You Can’t Tell Just from the Smell

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I’ve been asked more than once about whether the odor of alcohol combined with a positive reading on a portable breath alcohol screening test device, such as an ALCO-SENSOR, without more, constitutes probable cause to believe that a defendant has committed the offense of impaired driving. My answer?  No.  My reasoning?

First, you can’t tell just from the smell. The state supreme court held in Atkins v. Moye, 277 NC 179 (1970), a civil action arising from a car crash, that “[a]n odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking [but] an odor, standing alone, is no evidence that he is under the influence of an intoxicant.” The court went on to explain that evidence that a driver has been drinking (which one could tell from the smell) combined with bad driving or other conduct indicating impairment is sufficient evidence to show a prima facie violation of G.S. 20-138.

Yet probable cause is a lower standard than the prima facie standard applied Atkins and requires only a fair probability that the defendant committed a crime.

The court in State v. Dark, 22 N.C. App. 566 (1974), held that an officer had probable cause to arrest the defendant for impaired driving after seeing him drive, lawfully stopping him, smelling alcohol and “observ[ing] his condition.” The facts recited in the opinion indicate that the officer immediately arrested the defendant upon smelling alcohol on his breath and that he made no other observations to support his determination that the defendant was impaired.

But Dark is a bit of an anachronism. The vehicle stop in Dark was upheld as authorized G.S. 20-183 even though the officer had no reasonable suspicion that the defendant had violated any law. A few years later the United States Supreme Court ruled in Delaware v. Prouse, 440 U.S. 648 (1979), that the Fourth Amendment prohibits officers from exercising this sort of unconstrained discretion to randomly stop vehicles.

Unlike Dark, other cases in which the courts have found probable cause of impaired driving rely upon evidence in addition to the odor of alcohol. See, e.g., State v. Tabor, 2004 WL 1964885, 166 N.C. App. 282 (2004) (unpublished op.) (finding probable cause based upon strong odor of alcohol, glassy eyes, difficulty walking and standing, difficulty retrieving license from wallet, and admission of drinking); State v. Tappe, 139 N.C. App. 33 (2000) (finding probable cause based upon vehicle crossing center line, strong odor of alcohol, glassy and watery eyes, and admission of drinking); State v. Thomas, 127 N.C. App. 431 (1997) (finding probable cause based upon red, glassy eyes, disorderly appearance, strong odor of alcohol, and information that another officer told the defendant not to drive); State v. Crawford, 125 N.C. App 279 (1997) (finding probable cause based upon semi-consciousness, drool, unfastened pants, and slurred speech); Richardson v. Hiatt, 95 N.C. App. 196 (1989) (finding probable cause based upon single car accident on a clear day, odor of alcohol, and defendant’s statement that he fell asleep); Rawls v. Peters, 45 N.C. App. 461 (1980) (finding probable cause based upon strong odor of alcohol, red, glassy eyes, staggering, difficulty touching nose); Poag v. Powell, 39 N.C. App. 363 (1979) (finding probable cause based upon driving on left side of street, red and flushed face, glassy and bloodshot eyes).

Given other outdated aspects of the decision in Dark and the ensuing cases finding probable cause based on smell-plus, I doubt that Dark can be relied upon as establishing that odor, by itself, is enough.

What about odor plus a screening test?

In State v. Rogers, 124 N.C. App. 364 (1996), the court of appeals affirmed the trial court’s determination that the officer had probable cause to believe the defendant was driving while impaired where the officer, who “had an opportunity to observe defendant” and “spoke with him,” relied upon the odor of alcohol and a single ALCO-SENSOR reading of .13. At that time, GS 20-16.3 allowed an officer to rely upon the results of an alcohol screening test in determining probable cause. The trial court had refused to consider the ALCO-SENSOR result because the officer gave only one test, when GS 20-16.3 required two. Instead, the trial court concluded that the strong odor of alcohol alone furnished probable cause. The court of appeals affirmed the finding of probable cause but relied on both the odor and the ALCO-SENSOR test, holding that the officer could rely on the results even though he didn’t comply with the statute. Rogers is significant because the appellate court chose not to rely solely on the sniff test.  And it doesn’t answer the question posed in this post because G.S. 20-16.3 was amended in 2006.

