Winter 2016: The Benefits of Remote Breathalyzer Testing in Custody Disputes

By Meredith DeJesus            

Custody disputes are often some of the most challenging cases that Family Law practitioners face in the Commonwealth.  Often heightening an already difficult situation is the introduction of substance abuse into the fact pattern of any custody dispute.  For years, the Probate and Family Court has dealt with allegations of substance abuse by requiring the accused parent to undergo court imposed treatment conditions, including mandated drug testing, verification of attendance at counseling sessions and self-help recovery meetings, and communication with treatment providers.  In the Massachusetts Probate and Family Court, the Probation Department is generally charged with monitoring compliance with these treatment conditions.

Urine testing often falls short in providing accurate or useful results when dealing specifically with alcohol abuse.  The EtG Urine Alcohol Test checks for the presences of the ethyl alcohol metabolite, ethyl glucuronide, in the presence of the test-taker’s urine.  The EtG test claims to detect the test-taker’s ingestion of alcohol within the past 80 hours following his or her consumption.  Frequently, a judge will issue an order requiring EtG testing/alcohol screening for a certain period of time, while linking the test-taker’s parenting time to the maintenance of “clean screens.”  Assuming the test-taker has passed all such tests, the Court may then reinstate or beneficially alter the test-taker’s parenting time. 

The most common issue arising out of EtG testing, however, is the unreliability of such testing.  A simple Google search provides test-takers with a myriad of methods to essentially “beat the test,” many of which involve the consumption of large levels of water prior to such testing.  Dig deeper and you will find testimonials of test-takers throughout the country claiming that they were “drunk” the night before testing, but “passed with flying colors” after ridding their body of detectable levels of EtG.  Probation officers admit that the testing is not foolproof and are aware that there are methods to effectively “beat the system” at testing time.  Complicating matters further, basic discovery on the test-taker often demonstrates the test-taker’s frequent and repeated bank debits and credit card charges at the local liquor store, despite a record of clean screens.             

EtG testing is truly problematic in the sense that it can incorrectly support the Court’s conclusion that an alcohol dependent parent is fit to care for his or her child despite an undocumented continued dependency.  In the alternative, it also can make it difficult for a recovering parent to demonstrate his or her sobriety if the testing itself is constantly challenged by the other parent.  So what is a possible solution to dealing with this regular, recurring and troublesome issue in custody disputes? Answer:  mobile monitoring.            

Soberlink and Paymer Associates (through Behavioral Interventions, Inc.) offer methods of self-administered mobile alcohol monitoring that utilize cellular technology (the same technology used in law enforcement and workplace breathalyzers) to measure the test-taker’s Breath Alcohol Concentration (“BAC”).  Both companies electronically alert the test-taker shortly prior to testing that they are scheduled to perform a test within a certain time window.  The test-taker then blows into the portable alcohol breathalyzer device.  The device uses a globally trusted fuel censor to collect the test-taker’s BAC, while simultaneously taking a photo of the individual to confirm identity.  The breathalyzer then wirelessly transmits the test results to the cloud-based web portal, where instant alerts can be set up to notify “monitors” (e.g., counsel for both parties, probation officer, and even the non-test-taking parent) if scheduled tests are missed or late,  and/or if positive results have been detected.  Tests can be administered throughout the day, but both companies recommend that each test-taker be tested approximately two to three times per day.  If a positive test results, the system will prompt a test-taker to retest shortly thereafter.

Paymer Associates provides mobile testing by SL2 Remote Breathalyzer (“SL2”) throughout all 50 states.  The company represents that test-takers are responsible for the payment of a one-time $25 to $50 training and activation fee for the leased equipment, and thereafter, test-taker’s pay anywhere from $20 to $75 per week for testing.  Paymer Associates states that the cost associated with testing is determined based on a sliding scale relative to the individual test-taker’s ability to pay for the testing, together with the number of days per week that company is required to test.  A member of the Paymer Associates team stated that in some states the Department of Children and Families (“DCF”) has covered up to 100% of the testing costs where the test-taker has demonstrated an inability to afford the testing, but where DCF or the Court has determined that the testing is necessary.

In fashioning a proposed order or stipulation requiring such testing, it is important to include the following:

  1. The name and contact information of the test-taker;
  2. The name and contact information of all approved “monitors;”
  3. The schedule of testing, including the specific days and timing of testing in any given week;
  4. Reference to a parenting plan currently in effect;
  5. Method of payment for the testing;
  6. Effect on parenting time if a “confirmed positive” test is reported, e.g., indication that the test-taker’s parenting time will be immediately suspended until further review of the Court (so as to avoid the need for an emergency hearing);
  7. The duration of testing.
The real-time assurance associated with mobile monitoring testing sets a new standard for alcohol monitoring, providing peace of mind to the non-testing parent of a child in a custody dispute, while also enabling the test-taker the opportunity to prove his or her sobriety in a discreet and convenient manner.  Furthermore, mobile testing also offers a reliable method to secure the protection of a child’s best interests, specifically where safety is a major concern. 

Meredith DeJesus represents clients in complex family law matters and general civil litigation matters.  Her domestic relations practice includes divorce and separation proceedings, asset division, alimony modification, support and child care arrangements, paternity proceedings, child custody and visitation matters, removal cases and post-divorce modification.  In addition, Meredith routinely negotiates and drafts prenuptial agreements.  Meredith also serves as a volunteer in the Middlesex, Norfolk and Suffolk County "Lawyer for the Day" programs and is a volunteer Pro Bono lawyer for the Family Law Project of the Women's Bar Foundation.  Prior to joining SRBC, Meredith was a domestic relations associate at another Boston law office.