As any experienced criminal attorney knows, you will never see a DUI police report that does not say the arrestee had â€œan odor of alcohol on his breathâ€ â€” usually further characterized as either a â€œmoderateâ€ or â€œstrongâ€ odor of alcohol. If the report does not mention an alcoholic breath, you can be sure the later breath test at the station came back clean â€” and the arrest has been â€œrevisedâ€ from DUI alcohol to DUI drugs.
Criminal attorneys also know the reality of drunk driving investigations: after stopping a car late at night, the officer approaches the driverâ€™s window predisposed to finding a drunk driver behind the wheel. It is a psychological fact that we tend to see what we expect to see. And the first thing the officer will be looking for to corroborate his expectations is an odor of alcohol. Once he smells alcohol, the arrest is a foregone conclusion; the field sobriety tests are mere formalities, the subjective â€œpass-failâ€ decision made by the already-convinced officer.
Of course, as I indicated in an earlier post, â€œThe Suspect Had a Strong Odor of Alcohol on his Breathâ€œ, alcohol itself actually has little if any odor.
I have received queries after this post as to whether there are any scientific studies to back up my claim that breath alcohol odor is largely irrelevant yet disproportionately weighted as â€œevidenceâ€ of intoxication. Yes, there is such a studyâ€¦
In 1999, the same scientists whose federally-contracted studies became the basis of the so-called â€œstandardizedâ€ battery of field sobriety tests conducted another study on the effectiveness of alochol 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 subjectâ€™s breath odor under optimal conditions, with the subjects hidden rom 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, â€œPolice Officersâ€™ Detection of Breath Odors from Alcohol Ingestionâ€, 31(3) Accident Analysis and Prevention 175 (May 1999).