Archive for June 23rd, 2006

“I Smelled a Strong Odor of Alcohol on the Suspect’s Breath”

Friday, June 23rd, 2006

You will never see a DUI case where the officer does not report an odor of alcohol on the suspect’s breath. Never. The officer expects to smell it and it is a psychological fact that we see, hear and smell what we expect to see, hear and smell. In fact, most police DUI reports are formatted for the usual symptoms: there will be a box for “odor of alcohol”, which the officer checks off. There are often three boxes, labelled “strong”, “moderate” and “weak”; there is no box for “none”, so that is not an option for the officer.  The ”strong” box is almost always checked.  Presumably, the stronger the odor of alcohol, the more intoxicated the person arrested.

There is only one problem with this:  alcohol in a beverage has no odor.

Assuming the officer actually does smell an odor on the breath, what he is smelling is not ethyl alcohol but the flavoring in the beverage. And the flavoring can be deceptive as to the strength or amount consumed. Beer and wine, for example, are the least intoxicating drinks but will cause the strongest odor. A much stronger drink, such as scotch, will have a weaker odor. And vodka leaves virtually no odor at all.

Consider a simple experiment. Have a friend drink a can of “near beer” — the stuff that looks, smells and tastes like beer but has no alcohol in it. Then smell his breath. You will smell an “odor of alcohol” — and maybe a strong one.

And, of course, there can be any number of causes of an “odor of alcohol” on a person’s breath: mouth wash, throat spray, cough syrup. Illness, indigestion or simple bad breath has been the cause of more than one officer’s trigger-quick conclusion that the suspect has an “odor of alcohol on his breath”.

The point of all this is that the odor of alcohol has very little relevence in a drunk driving case. It may or may not indicate that the person has consumed alcohol. It has absolutely no evidentiary value on the much more important question of how much the person has consumed — or what he had to drink, or when. Depending upon circumstances, a person with a single drink can have a “strong odor of alcohol on his breath”, and an extremely inebriated person can have a “weak” odor. And an experienced and honest DUI officer will readily admit this….if he is ever asked.

Unfortunately, evidence of the odor of alcohol on a person�s breath can have a significant impact on a DUI case. This is because most officers who pull a driver over for some driving irregularity at night are looking for further signs of drunk driving. When the officer approaches the driver’s window and smells alcohol, that confirms his suspicions. Since few can pass the “field sobriety tests”, particularly under the conditons in which they are given, an arrest is likely.

Are there any scientific studies to back up my claim that breath alcohol odor is largely irrelevant yet disproportionately weighted as “evidence” of intoxication?

In 1999, the same scientists whose federally-contracted studies became the basis of the so-called “standardized” battery of field sobriety tests conducted another study on the effectiveness of alcohol odor in detecting intoxication. These researchers used 20 experienced officers working with 14 subjects who were tested at blood-alcohol concentrations (BACs) ranging from zero to .13 percent. Over a four-hour period, the officers smelled the subject’s breath odor under optimal conditions, with the subjects hidden from view.

The conclusions of the study: Odor strength estimates were unrelated to BAC levels. In fact, estimates of BAC levels failed to rise above random guesses. Further, officers were unable to recognize whether the alcohol beverage was beer, wine, bourbon or vodka. According to the scientists, these results demonstrate that even under the best of conditions, breath odor detection is unreliable. Moscowittz, Burns & Furgeson, “Police Officers’ Detection of Breath Odors from Alcohol Ingestion”, 31(3) Accident Analysis and Prevention 175 (May 1999).

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