Quite literally every single Alcohol Influence Report*I have read has listed the officer observing an odor of alcohol or an intoxicating beverage.** This includes cases where the defendant blew 0.00 BAC on the breathalyzer machine. The phrase is ubiquitous and indeed is the most commonly cited evidence in DWI prosecutions.
At first blush, this seems like common sense. We have all been around an intoxicated person who smelled like the local watering hole.
However, the data on this issue paints an entirely different picture. Not only is the smell of alcohol poor evidence to rely on in DWI cases, it can be inversely correlated to intoxication – in other words, the more someone “smells drunk,” the less intoxicated they might actually be.
First, alcohol essentially has no smell that is perceptible to human beings. What we are capable of smelling are the rest of the ingredients in a drink and/or the after effects of metabolization. So, you are not smelling the alcohol in beer, you are smelling the various grains and spices. You are not smelling the alcohol in whiskey, but the rye. So, it is likely someone who has consumed two bottles of O’Douls near-beer, will smell more like “alcohol” than someone who taken a shot of vodka.
That means that a person who has consumed several beers over the course of many hours will likely exhibit “the strong odor of alcohol,” even though the person is probably below a .08 BAC because beer has such a strong smell. Beer and win seem to give off the strongest smells, but beer is usually much lower in alcohol content than other drinks.
Second, only one relevant study has been performed on this subject. There are a number of flaws with the study, and a number of problems with applying the data to the real world – the designers of the study called it a “laboratory situation [that] created an optimum opportunity to use alcohol odor as a sole indication of the presence of alcohol…”
Even under those idealistic and unrealistic conditions, officers were frankly not very good at determining the presence of alcohol or whether someone was intoxicated. About 7% of the time, officers determined that someone with a 0.00 BAC exhibited the odor of alcohol. Among subjects with a BAC over .08, officers determined that they exhibited the odor of alchol 78% of the time.
This data tells me a few things:
- A significant number of police officers are lying about the existence of, or hyperbolizing the strength of alcohol odors on their reports. If under perfect conditions highly trained officers could not smell alcohol 22% of the time, then in the real world a substantial number of reports should reflect no odor of alcohol. However, nearly 100% of reports in fact claim a moderate or strong odor.
- Odor is not particularly reliable if 7% of the time someone who has consumed no alcohol is falsely positively identified. In cases where the test subject had a BAC higher than zero, but lower than .08, officers ability to correctly determine the presence of alcohol dropped to as low as 60% – which is only slightly better than a coin flip.
Why Does This Matter?
Believe it or not, a significant number of people lose their drivers license based solely on a police officer’s observation of the odor of alcohol. It is possible that someone could be convicted of a crime based on solely that observation, but less likely.
In administrative drivers license actions, the burden of proof is only “preponderance of the evidence.” This is a low threshold to meet.
Additionally, the sensory observations of the police officer are usually the hardest part of the case to refute. Judges, juries, and hearing officers give police incredible deference. If a case comes down to the testimony of a defendant versus the testimony of a police officer, the officer wins nearly 100% of the time.
*these are the special police reports issued in DWI cases
**savvy police officers do not say they smelled alcohol, but rather an intoxicating beverage