Court: Indiana Court of Appeals; December 30, 2009; Indiana; State Appellate Court
Jennifer Mogg pled guilty to operating a vehicle while intoxicated, receiving a suspended jail sentence contingent on probation conditions, including a ban on alcohol consumption. After admitting to violating her probation, the trial court extended her probation and mandated the use of a Secure Continuous Remote Alcohol Monitor (SCRAM) bracelet. Following further allegations of alcohol consumption indicated by positive SCRAM readings, the trial court revoked her probation. Mogg appeals this decision, raising two main issues: the trial court's discretion in admitting SCRAM evidence and the sufficiency of evidence for the probation revocation. The court concluded that the SCRAM readings were reliable, supported by expert testimony from Jeffrey Hawthorne, an electrical engineer and co-inventor of the SCRAM system. Hawthorne explained that the SCRAM bracelet measures transdermal alcohol, which lags behind blood alcohol concentration. The trial court found sufficient evidence to uphold the probation revocation, affirming its judgment.
Hawthorne provided testimony regarding the SCRAM bracelet, which transmits alcohol readings every thirty minutes to an AMS central computer via a modem in the user's residence. AMS technicians monitor and analyze this data, notifying the supervising probation office if alcohol consumption exceeds one drink per hour, with flags triggered only after three consecutive readings surpass a transdermal alcohol concentration (TAC) of 0.02, allowing for a margin of error. Users can explain positive readings due to possible environmental factors before conclusions are drawn. The SCRAM system is characterized as a semi-quantitative screening tool rather than a precise alcohol measurement device.
AMS ensures accuracy by testing and calibrating bracelets before use and conducting remote diagnostics. A study involving 839 events showed a high accuracy rate, with 62 true positives and only one false positive. Testimony from Joe Cook, a Total Court Services employee, confirmed that he received training from AMS on fitting the SCRAM II device, which was properly initialized for Mogg. The court admitted a violation report showing two confirmed alcohol consumption events for Mogg on specific dates.
To support the reliability of SCRAM results, the State introduced two studies. The Sakai study demonstrated no false positives in a controlled environment with SCRAM I but indicated it could detect approximately two standard drinks consumed. The second study by NHTSA found SCRAM I had no false positives at a BAC of 0.02, though it noted issues with false negatives and a decline in sensitivity over time. Hawthorne indicated that SCRAM II operates on the same principles as SCRAM I but is more compact.
Mogg did not present expert testimony to challenge Hawthorne's findings or the related studies concerning the SCRAM system. Instead, she submitted two documentary exhibits: a blog post by an unidentified author questioning SCRAM's reliability and a 2006 article by Judge Dennis N. Powers, which argued that SCRAM data lacked sufficient reliability for bond revocation hearings but did not contest the scientific validity of Hawthorne's testimony. Mogg testified she had not consumed alcohol on the days indicated by positive SCRAM readings and provided an affidavit from a friend who claimed to have seen her drinking only water on June 13, 2008.
On December 18, 2008, the trial court found that SCRAM's methodology had been tested, peer-reviewed, had a known error rate, adhered to operational standards, and was accepted in 46 states. The court determined that the scientific principles underpinning SCRAM were reliable, thus admitting Hawthorne's testimony regarding Mogg's monitoring results. Consequently, the court concluded that Mogg violated her probation by consuming alcohol in June and again from October 31 to November 1, 2008. On January 26, 2009, Mogg's probation was revoked, and she was ordered to serve her suspended jail sentence. Mogg's subsequent motions for sentence modification were denied, leading to her appeal.
In reviewing the admissibility of SCRAM readings, the standard of review for evidence in probation revocation hearings is an abuse of discretion. The Indiana Rules of Evidence do not apply, allowing courts to consider any relevant evidence with substantial reliability indicators. The absence of strict evidentiary rules emphasizes judges' roles in evaluating the weight and reliability of evidence presented. Hearsay can be admitted if deemed substantially trustworthy.
