In virtually every DUI defense, the question becomes: at what point was the officer permitted to make the arrest and ask the suspect to submit to a breath test? The answer turns on two simple words that are much easier said than understood: probable cause. The officer may arrest the suspect when he had “probable cause” to believe that the suspect has driven under the influence. So what constitutes probable cause? Our Courts have said that “probable cause to arrest exists where the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe an offense is being committed.”
In other words, after looking at the big picture and not rushing to judgment, it is clear enough to our level headed officer that the nervous guy or gal in front of him was driving after having too much to drink. Yet, in practice, it is very difficult to apply this framework. Perhaps the difficulty arises from using the word “officer” in the same definition as the phrases “totality of the circumstances” and “a reasonably cautious person.” As anyone who has ever defended a DUI case should attest to, officers routinely ignore facts which are wholly inconsistent with impairment and belabor, if not butcher, common sense to suggest impairment from neutral facts. Indeed, with the sensory perfection akin to a shark detecting a drop of blood in the ocean, any officer that smells a hint of alcohol immediately forgets every fact that initially negated any prior suspicion of drunk driving and the focus quickly turns to perfecting probable cause to get that breath test.
Even our Court decisions highlight the difficulty in applying probable cause to the real world. Two cases, State v. Gillenwater and State v. Avery, both decided within a year of each other, analyze the issue of probable cause in the DUI context. In Gillenwater, the defendant was the non-faulting driver in a three car fatality accident. While tending to the injured defendant and his deceased passenger, paramedics detected the odor of alcohol on both individuals. A responding officer also noticed three open beer cans and a cooler full of beer on the floor of the backseat. Defense counsel moved to suppress the eventual blood draw on the basis that the arresting officer lacked probable cause. In affirming his conviction, Division 2 of the Court of Appeals relied upon the existence of the alcohol odor, the cooler full of beer, and the observation of the open beer cans as the basis for the probable cause.
One year later, State v. Avery was decided by the same court. In Avery, officers responded to a report of a vehicle pedestrian collision. Upon contacting the driver, the officer noticed a faint odor of intoxicants emanating from the defendant’s breath. Once the defendant was arrested for leaving the scene of an accident, he was asked to submit to the BAC without the benefit of the statutorily mandated implied consent warnings. Based on a violation of his informed consent rights, defense counsel moved to suppress the breath test arguing that defendant was entitled to an advisement of his right to refuse the test and the consequences of a refusal. In affirming his conviction, the Court found that the existence of odor in the absence of other circumstances tending to show intoxication was insufficient to establish probable cause. As such, the implied consent statute was not triggered and defendant’s submission to the breath test was absolutely voluntary.
How can we distinguish these two cases? In both cases we have odor of alcohol and a collision. Even the Gillenwater opinion expressly acknowledges that it is not illegal to drink and drive; rather, it is illegal to drink too much and drive. Thus, the presence of odor, in and of itself, does not necessarily mean that a crime has been committed and probable cause cannot be derived solely from that observation. Factually, there is one distinction between the two cases, the presence of beer and empty beer cans in the vehicle. Can this be the determinative factor? Absent facts suggesting the contrary, how can we assume that the beer was opened and consumed in the vehicle or around the time of driving? How can we rule out the possibility that the passenger was responsible for opening the beer cans and consuming the beer? If the officer is looking at the totality of the circumstances and being cautious in his judgment, then presumably the officer should discount the non-criminal possibilities before assuming the worst. Plainly, probable cause requires some nexus between the defendant driver and the beer other than mere proximity. After reading these opinions, one wonders how one scenario equates to probable cause while the other one does not. At the risk of sounding cynical, this may be a clear case of result oriented reasoning.