“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 SC 223, 13 LE2d 142). See also Vaughn v. State, 247 Ga. 136, 137 (274 SE2d 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.
If at the time the arresting San Diego DUI officer effected a traffic stop of the San Diego driver, he was acting to investigate a mere San Diego county traffic violation.
A question may then arise if there was no bad driving pattern or irregularity which indicates whether the San Diego driver was driver a motor vehicle while under the influence of alcohol. Does the odor of alcohol (even a “strong odor”) objectively provide the probable cause necessary to make an arrest for a San Diego DUI?
Drinking and driving is not illegal in San Diego California. This is specifically recognized in the jury instruction which may take into account a person’s manner of driving, and which defines "under the influence" as the standard:
A person is under the influence if, as a result of drinking or consuming an alcoholic beverage and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
[CALCRIM Jury Instruction No. 2110. Driving Under the Influence (Veh. Code, § 23152(a)) revised June 2007]
For Manner of Driving, see People v. Weathington (1991) 231 Cal.App.3d 69, 84 [282 Cal.Rptr. 170]; People v. McGrath (1928) 94 Cal.App. 520, 524 [271 P. 549].
An odor of alcohol is created by drinking any amount of alcohol, not just an amount that would cause legal impairment or a person to have a .08% BAC. So an odor of alcohol alone cannot be sufficient probable cause to arrest or request a chemical test.
Since San Diego does not prohibit driving a vehicle after consuming intoxicants, therefore the odor of alcohol cannot reasonably and objectively provide probable cause to believe that the driver is under the influence of alcohol. This is especially true where the officer does not testify to any observation of erratic driving or any other indicia (other than odor) commonly associated with intoxication or impairment.
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 rather than the standard of “under the influence to the extent that the driver’s "mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances."
What the officer must do is to continue with a proper investigation of a San Diego DUI suspect to determine whether a probable cause existed for the arrest.
Without testing the driver’s motor skills in some way to determine if they were impaired by the effect of alcohol, there is not enough information to reasonably conclude a person had been driving under the influence of alcohol [Hurst v. Finley (1994) 857 F. Supp. 1517, 1521-1522].
The San Diego DUI police officer’s sole evidence and reason for arresting cannot be the odor of alcohol as that is not enough. There is no correlation whatsoever between the odor of alcohol on a person’s breath and their blood alcohol level.
This odor of alcohol issue has 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 drunken 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. 2nd 483 (1994).
Wyoming likewise has differentiated between drinking and driving and drunken driving. In Keehn v. Town of Torrington, 834 P. 2nd 112, (Wyo. 1992), a case very similar to the immediate case of Defendant Harper. The Wyoming Supreme Court states:
“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 DWUI 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.”
(Note: The Court also specifically states that, “the prosecution has cited no case in which an odor of alcoholic beverage, without more, has been held to constitute probable cause to believe a person is under the influence of intoxicating liquor.” There also exists no such case in California).
Wisconsin recently affirmed a long line of cases beginning with State v. Swanson, 164 Wis. 2d 437 (1991), that held that the odor of alcohol, even when combined with other indicia of intoxication, “may add up to a reasonable suspicion, but not probable cause.” State v. Hanson, No. 99-0920 (Wis. App. 03/16/00).
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 Washington App. 667, (07/23/1999).
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 San Diego DUI arresting officer’s observation that the odor of alcohol was the only indication of intoxication prior to the arrest of a San Diego driver, simply cannot withstand the logic that a legal act, standing alone, cannot 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 (Tennessee, Alaska, Ohio, Wyoming, Colorado, Wisconsin, Louisiana, and Washington) indicates that the odor of alcohol alone does not reach the level of probable cause for a DUI arrest or DUI conviction.