DUI’s and the Chaos to Custody and Parenting Time

The combination of drinking and driving leads to horrific and sometimes deadly consequences.  However, there are situations where there is no accident and the impaired driver is simply arrested for the misdemeanor offense. He is also left with court dates, embarrassment and jail time.

            In Arizona, most DUI offenses are prosecuted as Misdemeanors.  This means that they are less serious offenses and usually result in some jail time, therapy, fines and the offender may lose his driver’s license.  A first-offense-misdemeanor DUI, while costly and embarrassing, will not destroy an individual’s life and the consequences are arguably designed to teach a lesson.  However, if there is a DUI arrest during an ongoing or anticipated divorce/custody matter, it can have much further reaching consequences.

            Take for instance this situation:

             Mike, an architect, and Carol a 3rd grade teacher are in the middle of a fairly amicable divorce.  Both parties have attorneys and through informal settlement meetings they have come to general agreements regarding custody, division of bank accounts and the use of the house.  While Carol disapproves of Mike’s girlfriend, who she blames for the breakup, Mike has expressed concerns that Carol is drinking a bottle of wine after putting their daughter Cindy in bed. According to Mike, as a result of the night drinking Cindy has been late for school four times in the last month.  Despite their shortcomings, Mike and Carol are committed to keeping the divorce dignified so as not to negatively impact Cindy.

            Carol was reluctant to start dating.  At the urging of her single friends, Sam and Alice, she agreed to go to a bar for a girl’s night out on a night Cindy was spending the night at Mike’s condo in Tempe. At the Regal Beagle, Sam buys the first round and Alice buys the second round of Fruit-Tinis. Carol had a third cocktail purchased by a guy who gave Carol his number. Shortly after she says goodbye to her girlfriends and leaves the bar alone.

            On her drive home, Carol makes a wide right turn (as she and most people do) at the intersection of Scottsdale and Shea.   Immediately, she is pulled over by a Scottsdale Police Officer who has her step out of the car after he claims she had “bloodshot and watery eyes.”  Carol is asked to participate in multiple Field Sobriety Tests and tells the officer that she had a few drinks at the bar.  After administering H.G.N (the eye test) the officer reads her an MVD notice and obtains a blood sample to test her Blood Alcohol level.   

            Some weeks pass and Carol says nothing to Mike about the police incident, hoping and praying that the blood results would show she was safe to drive. Unfortunately, the blood tests came back at a .091 and Carol is charged with DUI in Scottsdale City Court. Although she kept this information from Mike, he suspected something was wrong and ultimately learned about the DUI when he opened mail from the Motor Vehicle Division regarding Carols’ license suspension.

With the divorce case almost settled, this new information raises so many questions:

  • How can he share custody with someone who may be going to jail?
  • How can he share custody with someone who withheld information that could impact the family?
  • Do they tell Cindy what is going on?
  • Carol withdrew $6,500 to pay her criminal attorney. Should that come out of her separate or community funds?
  • Carol lost finger print clearance card and her teaching license is no longer valid.  Carol will need to contest the matter with the State to keep her teaching credentials. 
  • When Carol gets her license back, there will be an Ignition Interlock Device on the car? And how will the Brownie carpool respond to the device and Carol’s DUI charge?

           A DUI will most likely impact the divorce proceedings.  No family court judge wants to put a child in the care of a parent who cannot control their drinking.  However, every case is different.  Having a proper substance abuse evaluation by a doctor who specializes in these issues may be helpful to the parties and the Court.  In this case, Carol’s livelihood (teaching) is compromised by her arrest and prompt legal action will be necessary to her keeping her job.   Having a competent attorney who can help Carol through the process may help keep her job and limit her jail exposure.  Moreover, keeping Carol employed may help mitigate Mike’s spousal support (alimony) obligation.


What If the Molestation Travesty at Penn State Happened at ASU?

What if the Molestation Travesty at Penn State Happened at ASU: Would Arizona’s Mandatory Reporting Statute Have Made a Difference?

Jerry Sandusky, the accused child rapist and ex-Penn State Assistant Coach, will never again be known as Joe Paterno’s defensive guru. That’s easy to understand. The more difficult aspect of the case surrounds who knew what and who had a responsibility to report what they knew.

The grand jury report states that Coach Mike McQueary, who was a graduate assistant in 2002 and who is currently the wide receiver coach and the recruiting coordinator at Penn State, testified that he witnessed Sandusky sodomizing a child in Penn State’s locker room in March 2002. The report goes on to state that McQueary, after seeing the horrendous act, contacted his father. After discussing what Mike saw, the McQuearys decided that they needed to tell McQueary’s boss, head coach Joe Paterno. Mike McQueary did so the following day.

Paterno, the report says, waited an entire day to relay McQueary’s story to Paterno’s “immediate supervisor,” Tim Curley, the Penn State Athletic Director, an ex-Penn State and Paterno-coached football player. Curley waited a week and a half before calling a meeting, which included McQueary, Vice President Gary Schultz, and himself. McQueary relayed the atrocious story to Curley and Schultz, and about two weeks later, Curley told McQueary that Penn State had taken Sandusky’s keys to the locker room and that Sandusky’s charity for underprivileged boys, The Second Mile, had been notified.

As part of his job at Penn State, Vice President Schultz was assigned to oversee the University Police. Yet Schultz testified that he only reported the incident to Penn State President Graham Spanier (his immediate superior) and The Second Mile, never to the University Police or any law enforcement or social services agency. From start to finish, McQueary’s report was “resolved” by Penn State in about a month.

The McQuearys took a basic up-the-chain-of-command approach. Paterno and his superiors did the same. There are allegations that what McQueary told Paterno was downplayed as the story rose through the ranks.

