Executive Summary

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. 

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The 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 trials⁸ 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

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 states¹⁴ have enacted statutes that allow AOD testing 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. 

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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 evidence²¹ began to change radically resulting in 1923 in the decision in Frye v. United States.²² 

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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

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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.

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 702³⁰ 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 minority³¹ still apply some form of the Frye standard.  

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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 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. Allen⁴³ 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. Ozaukee⁵¹ 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 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 Jones⁵⁵ 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. Hargobind⁵⁶ 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. Williams⁵⁷ 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. Wilson⁵⁸ 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.  

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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. Murphy⁸⁸ 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.W⁸⁹ 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 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  

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Read the Full Report

The Admissibility of Alcohol Test Results From The Soberlink Device in Family Law CasesView the Report