FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

DAVID M. ADAMS    KAREN M. FREEMAN-WILSON
Noblesville, Indiana    Attorney General of Indiana

CHRISTOPHER L. LAFUSE
Deputy Attorney General
Indianapolis, Indiana

JOHN CRUMP,             )
                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 29A04-9912-CR-572
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

                         

As this court has said countless times, the granting of a conditional liberty is a favor and not a right. [citation omitted]. When a trial court grants a defendant probation in lieu of an executed sentence, the trial court is taking many aspects of the defendant's character into account. When the defendant commits a crime or violates a term of the probation, the trial court should be able to weigh that violation in its reevaluation of whether the defendant should be or should have been granted probation. … Once a defendant has been sentenced, the court may revoke or modify probation, upon a proper showing of a violation, at any time before the completion of the probationary period.

    Condition 14 of Crump’s probation states: “ YOU SHALL … Not consume alcoholic beverages or shall not enter into any establishment where alcoholic beverages are the primary product for sale.” (R. 165). It was found that Crump had consumed alcohol. Crump was serving his executed sentence of two years on work release at the Community Corrections facility and was not yet on probation when he consumed the alcohol. However, Crump was in his probationary period. Although Crump’s actual probation had not yet begun, a defendant’s “probationary period” begins immediately after sentencing. See Ashley, 717 N.E.2d at 928. The violation occurred after Crump was sentenced but before the conclusion of the probationary phases of his sentence. See id. Thus, Crump was in his probationary period. As previously stated, “[o]nce a defendant has been sentenced, the court may revoke or modify probation, upon a proper showing of a violation, at any time before the completion of the probationary period.” Gardner, 678 N.E.2d at 401.
    Finally, Crump argues that the trial court erred in not providing a written statement as to the evidence relied on and the reasons for revoking probation. In Hubbard v. State, 683 N.E.2d 618, 620-621 (Ind. Ct. App. 1997), this court held the following:

Due process requires a written statement by the fact finder regarding the evidence relied upon and the reasons for revoking probation. This requirement is a procedural device aimed at promoting accurate fact finding and ensuring the accurate review of revocation decisions. We have held that placing the transcript of the evidentiary hearing in the record, although not the preferred way of fulfilling the writing requirement, is sufficient if it contains a clear statement of the trial court's reasons for revoking probation.

Id. (citations omitted).
    A transcript of the fact-finding hearing as well as the Order of August 26, 1999, are in the record. At the hearing, the trial court heard witness testimony and was presented evidence to show that Crump violated a condition of his probation. The trial court held that “[b]ased on the evidence that I’ve heard here today, the Court does find that the Defendant by his consumption of alcohol has violated the conditions of Community Corrections and has also violated the terms of his probation.” (R. 438-439). The written Order of August 26, 1999, states the following:
Evidence received. The defendant is found to have violated conditions number 14 of his/her probation as set forth in the Information and condition 14C [sic] his community corrections placement as set forth in the Notice of Non-Compliance with Community Corrections Placement, and upon said evidence the Court finds that the defendant has in fact violated his/her probation and his/her community corrections placement.

(R. 267). Although not the preferred way of fulfilling the writing requirement, we find that the trial court adequately made Crump aware that the witness testimony and evidence presented established by a preponderance of the evidence that Crump consumed alcohol and violated his probation. Consequently, we find that the trial court did not err in revoking Crump’s probation.

