Domestic Violence Arrest/Intoxicated?

[anorcalmom2]

What is the name of your state (only U.S. law)?

My boyfriend and I were both arrested 11/07 after an argument between us got out of hand and resulted in us pushing, shoving and really yelling at each other. Someone called the police. From the time that my bf got home and the time the police showed up, it was about 20 minutes. Happened very quickly.

Anyhow, the charges were dropped for lack of evidence.

My question is this....In the police report, it stated that we were both intoxicated. Yes, I had consumed 2 1/2 beers over approx a 4 hour period while cleaning house that afternoon. So yes, I had consumed alcohol that day, however I was by no means intoxicated. I can't honestly say if my bf was when he came home, cuz like I said, it all happened so quickly the moment he walked in. However, I would speculate based on his behavior and mood when he got home that he probably had been given that he had been gone for most of the day.

They stated in the police report (I havent seen it first hand, they wont give it to me) but apparently it states that I was intoxicated. That I was so intoxicated that I was difficult to understand. DUH!! Hard to understand?? I just got in a very heated, emotional, and at times a little scary, fight with my bf. I 've never in my life been involved in a DV type of situation. Never had any prior issues with him after almost 2 years and havent since that day. So heck ya, I was scared. I've never had any police involvement in my life other than a speeding ticket 10 years ago, let alone sat in handcuffs in the back of cop car.

They never did a field sobrity test on me. No breathalizer, no blood. Asked if I had anything to drink and I told them what I had that day.

Can they legally state in the report that I was intoxicated and that I was so hard to understand due to intoxication? This report has become part of a custody situation I'm involved in at the moment, and they are heavily using the intoxication issue against me with regards to my kids.

Can I get any sort of revision or addendum to the report if its something that shouldnt have been written?

Thanks!What is the name of your state (only U.S. law)?

[CdwJava]

Originally Posted by anorcalmom2

What is the name of your state (only U.S. law)?

Your state would be of great help ... based upon your screen name, I assume you are in California.

Anyhow, the charges were dropped for lack of evidence.

Typical in some counties. You're lucky. You're BOTH lucky.

My question is this....In the police report, it stated that we were both intoxicated.

Okay.

They stated in the police report (I havent seen it first hand, they wont give it to me) but apparently it states that I was intoxicated.

Okay.

They never did a field sobrity test on me. No breathalizer, no blood. Asked if I had anything to drink and I told them what I had that day.

Because your sobriety had next to nothing to do with the assault that occurred. You were not arrested for being under the influence of drugs or alcohol, you were arrested for domestic violence.

Can they legally state in the report that I was intoxicated and that I was so hard to understand due to intoxication?

Yes they can. The report is a recollection of the officer's observations. If that is what he believed, that is what he can write.

This report has become part of a custody situation I'm involved in at the moment, and they are heavily using the intoxication issue against me with regards to my kids.

Then see if the court will subpoena the officer that wrote the report to come in to court and articulate why he believed you were intoxicated? It will cost you a few dollars, but if it is a huge issue, go ahead. Although, he might still contend on the stand that he believed your incoherence was due to inebriation ... that'll be tougher to counter.

Can I get any sort of revision or addendum to the report if its something that shouldnt have been written?

You have no grounds to seek an addendum to the report, and the agency is NOT going to do it.

- Carl

[Blue Meanie]

Originally Posted by CdwJava

Your state would be of great help ... based upon your screen name, I assume you are in California.


Typical in some counties. You're lucky. You're BOTH lucky.


Okay.


Okay.


Because your sobriety had next to nothing to do with the assault that occurred. You were not arrested for being under the influence of drugs or alcohol, you were arrested for domestic violence.


Yes they can. The report is a recollection of the officer's observations. If that is what he believed, that is what he can write.


Then see if the court will subpoena the officer that wrote the report to come in to court and articulate why he believed you were intoxicated? It will cost you a few dollars, but if it is a huge issue, go ahead. Although, he might still contend on the stand that he believed your incoherence was due to inebriation ... that'll be tougher to counter.


You have no grounds to seek an addendum to the report, and the agency is NOT going to do it.

- Carl

Carl,

Read OP's posting history. Seem she has an alcohol/substance issues but believes that everyone is out to get her. Police...Judges...Ex Husband...Evaluators...Ex Roommate

[anorcalmom2]

The reason I was asking is because the drug/alcohol assessment I did came back saying that I was arrested for "an alcohol related incident". I was involved in a dv situation that was started by him the minute he walked in the door. But yes, as it escalated, I then became a "suspect". I

ts not ok to push or shove someone off of you when they are grabbing you from behind. And you should always tell the police EVERYTHING that happened, regardless of the fact that you are hysterical, scared, and wondering where the heck you and your kids are gonna sleep that nite and with what money since payday was two days away if he was the only one to get taken away!?!

I learned the hard way but trust and believe, I learned my lesson.

