Divorces and alcohol do not mix. Sooner or later, one parent is going to ask that the drinker parent be forced to use some kind of breathalyzer technology to determine when and how much alcohol that parent is drinking.
These alcohol breath tests are intrusive and only set the drinking parent up to fail. Alcohol-breath tests should not be agreed to for their own sake. A hearing is required to order to order a breathalyzer test in Illinois.
How Do Alcohol Breath Tests Get Ordered In Illinois
One party to an Illinois divorce is going to make allegations about the other party’s drinking habits. Alcohol is usually totally irrelevant to the issues in a divorce…unless the parties have children.
If the parties to an Illinois divorce do have children, either parent’s drinking could be a danger to those children and, therefore, be an issue for the court to consider.
“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for one or more of the following:… requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time…constraints or conditions that the court deems necessary to provide for the child’s safety and welfare.” 750 ILCS 5/603.10(a)(5),(9).
A parent’s alcohol consumption (if any) must be proven to be a problem for the children.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
If a breathalyzer test does get ordered, that is only the beginning. The parent taking the breathalyzer test must now blow into an alcohol detecting devide on some prescribed basis. The other parent and/or their counsel must monitor the results of those tests.
If a breathalyzer test proves to be positive, what happens in an Illinois divorce?
Guardian Ad Litems Certify Alcohol Breath Tests In An Illinois Divorce.
Typically, a case so contested as to require an alcohol breath test before, during and/or after parenting time will also have a Guardian Ad Litem.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates” 750 ILCS 5/506(a)
“The guardian ad litem shall investigate the facts of the case.” 750 ILCS 5/506(a)(2)
Whatever the Guardian Ad Litem discovers, including the results of an alcohol breath test will be admitted as evidence…because there is no restriction on the evidence a Guardian Ad Litem can present.
“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)
Furthermore, the Guardian Ad Litem will make recommendations based on their findings that the court, most likely, will adopt.
“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child.” 750 ILCS 5/506(a)
If there is no Guardian Ad Litem in an Illinois divorce case where an alcohol breath test has been ordered (very possible in a post-decree case), then the results (or lack thereof) of an alcohol breath test must be presented via the Illinois Rules of Evidence.
Admitting A Breathalyzer Test Using The Rules Of Evidence In An Illinois Divorce
The results of an alcohol breath test is a statement being submitted for the truth of the matter asserted (the test taker was drinking). That is hearsay.
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “Ill. R. Evid. 801(c)
Hearsay cannot be admitted in an Illinois divorce proceeding.
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802
There are exceptions to this bar against hearsay. There must be some indicia of reliability to defeat the hearsay rule. For an alcohol breath test, that indicia of reliability would be the business record exception.
“The following are not excluded by the hearsay rule…[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11)” Ill. R. Evid. 803(6)
The proponent of a business record must establish, as a prerequisite to its admissibility, “(1) that the record was made as a memorandum or record of the act; (2) that the record was made in the regular course of business; and (3) that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter.” People v. Nixon, 2015 IL App (1st) 130132, ¶ 110, 394 Ill.Dec. 416, 36 N.E.3d 349.
While Illinois Rule of Evidence 803(6) provides the exception for the hearsay if there’s a business record as to the alcohol breath test’s regularity and uniformity, Illinois Rule of Evidence 803(6) does not provide an exception to the requirement that the evidence be authenticated.
Authentication is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a).
“The requirement of authentication or identification as a condition precedent to admissibility” Ill. R. Evid. 901(a).
“[S]ome business records are self-authenticating. But to be self-authenticating, a business record must be accompanied by a certification from the record’s custodian or a “qualified person” attesting to the three foundational requirements for business records [as described in People v. Nixon]” People v. Ramos, 103 NE 3d 427 – Ill: Appellate Court, 1st Dist., 6th Div. 2018
Illinois Rule of Evidence 902(11) describes what is necessary to make a breathalyzer test self-authenticating.
“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: …11) Certified Records of Regularly Conducted Activity. The original or a duplicate of a record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written certification of its custodian or other qualified person that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The word ‘certification’ as used in this subsection means with respect to a domestic record, a written declaration under oath subject to the penalty of perjury…. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.” Ill. R. Evid. 902(11) (eff. Sept. 28, 2018).
If the “written certification from the record’s custodian or other “qualified person” attesting to the three foundational requirements for business records…Self-authenticating business records do not require testimony at trial.” People v. Crump, 118 NE 3d 608 – Ill: Appellate Court, 3rd Dist. 2018
The documents indicating the alcohol breath tests failure can be submitted into evidence without anything but the proper written certification accompanying the test. Otherwise, those test results should not come in without some technician describing via in-court testimony how the tests work, when did the tests happen and why we know the test results are accurate.
In addition to proving that the blow was bad, you can also prove that the blow never happened by relying on the data from the breathalyzer company without using testimony.
“Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the opposing party shows that the sources of information or other circumstances indicate lack of trustworthiness.” Ill. Evid. R. 803(7) (eff. Jan. 25, 2023)
If you can rely on the report for results under Illinois Rule of Evidence 803(6), you can also rely on the report for a lack of results under Illinois of Evidence 803(7).
