This paper explores the evidentiary standards
regarding the admissibility of the Soberlink
portable fuel cell alcohol testing device in
family law cases involving contested custody
and visitation. Our research establishes that
the test results are admissible as evidence of
alcohol use in such proceedings.
Evidence produced by fuel cell based portable
breathalyzers are most commonly used in
criminal cases. Family law cases are different.
The state is not a party and no allegation of
wrongdoing by a parent is required to initiate
a case. Nevertheless, concerns about alcohol
or other drug use impacting upon the safety
of a child frequently arise. Soberlink seeks to
address this concern as it relates to alcohol use
by making reliable alcohol testing possible at
home and at low cost.
The admission of technological evidence in
a court proceeding, in the majority of states,
is controlled by the United States Supreme
Court decision in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). However,
a minority of states still follow the earlier court
decision in Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). These two standards provide
guidelines for determining the admissibility
scientific evidence.
With the improvements in both computer and
fuel cell technology state courts have recognized
that portable fuel cell alcohol testing devices
meet both Daubet and Frye standards. In recent
years, an increasing number of appellate courts
have upheld the admission of portable fuel cell
test results in numerous proceedings
Soberlink is a comprehensive alcohol monitoring
system that combines a handheld breath alcohol
instrument with wireless connectivity for
real-time results and reports. The device has
innovative technology which includes facial
recognition to confirm identity, along with
tamper resistant sensors to ensure the integrity
of the breath tests.
The use of the Soberlink device is common in
family law courts across the United States. A
recent case, Murphy v. Murphy 2018 WL 1475587
(2018), found that it has authority to order
Soberlink alcohol testing over the objections of a
parent as Connecticut law required it in the best
interest of the child.
Our research establishes that the Soberlink device
is a reliable measurement instrument admissible
under both Frye and Daubert standards that can
accurately detect the presence of alcohol so long
as the proper foundation is established.
The admissibility of alcohol test results from the
Soberlink Device in Family Law Cases
December 2018
Judge peggy Hora (Ret.), David Wallace, Esq., and Judge Brian MacKenzie (ret.)
Executive Summary
Introduction
T
he purpose of this paper is to examine
the admissibility of Soberlink
technology in family law cases
involving contested custody and visitation.
The Soberlink device is a small handheld fuel
cell apparatus that measures breath alcohol.
1
Evidence produced by fuel cell based portable
breathalyzers are most commonly used
in criminal cases including in probation
violations hearings.
2
These breathalyzers
are widely used by law enforcement officials
to perform preliminary testing as part of
field sobriety tests when there has been a
stop for suspected driving while impaired
(DUI/DWI).
3
More recently, portable
breathalyzers have been used to monitor
alcohol use in juvenile dependency cases
as part of reunification plans.
4
They are
increasingly being used in family courts.
5
Family law cases are different. The state is
not a party and no allegation of wrongdoing
by a parent is required to initiate a case.
6
Nevertheless, concerns of one parent about
the safety of children while in the care of the
other parent frequently arise in family court
and often involve allegations of abuse of
alcohol and/or other drugs (AOD).
7
Family court judges routinely carry huge
inventories of cases and need to manage
overcrowded calendars. There is often very
limited time for hearings or trials
8
and
judges have few facts to go on other than
the testimony of the opposing parties, most
of whom are pro se.
9
It is not surprising
that family law judges seek some additional
factual data upon which they can determine
if a parent’s AOD use is really a problem, or
if an existing order restricting AOD use by a
parent is being obeyed.
Families with substance abuse issues may be
involved in multiple proceedings including
family law, dependency, and criminal cases.
In those instances, parents may be referred
to multiple services and family courts may
end up having a role to play in alcohol
assessment and monitoring, albeit different
from the criminal or dependency courts.
10
Some states include specific reference to
AOD use or misuse in their family law best
interest framework. For example, California
Family Code §3011 specifically requires
the court, “in making a determination of
best interest,” to consider “the habitual
or continual illegal use of controlled
substances, the habitual or continual abuse
of alcohol, or the habitual or continual abuse
of prescribed controlled substances by
either parent.”
11
New York’s Family Court
Act section 1046 provides guidance in this
area that focuses more on the connections
between AOD misuse and potential child
abuse and neglect.
