Can you appeal a dismissal?

[skale7179]

What was the reasoning behind the judge agreeing to the no alcohol stipulation in the first place?
Does he have a history of alcohol abuse?
And does the CO only state no alcohol 24 hours prior to picking up the children ONLY or does it go on to state no drinking during the times that he has the children also?

Yes, he has a history of alcohol abuse, including 2 domestic abuse charges where alcohol played a factor and a DUI. He went to anger management for the abuse charges and was in AA for approx. 7 months then "fell off the wagon." When he got the DUI, as a stipulation of his court supervision he was suppose to go to counseling and didnt therefor the court revoked his supervision.

The reasoning behind the court order is he would bring the kids home from visits and I could smell the alcohol on him, someone else always drove him, but when he brought them home and he himself drove that is when I had our original order changed from "Neither parent shall drink alcoholic beverages to excess or to the point of intoxication.... to "Father will not ingest any alcoholic beverages 24 hours before exercizing and during his visitation with the children" (both are exact wording) The kids were appointed a GAL and told her he drinks and drives and let my oldest son, 12 at the time, drive because he was to drunk to. That was in Jan. of 2004.

We were back in court again in Sept. of 2004 because he violated the order and took the kids to the liquor store with him and then back to his home, made the comment "I dont care what your mother thinks, Im thirsty" and drank in front of them. Again a GAL talked with the kids and the judge limited his visitation to EOW 9a-6p saturday and sunday...no overnights. in order to get his overnights back he was to "undergo an alcohol evaluation and abide by all counseling and/or treatment reccomended therein." He has still not completed any counseling to get his overnights back.

Then in Nov. of 2005 we met at our youngest sons basketball game for visitation exchange. He was late and in a bad mood and proceeded to argue with me. I could smell alcohol on him and called the police. That is when they had him do a breathalyzer and the police report was filed. He also threatened to hit me, and said it in front of our oldest son, that to is included in the police report.

 

[rmet4nzkx]

1. yes
2. he wasnt stumbling and falling....but the officers that came are the ones who administered the breathalyzer and he also admitted to drinking to them which is also noted in the report.
3. yes, it is noted in the report.
4. nothing is noted in the report about a fst.

What was the exact BAC reading?

 

[ceara19]

If that's the case, the no alcohol stipulation is perfectly reasonable. I don't know what the judge could have based his opinion that the police report is heresay on though. It is common for police reports to be considered as direct testimony, as if the officer that wrote the report were actually on the stand testifying to the FIRST HAND knowledge they have regarding the incident. Especially if there was any type of test to confirm he had been drinking. I would definately appeal the ruling based on the fact that the judge dismissed evidence, which according to law IS admissable. Beware though, judges don't like being told they were wrong.

 

[skale7179]

What was the exact BAC reading?

The BAC noted in the police report is .02 and he admitted to the officers that he had drank the night before and went to bed at 10:00p that is also noted in there.

 

[skale7179]

If that's the case, the no alcohol stipulation is perfectly reasonable. I don't know what the judge could have based his opinion that the police report is heresay on though. It is common for police reports to be considered as direct testimony, as if the officer that wrote the report were actually on the stand testifying to the FIRST HAND knowledge they have regarding the incident. Especially if there was any type of test to confirm he had been drinking. I would definately appeal the ruling based on the fact that the judge dismissed evidence, which according to law IS admissable. Beware though, judges don't like being told they were wrong.

I thought that the police report was sufficient also, but I was corrected. The judge said that the officer needed to be there for my ex's attorney to cross examine. It was indeed a learning experience and I wont go to court again w/o an attorney.

 

[rmet4nzkx]

I thought that the police report was sufficient also, but I was corrected. The judge said that the officer needed to be there for my ex's attorney to cross examine. It was indeed a learning experience and I wont go to court again w/o an attorney.

That is what I was going to tell you, the judge has the descretion to allow or not the police report into evidence, that is why the officer would need to be there to authenticate it. That is why it falls under the hearsay rule.
The reason I asked about the BAC etc is that even though your order is specific, your ex's actual statements to the police and the BAC would indicate that most likely he drank the day before and he wasn't under the influence. BAC can be a little off, 0.02 is virtually nothing, mouthwash will give that reading. Don't feel bad, even if the officer had been subpoenaed, it is possible that he wouldn't be found in contempt whether or not you had an attorney. Perhaps having to retain an attorney and appear in court was sufficient to make your point.

 

[skale7179]

Thanks to you all for your insight. I have an appt. to speak with a local attorney in 2 weeks to see what they think. If we do go back to court I will let you know what happens.

Thanks again!!

 

[weenor]

Fyi

Camco, Inc. v. Lowery (2005) "police reports are generally not admissible" That is because such reports are considered hearsay....(an out of court statement that goes to the truth of the matter asserted). In other words if you want to use the report to prove he was drunk, its hearsay....the report can be used to refresh the officers recollection on the stand...but cannot be independently admitted in to evidence.