This appeal results from a trial court hearing at which the appellant's probation was revoked.

On April 18 1972 the appellant (Ewing) was arrested for a violation of the Uniform Narcotic Drug Act IC 1971 35-24-1-1 et seq. Ind. Ann. Stat. SEC. 10-3519 et seq. (Burns Supp. 1973). Ewing entered a plea of guilty and on September 21 1972 received a sentence of two to ten years imprisonment and fine and costs of $300.00. The trial Court suspended the sentence *fn1 and placed Ewing on one year's probation under the following conditions:

"CONDITIONS OF PROBATION

1. You shall not commit another criminal offense either felony or misdemeanor.

2. You shall report weekly to Court probation officer.

3. You shall notify the probation office of your new address within twenty-four hours if you change your address from that listed below.

4. You may not remove your residence from Marion County without first obtaining permission from the Court.

5. You must not associate with any person who is likely to influence you to commit any crime.

6. You may not use alcohol unless in a lawful manner and you may not use drugs unless prescribed by a physician.

7. You shall attend school or obtain and keep regular employment.

8. You shall permit the probation officer or any other law officer to enter

your home and make reasonable inquiry into your activities while on probation.

9. You agree to waive extradition to the State of Indiana and agree to voluntarily return to this State and appear before Court when so ordered by Court.

10. You shall pay the sum of $ --- per --- for --- until a total of $ --- is paid in full as ordered by Court.

11. You shall pay the sum of $ --- per week for support of your family through the Clerk of this Court.

12. You shall pay the sum of $ --- fine and costs within --- days from this date. fn1

13. --- During the period of probation if it shall appear to Court that the Defendant has violated any one of the conditions of his probation or that he has committed another offense whether charged and determined or not Court may revoke the suspended sentence and impose an executed sentence. Following the period of probation and within the maximum period of the original sentence not to exceed five (5) years if it shall appear to Court that the defendant has been convicted of committing another offense Court may revoke the Suspended sentence and impose an executed sentence." These conditions were acknowledged by Ewing and his Counsel.

Additionally Court required Ewing's consent to supplementary special conditions applicable only to drug offenders:

"SPECIFIC RULES FOR DRUG RELATED OFFENSES ONLY Sentence Suspended on recommendation of the State of Indiana and upon the request of the defendant. Defendant specifically waives any and all of his rights as to search and seizure under the laws and constitutions of both the United States and the State of Indiana during his period of probation. Defendant further specifically agrees to appear at the offices of the Probation Department of this Court at any time upon 24 hours notice to submit to urinalysis. Defendant is placed on probation for a period of one (1) year upon the following terms and conditions:

1. That he behave well.

2. That he submit to searches of his person and property by any police officer at any time.

3. That he report to the Probation Department of this Court at any time upon 24 hours notice to submit to urinalysis."

Approximately one month later on October 31 1972 Ewing was arrested for possession of a narcotic drug. There is no indication of record that Ewing's arrest was related to his probationary status. However on the following day Lt. Goden of the Indianapolis Police Department recognized Ewing as a probationer and notified the probation department. Ewing then submitted to a urinalysis which according to a lab report dated November 3 disclosed the presence of morphine. The probation department filed a probation violation report with the trial court.

On November 10 1972 a probation revocation hearing was conducted before the trial court. The prosecution presented two lab reports showing that a substance in the possession of Ewing at the time of his arrest was heroin and that he had traces of morphine in his urine several hours after the arrest. It was also adduced at the hearing that Ewing had been arraigned on this subsequent charge but had not proceeded to trial.

After receiving all evidence the Court stated:

[".so in view [of] the evidence that I have heard today more specifically on the results of the test on the urine that is a clear violation of the terms of probation and I am going to revoke for that reason and the reason that he was apprehended and one of the conditions of probation was that he not commit another crime. We have heard evidence today that he was in possession of heroin so for both of those reasons the suspended sentence heretofore entered is now revoked . "

The appellant presents the following issues for consideration:

1. Whether probation can be lawfully revoked on mere evidence that appellant committed a crime absent a conviction thereof.

2. Whether the trial court can impose special probation conditions supplemental to the general probation conditions upon persons convicted of drug and drug related offenses.

3. Whether the trial court can impose probation conditions which require an involuntary future waiver of appellant's constitutional rights against unreasonable search and seizure and self-incrimination.

I

CONVICTION NECESSARY TO PROBATION REVOCATION BASED UPON CRIMINAL ACTS

Appellant contends that the trial court unlawfully revoked probation on mere evidence that appellant committed a crime and that a conviction for the subsequent offense is a pre-requisite to revocation. This contention would meritoriously preponderate if in fact commission of a subsequent crime was the sole basis for revocation. However appellant's probation was revoked on dual grounds. We therefore examine both.