12
It is not surprising that family
law judges seek some additional
factual data upon which they can
determine if a parent’s AOD use is
really a problem.
As a result, issues of AOD in contested
custody cases routinely get referred
to ancillary resources such as custody
mediators, psychological evaluators, or AOD
treatment providers in the community.
Orders based on resulting agreements of
the parties or recommendations from such
ancillary resources can result in orders that
are vague and unenforceable.
13
Some states
14
have enacted statutes that allow AOD testing
Page 2
of parents in family law; however, it is not
uncommon for such statutory authority to
impose serious restrictions.
15
Even when
testing is legally permissible, it can often
be costly and inconvenient.
16
Consequently,
many parents find it difficult to comply
with testing orders.
Soberlink seeks to address this issue as it
relates to alcohol use by making reliable
alcohol testing possible at home and at low
cost.
Admissibility Of Expert
Evidence
The use of experts in the courtroom roughly
coincides with the scientific revolution and
was not present in any form prior to the
seventeenth century.
17
A lay witness was
allowed only to provide testimony about
matters that they have experienced directly,
but an established expert could offer an
opinion to a court.
18
The only criteria for accepting an opinion
from an expert was the reputation and
qualifications of that expert.
19
This
simple criterion persisted throughout the
nineteenth century.
20
In response to rapid
advancements in scientific research in the
early twentieth century, the standards for
admissibility of expert evidence
21
began
to change radically resulting in 1923 in the
decision in Frye v. United States.
22
The Frye Standard
With Frye, courts recognized the necessity
of going beyond the qualifications of the
expert, and inquiring into the quality of
the underlying science.
23
The issue in Frye
pertained to polygraph test results. While
there was no question that the witness
was a qualified expert in administration
and interpretation of polygraphs, the court
determined that the reliability of polygraph
results had not been sufficiently established
in the scientific community to warrant its
admissibility as expert evidence. In making
this ruling the court required that the
substance of the expert’s testimony must be
derived from a well-recognized scientific
principle which is sufficiently established
to have gained general acceptance in the
particular field to which it belongs. Seventy
years later, in 1993, the U.S. Supreme Court
set out a more rigorous standard for the
admissibility of scientific evidence in
Daubert v. Merrell Dow Pharmaceuticals, Inc.
24
The Daubert Standard
The court in Daubert recognized that the
body of scientific research had become
enormous in almost all fields. By expanding
the standard of admissibility, scientific
evidence could be admissible even though
it had not met the “general acceptance”
criteria of Frye.
25
The court made it clear
that “general acceptance’ was not a
precondition of admissibility. In so doing,
however, a rigorous standard of analysis
was established in an effort to ensure the
validity and reliability of the proffered
evidence.
This analysis is to be conducted by trial
judges acting as gatekeepers to ensure that
expert testimony is truly scientific – that
is, derived through the scientific method.
Page 3
The Soberlink device has been
found to be more accurate than
EtG testing, with a higher testing
compliance rate.
Factors judges can consider in making that
determination are:
26
1. Whether the evidence generally
accepted in the scientific community;
2. Whether it has been in a peer-reviewed
publication;
3. Whether it has been tested;
4. Whether an error rate has been
established and is acceptable;
5. Whether research has been conducted
independently of the litigation, or
anticipation of the litigation.
Daubert established that reliability is
foundational to admissibility, and therefore
could not be left to the trier of fact simply as
a matter of weight. Two other U.S. Supreme
Court Cases followed addressing expert
testimony.
In G.E. v. Joiner,
27
the court reviewed the
erroneous admission of expert testimony
and held that when there is no connection
between the science relied on by the expert
and the conclusion of the expert, it cannot
be admitted. The court held that if scientific
testimony is erroneously admitted the
standard of review is abuse of discretion.
In Kumho v. Carmichael,
28
the court held
that although Daubert dealt specifically
with scientific testimony, the gatekeeping
function of the judge applies to all expert
testimony, whether scientific or non-
scientific.
In 2000, one year after the decision in
Kumho v. Carmichael, the Federal Rules of
Evidence (FRE) were amended to codify the
holdings of the three Daubert cases. It was
amended again in 2011 to further clarify the
requirements.
29
Under FRE 702
30
an expert’s opinion must
be of a scientific, technical or specialized
subject that requires specialized knowledge.
