding that.”

Conlogue then ruled that the “preponderance of evidence” showed Brown violated his probation conditions and revoked the IPS order. The judge then resentenced Brown for the 2018 drug offense, imposing a 2.5-year prison term, the presumptive or mid-point under Arizona’s sentencing guidelines.

At the time of sentencing, Conlogue noted that because Brown was on IPS, the judge “has no discretion but to sentence Mr. Brown to a term of imprisonment.”

That’s because a state law mandates a prison sentence, even if the judge believed reinstatement to IPS was the best option. The same prison-only sentencing option does not exist for violations of standard or unsupervised probation.

And that mandated prison term is the basis for one of the two arguments Brown’s court-appointed appellate attorney Xochitl Orozco makes in an April 20 appeal that seeks a new hearing on the alleged probation violations.

According to Orozco, Brown was sent to prison based on a “preponderance of the evidence” when the longstanding threshold for taking someone’s liberty has been “beyond reasonable doubt.” She cites a 2019 U.S. Supreme Court decision which held that anything less than a beyond reasonable doubt finding in a similar federal probation case “violates the Fifth and Sixth Amendments.”

The other part of Brown’s appeal involves the procedures followed by the Cochise County Adult Probation Department in conducting the urinalysis testing which was used as the evidence of his alleged drug use.

Orozco argues that Brown’s probation officers “did not comply with the Arizona Code of Judicial Administration, rendering the test results unreliable.” In support of that argument, Orozco cites the Arizona Constitution, which authorized the Arizona Supreme Court to establish requirements for alcohol and drug testing conducted by the state’s probation department.

Those requirements are spelled out in the Arizona Code of Judicial Administration (ACJA), which mandates several minimum standards that probation departments “shall adhere to.” The appeal, however, outlines several alleged violations of those standards in Brown’s case, and notes that under the ACJA, “all specimens be immediately discarded if there has been a breach of protocol or procedure.”

Although Brown was prosecuted by the Cochise County Attorney’s Office, the state is being represented in the appeal by Attorney General Mark Brnovich. Once a response is filed it will likely be several months before the court of appeals considers the case.

In the meantime, Brown remains in custody at the Arizona Department of Corrections pending the outcome of his appeal. His earliest release date is listed as September 2021.