Expert scientific testimony in probation revocation hearings in Indiana is not governed by Rule 702(b) of the Indiana Evidence Rules, which requires a court to ensure the reliability of scientific principles underlying expert testimony. Nonetheless, such testimony must still demonstrate some level of reliability. The reliability may be established through judicial notice or by providing a sufficient foundation to convince the court of the scientific principles' reliability. The Indiana courts utilize the Daubert factors, which assess scientific reliability, in a manner that aligns with the requirements of Rule 702(b), though these federal guidelines are not binding in state evidentiary matters. The Daubert factors include testing capability, peer review, error rate, operational standards, and acceptance in the scientific community, though no single factor is determinative, and not all need to be present for evidence to be deemed reliable. The proponent of expert testimony carries the burden of proving that the scientific principles are likely reliable. In the context of Mogg's case, the SCRAM system was shown to be testable and reliable based on three studies, including one internal and two external studies. Although the studies focused on the SCRAM I device, expert testimony indicated that SCRAM II operates on the same principles, leading the trial court to find the studies relevant for assessing SCRAM II's reliability.
Hawthorne, a co-inventor of the SCRAM system and an employee of AMS, had a financial interest in his testimony regarding the system's reliability. However, the credibility of expert witnesses is determined by the trier of fact, and the trial court did not abuse its discretion in crediting Hawthorne's testimony about the SCRAM system’s reliability, which included SCRAM II, as it had undergone testing. Evidence indicated that the SCRAM system's testing results were subjected to peer review and published in reputable sources, such as the Sakai study in an alcoholism research journal and the NHTSA study by a public safety entity. Both studies identified an error rate for the SCRAM system that was not deemed problematic for false positives, with the AMS study reporting one false positive and the Sakai study reporting none. The NHTSA study indicated a greater issue with false negatives, supporting Hawthorne's claim that the system errs in favor of the wearer. Mogg raised concerns about the financial motivations behind the AMS studies; however, the appellate court does not reweigh conflicting evidence. The trial court was justified in concluding the SCRAM system's established error rate demonstrated reliability.
Additionally, the State provided evidence that the SCRAM system functioned correctly in Mogg's case, with testimony from Hawthorne about proper calibration and Cook confirming the correct fitting and operation of the SCRAM II bracelet. Mogg did not counter this evidence or show that external factors affected her positive readings. Although Mogg contended that the trial court's finding of reliability was unsupported due to insufficient peer review and scientific acceptance, not all Daubert factors must be present to establish scientific reliability. The NHTSA report recognized the limited literature on SCRAM's transdermal detection method, suggesting a lack of general acceptance, yet this alone did not necessitate exclusion of the SCRAM data in the trial court's findings, as general acceptance is not a prerequisite under Rule 702(b) or for probation revocation hearings.
The Sakai and NHTSA studies provided some peer review of the SCRAM system, but Mogg argued that the review was insufficient. Nonetheless, this concern relates to the trial court's discretion in evaluating the evidence, not its admissibility. The trial court ruled that the SCRAM data was reliable enough to demonstrate Mogg's alcohol consumption, which was relevant to her probation violation. It did not determine that SCRAM data is universally admissible for all purposes, citing that scientific validity can vary based on context. The court emphasized the necessity of a reliable foundational basis for admitting SCRAM data, particularly in showing alcohol consumption. Mogg's case did not present disputed reliability of the SCRAM system, as Mogg's expert did not contest its scientific principles.
In reviewing the sufficiency of evidence for probation revocation, the court upheld that the State must demonstrate violations by a preponderance of the evidence. Mogg's denial of alcohol consumption was deemed not credible by the trial court, which is within its purview to assess evidence. The positive SCRAM results were given appropriate weight, leading the court to affirm that sufficient evidence supported the conclusion that Mogg violated her probation terms.
The trial court properly admitted evidence from the SCRAM system regarding Mogg's alcohol consumption, affirming the court's finding that she violated probation terms. Consequently, Mogg's probation revocation is upheld. The court acknowledged that while the State claimed Mogg was also in arrears on court costs and fees, it found no willful violation of these financial obligations and did not consider them for the probation revocation. Under Indiana law, probation cannot be revoked solely for nonpayment of financial obligations unless there is evidence of willful failure to pay. The General Assembly has not legislated on the admissibility of SCRAM data in court. Additionally, the Indiana Criminal Justice Institute is tasked with preparing an annual report on the use of alcohol monitoring systems like SCRAM. The summary references a related case, In re Haynie, where the Indiana Supreme Court endorsed a disciplinary agreement involving the use of a SCRAM device as part of an attorney’s probation following an OWI conviction.
