Defending Your DWI Charge Odor Of Alcohol
Police Report: “I approached the vehicle and immediately detected a strong odor of alcohol emanating from the operator.”
Some things in life are guaranteed: the sun will rise, taxes are due and nearly every DWI police report in NH will contain a damning claim by the arresting officer that he/she “smelled the odor of an alcoholic beverage” either coming from the interior of a person’s vehicle or directly from the person herself. Yes indeed, death, taxes and your DWI police report repeatedly echoing the phrase “odor of alcohol” are a virtual certainty.
At first blush this “odor of alcohol” claim seems like powerful evidence of intoxication and guilt. One may conclude (erroneously) that “hey, if he smells like a brewery then he is probably intoxicated.” The reality, however, is that the phrase “odor of alcohol” is junk – the phrase tells us nothing about a person’s sobriety and fitness to operate a motor vehicle.
Ethyl Alcohol has no smell. What the officer smells is the aroma – the flavoring that gives the beverage its taste. The strongest smelling beverages usually contain the least amount of alcohol, such as beer and wine. Some very strong beverages, such as Scotch and Vodka, produce a light, faint smell.
What if I Drink Non – Alcoholic Beer?
Consider “Near Beer” – after guzzling a “Near Beer” you will likely smell like a brewery. However, despite the strong odor wafting from your gullet, you have absolutely zero alcohol in your system.
An odor of alcohol, standing alone, does not provide probable cause to make a DWI arrest. Remember, the law prohibits impaired driving, not driving after having consumed a drink.
“The mere odor of alcohol about a driver’s person….maybe indicia of alcohol ingestion, but it is no more a probable indication of intoxication than eating a meal is of gluttony.” Saucier v. State, 869 P. 2d 483 (1994)
We make sure the jury or judge understands that there is no correlation between an odor of an alcoholic beverage and the amount of alcohol you have consumed. An odor of an alcoholic beverage does not tell us what type of alcohol you consumed (beer, wine, mixed drink), how much alcohol was consumed, the time the alcohol was consumed, over what duration the alcohol was consumed and in what quantity it was consumed.
WHAT DO I SAY IF THE POLICE ASK ME WHAT I HAVE HAD TO DRINK? OR IF I HAVE BEEN DRINKING?
You are NOT required to answer this question. Politely tell the officer that you are declining his invitation to answer this potentially incriminating question and you wish to have an attorney with you before answering any further questions.