Probation should initially be recognized as a statutory sentencing alternative committed to Court's discretion by the legislature. The empowering statute states in pertinent part and subject to exceptions not here relevant that a suspended sentence or probation should be granted:

" whenever such court in the exercise of its judgment and discretion shall find and determine that such person has committed the offense for which he or she has been convicted under such circumstances as that in the judgment of such court such person should not suffer the penalty imposed by the law for such offense if he or she shall thereafter behave well or whenever such court shall find and determine that by reason of the character of such person or the facts and circumstances of such case the interest of society does not demand or require that such person shall suffer the penalty imposed by law if he or she shall thereafter behave well." IC 1971 35-7-1-1 Ind. Ann. Stat. SEC. 9-2209 (Burns Supp. 1973) Therefore the courts are at liberty to grant or deny probation subject to the procedures and guidelines promulgated by the legislature or inferred from statutory intendment. State ex rel. Gash v. Morgan County Superior Court (1972) 258 Ind. 485 283 N.E.2d 349; Farmer v. State (1971) 257 Ind. 511 275 N.E.2d 783.

A necessary concomitant of the power to grant probation is the power to revoke probation. Revocation unlike the initial grant of probation is however subject to certain limiting circumstances. The legislature in 1927 promulgated the seminal revocation provisions and committed revocation power to Court's discretion as follows:

"At any time within the probation period the probation officer may arrest the probationer without a warrant or Court may issue a warrant for his arrest. Thereupon the probationer shall forthwith be taken before Court for hearing. At any time within the maximum period for which the defendant might originally have been committed but in no case to exceed five (5) years Court may issue a warrant and cause the defendant to be arrested and brought before Court. If it shall appear that the defendant has violated the terms of his probation or has committed another offense Court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed." (Emphasis supplied) Ind. Ann. Stat. SEC. 9-2211 (Burns 1956)

The above revocation statute was materially amended in 1967 and now provides in similar pertinent part:

"At any time within the probation period the probation officer may arrest the probationer only upon warrant issued by the sentencing court. Thereupon the probationer may be represented by Counsel of his choice. At any time within the maximum period for which the defendant might originally have been committed but in no case to exceed five (5) years Court may issue a warrant and cause the defendant to be arrested and brought before Court. If it shall appear that the defendant has violated the terms of his probation or has been found guilty of having committed another offense Court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed." (Emphasis supplied) IC 1971 35-7-2-2 Ind. Ann. Stat. SEC. 9-2211 (Burns Supp. 1973)

It is apparent that the legislature by its 1967 amendment intended to require a criminal conviction prior to revocation of a suspended sentence or probation predicated upon commission of another offense. State ex rel. Gash v. Morgan County Superior Court supra.

In the Gash case our Supreme Court reviewed the revocation of a defendant's suspended sentence and stated that the statutorily imposed general condition of

"'good behavior' means lawful conduct i.e. abstaining from criminal acts.

" Id. 283 N.E.2d 354. The court thus held:

"If the revocation is for breach of the general condition of good behavior there must have been a determination of guilt between the date of suspension and the date of the revocation hearing." 283 N.E.2d at 355.

The clear import of the revocation statute and the Gash decision leads inevitably to the conclusion that revocation of a suspended sentence or probation solely by reason of unlawful conduct i.e. commission of another crime must be preceded by a criminal conviction. *fn2

In addition to the statutory condition of "good behavior" the trial court may impose upon a probationer "conditions as it may deem best" and may thereafter revoke probation for violation of such additional conditions. IC 1971 35-7-2-1 Ind. Ann. Stat. SEC. 9-2210 (Burns 1956). *fn3 However if the additional condition violated is one requiring refrainment from criminal activity then a criminal conviction for such activity is required prior to probation revocation. See e.g. Smith v. State (1974) 261 Ind. 510 307 N.E.2d 281 (probation revoked for subsequent criminal conviction).

In the instant case it is apparent that Court revoked Ewing's probation on two grounds: first the alleged commission of another crime; and second the presence of a narcotic substance in Ewing's urine. To the extent that the trial court based appellant's probation revocation on the commission of another crime it was in error. However the action of a trial court will be affirmed if it can be sustained on any theory. Cain v. State (1973) 261 Ind. 41 300 N.E.2d 89. We must therefore review the other basis for revocation to determine if there exists justification for the trial court's action.

II

(A) TRIAL COURT MAY IMPOSE SPECIAL PROBATION CONDITIONS FOR DRUG RELATED OFFENSES

The appellant contends that it is impermissible for the trial court to impose special probation conditions on persons convicted of drug and drug related offenses which are in addition to or different from the conditions imposed upon other offenders. This contention is pallid in substance.

It is fundamental that probation should be granted only where the best interests of society and the individual are served. See IC 1971 35-7-1-1 Ind. Ann. Stat. SEC. 9-2209 (Burns Supp. 1973). In the exercise of its discretion the trial court is required to balance the individual's rehabilitation needs with society's paramount interest in protection from future criminal behavior. See e.g. Gagnon v. Scarpelli (1973) 411 U.S. 778 93 S.Ct. 1756; Roberts v. United States (1943) 320 U.S. 264 64 S.Ct. 113; Burns v. United States (1932) 287

U.S. 216 53 S.Ct. 154; Porth v. Templar (10th Cir. 1971) 453 F.2d 330; see also Comment The Parole System 120 U. Pa. L. Rev. 282 at 307 et seq. (1971); Note Judicial Review of Probation Conditions 67 Colum. L. Rev. 181 (1967). This tight-rope walk constitutes the essence of the trial court's determination of fitness for probation.

