DuPage County Divorce Lawyer Blog
Under Illinois law a parent has a fundamental right to parenting time with his or her child. The only way that right can be restricted is if the other parent can prove that parenting time seriously endangered the child’s physical, mental, or moral health, or significantly impaired the child’s emotional development. That requires the parent seeking to restrict parenting time to file a petition with the court, alleging what happened and how it affected the child. The parent seeking the restriction bears the burden of proving the acts which endangered the child actually occurred. In that context, allegations regarding a parent’s alcohol abuse present a fairly common issue in family court.
When alcohol abuse has been proven and the court finds that a child has been endangered as a result, Illinois courts will frequently require some form of breathalyzer testing before and during parenting time, to confirm that the parent who previously endangered the child is sober. A well-drafted court order should specify the time and manner of breathalyzer testing, as well as the consequences for a missed test or a failed test.
Two of the leading products and services in breathalyzer testing are provided by Soberlink and BACTrack, and they are remarkably similar. Each of the companies sells smartphone compatible breathalyzer devices. Each of the companies offers multiple subscription plans for testing and reporting. Each of the companies enjoys a good reputation with the family court judges and with family court attorneys, who regularly order parents to utilize one service or the other.
There are, however, some key differences between the products, as both companies are eager to highlight on their websites and in their promotional materials. As far as the non-technical differences go, BACTrack advertises that its breathalyzer devices are physically smaller than Soberlink’s and therefore easier to carry. BACTrack also extensively advertises its lower costs and 14-day free trial period. In our firm’s experience, the lower cost of BACTrack has been its key selling point in the cases where a judge ordered it to be used instead of Soberlink.
There are also many technical differences between the products and services. One of the main differences pertains to how to confirm the right person is blowing in the breathalyzer device. Soberlink uses facial recognition technology, while BACTrack records video of the person taking the test. Over the course of several litigated cases, our firm has had the opportunity to see how each approach works. Soberlink will automatically reject results from someone whose facial features differ from those of the person who is supposed to be taking the test. In the event of a dispute, Soberlink will email the facial recognition photos for each test to any subscriber or any authorized user (such as an attorney or guardian ad litem on the case). In our experience, we have found that Soberlink’s system works very well.
The same cannot be said for BACTrack’s video recordings. In order for the video feature to work properly, the person taking the test must have the device connected to his or her smartphone, and must have a sufficiently strong Wi-Fi or data connection for the video file to be uploaded. Without a strong W-Fi or data connection, the video may fail to upload and BACTrack will send a report of a failed or missed test.
Our firm had one case in particular where this presented a frequent problem. In that case, the parent who was subject to a court order requiring regularly scheduled BACtrack testing suffered the consequences of frequent “false alarms” resulting from the failure of the video file to properly upload. When we contacted BACtrack’s customer service department, we were told that the only way to adequately address the problem was to make sure tests were taken in locations with a “solid internet connection,” whatever that means. For a parent who may have taken a child camping, to a sporting event, or any other location without a “solid internet connection,” that can create real problems. In that particular case, we recommended getting a Soberlink device and subscription as a backup, and it proved to be reliable.
Another difference we have found between the two services is that Soberlink will send immediate, real-time notifications whenever a result is received, whether the test was passed or failed. In contrast, BACtrack apparently only sends notifications for failed tests (and missed tests, discussed below). In other words, for the BACtrack subscriber, no news is good news. In our experience, not having a confirmation of a passed test can sometimes cause a little anxiety for the parent required to submit to BACtrack testing.
As far as missed tests are concerned, the companies handle the issue differently. When setting up a BACtrack account, the authorized users set up a schedule for when breathalyzer tests are supposed to be taken. If the parent required to submit to testing fails to blow in the breathalyzer at the scheduled time, BACtrack sends out a missed test notification. Soberlink does not provide for scheduled tests. Instead, because Soberlink sends out notifications for passed tests and failed tests, no notification at all implies that no test was taken. That means that it’s up to the parent monitoring the Soberlink testing to keep track of the testing schedule to make sure tests are being taken on time.
A big difference between the services that neither seems to mention on their websites is that BACTrack provides GPS location data for where each test is taken, Soberlink does not. This could be either a pro or a con, depending on one’s point of view. In one case in which we represented the parent who had to submit to BACtrack testing, our client was not happy about his ex knowing exactly where he was each time he had to blow in the breathalyzer. In contrast, our client’s ex thought the GPS location data was a wonderful feature of the BACtrack system.
In our firm’s experience, Soberlink seems to be the more reliable product, and the one we recommend to our clients. BACtrack’s products and services do offer cost and convenience advantages, and for some people, that is a good reason to choose them. We have had several clients who have nothing but good things to say about BACtrack. However, we found the lack of reliability with respect to the video uploads to be a major drawback, which caused both parties an inordinate amount of stress, confusion, and litigation over what were ultimately determined to be false positives. When the issue of parenting time is being litigated, getting the facts right is of paramount importance.
For more information regarding restrictions on parenting time due to alcohol abuse, contact us.