State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2122

State of Minnesota,
Respondent,

vs.

Nathan Gregory Beltz,
Appellant.

Filed August 26, 2019
Affirmed
Rodenberg, Judge

Blue Earth County District Court
File No. 07-CR-11-4247

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H . Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Sche llhas, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Nathan Beltz appeals from an order revoking his prob ation and executing
a previously stayed sentence. He argues that the district cour t’s revocation determination
must be reversed because the state failed to prove by clear and convincing evidence that he
violated the terms of his probation. Alternatively, appellant argues that the need for
confinement does not outweigh the policies favoring probation. We affirm.
FACTS
After pleading guilty to first-d egree driving while impaired in 2012, the district
court sentenced appellant to 48 months in prison, stayed for se ven years during which
appellant was to be on supervised probation. Probation conditions included that appellant
attend and successfully complete the Blue Earth County Drug Court, abstain from the use
of alcohol, abide by remote electronic alcohol monitoring (REAM ), and obey all laws.
Because appellant’s driver’s license was restricted, Minnesota law prohibited him from
driving, operating, or being in physical control of any motor v ehicle that is not equipped
with a functioning ignition interlock device certified by the commissioner of public safety.
Minn. Stat. § 171.09, subd. 1(g) (2016).
Appellant successfully completed drug court in September 2013. In June 2016,
appellant admitted to consuming al cohol on two occasions in vio lation of his probation
conditions. The district court reinstated probation with the a dditional condition that
appellant have 90 days of electronic alcohol monitoring to verify that he was not drinking
alcohol. Appellant was cited for driving a motor vehicle witho ut ignition interlock on

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November 10, 2016, and he pleaded guilty to a resulting misdemeanor offense. Appellant
was also involved in a motor-vehicle collision in June 2017, re gistered a 0.07 alcohol
concentration after the collision, and later pleaded guilty to a gross-misdemeanor offense
for violating his driving restrictions.1 Appellant admitted that thi s constituted a violation
of his probation. The district court reinstated appellant to probation but ordered him to do
365 days of REAM, obtain and follow recommendations of a chemical-use evaluation, and
attend sobriety support meetings.
Probation filed another violation report on September 7, 2017, alleging that
appellant failed to submit to a r equired breath test on July 25 , 2017, and, later that day,
submitted a urine sample which t ested positive for alcohol. Th e report also alleged that
appellant failed to abide by REAM by twice failing to submit to alcohol testing.
Additionally, the report cited the violations for driving witho ut ignition interlock and
violating his driving restrictions.
Because appellant missed several REAM tests, probation moved a ppellant’s alcohol
monitoring to a secure-continuo us-remote-alcohol-monitoring (SCR A M ) s y s t e m , w h i c h
provides for continuous transde rmal alcohol testing through the use of an ankle bracelet.
Appellant signed an acknowledgement identifying that he understood it was a violation to
place anything between the SCRAM bracelet and his skin. In January 2018, probation filed
an addendum to the September, 7, 2017 report, alleging that app ellant tampered with the

1 A person who drives, operates, or is in physical control of a motor vehicle in violation of
the restrictions imposed in a re stricted driver’s license issue d to that person, and the
restriction relates to the possession or consumption of alcohol, or controlled substances, is
guilty of a gross misdemeanor. Minn. Stat. § 171.09, subd. 1(f) (2016).

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transdermal-testing bracelet. Bef ore the probation-violation h earing was held, probation
filed three more addenda to the September 2017 report, alleging additional violations for
failure to abstain from alcohol and noncompliance with alcohol monitoring.
A contested probation-violation hearing was finally held on August 28, 2018.2 The
district court heard testimony from probation agent Sara Crocke r and appellant, and
received four exhibits, including urine-test results from Corda nt Health Solutions, and
registers of actions from the court files. It also received letters from Midwest Monitoring
& Surveillance documenting tamper ing with, and alcohol presence detected by, the
SCRAM bracelet.
Crocker testified to the allege d probation violations leading u p to the filing of the
September 7, 2017 probation repo rt: (1) appellant admitted tha t, on June 29, 2016, he
failed to abstain from alcohol; (2) on July 25, 2017 and August 3, 2017, appellant failed to
abide by breath testing; (3) appellant provided urine samples o n July 25, 2017, and
August 14, 2017, that tested positive for alcohol; and (4) appe llant had failed to abide by
driver’s-license conditions in Ju ne 2017. Crocker testified to additional violations that