[The Occultist]

I'm confused; if charges were dropped, then what is the problem, precisely?

[Blue Meanie]

Originally Posted by The Occultist

I'm confused; if charges were dropped, then what is the problem, precisely?

Read her custody thread. She doesn't want a police report confirming what the ex hubby says about her addictions.

[anorcalmom2]

I thought that the purpose of this board was to allow people to seek legal advice. And yes, I understand that sometimes people do not want to hear the response that they get. After all, the laws were written for the purpose of maintaining order and protecting the members of society. The purpose of law enforcement is to enforce those laws. It is up to the courts to interpret those laws.

However, that doesn't mean that it is always done in a manner of the utmost honor. My case could have gone in a completely different direction had it been a different judge. Or maybe it wouldn't have. Its all up to interpretation. I have total respect for the most recent judge we have had. While I have not always agreed with his decisions, I realize that he has probably spent five minutes, if that, reviewing our situation prior to court. They don't have the time nor the ability to get involved in each case as we as the parties do. Hence, the reason for mediation.

However, I don't think the negative remarks are necessary. I think its a shame that if a person tries to take a stand for what they believe is their rights, based on the law, that they are being judged as a person who is placing blame on everyone else, in denial, an addict etc....I am not perfect. I have not always 100% made the best decisions. I have never claimed to. You haven't either. But thats life. You learn from your mistakes and do what you have to to not make them again. But I do know that I am not dealing with any addiction issues. I engage in alcohol on no different of a level than my ex husband. Or my best friend. Or the pastor at my church. Other than the DV incident, I have no prior run ins with the law. I run my own business. I have been in college as a Criminal Justice major for the past few years maintaining a 4.0. I have a nice home and pay my bills on time. And I am a loving and caring Mom.

Let me ask you this....if I was the supposed "addict in denial" that you are trying to make me out to be, do you honestly think that I would have had the capacity to represent myself in court against his attorney for the past 3 years? Prepared each and every document, done every filing, stood up to the judge and spoke on my behalf while trying to keep my emotions at bay? Passed each and every single drug test in the past? Attended each and every third party appt that was asked of me, on time, every time? After all, if I was such a "party animal", I would be thrilled that my ex wants to move with the kids and limit my time with them. That would give me more time to hit the crack pipe and not have my kids be in the way of "my fun."

I've been dealing with an ex that has wanted to move away since the start of this case. Keep in mind, we had been divorced for 5 years doing 50/50, with not a SINGLE issue, never been to court etc. during that 5 years. He meets new girl that lives 2 hours away. And all of a sudden, I am an unfit, drug addicted, neglectful parent. His family is loaded. They hire him an attorney. He tells me straight up..."You don't have the balls to fight for your kids."

Well, 3 years later, 95k later in attorney fees on his part (and yes, Ive seen the documents confirming that) he has gotten his wish. And was granted his move. Of course, he denied that this was his motive from day one. Cuz as you know, when you have joint 50/50 and especially for 5 years prior, you can't just walk into a court and ask to relocate with the children. But you CAN go in, drag ex wife and the kids through the mud and try each and every tactic out there to gain sole custody so then you can move. Which is what he did. You can't buy children on the black market or Ebay, but I have been shown first hand that you can do it in Family Court.

I will say this. I have way bigger balls than he will ever have. Cuz if he had any, he would have been man enough to realize that this whole ongoing battle has been far from "the best interest of the children."

If you will read 3014.5 of the CA Family Law section, and based on what you read, justify to me from what I have told you...and yes, its all the 100% truth, why I should have to once again submit, at my cost and time, to random drug and alcohol testing, AND a hair follicle test, then I will bow my head and apologize.

But until then, I think you should keep your personal judgements to yourself. After all, this a board seeking legal advice. Not a board to hear ones biased opinions. There are other places on the internet if that is what I wanted to hear.

[CdwJava]

Originally Posted by anorcalmom2

If you will read 3014.5 of the CA Family Law section, and based on what you read, justify to me from what I have told you...and yes, its all the 100% truth, why I should have to once again submit, at my cost and time, to random drug and alcohol testing, AND a hair follicle test, then I will bow my head and apologize.

There IS no section 3014.5 of the California Family Code. It jumps from 3011 to 3020 - nothing in between.

I think the section you are referring to is 3041.5. That section permits the court to order testing if the court determines by a "preponderance" of the evidence that there is a "habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." It would seem that you would have to appeal the court's decision and get an appellate court to rule that the court hearing the matter did not have sufficient evidence to meet the criteria.

There is 2005 case law that held that at that time (and this may have changed) the state could not order a hair follicle test because the criteria for tests had to meet guidelines established by the Department of Health and Human Services which, at the time, only permitted urine tests - not follicle tests. That case is Deborah M. v. Superior Court (2005) 125 Cal. App. 4th 1181.

- Carl