The opinion must be based on sufficient
facts or data, shown to be the product of
reliable principles and methods, and that
the expert relied on these principles and
methods to reach the opinion.
The majority of states have accepted the
Daubert standard. Only a minority
31
still
apply some form of the Frye standard.
Portable Fuel Cell
Breathalyzer Technology
With the rise of automotive travel in the
United States, traffic crashes caused by
individuals who were impaired became an
increasing problem.
32
Partly in response,
Emil Bogen developed a device to test for
breath alcohol in 1927.
33
By 1954 technological
advances led to the development of the first
breathalyzer.
34
However, widespread use of
breathalyzers, along with the admission of
their results, did not emerge until decades
later.
35
In 1970, a New York trial court in People
v. Morris admitted results of an early
breathalyzer.
36
In order to reach this result,
the prosecution offered expert testimony
in support of the accuracy of the device.
37
This laborious and costly trial process
quickly drove a legislative response which
created a regulatory process that allowed
for the admission of breath testing results
without the requirement of an expert
witness.
38
These regulatory schemes
generally consisted of requirements that the
breathalyzer model was approved by a state
agency, have certification of calibration,
a trained operator and an adherence to
proper machine maintenance and testing.
39
As a result, portable fuel cells did not see the
regulatory requirement to test for Breath
Page 4
Alcohol Concentration (BrAC)
40
and the
results were initially limited to preliminary
testing conducted in the field by law
enforcement.
41
In fact Preliminary Breath
Test (PBT) results were banned from being
used as evidence of BrAC in a criminal trial
by statute in most states.
42
For example, in 1996, the court in
Commonwealth. v. Allen
43
stated that while
results of the preliminary breath tests were
admissible to show probable cause in a DWI,
the device did not measure with certainty
the amount of alcohol consumed. The court
said the PBT would only be admissible if it
was conducted by a qualified person on an
approved device.
44
Many other state courts
imposed a variety of restrictions on the
admissibility of BrAC results based upon
state legislation.
45
With the improvements in both computer
and fuel cell technology these legislative
restrictions became limited to impaired
driving cases. In a 1994 case, the City of
Westland v. Okopski,
46
the court held that the
results of a fuel cell PBT test were admissible
for the limited purpose of impeaching
defendant’s testimony about alcohol use.
In State v. Beaver,
47
the court held that
Wisconsin law did not bar admissibility of
PBT results in trial for sexual assault. The
court said that the statutory bar on the
evidentiary use of PBT results was limited
to violations of the motor vehicle code.
In 2009, the North Dakota Supreme
Court in State v. Lemley,
48
relying on expert
testimony, held that a fuel cell device
(from an ankle bracelet) established that
the Daubert standards for reliability and
the results of the test were admissible in
a probation violation hearing.
49
The court
noted that the device did not measure the
amount of alcohol consumed, only the
presence of alcohol.
50
More recently, courts have made findings
that portable fuel cell technology is
admissible to establish BrAC under Daubert.
In 2011, a Federal District Court in Fischer v.
Ozaukee
51
issued a Writ of Habeas Corpus,
finding that the Wisconsin Supreme Court
had erred in finding the results of PBTs
inadmissible at trial.
In a 2018, another Federal District Court
in United States v McAdams,
52
found a law
enforcement officer’s handheld PBT results
admissible to establish the defendants BrAC
in an impaired driving case in Yosemite
National Park under Daubert.
These cases are not limited the to majority
of states following the Daubert standard.
States applying the Frye standard have
also found handheld fuel cell devices to be
admissible.
In People v. Halsey,
53
a case involving the
unlawful consumption of alcohol by a
minor, the court acknowledged that while
the PBT results would be inadmissible under
the Illinois Vehicle Code, the restriction
only applied to offenses under that section
and not other types of proceedings. The
Court stated: “We hold that PBT results
are admissible in evidence…. Thus, the
trial court erred in suppressing evidence of
defendant’s PBT results. While PBT devices
are less regulated than evidential devices
… no suggestion has been made that they
Page 5
Soberlink is a comprehensive
alcohol monitoring system that
combines a handheld breath
alcohol instrument and a digital
imager, with wireless connectivity
for real-time results and reports.
are inherently unreliable. Evidence that
is relevant to an issue in a case should be
admitted, provided a proper foundation is
laid for its admission, unless its admission
would contravene statutory law or some
established rule of evidence.”
