Is The Smell of Alcohol Probable Cause?

Probably not (pardon the pun). However, in some cases, the smell of alcohol could be probable cause, especially if the odor emanates from the defendant’s breath, as opposed to the defendant’s vehicle. In the first instance, the odor proves the defendant was drinking. In the second instance, the odor proves that a vehicle occupant was drinking. Other evidence could constitute probable cause as well. More on that below.

Probable cause is a very low standard. However, especially at DUI roadblocks and during other heightened enforcement periods, police officers often jump to conclusions. If that happened, a Tampa DUI lawyer can ask the judge to invalidate the arrest. If that happens, every subsequent occurrence, like a failed chemical test, is inadmissible in court.

Erratic Driving

Alcohol impairs judgment. As a result, drunk drivers often change lanes unsafely, run red lights, tailgate, and make other judgment errors. Other alcohol-impaired drivers take the opposite approach. They drive very slowly and may even stop for no reason.

Furtive driver movements may also help establish probable cause. Usually, if drivers are nervous around police officers, the drivers know they did something wrong. Leaving a place that serves alcohol is not evidence of probable cause. Instead, this action is evidence of profiling.

Physical Symptoms

Alcohol consumption causes physical symptoms, such as an odor of alcohol. Other physical symptoms of alcohol consumption include:

• Bloodshot eyes,
• Slurred speech,
• Slow reflexes,
• Disorientation, and
• Unsteady balance..

Alcohol consumption isn’t the exclusive cause of these symptoms. However, since probable cause is a relatively low burden of proof, the whole of this evidence is greater than the sum of its parts.

Open Container

In Florida, an open container of alcohol in a vehicle is more than evidence of probable cause for DUI. It’s also a separate offense. Florida Statute 316.1936 prohibits the possession of open containers of alcohol in vehicles, in public spaces, and while consuming alcohol in public. An open container is defined as any container that can be consumed immediately or has a broken seal. The law applies to all vehicles, including those in motion, parked, or stopped, and on public highways.

On a related note, Florida also has a refusal-to-submit law. If Ted refuses to provide a chemical sample and beats a DUI in court, he could still be convicted of a misdemeanor offense.

Field Sobriety Tests

The three NHTSA-approved FSTs are the strongest evidence of probable cause in a DUI case. In fact, if no other elements are present and the defendant fails the field tests, officers have probable cause to arrest the defendant.

We stress that only the approved tests are evidence of probable cause. Other tests, like reciting the ABCs, don’t count.

The three-test battery has some flaws. The walk-and-turn is a good example. During roadside WAT tests, defendants must deal with distracting flashing lights, high winds, dark skies, and other distractions. Additionally, these defendants must normally walk straight lines on parking lots and other uneven surfaces. Finally, unless you’re wearing athletic shoes, it’s almost impossible to walk heel to toe in a straight line.

Contact a Dedicated Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a confidential consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters throughout the Sunshine State.