Odor of Intoxicants and DUI
A slew of recent studies published in medical journals have been focusing
on the effectiveness and administration of standard the standard procedures
used to determine if someone has been driving while intoxicated.
One study published in 1999 looked at the accuracy of a police officer’s ability to detect the odor of intoxicants on an individual. This study in particular is very important because almost all driving under the influence (DUI) police reports start with the officer making an allegation of smelling the odor of intoxicants. The study tested the ability of 20 experienced police officers to detect the odor of intoxicants on an individual in a vehicle. The officers were tested on their ability to detect alcohol on individuals whose breath alcohol content (BAC) was measured between .00 and .130. Even in the best conditions, officers were only able to detect the presence of alcohol about 85% of the time and that number decreased when other variables were added such as recent consumption of food.
While the study was limited in scope – only testing 20 police officers 24 separate times – it does provide some empirical evidence that one of the most relied upon mechanisms for detecting the initial presence of alcohol on a driver may be seriously flawed. Ideally, a follow-up study would be conducted with more officers and a wider range of BACs. Also, it would be interesting to add in the potential for false positives – how often do police officers smell the presence of alcohol when a person has not consumed any alcohol.
If, as this study concludes, the officer’s perception is not an accurate indicator of consumption of intoxicants then this should raise additional concerns in the detention and arrest of individuals for DUI. One of the most common questions criminal defense attorneys receive is what to do when a person finds themselves under investigation for DUI.
Below are a few general items to keep in mind if you are ever investigated for DUI, physical control, or other similar crime. Please keep in mind that this is not intended as legal advice or to create an attorney-client relationship.
• Field sobriety tests are voluntary. Although officers are legally required to inform individuals that field sobriety tests are voluntary, many individuals report after the fact that they did not believe the tests were actually voluntary. This can be due to many factors including officers advising individuals the tests are only meant to determine if a driver is safe to be behind the wheel. Realistically, the primary purpose of field sobriety tests is to help the officer gather evidence of intoxication. Even on a good day the field sobriety tests may be difficult for an individual to perform. Add in nerves and environmental factors and many individuals, regardless of their alcohol consumption, began to have difficulty completing the tasks.
• Do not make small talk. The police officer is investigating you for a crime which carries mandatory minimum penalties including jail time, large fines, treatment obligations, and the suspension of driving privileges. By the time a person is under arrest for DUI or similar offense, the officer is looking for additional information to put into their police report to support the charge. Talking with the officer and providing additional information will typically only help the officer with writing their police report. Once arrested, it is advisable to provide your name, address, date of birth, and whether you would consent to the breath tests – nothing more. As the Miranda warnings in television shows emphasize: anything you say can and will be used against you.
• Invoke your right to an attorney. Once you are under arrest you
have the constitutional right to speak with an attorney. Even if you believe
you know how to proceed it is in your best interest to request to speak
with an attorney. In most jurisdictions there is at least one attorney
who is on call 24 hours a day to speak with individuals who invoke their
right to an attorney. Requesting an attorney could help you avoid costly
If you have been investigated for DUI, physical control, or other alcohol/vehicle related offense it is imperative that you contact an attorney immediately. There are steps an attorney may be able to take immediately to preserve your driving privileges and your trial rights. The attorneys at Stein, Lotzkar & Starr have decades of experience working with all manner of driving and alcohol offenses.