54
In People v Jones
55
a New York trial court
also found that the results of a fuel cell PBT
device met the Frye standard for admissibly
as to BrAC. In reaching this decision the
court expressly rejected earlier rulings
that excluded BrAC evidence. The court
found that once a portable breathalyzer
was identified on the National Highway
Traffic Safety Administration’s (NHTSA)
list of approved breath testing devices, it
was unnecessary for the prosecution to
lay a foundation to establish the device’s
accuracy and reliability.
Adopting the reasoning of Jones, the court in
People v. Hargobind
56
held that the inclusion
of a portable breath-testing device on the
NHTSA approved list leaves no question as
to its scientific accuracy.
The California Supreme Court in People v.
Williams
57
allowed results of portable breath
tests to establish BrAC into evidence. The
court held the portable breath test was
admissible as the machine was properly
functioning and administered correctly by
a qualified individual.
In People v. Wilson
58
another court, following
Williams, held that portable breath test
results were admissible if the prosecution
could meet the foundational requirements.
The court noted although a portable breath
test may not be the equivalent of a chemical
test in an impaired driving case, it could be
utilized to prove a defendant’s guilt.
Soberlink Device
Soberlink is a comprehensive alcohol
monitoring system that combines a
handheld breath alcohol instrument and a
digital imager with wireless connectivity for
real-time results and reports.
59
The device
has innovative technology which includes
facial recognition to confirm identity, along
with tamper resistant sensors to ensure the
integrity of the breath tests.
60
These sensors can detect if a breath
sample is consistant with human breath.
Inconcistantcies are flagged for further
human review to determine if tampering
has occurred.
61
The facial recognition technology is used
to confirm an individual’s identity during
each breath test.
62
If the software cannot
identify the person then the image is sent to
a 24/7 monitoring station for review.
63
If the
identity still cannot be confirmed, then the
identity is declined for that test and alerts
will be sent out.
64
The Soberlink device also has a patented
retest system that allows up to seven
data points to evaluate a single drinking
incident.
65
In the event of a positive test,
the monitored individual is prompted to
retest every 15 minutes until either there is
no longer a positive test or six retests have
been submitted.
66
The device locks down
so it cannot be used for 15 minutes after
each positive test.
67
This prevents a positive
test result due to incidental exposure to
alcohol (i.e., mouthwash). Mouth alcohol
Page 6
The use of the Soberlink device
is common in family law courts
across the United States.
will dissipate during the 15-minute waiting
period and prevent a report of a positive
test.
68
Test results are wirelessly transmitted in
real-time to Soberlink’s cloud-based web
portal.
69
The web portal also can be used to
create custom testing schedules, as well as
providing specific testing notification and
automated report settings.
70
In 2016, the Soberlink Cellular Device was
cleared by the Food and Drug Administration
(FDA) as a Class 1, substantially equivalent,
medical breathalyzer device.
71
In order to
be cleared as a medical device it had to be
manufactured under a quality assurance
program, be suitable for the intended use, be
adequately packaged and properly labeled,
and have establishment registration and
device listing forms on file with the FDA.
72
Having met all the requirements, the
Soberlink device received 510(k) premarket
clearance from the FDA for medical use,
quantitatively measuring alcohol in human
breath.
73
The FDA clearance itself discusses a clinical
study, reported in the U.S. Library of
Medicine, on the effectiveness of Soberlink
devices.
74
In the clearance, the FDA compared
the Soberlink device to a professional
portable fuel cell breathalyzer that meets
the requirements of the Department
of Transportation (DOT)/NHTSA for a
personal breath alcohol screening device.
75
The FDA stated the study was “to determine
if intended [lay] users – untrained study
participants - who had consumed alcohol
could correctly use and interpret the device
using only the supplied instructions.
….(P)articipants took their breath alcohol
reading with the candidate device and
recorded the result. Immediately afterward,
the participants were administered a breath
alcohol test using the...device.”
76
The FDA
found the Soberlink device was statistically
equivalent to the professional portable fuel
cell breathalyzer.
