DUI Defense – Attacking a claim of an odor of alcohol

Odor does not prove quantity

If the arresting officer refers to the odor of alcohol at the time of your arrest, your attorney might attack this by emphasizing that the odor does not really mean much.

The aroma associated with alcohol is the flavoring that gives the beverage its taste. For example, “near beer” smells like beer, but has no effect like beer because it has little to no alcohol. Curiously, alcoholic beverages with the least amount of alcohol tend to the have the strongest odor. For example, beer has a more pervasive scent than vodka.

You can tell the officer’s experience by how the officer describes the odor of alcohol. The more experienced officer will state that he or she detected the odor of an “alcoholic beverage,” and will avoid the claim that he or she detected the “odor of alcohol.”

Furthermore, an officer cannot determine how much alcohol a person consumed by the odor. Most officers will concede that based upon the odor of alcohol they cannot tell you how much the defendant had to drink. They will also generally testify that they cannot even tell you what type of drink the defendant had by the odor of alcohol. There is no scientific backing that anyone can determine the amount of alcohol consumed by a person by the odor of alcohol emanating from them.

Sample cross-examination of arresting DUI officer about the odor of alcohol

The following is a sample cross-examination of an officer on the issue of the odor of alcohol:

Q: You indicated that the defendant had an odor of alcohol about her?
A: Yes, a strong odor of alcohol.

Q: Could you tell us by the odor of alcohol what time the defendant started to have something to drink?
A: No.

Q: Could you tell us what time she finished having something to drink?
A: No.

Q: Based upon the odor of alcohol could you per chance tell the jury and myself how much the defendant had to drink?
A: No.

Q: Well, since you stated that there was a strong odor of alcohol you can at least tell us what type of drink the defendant had been drinking, can’t you?
A: Probably not.

Q: So based upon the odor of alcohol about her you cannot even tell if she had some wine, a beer, or a mixed drink?
A: True. But I still detected the odor of alcohol.

Q: Actually officer, ethyl alcohol has little odor?
A: I believe that is right.

Q: It is the flavoring that gives off the odor, not the alcohol?
A: I think that is right.

Q: Indeed, it is a curious fact that the beverages that give off the most odor tend to have the least alcohol in them?
A: Yes.

Another sample cross-examination of arresting DUI officer about the odor of alcohol

The following is a sample cross-examination of an officer on the issue of the odor of alcohol:

Q: Officer, you stated that the defendant had a strong smell of alcohol on his breath?
A: That’s correct.

Q: How far away were you from the defendant when you first noticed the smell?
A: Probably three to four feet away.

Q: Officer, isn’t it a fact that what you were actually smelling was the flavoring of an alcoholic beverage?
A: I don’t know what you mean.

Q: Well, isn’t it a fact that pure alcohol has little or no smell?
A: I really don’t know.

Q: Officer, can you tell me what kind of alcoholic beverage you smelled?
A: What do you mean?

Q: Well, was the defendant drinking gin, vodka, scotch, bourbon, beer, or wine?
A: I couldn’t tell.

Q: Can you tell me how many drinks the defendant had from the smell on his breath?
A: No, but I could tell it was a lot.

Q: In your experience, would a person who had something to drink an hour or two hours prior to an arrest have as strong a smell of alcoholic beverage as someone who had a drink five minutes prior to the arrest?
A: The one who just had the drink would have the stronger odor of alcohol.

Q: And it’s your testimony that defendant had a strong smell of alcoholic beverage on his breath?
A: Yes.

Q: So, it is your testimony that the defendant probably had been drinking within the last five or ten minutes, since he had a strong smell of alcohol on his breath?
A: I’m not sure, I guess so.

This sample questioning accomplished two things:

• First, the groundwork is set for an argument that the drinks could not have been affecting the defendant’s driving at the time of the arrest because it takes time for alcohol to be absorbed into the blood. The officer has testified that it is his opinion that the defendant had been drinking just before the arrest. An attorney can establish that those drinks could not have been affecting the defendant significantly at the time of his arrest.
• Second, the officer admitted that he did not know what kind of drinks the defendant had, how many drinks he had, or over what period of time he consumed the drinks.