Where there is no testimony by any witness that the defendant had breath smelling of alcohol, can the arresting officer have PC to arrest based on the belief that the defendant did not have the normal use of mental/ physical faculties based on alcohol only?

This recently came up in a Motion to Suppress. Four witnesses testified to other signs of intoxication (i.e., unsteady balance, slurred speech, open containers, etc.), but no one testified that the defendant's breath smelled of alcohol. When asked why the officer arrested the defendant, he testified that based on what the witnesses told him and how she did on the SFSTs, he arrested her for DWI. When asked what he thought caused her to lose the normal use of her mental/ physical faculties, the arresting officer said alcohol.

The defense attorney's argument is that there can be no PC to arrest based on alcohol only when there is no testimony as to odor of alcohol on the defendant's breath. Is this true?

Don't get hung up on the "based on alcohol only" testimony. Whether there was PC for an arrest is reviewed objectively. See Alvarez v. State, 04-02-00899-CR, 2004 WL 1391870 at *3 (Tex.App. -San Antonio June 23, 2004, no pet.) (not designated for publication) ("Because probable cause for an arrest is determined by objective facts, it is immaterial that [the officer], at the hearing on the motion to suppress, testified that he did not think that he had “enough facts” upon which to arrest [the suspect] for armed robbery. His subjective opinion is not material. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).... Objectively, the facts known to [the officer] prior to the arrest and search met the standard of probable cause.").

I've seen many, many DWIs go through where there was no odor of alcohol on the defendant's breath. You look at the totality of the circumstances, and you just need something to indicate all those other factors you mentioned are due to alcohol. You mentioned open containers. That's always a pretty good indication in my mind.

And they can't have it both ways. How many times have we heard that tired old argument "but Officer, don't you know that alcohol doesn't have any odor" !!

quote:

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Originally posted by Stacey L. Brownlee:
And they can't have it both ways. How many times have we heard that tired old argument "but Officer, don't you know that alcohol doesn't have any odor" !!

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Are you channelling (there are two spellings of this word) Logene Foster, because I had to endure hearing him state that at least in 20 or more trials. Seriously, trying many baby cases against him made me a much better trial lawyer but the "alcohol has no odor" thing was in every trial.

GG, you bring up good memories of Ol' Logene. For all of those who don't know, alcohol has no smell but alcoholic beverages have plenty of "alcoholic beverage" odor.

Any evidence of alcohol consumption should help you out such as open containers, coming from bar, etc. Any chance this person was intoxicated on something other than alcohol? You could always ask the officer did you put your nose up to his mouth to smell alcohol? Sometimes it can be a faint smell and still be intoxicated.

Even the craftiest drunk driver will admit he has had "two beers."

[QUOTE]Originally posted by SAProsecutor:
... alcohol has no smell but alcoholic beverages have plenty of "alcoholic beverage" odor.


As does the puke when your date has too much Boone's Farm at the pasture party and throws up in your parent's car while they are out of town and only leaves you until sunday evening to get it all out, and hopefully not leave that cherry or tropical fruit spray (which is basically like chewing a pack of big red chewing gum to cover the booze on your breath) from the car wash detail vending machine smell in it's place. (In case you were wondering, back in the late 80's it couldn't be done - trust me). Which reminds me, I need to check b/c I may still be grounded. Sigh.

I miss Logene (but not the memories of Strawberry Hill Boone's Farm) even if he was a pain in the behind in Court.
GG, if I remember correctly he had an "issue" with the odor of marijuana too, but that's a story best saved for the annual conference.

Wait. Can the word "moderation" be used in the same sentence with the phrase "Boone's Farm Strawberry Hill"? Having had something of a similar experience to that so eloquently recounted by JMH, I couldn't even stomach the smell of strawberry jelly until after I graduated from law school.

Perhaps there's a song in all this, compiling the idea that alcohol has no odor with the concept of "I found my gag reflex on Strawberry Hill." I leave that to my more articulate banjo-picking colleague.

