“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.
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