Drug Testing as a Community Custody Condition in Crimes Unrelated to Substance Use

Facts of the Case

Jasper James Nelson was charged with three counts of third-degree rape of a child, communication with a minor for immoral purposes, and second-degree child molestation, all crimes committed while not under the influence of illicit drugs or alcohol. He was sentenced to 87 months in prison. This sentencing was then suspended on conditions that he be placed in community custody, where he agreed to conditions that he not use alcohol or unprescribed drugs, and report for annual SSOSA review hearings. SSOSA was deemed appropriate because of Mr. Nelson’s “significant developmental delay” and his “accepting responsibility” for his actions. His SSOSA was later revoked because of violations unrelated to drug or alcohol use.

Mr. Nelson appealed and challenged several community custody conditions, including BA and UA testing to monitor his compliance with conditions prohibiting use of alcohol and unprescribed drugs. Mr. Nelson argued that “alcohol or controlled substances played no role in the underlying offenses” and that these conditions “impermissibly interfere with his constitutional right to privacy,” violating Article 1, Section 7 of the Washington Constitution (Nelson, p 911). Mr. Nelson based his challenge on an unpublished appellate court opinion in State v. Greer, 11 Wash. App. 2d 1023 (Wash. Ct. App. 2019), which indicated that community supervision conditions should be narrowly tailored to the specific offense of the conviction.

In an unpublished opinion, the court of appeals rejected Mr. Nelson’s constitutional argument and affirmed the revocation of his SSOSA. The court of appeals relied on State v. Olsen, 399 P.3d 1141 (Wash. 2017), stating that the conditions of UA and BA testing are valid because they are imposed to monitor compliance with valid probation conditions prohibiting use of alcohol or controlled substances. Although the appellate court noted that Mr. Nelson’s challenges were not ripe for review because he had not been required to undergo BA or UA testing and that he had not preserved the problem for appeal, the court exercised its “discretion in favor of reviewing” his challenges” (Nelson, p 912).

Mr. Nelson appealed to the Washington Supreme Court. The court granted review, in part, to review and reconcile conflicting case law from the lower courts.

Ruling and Reasoning

The Washington Supreme Court addressed two questions presented by Mr. Nelson: whether his challenge to the BA and UA testing was ripe for review and whether community custody conditions that authorize BA and UA testing are constitutional, even if they are not related to the crime.

As to the first question, the court found that Mr. Nelson’s pre-enforcement challenge to the BA and UA conditions were not ripe for review. The conditions of the community custody agreement cannot be deemed unconstitutional prior to their enforcement. The court found unconvincing Mr. Nelson’s argument that the BA and UA testing would be “conducted in an unreasonable manner” or “used impermissibly as part of a fishing expedition’” (Nelson, p 914, citing Olsen, p 1150). But the court decided to address the merits of his challenge because of the conflict between the lower court decisions.

As to the second question of community custody conditions, even those that are not crime related, the court reviewed prior rulings from the lower courts. The Olsen case had considered the privacy expectations of probationers, stating that persons on community custody have a reduced expectation of “enjoy[ing] constitutional privacy protection to the same degree” as those not serving a criminal sentence” (Olsen, p 1145). This lowered expectation of privacy is important in considering whether Article 1, Section 7 of the Washington State Constitution, which states “no person shall be disturbed in their private affairs, or their home invaded, without authority of law,” has been violated (Olsen, p 1145). The court agreed that the BA and UA testing do disturb an individual’s private affairs but that this disturbance is supported by the necessary “authority of the law.”

The necessary authority of law in this case is the original judgment and sentence that prohibited Mr. Nelson from the use of alcohol and drugs, which are statutorily authorized and do not need to be related to the crime to be imposed. Because the UA and BA testing are narrowly tailored for monitoring purposes of this condition, which was not questioned or appealed when imposed, they are deemed constitutional. This is consistent with Olsen, in which the court had recognized random UA testing as “a crucial monitoring toll that is limited in scope when imposed only to assess compliance with a valid prohibition on drug and alcohol use” (Olsen, p 1147).

The court acknowledged that random BA and UA testing does not necessarily reveal Mr. Nelson’s progress toward rehabilitation with respect to the crimes of conviction but states that the state has an interest in protecting the public, not just by preventing similar crimes but by ensuring that the person in community custody is willing and able to comply with all applicable legal requirements.

Last, the court commented on Mr. Nelson’s claim that random testing is unjustified because his community corrections officer (CCO) could instead conduct testing based on a “well-founded suspicion” that a violation has occurred. The court reasoned that random testing prevents individuals from planning ahead and avoiding detection; random BA and UA testing reveals a limited amount of private information when limited to monitoring for the presence of alcohol, marijuana, or nonprescribed drugs; and requiring reasonable suspicion would make it prohibitively difficult to monitor compliance. For the last point, the court said that requiring suspicion would compel CCOs to closely monitor all of the defendant’s actions and behaviors and could ultimately be more intrusive than random testing.