Under current G.S. 20-16.3, a law enforcement officer can use “the fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result” in determining probable cause for an implied consent offense. A positive result means there is some presence of alcohol. A negative result means there is none. So, for probable cause purposes, a reading of .01 is as probative as a .08.

Does a “positive” result combined with an odor of alcohol, like the 0.13 result in Rogers, give rise to probable cause? Even without a specific alcohol concentration, a positive alcohol screening test result adds evidence that the defendant has consumed alcohol by ruling out other explanations for the odor (for example, that a beer spilled on the defendant). What it does not do is add evidence that the per se alcohol concentration is met or otherwise evidence impairment.  In essence, the alcohol screening test bolsters the smell.

Returning to the notion that you can’t tell just from the smell, my view is that the odor of alcohol combined with a positive alcohol screening test- without some evidence of impairment -does not establish probable cause of impaired driving.  Your thoughts?

5 comments on “You Can’t Tell Just from the Smell

  1. well if you are pulled over for a legal reason and the officer has reasonable suspicion that you have been drinking he can ask you to blow, and if you blow over .08 you are over the limit, and i think thats enough pc to arrest someone for dwi and surely enough to take him downtow for a more accurate test to be done at the station, or maybe a warrant for blood.

    but i see where who ever wrote the above is comming from. since the test at the patrol car is not admissable as evidence in court of being over .08, then if no other factors of intoxication are apparent on the suspect then there is no pc for an arrest.

    what does anyone think?

  2. The language referenced in Rogers was pure dicta. The COA exceeded the standard of review that binds it. The statement is not based upon any discussion of the relevant statute and regulations that govern the proper adminsitration and use of the alco-sensor. The statement was not supported by any case law or analysis.

  3. Unfortunately, it has been my experience that any police officer or sheriffs deputy hell bent of finding an impaired driver will stop a motor vehicle for no justifiable reason at all, and then fabricate probable cause issues later. This happened to me last night in Cape Carteret. It was about 8:50 pm and I had stopped at a red light in the left turn lane with my signal on. The deputy was in the right lane with no turn signal on heading in opposite direction. The light turned green and I waited a good 20-30 seconds for him to proceed. He did not, so I made my turn into the parking lot. As I got at least 150-200′ into the lot he pulled in and turned on his blue lights, I made a right turn in front of a store, and he followed. So I pulled into a parking space, took out my license and rolled the window down. He accused me of cutting in front of him. I didn’t argue much except for saying he wasn’t moving so I went. He complained of the smell of alcohol and asked if I had been drinking tonight. I replied negative. He took my papers and came back about 5 minutes later asking me to blow into the alco-sensor. I refused and informed him I would gladly provide a breath sample in an intoxilizer machine at the station. he ordered me out of the car. I asked if I was under arrest? he said not yet. I said that I will not get out of the car unless I was under arrest. I asked him why I was being stopped, and if he was issuing me a summons for a violation. He refused to answer. To make a long story shorter he wound up calling back-up and a trooper. The trooper placed me under arrest and brought me all the way to Beaufort some 30 miles away and issues an intoxilizer test which I passed. The trooper told me I just should have blown in the alco-sensor because they can’t use it in court. He also told me it’s inadmissible because the officer and deliberately calibrate it to read higher or lower when ever he wants. Ergo the means to manufacture more probable cause. So now this deputy told me he wasn’t going to write me a summons and all he wanted to do was screen me for DWI. This clearly demonstrates the motor vehicle stop was bogus as well as the charge of violating GS:20-154 all fabricated probable cause designed to catch a drunk driver. I will not perform any field sobriety tests anymore as my disabilities will always cause me to fail them and most of them are designed so the best athletes would fail them! Thanks

  4. […] We already knew that the odor of alcohol wasn’t sufficient to establish probable cause. State v. Overocker establishes that, in fact, […]

  5. Odor of alcohol? Alcohol has no odor. all of these laws are null using simple science.  this of course, is because alcohol doesn’t have a smell. What you smell on someones breath is the by products of alcohol (fermentation). If you drink pure 100% ethanol, there would be no smell. Thus officers are incorrect in stating they smell alcohol.

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