2 Appellant notes that, in the time it took him to “obtain an attorney, remove a biased judge,
and have a contested violation hearing, probation filed four addenda alleging new dates of
confirmed or possible use and no ncompliance with alcohol monito r i n g . ” T h e f i r s t
addendum was filed in January, before any scheduled hearing. Appellant failed to appear
at the probation-violation hearin g scheduled for February 8, 20 18. The hearing was
rescheduled for March 6, 2018. Four days before the hearing, a ppellant filed a notice to
remove the judge. A new judge was assigned on March 20, 2018. The district court granted
appellant multiple continuances, one of which was to obtain an expert that appellant never
obtained. The delay concerning which appellant comments in his brief was largely of his
own making. More importantly, the delay did not result in any prejudice to appellant; he
was able to remain on probation during the delay.

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occurred after filing the September 7, 2017 report, including that appellant tampered with
his SCRAM bracelet on seven occasions, failed to abstain from a lcohol on six different
days, and provided a urine sample that tested positive for alcohol.
Appellant objected to the introdu ction of the exhibits from Cor dant Health and
Midwest Monitoring on which Crocker’s testimony was based. Cro cker testified that she
believes appellant is a danger to the community and should be committed to prison.
Appellant testified that he has been active in addressing his a lcohol addiction.
Appellant also testified that he owns a cleaning company and th at the reports indicating
alcohol in his system resulted from his exposure to cleaning ch emicals. Cordant Health
provided a letter accompanying the urine test that tested posit ive for alcohol, explaining
that incidental exposure to ethyl alcohol may result in concentrations up to approximately
1,000 ng/mL of ethyl glucuronide (EtG) and 250 ng/mL of ethylsulfate (EtS), and that the
levels shown in appellant’s urine samples are “too high to be a ttributable to incidental
exposure.”3 One of the tests indicates tha t appellant’s EtG concentration w a s 4 7 , 0 2 4
ng/mL and the EtS was 7,422 ng/mL. Appellant attributed the SCRAM bracelet violations
to his work boots and the tight fit around the top of his sock.
The district court found that appellant did not appear to challenge the validity of the
alcohol-test results or the levels reported by Cordant, but rat her, argued that the positive
results are due to his incidental exposure to commercial cleaning chemicals. It determined

3 Cordant’s letter explained that EtG and EtS are specific bioma rkers for ethyl alcohol
(alcohol) exposure. There are two types of exposure that could result in positive EtG and
EtS results; voluntary consumption of alcohol-containing beverages, or incidental exposure
to substances containing ethyl alcohol such as commercial cleaning agents.

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t h a t C r o c k e r ’ s t e s t i m o n y w a s c r edible, Cordant produced reliabl e test results, and the
values reported for appellant’s EtG and EtS levels are “well above any expected values due
to exposure to cleaning chemical s.” The district court conclud ed that appellant did not
comply with required alcohol moni toring. It further found that the state proved the
probation violations by clear a nd convincing evidence, and that t h e v i o l a t i o n s w e r e
intentional and inexcusable. Finally, it found that the need for confinement outweighs the
policies favoring probation. The district court therefore revoked appellant’s probation and
sentenced him to 48 months in prison with 242 days credit for time served. It also imposed
a five-year conditional-release period.
This appeal followed.
D E C I S I O N
Appellant argues that the state f ailed to prove that he violate d the terms of his
probation. In order to revoke probation, the state must prove a probation violation by clear
and convincing evidence. State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008).
The determination to revoke proba tion rests within the broad di scretion of the
district court, and a reviewing court will not reverse absent a clear abuse of that discretion.
State v. Modtland , 695 N.W.2d 602, 605 (Minn. 2005). To revoke probation, a dis trict
court must (1) identify the specific conditions of probation that were violated, (2) find that
those violations were intentional or inexcusable, and (3) find that the need for confinement
outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn.
1980). In making the three Austin findings, district courts “must seek to convey their