77
The FDA then looked at DOT comparisons
between another predicate
78
device and the
Soberlink device. It found: “DOT Testing
was conducted in accordance to the NHTSA
Docket No. 2008-0030 published in 73 FR
16956. This testing included accuracy and
repeatability of the Soberlink Cellular Device
in comparison to the predicate device…. The
Soberlink Cellular Device passed all testing
stated above as shown by the acceptable
results obtained.”
79
The Soberlink Device uses a professional
grade fuel cell sensor made by Dart
Sensors.
80
Dart Sensors is the largest
original equipment manufacturer of fuel-
cell technology and is used widely in law
enforcement testing.
81
Dart Fuel Cell
sensors meet approval standards at all levels
including police use and for interlocks.
82
The Dart manufactured Soberlink’s Fuel-
Cell Sensor has an Accuracy Tolerance: +/-
.005 and does not need to be recalibrated
until 1,500 tests are submitted.
83
The Soberlink device has been found to be
more accurate than ethyl glucuronide (EtG)
testing, with a higher testing compliance rate
and results that are available immediately.
84
The results of testing are included in an
email and/or text message which is sent to
whomever the court or parties designate
to receive the information.
85
The message
includes the person’s breath alcohol content
along with date and times.
86
Family Law Cases
The use of the Soberlink device is common in
family law courts across the United States.
87
In 2018, the trial court in Murphy v. Murphy
88
Page 7
Whether a state follows Frye,
Daubert or a hybrid of the two, it
is clear that testing device results
are admissible for the purposes of
probation violation hearings or to
determine violations.
as evidence in probation violation hearings.
These results can also be admitted into
evidence at a hearing or trial in a family law
case when a proper foundation is laid.
The beneficial use of fuel cell breathalyzers
such as Soberlink in the diagnosis and
treatment of alcohol use disorder (AUD) has
been well documented and enthusiastically
accepted in the substance use disorder
treatment community.
91
Conclusion
The technology underlying the Soberlink
device has gained acceptance in the field
of research on alcohol use detection. The
results from its fuel cell sensor is accepted in
impaired driving and juvenile dependency
cases with courts ruling that it is admissible
under Frye and Daubert standards. Soberlink is
increasingly accepted for use in family courts
in contested custody cases. The reliability of
the accuracy fuel cell breathalyzer technology
used by Soberlink has been established
through repeated testing and publication
in peer reviewed journals.
92
Reported
error rates are within an acceptable+/-.005
range.
93
Published research by forensic
experts supports evidentiary use of fuel
cell breathalyzers.
94
Soberlink is a reliable
measurement instrument admisible under
both Frye and Daubert standards that can
accurately detect the presence of alcohol so
long as the proper foundation is established.
ordered the father to abstain from alcohol
prior to visitation with the children and
ordered testing using Soberlink to monitor
for the presence of alcohol. The court found
that it has authority to order Soberlink
alcohol testing over the objections of a
parent under Connecticut General Statutes
§46B-56C allowing drug screening to be
ordered if it is in the best interests of the
children.
The trial court in K.M.M. v. K.E.W
89
allowed
a party seeking custody to enter previous
Soberlink testing results into evidence at
trial to establish she was not a problem
drinker.
In Miler v. Nery,
90
the Supreme Court
of Maine upheld the trial court’s order
requiring the father in a contested custody
case to monitor alcohol use with the
Soberlink device.
Soberlink employs fuel cell technology that
has been used in preliminary tests by police
officers in DWI cases and can be admitted
Page 8
Endnotes
1. Soberlink Court Validation https://www.soberlink.com
2. Sorbello, Jacob, Devilly, Grant, Allen, Corey, Hughes, Lee, Brown, Kathleen, “Fuel-cell
breathalyser use for field research on alcohol intoxication: an independent psychometric
evaluation,” US National Library of Medicine, National Institutes of Health (2018). See
also, Workman, Thomas, “The Science Behind Breath Testing for Ethanol,” University of
Massachusetts Law Review (March 2014).
Soberlink is a reliable
measurement instrument
admissible under both Frye and
Daubert standards that can
accurately detect the presence
of alcohol.
3. Id.
4. Grossmann, David, Hon., Portley, Maurice, Hon., “Juvenile Delinquency Guidelines:
Improving Court Practice In Juvenile Delinquency Cases,” National Council of Juvenile and
Family Court Judges (2005). For example: In re Haylee G. CA2/7, B262771 (Cal. Ct. App. 2015).