In fact, any standardized computer-based report can come into evidence if it meets the minimal certification standards.
“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:… (12) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the procedural requirements for Rule 902(11) certification. The proponent must also meet the notice requirements of Rule 902(11). (13) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the procedural requirements for Rule 902(11) certification. The proponent also must meet the notice requirements of Rule 902(11).” Ill. Evid. Rs. 902(12), (13) (eff. Sept. 28, 2018).
In the end, the divorce judge will decide what if the evidence of the good blow, bad blow or no blow is sufficient to be admitted into evidence.
“The admissibility of evidence rests within the discretion of the trial court, and its decision will not be disturbed absent an abuse of that discretion.” People v. Pikes, 998 NE 2d 1247 – Ill: Supreme Court 2013
What Happens After A Positive Breathalyzer Blow Is Admitted
If there has been a reliably positive indication that a parent was drinking when they should not have been drinking, that parent can expect the Illinois divorce court to order “a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time” 750 ILCS 5/603.10(a)(1)
If the original court order specifically required the parent NOT to drink in addition to taking the test (for some reason this is rare) the drinking parent may be in contempt of court.
Contempt of court is “conduct that defies the authority or dignity of a court.” Black’s Law Dictionary (11th ed. 2019)
The problem for court orders regarding alcohol is whether that contempt is civil or criminal.
“[C]ivil contempt is designed to compel compliance with a court order, criminal contempt is `instituted to punish, as opposed to coerce, a contemnor for past contumacious conduct.” e In re Marriage of Knoll, 2016 IL App (1st) 152494
“A valid [civil] contempt order must contain a purge provision, which lifts the sanction when the contemnor complies with the order.” Marriage of Knoll, 2016 IL App (1st) 152494 (citations and quotations omitted)
Well, the alcohol has already been drunk. The contemnor cannot go back in time (or throw it all up). So, there is no possibility of complying with the purge condition “do not drink alcohol.”
“[A] finding of civil contempt is not proper unless the ability to purge a contempt finding is within the power of the contemnor.” Marriage of O’Malley, 2016 IL App (1st) 151118
Any contempt charge against a parent who drank alcohol isn’t really coercing the parent to not drink alcohol but is punishing the parent for drinking alcohol.
“While a civil contempt is coercive in nature, designed to benefit the aggrieved party by coercing compliance with a court order, criminal contempt is punitive and is imposed to vindicate the authority of the court.” Door Properties, LLC v. Nahlawi, 2023 IL App (1st) 230012 (citations and quotations omitted)
Therefore, any contempt charge regarding past alcohol use is really a criminal contempt charge.
Criminal contempt is retrospective in that it seeks to “punish a contemnor for past acts that he cannot now undo.” Marriage of Knoll, 2016 IL App (1st) 152494
A criminal contempt allegation unleashes a pandora’s box of constitutional requirements that the court and the parties probably want to avoid.
“The defendant in an indirect criminal contempt action has a right to be charged by written complaint, petition, or information; a right to personal service; a right to file an answer; a right to be heard; a right to present evidence; a right to cross-examine witnesses; a right to subpoena witnesses; a right to a public hearing; a right to the privilege against self-incrimination; a right to counsel and the appointment of counsel if indigent; and a right to be proved guilty beyond a reasonable doubt.” People v. Budzynski, 775 NE 2d 275 – Ill: Appellate Court, 4th Dist. 2002
Reminding the court of these constitutional hurdles should be enough to keep the court focused on what they should have focused on from the beginning: the best interests of the children.
Modifying Parenting Time After A Postitive Breathalyzer Test In Illinois
There will likely be modifications and restrictions on parenting time after a positive breathalyzer test.
Following a hearing, a court may enter orders necessary to protect the child “if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical heath or that significantly impaired the child’s emotional development.” 750 ILCS 5/603.10(a)
Necessary orders may include any limitation or condition placed on parenting time, such as reducing, eliminating, or adjusting decision-making or parenting time, supervision, and requiring a parent to abstain from possessing or consuming alcohol during parenting time and within a specific period before parenting time. 750 ILCS 5/600(i), 603.10(a)(1), (2), (5)
If the court has deemed a parent enough of a risk to require a breathalyzer test, the court will deem that parent a significant risk if they are blowing positive after a court order. Parenting time will be restricted until the parent has proven that they can remain sober during their parenting time and even when their children are not around.
A “trial court [can] restrict[ a parent’s] parenting time to supervised visitation based primarily on its finding that Thomas’s alcohol use posed a serious endangerment to the child.” In re Marriage of Palarz, 2022 IL App (1st) 210618
Successful breathalyzer tests are the best proof that a negative breathalyzer test will not happen in the future. Parenting restrictions have been removed after a showing that the parent “complied with using Soberlink for over two years and had only a handful of noncompliant results.” In re Marriage of Staszak, 2022 IL App (2d) 210427-U
If your Illinois divorce case has a breathalyzer test or even openly discussed issues regarding alcohol, you have a seriously contested divorce case on your hands. Contact my Chicago, Illinois family law firm to discuss your options with an experienced Illinois divorce attorney.