Tuesday, May 19, 2009

Odor of alcohol alone does not reach the level of probable cause for a DUI arrest or drunk driving conviction

Drinking and driving is not illegal in California or any other state. Is an odor of alcohol sufficient probable cause to allow California police to arrest for drunk drivng so that a California DUI lawyer must defend against a blood or breath test?

What one smells on the drinker's breath are the aromatic materials which give to each type of beverage its characteristic odor; one may recognize a beer, wine, gin, or other beverage odor--but not an alcohol breath. While alcohol rapidly disappears from the mouth after ingestion, the aromatic materials of the beverages, like those of other foods, linger and are detectable for a relatively long time. The breath odor after drinking is, therefore, unrelated to the alcohol content of the blood and is a poor indicator of the alcoholic state of the individual. 4 R. Gray, M.D. & L. Gordy, M.D., L.L.B., Attorneys' Textbook of Medicine ¶¶ 133.10 (3rd ed. 1985).

Various jurisdictions have addressed this issue.

The Georgia Courts have decided the probable cause necessary for an arrest for driving under the influence in the case of Griggs v. State, 167 Ga. App. 582 (1983):
As to question of whether the arrest of defendant, for the offense of driving under the influence, was made with probable cause, we turn to the standards set forth in Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.E.2d 142. See also Vaughn v. State, 247 Ga. 136, 137, 274 S.E.2d 479. Whether the arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, supra. The question is whether the investigating deputy at the time of defendant's arrest had knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.

New Jersey has remotely addressed this issue in a published opinion is the Appellate Division in Gustavson v. Gaynor, 206 N.J. Super. 540 (App. Div. 1985), certif. den. 103 N.J. 476 (1986). That court held that the mere fact that a driver had consumed some alcoholic beverages is, by itself, insufficient to warrant an inference that the driver was intoxicated and that the intoxication was of such a degree as to render him unfit to drive at the time of the accident in that matter. Id. at 545. As a result, that information was precluded from the finder of fact.

Since New Jersey does not prohibit driving an automobile after consuming intoxicants, the odor of alcohol cannot reasonably and objectively provide probable cause to believe that the driver is under the influence of alcohol. To conclude otherwise is to hold that conduct which is totally lawful is, without more, evidence of an offense sufficient to warrant arrest. Were this true, then violation of the concept of "zero tolerance" would be the standard necessary to arrest. What the officer possibly could have done, but did not do, was to continue an investigation of DUI to determine whether a probable cause existed for the arrest. His sole evidence and reason for arresting the defendant was the odor of alcohol and that is not enough. There is no correlation whatsoever between the odor of alcohol on a person's breath and their blood alcohol level.

In Clay v. State, 193 Ga. App. 379 (1989), the Georgia Court of Appeals (in reversing the defendant's conviction) stated "the mere fact that he (the defendant) had an odor of alcohol on his breath clearly was not sufficient, in and of itself, to give rise to an inference that he was intoxicated. Indeed the state's attorney conceded as much at trial, stating, "Certainly the smell of alcohol by itself is not an indication, but it can be an indication that somebody had been drinking..." Under the circumstances, we must conclude that the officer's opinion that the appellant was under the influence of alcohol to the extent that it was less safe for him to drive was without evidentiary foundation.

This issue has also been addressed by a number of other state's courts. Beginning with State v. Taylor, 3 Ohio App. 3d 197, 198 (1981), Ohio has a long line of cases specifically stating that the odor of alcohol (even when combined with other factors) does not provide probable cause to make an arrest. In one of the more recent cases, State v. Segi, No. 18267 (Ohio App. District 2), dated August 18, 2000, the arresting officer testified that the defendant Segi was arrested because he crossed the white line edge marker three times, he admitted to consuming alcohol, and had a "strong odor" of alcohol about him. Reversing the trial court's denial of Segi's motion to suppress, the Ohio Appellate Court states,

Odor of an alcoholic is insufficient, by itself, to trigger a reasonable suspicion of DUI, and nominal traffic violations, being common to virtually every driver, add nothing of significance. .. The law prohibits drunk driving, not driving after a drink... Smelling too drunk to drive, without other reliable indicia of intoxication is not enough to constitute probable cause to arrest.

The Court of Appeals of Alaska has stated this fact situation much more succinctly: "The mere odor of alcohol about a driver's person.... maybe indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony." Saucier v. State, 1994. Ak. 24, 869 P.2d 483 (1994).

Wyoming likewise has differentiated between drinking and driving and drunken driving. In Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992), the Wyoming Supreme Court stated: "A third legal reality worth noting is that it is lawful in Wyoming as in other states, to drink and drive safely. Wyo. Stat. §31-5-233 (June, 1989). A peace officer may not arrest an individual for DUI merely because it is late at night and, during an unrelated traffic stop, the officer detects the odor of alcohol. Rather the peace officer must have probable cause to believe the individual has actual physical control of a motorized vehicle while legally intoxicated.

Colorado has also applied this analysis even to cases which have involved motor vehicle collisions. In affirming the trial court's suppression of the blood test based on lack of probable cause for arrest, the Colorado Supreme Court in People v. Royball, 655 P.2d 410, (1982), the recites that:

All we learned from the record is that an accident took place, the defendant was driving one of the cars involved, and he an odor of alcoholic beverage about him. Although the officer's testimony and his decision to administer a blood alcohol test are suggestive of an opinion that the defendant was under the influence of alcohol, the single objective fact to which he testified in support of any such conclusion is the odor of alcoholic beverage. An odor of alcoholic beverage is not inconsistent with the ability to operate a motor vehicle in compliance with the Colorado law.

Both Louisiana and Washington, in reversing their respective trial courts, have held that even in cases involving traffic fatalities, "the mere fact that a person consumed alcohol prior to a vehicular accident does not prove that the person was under the influence or that alcohol consumption caused the accident." State v. Garrett, 525 So.2d 1235 (La. App. 1st Cir. 1988) and State v. Gillenwater, 96 Wash. App. 667 (07/23/1999) .

Kansas has said odor of intoxicants and bloodshot eyes does not even amount to reasonable articulable suspicion, let alone Probable Cause City of Hutchinson v. Davenport.

An involuntary manslaughter prosecution from Tennessee also supports the conclusion: The bare fact that there was an odor of intoxicant on his person is not sufficient to support a finding that he was driving under the influence of an intoxicant. Newby v. State, 19 McCanless 609, 215 Tenn. 609, 388 S.W.2d 136 (1965).

In sum, a DUI officer's testimony that the odor of alcohol was the only indication of intoxication prior to the arrest of the defendant, simply cannot withstand the logic that a legal act, standing alone, may form the basis of establishing probable cause for an arrest. In addition, the case law of every state in which this issue has been decided (Kansas, New Jersey, Tennessee, Alaska, Ohio, Wyoming, Colorado, Louisiana, and Washington) indicates that the odor of alcohol alone does not reach the level of probable cause for a DUI arrest or drunk driving conviction.