5. For example, see: State of Louisiana in the Interests of C.K, 2016 CJ 0305, Louisiana Court of
Appeals, First Circuit (2016); Whorley v. Whorley, 29A05-1611-DR-2637, Court of Appeals Indiana
(2017); In re: Interest of Breanna, A-17-003 through A-17-007, Court of Appeals Nebraska (2018); In
re: Interest of S.H. 05-17-00336-CV, Court of Appeals of Texas, Fort Worth (2017).
6. With the exception of requests for domestic violence orders of protection.
7. Based on data from the combined 2009 to 2014 National Surveys on Drug Use and Health,
about 1 in 8 children (8.7 million) aged 17 or younger lived in households with at least one parent
who had a past year substance use disorder (SUD). SUDs are characterized by recurrent use of
alcohol or other drugs (or both) that results in significant impairment. About 1 in 10 children (7.5
million) lived in households with at least one parent who had a past year alcohol use disorder.
About 1 in 35 children (2.1 million) lived in households with at least one parent who had a past
year illicit drug use disorder.
8. Resource Guidelines for CA family courts - Judicial Council of California.
9. Deborah J. Chase, Pro Se Justice and Unified Family Courts, 37 FLQ 403 (2003).
10. See Heidi S. v. David S. 1 Cal.App.5th 1150 (2016): “Our Supreme Court has explained that
the juvenile court and the family court have different purposes and that different rules and
statutes govern each court. (In re Chantal S., supra, 13 Cal.4th at pp. 206, 208, 210.) In Chantal
S., the Supreme Court held that the juvenile court had the authority to issue an exit order
indefinitely requiring the parent to participate in a counseling program even though the matter
subsequently proceeded to the family court, which only had the authority to require counseling
limited to one year. (Id. at pp.200, 208.) Relevant to this case, the Supreme Court explained,
“Courts are often placed in the position of enforcing orders of other courts, even though the
enforcing court could not have made the order in the first instance, or would not have present
authority to issue the precise order.”
11. CAL. FAM. CODE §3011: In making a determination of the best interest of the child in a
proceeding described in Section 3021, the court shall, among any other factors it finds relevant,
consider all of the following:
(d) The habitual or continual illegal use of controlled substances, the habitual or continual
abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by
either parent. Before considering these allegations, the court may first require independent
corroboration, including, but not limited to, written reports from law enforcement agencies,
courts, probation departments, social welfare agencies, medical facilities, rehabilitation
facilities, or other public agencies or nonprofit organizations providing drug and alcohol
abuse services. As used in this subdivision, “controlled substances” has the same meaning
Page 9
Page 10
as defined in the California Uniform Controlled Substances Act, Division 10 (commencing
with Section 11000) of the Health and Safety Code.
12. NY Family Court Act §1046 (iii): “proof that a person repeatedly misuses a drug or
drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of
producing in the user thereof a substantial state of stupor, unconsciousness, intoxication,
hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a
substantial manifestation of irrationality, shall be prima facie evidence that a child of or who
is the legal responsibility of such person is a neglected child except that such drug or alcoholic
beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily
and regularly participating in a recognized rehabilitative program.”
13. Examples are:
“Either parent may deny the other parent access to the minor child if that parent is under
the influence of drugs or alcohol and constitutes a threat to the safety and well-being of the
child when they arrive for visitation.”
“Father must not consume alcoholic beverages, narcotics, or restricted dangerous drugs
within 24 hours prior to or during periods of time with the child.”
“Neither parent shall drink excessively during their custody period.”
“Neither parent shall permit any third party to consume alcoholic beverages, narcotics, or
restricted dangerous drugs (except by prescription) in the presence of the child.”
14. For example see: Cal. Fam. Code §3041.5; see also California Administrative Office
of the Courts, Center for Family, Children & the Courts, Drug and Alcohol Testing in Child
Custody Cases: Implementation of Family Code Section 3041.5/Final Report To The California
Legislature, (July 2007).
15. For example, see Cal. Fam. Code §3041.5 which mandates that no alcohol testing in
a family court case be ordered except upon a judicial determination by a preponderance of
evidence, that the parent to be tested has engaged in habitual and continued abuse of alcohol.
