Evidence of Alcohol Impairment: What's Your Function, Consumption Junction?
The mere odor of alcohol about a driver's person may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony.
Saucier v. State, 869 P. 2nd 483 (Ak. App. 1994) (emphasis added).
Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an "odor of alcohol| alongside other observations like |bloodshot, watery eyes| and |slurred speech.| Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as |indicia of intoxication,| implying that each of these confirms that someone is drunk. This could not be further from the truth.
At best, these |indicia| may reveal alcohol consumption â?? dramatically different that alcohol intoxication. While nobody can truly get drunk without first consuming alcohol, nearly everyone is able to have a drink without immediately becoming drunk. Yet, too often, many consider these |indicia of intoxication| as all the evidence necessary to provide probable cause to arrest a driver, or even to provide proof beyond a reasonable doubt to convict a driver.
How have these |indicia of consumption| (from this point on, I will never again refer to them as |indicia of intoxication,| and you shouldn't either) gained such widespread use and credibility?
Partially from common usage - every police report I've ever seen has described the arrested driver has having smelled of alcohol, while having bloodshot, watery eyes. Some will even |grade| the odor of alcohol (after the driver has already submitted to a test), describing it as |moderate| |severe| or |overwhelming| depending on the circumstances.
Partially by acceptance by the courts - some judicial decisions are based largely on whether or not the arresting officer described the odor of alcohol as |moderate| compared to |slight.|
But, in my opinion, these indicia of consumption have become so commonplace in the courtroom because defense attorneys have not done their job to attack them.
The attack starts by simply calling these observations what they are - indicia of alcohol consumption. By doing so, we also inform the court and the jury what they are not - indicia of alcohol intoxication. But these are just labels, and while labels have power, a true attack requires more muscle. And that's where the use of hard science comes into play.
Too many attorneys try to use the |law| to trump the State's |science.| That's rapidly changing - nowadays, its far more important to fight science with science, and to shed light on government practices that have gone unchallenged for too long, convicting too many innocent drivers.
Coming up, we'll discuss some of the most overblown and overemphasized indicia of consumption that find their way into the courtroom: Odor of alcohol, bloodshot/watery eyes, and some of the more ridiculous |field sobriety tests.| And then we'll show you exactly how each and every one is refuted by hard science.
And finally, we'll explain why this is probably the most important topic imaginable for the future of DWI defense in Minnesota.