Aug. 2, 2011— -- Dave Dutcher thought it was going to be a good night when a woman invited him for a date, showed up at the bar with a female friend, they drank together, one of the women flashed her breasts, and then suggested they drive to another bar.
That's when Dutcher got a summons for DUI.
Dutcher, 49, is now claiming the entire night was a sting operation choreographed by his ex-wife during their bitter divorce and child custody dispute and he is asking that his divorce settlement be set aside because his arrest was the result of entrapment.
The ex-wife, Susan Dutcher, went to court this week and an upcoming court date has been set for the beginning of October. Susan Dutcher claims her husband has unpaid child and spousal support bills that are forcing her to put her home up for auction later this month.
In court papers filed in June, Susan Dutcher wrote that her former husband "believed the petitioner had entrapped him ... and used that to gain an unfair advantage granting her 90 percent of community assets and custody of the children."
Dave Dutcher: Ex-Wife Set Up DUI Sting
Dave Dutcher could not be reached for comment, but he told the San Jose Mercury News that one of the women flashed her breasts that night at the Old Spaghetti Factory.
Susan Dutcher admits to hiring private investigator Christopher Butler in November 2008 to keep an eye on her ex-husband and his drinking habits. The mother of three said she worried about her ex's drinking habits and was "concerned about the safety of her children when they were in [his] care," according to court documents.
Susan Dutcher claims she never intended for him to be charged with a DUI, didn't know the details of Butler's investigation and contends she did nothing wrong.
Her lawyer, Pamela Lauser, told ABCNews.com, "In the process of the divorce, the children were constantly telling her that [Dave] was driving while he was drunk and often had containers in the car. She felt no one in the legal system was paying attention to her."
"Ms. Dutcher apparently occasionally watches reality TV and thought this was the way it's done," said Lauser.
The lawyer added, "He was a womanizer, a drinker and completely misbehaved."
In Susan Dutcher's latest filing, she states that Butler, a former police officer, used the two women as decoys and invited Dutcher for a date through an online match making service. Dutcher "and at least one of the women consumed large amounts of alcohol," the court document states.
When they left to go to another bar, Butler videotaped Dutcher and then called an on-duty police officer to alert him to a drunken driver, according to the court affidavit. That officer found Dutcher, pulled him over and wrote him up for drunk driving. The officer has asserted he was not paid and was unaware of the sting operation.
In her filing Monday, Susan Dutcher argued that her husband "has not provided evidence that he did not voluntarily consume alcohol and did not voluntarily choose to drive his vehicle after consuming alcohol." Her filing claims that court papers noted that her husband has several previous DUI arrests.