A necessitous corollary to a grant of probation is the imposition of probation conditions. These conditions should effectuate the supervision required to achieve probation goals and therefore must be functionally and rationally related to the probationer's rehabilitative needs and to society's prophylactic interests.

Court in Porth v. Templar supra stated:

"The sentencing Court has a broad power to impose conditions designed to serve the accused and the community. The only limitation is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. The object of course is to produce a law abiding citizen and at the same time to protect the public against continued criminal or antisocial behavior." 453 F.2d at 333.

The appellant impliedly argues that imposition of special conditions on a narcotic offender violates his right to equal protection of law. Simply stated the appellant would have us engage in jurisprudential duplicity. The manifest goals of probation and the need for individualistic treatment seem to sanction if not compel the imposition of special probation conditions on defendants convicted of certain types of crimes. In the instant case the need for differential treatment is patent. Narcotic abuse is a pervasive and damaging force in our society and presents a unique legal problem due to its psychological and physiological ramifications. It would therefore follow that narcotic related crimes are deserving indeed demanding of special and particularistic judicial treatment -- including the imposition of distinctive and meaningful probation conditions so long as they are reasonable having due regard to the nature of the offense the rehabilitative needs of the offender and the surrounding circumstances. The appellant's contention in this regard therefore must fail.

(B) RESULTS OF URINALYSIS CONSTITUTES REAL OR PHYSICAL EVIDENCE AND UNDER CIRCUMSTANCES HERE WAS ADMISSIBLE IN REVOCATION HEARING

The appellant asserts the unconstitutionality of the special probation conditions. More specifically the appellant contends that these conditions require an involuntary future waiver of his constitutional rights against unreasonable search and seizure and self-incrimination.

An analysis of the facts however reveals that appellant's attack upon the validity of the narcotic related probation conditions even if meritorious does not render revocation of his probation erroneous. *fn4 Neither the appellant nor the record discloses that the narcotic conditions although perhaps facially questionable have prejudiced the appellant.

In the instant case the appellant was arrested on October 31, 1972 for possession of heroin and was duly incarcerated. The record is devoid of facts suggesting that appellant's arrest was predicated on his probationary status. The following morning a urine sample was obtained from him. This urine sample contained a residue of morphine and the lab report of the sample was introduced into evidence at the revocation hearing. Such facts indicate that the propriety of the urinalysis test does not depend upon the special probation conditions but may be founded upon Ewing's arrest for an independent drug offense.

The question thus presented is whether the results of a urinalysis conducted while in lawful custody are admissible in a probation revocation hearing.

A urinalysis can be readily categorized as a test for "real or physical" evidence and is not dissimilar to a blood test or breathalyzer test. Davis v. District of Columbia (1968 D.C. Ct. App.) 247 A.2d 417. See 22 A C.J.S. Criminal Law SEC. 645(3).

The law permits the utilization of such physical evidence over objections that the results violate the Fifth Amendment privilege against self-incrimination. Schmerber v. California (1966) 384 U.S. 757 86 S.Ct. 1826 16 L.Ed.2d 908; Heichelbech v. State (1972) 258 Ind. 334 281 N.E.2d 102; Rowe v. State (1973) 157 Ind. App. 283 299 N.E.2d 852.

In Hollars v. State (1972) 259 Ind. 229 286 N.E.2d 166 our Supreme Court definitively stated:

"The 5th Amendment privilege against self incrimination has been held to reach only compulsion of the accused's communications and responses which are also communications that is evidence in the form of testimony or that which is testimonial in character. It does not shield against compulsory submission to tests that are merely physical or produce evidence that is only physical in nature such as fingerprints measurements voice or handwriting exemplars or physical characteristics or abilities." (Citations omitted) 286 N.E.2d at 168.

Similarly a suspect's submission to tests for physical evidence have not been viewed as an unreasonable search and seizure if the officer reasonably believes that the evidence will be destroyed or dissipated and if the test or examination is reasonable in scope and method. Schmerber v. California supra; see Adams v. State (1973) 260 Ind. 663 299 N.E.2d 834. In the case before us it is apparent the reasonableness standard elucidated in Schmerber has been met. It is a physiological fact that narcotic drugs like alcohol will diminish or disappear as the human body eliminates it from the system. Furthermore the urinalysis process so far as the record shows was free of coercion and consisted of a rather routine bodily function.

There can be little doubt that if real or physical evidence obtained under such circumstances is admissible in a criminal trial that it is admissible in a probation revocation hearing.

Turning to the instant case we note that Condition 6 of the general probation conditions states:

"6. You may not use alcohol unless in a lawful manner and you may not use drugs unless prescribed by a physician." *fn5

Therefore under the facts of this case the trial court did not abuse its discretion in revoking appellant's probation for violation of that general probation condition.

The action of the trial court stands affirmed.

Buchanan and White JJ. concur.