You Can’t Tell Just from the Smell

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 See, e.g., State v. Tabor, 2004 WL 1964885, 166 N.C. App. 282 (2004) (unpublished op.)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?