If drug testing is ordered, it must be by the least intrusive method, and must be in conformance
with the procedures and standards established by the United State Department of Health and
Human Services (DHHS). These guidelines do not apply to alcohol testing. See also, Deborah M.
v. Superior Court 128 Cal. App.4th,1181, (2005), finding that DHHS only allows for urine testing
for drug use. Under FC3041.5, any alcohol testing results are strictly confidential and fines are
authorized for unpermitted dissemination. Further, FC3041.5 states that “a positive test result,
even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody
or guardianship decision. See Heidi S. v. David H., 1 Cal. App. 5th, 1150 (2016), holding that FC
section 3041.5 “contains no restrictions on the court’s power to alter visitation, as opposed to
custody or guardianship, based on positive test result.
16. The parent being tested is often required to pay for testing, and the testing itself can be
inconvenient. Examples of family law orders for alcohol testing are:
“Mother shall submit to 12 random alcohol tests at times determined by the testing provider.”
“Father shall submit to random alcohol testing for a period of 3 months, times to be
determined by the tester.”
17. Shuman, D.W. The origins of the physician-patient privilege and professional secret. 39
Southwest Law Journal, 39, 661-669 (1985). See also, Golan, Tal, “The History of Scientific Expert
Testimony in the English Courtroom,“ Science in Context , pp 7-32 (1999).
18. Id.
19. Id.
20. Shuman, D.W. & Sales, B., Admissibility of expert testimony based upon clinical
judgment and scientific research. Psychology, Public Policy and Law, 4, 1226-1252 (1998).
21. Frye decision reflected views held by legal realists of the time such as Karl Llewellyn and
Jerome Frank in its attention to science and empirical investigation.
22. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
23. Id.
24. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993)
25. Id.
26. Id.
27. General Electric Co. v. Joiner, 522 U.S. 136 (1997)
28. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
29. https://www.law.cornell.edu/rules/fre/rule_702
30. https://www.rulesofevidence.org/article-vii/rule-702/
31. California, Illinois, Maryland, Minnesota, New Jersey, Pennsylvania, New York and
Washington.
32. Okorocha, Okorie, “Alcohol Breath Testing: Is there Reasonable Doubt?” Syracuse
Journal of Science and Technology Law, (February 2013). https://www.researchgate.net/
publication/235417097
Page 11
Page 12
33. Id.
34. Id.
35. King, Josephine and Tipperman, Mark, “The Offense of Driving While Intoxicated: The
Development of Statutory and Case Law in New York,” Hofstra Law Review, Vol. 3 No. 3 (1975).
36. Id.
37. Id.
38. Id.
39. Giangrande, Mark and Peters, Angela, Breath Alcohol Machines: Evidence Foundation
Requirements in Illinois, 22 J. Marshall L. Rev. 1 (1988).
40. Breath Alcohol Concentration (BrAC) should be equivalent to Blood Alcohol
Concentration (BAC).
41. Giangrande, Mark, Supra.
42. Id.
43. Commonwealth. v. Allen, 454 Pa. Superior Ct. 73 (1996)
44. Id.
45. City of Westland v. Okopski, 527 N.W.2d 780 (Mich. Ct. App. 1994)
46. Id.
47. State v. Beaver, 181 Wis.2d 959, 970 & n. 5, 512 N.W.2d 254 (Ct.App.1994)
48. State v. Lemley, 774 N.W.2d 272 (2009)
49. Id. See also Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009) where the court
held that the fuel cell technology used in a bracelet device was admissible under Daubert in a
probation violation hearing to show the presence of alcohol.
50. Id.
51. Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (D. Wis. 2011)
52. United States v McAdams, No. 6:16-MJ-0063-MJS (E.D. Cal. Apr. 16, 2018)
53. People v. Halsey, 652 N.E.2d 434 (Ill App Ct. 1995)
54. Id.
55. People v Jones, 2011 NY Slip Op 21250 (33 Misc 3d 1810, July 18, 2011)
56. People v. Hargobind, 908 N.Y.S.2d at 806 (2012). But see People v. Aliaj, 946 N.Y.S.2d 430
(Sup. Ct. 2012). The court acknowledged that other trial courts in New York have been applying
different standards regarding the admissibility of PBT tests, and proposed a variety of factors
that should be considered before such portable test results may be admissible. The court said,
with the proper foundation a PBT test result would be admissible however the officer’s testimony
was insufficient.