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substantive reasons for revocation and the evidence relied upon.” Modtland, 695 N.W.2d
at 608.
Appellant claims that it was error for the district court to a dmit test results and letters
from Cordant Health and summaries from Midwest Monitoring becau se they are hearsay
evidence lacking demonstrated r eliability. But the rules of ev idence, other than those
concerning privileges, do not apply to proceedings for revoking probation. Minn. R. Evid.
1101(b)(3).
Appellant argues that, under State v. Johnson, 679 N.W.2d 169 (Minn. App. 2004),
hearsay statements must be necessary and reliable to be admissi ble without violating the
accused’s right to confrontation. We disagree with appellant’s characterization of Johnson.
There, we explained general Conf rontation Clause principles and hearsay rules, but
“conclude[d] that when the defendant has had ample opportunity to present evidence in a
probation revocation proceeding, t he rules of evidence do not p reclude admission of
hearsay evidence.” 679 N.W.2d at 174. Here, appellant had a full and fair opportunity to
present evidence and argue his position. Appellant also argues that Johnson requires that
a defendant must be able to expose potential flaws in the disputed evidence through cross-
examination. Johnson requires only that the defendant be afforded “th e opportunity t o
present evidence [to ensure] that the defendant can expose potential flaws in the evidence.”
Id. Here, appellant was afforded that opportunity.
Appellant also argues that it was error for the district court to admit the laboratory
results, summaries, and letters because they were based on scie ntific knowledge not
possessed by any witness available for cross-examination, and the agent testifying did not

8
provide sufficient information to demonstrate the documents’ re liability. Appellant cites
State v. Nowacki , 880 N.W.2d 396, 400 (Minn. App. 2016), arguing that scientifi c test
results that are not reliable ar e not admissible in probation-r evocation proceedings.
Nowacki is distinguishable. It held that evidence of a failed polygraph test was improperly
admitted at a probation -revocation hearing. Id. The reasoning of Nowacki—that a
probation violation must be proved by clear and convincing evidence, polygraph tests are
inadmissible in court proceedings because they have not been pr oved reliable, and
therefore, the results of an unreliable test cannot be clear an d convincing evidence of a
probation violation—indicates that its holding is limited. Id. The alcohol testing here is
unlike a polygraph. Alcohol testing has been determined reliable and is consistently relied
upon by courts. E.g., Hayes v. Comm’r of Pub. Safety, 773 N.W.2d 134, 138 (Minn. App.
2009), review denied (Minn. Dec. 23, 2009).
At the revocation hearing, the d istrict court stated that it “f inds that the letters and
summaries are sufficiently reliable to be admitted. I think it goes to weight.” This is
consistent with Johnson, which explains that “[t]he reliability of the hearsay evidence will
be weighed against other evidence and the risk of relying on un trustworthy hearsay
evidence will be greatly minimized.” 679 N.W.2d at 174. We se e no error in the district
court’s determination that the s tate proved appellant’s probati on violations by clear and
convincing evidence.
Appellant also argues that the need for confinement does not outweigh the policies
favoring probation. When addressing this Austin factor, district courts must consider that
the purpose of probation is reh abilitation and that revocation should be a last resort.

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Modtland, 695 N.W.2d at 600. The need for confinement outweighs the policies favoring
probation if one of three subfactors is met: (1) confinement i s necessary to protect the
public from further criminal ac tivity by the offender; (2) the o f f e n d e r i s i n n e e d o f
correctional treatment which can be most effectively provided if confined; or (3) it would
unduly depreciate the seriousness of the violation if probation were not revoked. Austin,
295 N.W.2d at 251.
Concerning whether the need for confinement outweighs the polic ies favoring
probation, the district court concluded that appellant is not amenable to continued probation
and that his continued alcohol use, coupled with driving motor vehicles without ignition
interlock, are serious public safety concerns.
Appellant argues that public safety concerns would be better addressed by requiring
that he attend treatment. In Austin, the supreme court explained that “appellant has been
offered treatment but has failed to take advantage of the oppor tunity or to show a
commitment to rehabilitation so it was not unreasonable to conc lude that treatment had
failed” and therefore determined that policy considerations required revocation. Id. Here,
appellant has been offered and has undergone treatment, but he continues to use alcohol.
This case is analogous to Johnson where the probationer was operating a vehicle after
drinking alcoholic beverages, which was “precisely why Johnson was on probation” in the
first place, and the supreme court concluded that the need for confinement outweighed the
policies favoring probation. 679 N.W.2d at 177. Appellant repeatedly violated probation
conditions directly related to why he was on probation. The district court was well within

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its discretion in determining th at the policies favoring revoca tion outweigh the policies
favoring probation.
Affirmed.