Id. (citations omitted).
On August 26, 1999, the trial court held a fact-finding hearing on Crump’s violation of probation and the issues raised in the Community Corrections non-compliance report. Before the hearing, Crump was given a copy of the noncompliance report. At the hearing, the trial court heard testimony from Correctional Officer David Vice. Officer Vice testified that on March 27, 1999, Crump had an odor of alcohol on his breath. Also at the hearing, the State submitted and the trial court accepted into evidence the result of the breathalyzer test that showed Crump had a blood alcohol content of .16.
Crump’s violation of probation and his work release contract stem from the incident that occurred on March 27, 1999. As a condition of probation and of his work release contract, Crump was not allowed to consume any alcohol. On March 27, 1999, it was found that Crump had consumed alcohol, violating a condition of probation and his work release contract. On August 26, 1999, at a neutral hearing before the trial court, Crump was represented by counsel; he had an opportunity to be heard and present evidence; he also confronted and cross-examined adverse witnesses. See Id. at 1104.
Crump argues that he was not allowed counsel at the administrative hearing held by Community Corrections where he made certain incriminating statements. The Sixth Amendment right to counsel attaches only in criminal prosecutions, there is no such right in an administrative action. Davis v. State, 174 Ind.App. 433, 367 N.E.2d 1163, 1166 (1977). The hearing held by Community Corrections was administrative. Thus, Crump’s Sixth Amendment right to counsel had not attached. Furthermore, the Fifth Amendment right against self-incrimination does not apply to the obtaining of noncommunicative physical evidence. Davis, 367 N.E.2d at 1167. The privilege against self-incrimination is not violated by breathalyzer tests. Smith v. State, 496 N.E.2d 778, 784 (Ind. Ct. App. 1986). The odor of alcohol on Crump’s breath and the result of the breathalyzer test was noncommunicative physical evidence. This evidence was enough to establish by a preponderance of the evidence that Crump had consumed alcohol and, thus, violated a condition of his probation and work release contract.
For the aforementioned reasons, we find that Crump’s Fifth and Sixth Amendment rights were not violated.
Next, Crump argues that his work release contract is illegal in the following ways: 1) it permits Community Corrections to terminate participation in the program; 2) it violates the Fourth Amendment of the United States Constitution; and 3) it permits Community Corrections to remove earned credit time. Crump claims that because the work release contract is contrary to the law in three areas the entire contract is void. We disagree.
    Paragraph 11 of the work release contract states that “Hamilton County Community Corrections can terminate my participation in this program without notice, if I have any violations of the above conditions.” (R. 189). Crump claims that this portion of the contract violates Ind. Code § 35-38-2.6-5. Ind. Code § 35-38-2.6-5 states: “If a person who is placed under this chapter violates the terms of the placement, the court may, after a hearing, do any of the following: … Revoke the placement and commit the person to the department of correction for the remainder of the person's sentence.” On August 26, 1999, the trial court found that Crump violated conditions of his placement in Community Corrections and his probation. Because Crump had violated conditions of his placement in Community Corrections and his probation, the trial court revoked both and committed him to the Indiana Department of Correction. Even if Community Corrections initially revoked Crump’s placement in its facility, the final decision to revoke Crump’s placement was made by the trial court in accordance with Ind. Code § 35-38-2.6-5.
    Crump also claims that paragraph 13 of the work release contract is essentially a waiver of his Fourth Amendment protection against unreasonable search and seizure. Paragraph 13 states: “I agree to allow Hamilton County Community Corrections staff to make reasonable inquiries into my activities and shall submit to the search of my person and property, including motor vehicle, at any time.” (R. 189). Crump cites to Green v. State, 719 N.E.2d 426 (Ind. Ct. App. 1999). In Green, Green signed an agreement in conjunction with his work release program wherein he agreed to waive his “4th Amendment right with regard to a search and seizure by any law enforcement officer.” Id. at 429. The Green court held that a condition of work release that purports to require a participant to submit to a search or seizure without reasonable suspicion is overly broad. Id. at 430.
    The language in paragraph 13 of Crump’s work release contract does not require him to waive his Fourth Amendment protections as did the agreement in Green. Furthermore, in Cohn v. Strawhorn, 721 N.E.2d 342, 350 (Ind. Ct. App. 1999), this court held:
The constitutional rights of prisoners are limited by the fact of incarceration and valid penological objectives, including deterrence of crime, rehabilitation of prisoners, and institutional security. … When a prison regulation impinges on an inmate's constitutional rights, the regulation is nevertheless valid if it is reasonably related to legitimate penological interests and does not represent an exaggerated response to those concerns.

Admittedly, there are differences between prison inmates and work release participants. However, there are also similarities. Work release participants “are actually jail inmates who must return to the jail when not working or participating in other sanctioned activities.” Green, 719 N.E.2d at 430. Thus, a work release facility may find it necessary to impinge on an inmate’s constitutional rights to further its objectives of deterring crime, rehabilitating its inmates, and security.
Moreover, we find that Crump was not subject to an unreasonable search and seizure. On March 27, 1999, Crump deviated from the standard check-in procedure as administered by Community Corrections. Because of this deviation, Officer Vice went to Crump’s cell block and asked him to step out. At that point, Officer Vice detected an odor of alcohol on Crump’s breath. The odor of alcohol was enough to find that Crump had consumed alcohol and, thus, violated his work release contract and his probation. Detecting the odor of alcohol on a person’s breath does not constitute a search. Therefore, we cannot find that paragraph 13, as executed, violates Fourth Amendment protections, because the Fourth Amendment has not been implicated in the present case.
    Finally, Crump contends that paragraph 2 of his work release contract permits Community Corrections to remove earned credit time. Paragraph 2 states:
I understand that in addition to Judicial review, I will also be subject to administrative disciplinary action for failure to follow the Work Release disciplinary code and sanctions. I am subject to loss of privileges, loss of earned credit time, and additional in-house work details, as stated in the Hamilton County Disciplinary Code and Sanctions.

(R. 188). Crump cites to Campbell v. State, 714 N.E.2d 678 (Ind. Ct. App. 1999), reh'g denied. Campbell held that the deprivation or restoration of a person's credit time is a discretionary matter entrusted not to the courts but to the administrators of the Department of Corrections. Id. at 683-684.
    Paragraph 2 of the work release contract does not state that Community Corrections can take away earned credit time. It states that Crump is subject to loss of his earned credit time as stated in the Hamilton County Disciplinary Code and Sanctions. The Hamilton County Disciplinary Code and Sanctions is not supplied in the record, and the loss of earned credit time is not an issue before this court. Thus, we cannot determine whether Community Corrections is given the authority to take away earned credit time.
For the aforementioned reasons, we do not find that Crump’s work release contract is void. Consequently, we find that the trial court did not abuse its discretion in determining that Crump violated his work release contract, nor do we find that the trial court abused its discretion in revoking Crump’s placement with Community Corrections.