57. People v. Williams, 49 P.3d 203 (Cal. 2002)
58. People v. Wilson, 8 Cal. Rptr. 3d 167 (2003)
59. Soberlink Court Validation, Supra.
60. Id.
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Id.
67. Id.
68. Id.
69. Id.
70. Id.
71. See United States Department of Health and Human Services, Food and Drug
Administration, k160613 Trade/Device Name: Soberlink Cellular Device Regulation Number:
21 CFR 862.3050 Regulation Name: Breath alcohol test system Regulatory Class: I, Reserved
Product Code: DJZ (July 2016).
72. Id.
73. Id.
74. U.S. Library of Medicine, Study: NCT02544581, Preliminary Analysis of the Soberlink
Alcohol Breath Analyzer System’s (SABA) Clinical Utility During Aftercare.
75. See: https://www.bactrack.com/products/bactrack-s80-pro-breathalyzer
Page 13
Page 14
76. FDA. k160613 supra.
77. Id.
78. For purposes of determining substantial equivalence, the legally marketed device is
commonly referred to as the “predicate device” or “predicate.”
79. Id.
80. Soberlink Court Validation, Supra. The Dart 11 mm premium sensor is created for
frequent use. https://www.dart-sensors.com/wp/wp-content/uploads/2014/10/BA-R-Sensor-
Datasheet.pdf
81. Id.
82. Id.
83. Id.
84. Skipper, Gregory, Thon, Natasha, DuPont, Robert, Thomas, Campbell, Michael,
Weinmann, Wolfgang, Wurst, Freidrich, “Cellular Photo Digital Breathalyzer for Monitoring
Alcohol Use: A Pilot Study,” European Addiction Research, (2013).
85. Roberts, Christina, ”Custody Evaluations and Chemical Dependency: Soberlink
and Sobriety.” (2016) https://www.linkedin.com/pulse/custody-evaluations-chemical-
dependency-soberlink-robert-phd-lmft/
86. “Soberlink Helps Prove Abstinence in Child Custody Battles” (2012). https://www.
soberlink.com/soberlink-helps-prove-abstinence-in-child-custody-battles/
87. For example, see footnote 5.
88. Murphy v. Murphy, 2018 WL 1475587 (2018). Superior Court of Connecticut Judicial
District of Stamford-Norwalk at Stamford, (Feb. 2018)
89. K.M.M. v. K.E.W, 539 S.W. 3d 722. Missouri Court of Appeals, Eastern District, Division
One, (October 3, 2017)
90. Miller v. Nery, 173 A. 3rd 147 (2017)
91. Alan Gordon, M.D., Adi Jaffe, Ph.D., A. Thomas McLellan, Ph.D., Gary Richardson,
MBBCh, Gregory Skipper, M.D., Michel Sucher, M.D., Carlos F. Tirado, M.D., MPH, and Harold
C. Urschel III, M.D., “How Should Remote Clinical Monitoring Be Used to Treat Alcohol Use
Disorders?: Initial Findings From an Expert Round Table Discussion,” J Addict Med Volume
11, Number 2 (March/April 2017); See also Soberlink published of treatment partners at https://
www.soberlink.com/alcohol-treatment-partners-and-resources/
92. Nayak L. Polissar, Ph.D., Wassana Suwanvijit, Ph.D., and Rod G. Gullberg, M.S., PStat,
The Accuracy of Handheld Pre-Arrest Breath Test Instruments as a Predictor of the Evidential
Breath Alcohol Test Results, J ForensicSci, Vol. 60, No. 2 (March 2015). Online at: https://
docksci.com/the-accuracy-of-handheld-pre-arrest-breath-test-instruments-as-a-predictor-of-
th_5a7ef49bd64ab217985167b4.html; See also: Jacob G. Sorbello, Grant J. Devilly, Corey Allen,
Lee R.J. Hughes, and Kathleen Brown, Fuel-cell breathalyzer use for field research on alcohol
intoxication: an independent psychometric evaluation, PeerJ vol. 6, (2018).
93. Soberlink.com
94. Nayak L. Polissar, et. al. supra.
Page 15
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