The remaining questions are: Were McQueary’s, Paterno’s, Curley’s, and Schultz’s actions enough? Did any of them need to follow up with their respective superior? What legal obligations did these men have to the victims?

The grand jury directly addresses the violation of Pennsylvania’s mandatory reporting statute, 23 Pa C.S. § 6311, in its report. The statute states that a person who suspects child abuse or neglect in the course of his or her employment (including, but not limited to, a public or private school) shall report to the “person in charge” of the institution. That person is then charged with making the report. The grand jury found that Schultz and Curley violated the statute and should be held to answer (they were also charged with making a materially false statement while under oath). The report does not mention Paterno and McQueary violating this statute.

If you read the entire grand jury report, you will see that Schultz tries to shirk his responsibility by saying he was never told what McQueary saw amounted to rape. Rather, Schultz testifies that what he was told wasn’t that serious and he never felt a crime occurred. McQueary’s testimony goes directly against that, saying that he explained what he saw in detail to Paterno, Curley, and Schultz. Either way, if Schultz reasonably believed that Sandusky was acting inappropriately with children, he should have reported same to the police or CPS.

The Pennsylvania statute is quite different from Arizona’s mandatory reporting statute. In Arizona, A.R.S. §13-3620 controls such a situation. Specifically, “[a]ny person who reasonably believes that a minor is or has been the victim of physical injury, abuse, [or] neglect…shall immediately report or cause reports to be made of this information to a peace officer or to child protective services [CPS] in the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.” Subsection (A)(4) of the statute defines “person” to include “school personnel”. Therefore, in my opinion, all four of the men above would be in violation of Arizona law if this story went down at Arizona State University or the University of Arizona.

Further, the fact that McQueary told his supervisor, Paterno, and Paterno told his supervisor, Curley, and so on, does not fulfill their obligation of mandatory reporting under Arizona law. All of these men, whether they saw the rape like McQueary or whether they heard a watered-down version like Schultz, were obligated to make a report (or cause the report to be made) to a peace officer if they “reasonably believed” the rape occurred. That is, if McQueary told his superior and the superior never reported the suspected abuse, McQueary would be held responsible for not making the report (as would his superior, Paterno, in this case).

A distinction could be made if McQueary had been a volunteer. The first question, under Arizona law, would be to ask whether McQueary was responsible for the care of children. If a volunteer carries this responsibility, they have a duty to report suspected abuse to a police officer or CPS. In this case, it could be argued that McQueary was responsible for the care of children. That is, if there were 17 year old football players at Penn State or if facts showed McQueary ran a football camp for teenage boys, McQueary could be held to answer.

Brad TenBrook is an attorney at Gregg R. Woodnick PLLC. While Brad is a committed Ohio State fan (and proud graduate), his opinion here has nothing to do with football.

One Joint Burns Three Friends

Al, Butch, and Charlie have been buddies since their days at Arizona State University.  At one time they had many things in common.  Intramural sports, Sorority girls, video games, and, of course, partying.  Nowadays, with their careers in full-swing, the three old friends barely get to hangout.  They do get back together now and again.  And they do still have one thing in common: partying – specifically, smoking Marijuana. 

On a recent night out, the three friends decided to head to the Tempe Improv.  Butch picked up Al and Charlie and headed for Tempe.  Since Butch was driving, Al said he would bring a few joints and in return Charlie would buy the first round of drinks at the club.  While driving, the guys lit a joint and talked of their days on campus. 

Upon arrival at The Improv, the joint was still burning, so the three decided to finish it before exiting the car.  Unfortunately, a Tempe Police Officer saw the guys smoking and passing the joint in the parking lot.  Next thing the guys knew, they were all in handcuffs and Charlie had not even bought a drink.

Other than the small roach, the two other joints were in the center console, and not in anyone’s pocket.  Yet, all three friends were charged with possession of marijuana – a class 6 felony according to the Arizona Revised Statutes 13-3405.  This is where the story gets interesting and the friends’ stories diverge.

Al runs a small information technology business in Tempe and is self-employed.  He does not have to worry about the arrest and criminal charges effecting his employment.  However, Al is currently going through a nasty divorce.  Al’s wife has alleged Al smokes Marijuana and therefore, at least according to her divorce pleadings, should not have “unsupervised parenting time” until he can prove he is drug free.  Once his wife, or his wife’s attorney, catches wind of this arrest, Al’s road to easy parenting time and joint custody just got more challenging.

Butch is a long-haul truck driver.  He has been since he failed out of architecture school and needed to pay rent.  Butch’s employer doesn’t perform routine drug tests, but it does regularly perform background checks.  And even though this is Butch’s first possession of Marijuana and it may be dismissed after he completes the TASC program, Butch will have a hard time randomly drug testing at TASC when he is out of state for work. 

Butch will also have to deal with the DUI charge for Marijuana; also known as an “A3 DUI.”  This will have a great impact on his profession since he drives for a living.  Butch faces a license suspension and an ignition interlock device (A.R.S. 28-1381 and 28-3319), along with jail time and expensive fines.    

Finally, Charlie works at a small business as an accountant and has been studying to take his CPA exam.  Luckily for Charlie, his employer does not perform background or drug tests.  (Charlie has already been arrested for possession of Marijuana three times; once in college, once while skiing in Flagstaff and once at the ASU/UofA Football game in Tucson.)  Charlie has never been sentenced to any time in jail or prison because of these previous arrests, but his luck may have run out.  TASC is not an option, pleading to a misdemeanor is not an option, and the state of Arizona is most likely going to seek incarceration due to Charlie’s history. 

While the law is not supposed to discriminate, it is easy to see how a relatively small legal infraction will have drastically different outcomes for these three friends.