The court erred in imposing a drug testing fee (Pen. Code, § 1203.1ab) as a term of probation when the probationer was not ultimately convicted of a drug-related offense. Brooks was charged with unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)), possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Brooks pleaded no contest to the ammunition charge, and the court dismissed the remaining charges with a Harvey waiver. The court suspended a prison sentence and placed Brooks on probation with a term requiring Brooks to pay a drug testing fee of $7.00 per test. Brooks appealed, arguing that his conviction for unlawful possession of ammunition is not one of the offenses where a drug testing fee may be imposed. Held: Affirmed as modified. Penal Code section 1203.1ab provides that “[u]pon conviction of any offense involving the unlawful possession, use, sale, or other furnishing of any controlled substance . . . the court, when recommended by the probation officer, shall require as a condition of probation that the defendant shall not use or be under the influence of any controlled substance and shall submit to drug and substance abuse testing as directed by the probation officer.” The People argued that Brooks’ ammunition offense “involved” a controlled substance within the meaning of Section 1203.1ab, and additionally argued that Brooks’ Harvey waiver allowed the court to consider the underlying facts of the case, including the dismissed drug charges. The court disagreed, concluding that the plain meaning of section 1203.1ab authorizes imposition of a drug testing fee only when the probationer has been convicted of a drug-related offense. Because Brooks was not ultimately convicted of any drug-related offenses, the court was not authorized to impose the drug testing fee. The court struck this probation term and affirmed the judgment as modified.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070918.PDF