What drinking problem?

Posted Thursday, July 19th, 2012 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to General Public

The past few years I have, on numerous occasions, met with a family court litigant who has made obvious attempts to alter his or her body to evade the consequences, and change the results, of a court-ordered drug or alcohol test.  On a few occasions they have even admitted drinking large quantities of some substance, or shaving or coloring their hair, in the hopes of obtaining an inaccurate, false negative, result.  When the results come back positive, they then wish to employ a strategy of “proving” the test is actually a false positive.  Typically these efforts include attempts to undermine the credibility of the tester and the person raising the substance abuse allegations, and denying that they actually have a substance abuse issue.

But when there is solid evidence that a litigant took steps designed to render the test less accurate, such efforts are not only futile, they are counterproductive.  Basically anyone who takes steps to alter the result of a court-ordered drug or alcohol test has–at least for the purposes of family court litigation–a substance abuse problem.  The mere act of taking such steps proves the problem: if the litigant did not believe that he or she was using substances at a level that would give the family court concern, there would be no reason to take steps designed to alter the test result.

By employing a strategy of denying the problem and attacking the credibility of those making the accusation, that party appears both disputatious and uncredible: disputatious because the party is picking a fight over an issue that party’s conduct tends to prove; uncredible because one is denying the very problem that one’s own actions show one believes to have been a problem.  This plan of action can only work if the trial court and opposing party and counsel are blind to the contradictions this strategy employs.

Once one has been caught taking steps designed to alter the results of a drug or alcohol test, it is no longer feasible to employ a strategy of denial.   Rather, the better strategy is to acknowledge the substance abuse problem and demonstrate the steps one has taken to remedy it.