Alcohol On Your Breath? So What!
Have we reached a point where the mere presence of alcohol on the breath is enough to place a person under arrest?
We ask this question because the “odor of an alcoholic beverage” is the first and most relied upon clue an officer notes in his or her report. Not only does it determine that the driver has been drinking but provides legal justification (reasonable suspicion) for continuing the stop for a DUI/OVI investigation. Courts allow an officer to testify as to the odor and the strength of that odor as a basis for continuing the detention. See State v. Evans, Id.
Once this threshold is met, the officer can ask the individual to step out of the vehicle to take standardized field sobriety tests. This author has long argued that the “standardized field sobriety tests” are not “standardized” (every time is different); not field (the conditions are variable); do not test for sobriety/alcohol impairment (correlation impairment is not proven); and they are not tests (as they lack the necessary scientific reliability, accuracy and sensitivity to qualify as tests). So if the tests are faulty and biased we have essentially allowed “odor” to become determinative.
What this means is that the subjective opinion of the police officer, based on the odor of your breath can mean the difference between sleeping in your bed or in jail. The rationale of most officers is that they can determine, based on the strength of the odor, a person’s level of impairment. But can they?
In a study on the ability to detect use by odors, 20 experienced officers were asked to detect an alcohol odor from 14 subjects (BAC range 0-0.13%). Subjects were hidden behind a screen and asked to blow through a 6-inch tube, with the police officer’s nose at the end of the tube So how did they do? Officers were unable to identify the beverage (e.g. beer, wine, bourbon, or vodka) and odor strength estimates were unrelated to BAC levels. [Moskowitz H, Burns M, Ferguson S., Police Officers’ Detection of Breath Odors From Alcohol Ingestion. Accid Anal Prev 1999 May; 31(3):175-180 p. 175.] This finding should be a limitation on the power of the police, not a justification for arrest.