Evidence of Alcohol Impairment - Driving with Allergies Can Get You Arrested

Posted On December 14, 2011 by Charles Ramsay

Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude . . . An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.

State v. Kier, 678 N.W.2d 672, 678 (Minn.App.2004) (Emphasis added).

Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as "common indicia of intoxication| (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it's scary.

In Kier, the Court was stating that anyone with bloodshot, watery eyes who gets behind the wheel of a vehicle is eligible to be arrested for DWI. The only conclusion that we can draw is that evidence of |bloodshot and watery eyes| must be so damning, so convincing, that its very existence renders a driver guilty. Surely such powerful evidence has a strong scientific foundationâ?¦ doesn't it?

Well . . . some organizations have actually spoken out about what conclusions can be drawn when an officer sees |bloodshot and watery eyes,| but they sure don't support using the evidence to convict someone. The National Highway Traffic and Safety Administration (the organization that helped push the legal limit from .10 to .08) did a thorough study of impaired drivers in 1997. Because NHTSA's goal was to instruct officers on how to detect and arrest drunk drivers, it created a list of eight |cues| that an officer could look for to help determine if a driver was impaired.

Guess what's not on the list? If you guessed |bloodshot and watery eyes| you are correct. In fact, this |cue| was on the old list, and was actually removed from the list after NHTSA figured out that having bloodshot/watery eyes has as much to do with allergies and people working multiple jobs as with consuming alcohol. If a police officer based his or her decision to arrest on bloodshot watery eyes, the worst thing you can do is just accept that fact - you need to fight it.

The National Highway Traffic and Safety Administration has been telling peace officers - since 1997 - to ignore |bloodshot and watery eyes| as it pertains to allegedly drunk drivers. Yet six years later, the Kier Court was willing to say that this evidence alone was enough to authorize an arrest.

I have no reason to believe that the Kier Court was presented with the 1997 NHTSA study, or that it factored into that decision. That's why, in my opinion, it would be malpractice not to offer this scientific study into evidence in every case where the State wants to introduce evidence of bloodshot, watery eyes. This study provides the scientific muscle a quality defense attorney needs to attack the longstanding (and incorrect) notion that bloodshot watery eyes are strong evidence that someone is impaired - and to get that evidence suppressed. The reality is that |bloodshot, watery eyes| is lukewarm evidence that someone might be suffering from allergies. . . and, to the best of my knowledge, that is not a crime in Minnesota.