If ever there was a more appropriate set-up for "Exit Only," I don't know what it was.

quote:

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Originally posted by Stacey L. Brownlee:
I miss Logene (but not the memories of Strawberry Hill Boone's Farm) even if he was a pain in the behind in Court.
GG, if I remember correctly he had an "issue" with the odor of marijuana too, but that's a story best saved for the annual conference.

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True that story, Stace, I know it, but it was WAY before our time there, because those guys are so old . What an interesting trial that must have been. Logene once told me, "I may have taught you everything you know, but I didn't teach you everything I know." Funny man and a tenacious advocate.

Logene would have been a good politician. He can talk for hours regarding DWI or Divorce laws and say absolutely nothing at all.

quote:

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Originally posted by Scott Brumley:


Perhaps there's a song in all this, compiling the idea that alcohol has no odor with the concept of "I found my gag reflex on Strawberry Hill." I leave that to my more articulate banjo-picking colleague.

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Ok, I'll pick up that gauntlet. But I absoultely refuse to learn to play the banjo, pose in a picture with a banjo, or ever hold myself out as a banjo afficianado. But I do like A.P. quite alot, notwithstanding the banjo thing.

And perhaps a'la Jane Starnes and the Cortez Templeton saga, our fellow forumites would contribute a line or two for a Annual update song. Collectively this forum must have tens of thousands of hours of stories of dealing with alcohol related crimes...out of that morass could come ONE country and western saga, I mean, song.

Brumley is of that line of fine West Texas guitar heros, experienced in the performance of "love gone wrong songs", of which so many songs by West Texas artists are about, and can undoubtedly write a memorable tune along with AP, Surfmaster Scott, Erik and Sara.

I would hope some tunesmith could work in something about mama, trains, getting out of prison, pickup trucks driving in the rain, and the fact that there is no nakedness in Georgetown. A banjo, sherry or nailgun reference would certainly amuse several of us.

I'll go first:

MY ALCOHOL GOT NO ODOR
THAT MAKES ME LOOK MUCH MORE SOBER
AND THE MORE I DRINK
THE LESS I THINK I STINK

MY ALCOHOL GOT NO ODOR
I MEAN TO SAY THERE'S NO AROMA
OF MALT OR HOPS
OR CHARCOAL FLAVORED OAK

Sorry I hijacked your thread, ADAA

[This message was edited by GG on 04-24-07 at .]

Greg's lyrics suggest another possibility: if the other witnesses had been drinking, as well, their own acclimation may have prevented them from smelling that of which they had partaken.

Thus:

My baby had her fill
of Strawberry Hill,
dropped it in my truck on the trip.
Can't be booze that I'm smellin',
Just ask any felon,
What you smell is your own upper lip.

[Insert banjo solo, then 5-minute drum solo]

I see no harm
In drinking lots o� Boones Farm.
If I cause ya�ll harm--
Well, I don�t give a darn.

If I mow you down
On the drive back to town,
I�ll have no remorse.
I�m not guilty, of course.

quote:

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Originally posted by Alissa A. Jackson:
I see no harm
In drinking lots o� Boones Farm.
If I cause ya�ll harm--
Well, I don�t give a darn.

If I mow you down
On the drive back to town,
I�ll have no remorse.
I�m not guilty, of course.

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AND I'LL REFUSE TO BLOW

update:
While the folks had forgotten that transgression (exact words were along the line of, "Son, there were so many times that your @&$ was grounded, and on more than one occassion because of foul odors coming from a borrowed vehicle, not always with our permission, your going to have to be alot more specific...,".
Since I'm 37 amd living 4 hours away, they don't know if they can still ground me, but if they can, I am.
FYI, if you wait until after midnight and the folks are asleep to borrow their truck, AND you DONT ask for permission out of consideration for them and the fact that they are sleeping soundly because they worked hard all day providing for you and your siblings, your not wanting to wake them up is evidently considered a technicality and doesn't "cut it MISTER" and is considered taking w/o permission AND If your reason for doing so ultimately pukes the Boones Farm Sangria - yes I said Sangria - none of that classless Strawberry Hill for my ladies - on the floorboard, it gets elevated to REALLY irresponsible. (And since you argue so elequantly about seeking credit for being considerate of their needs, it gets you suggested to go to law school).