Why do cops always detect an “odor” of alcohol and is this a reliable method of detecting drunk drivers?
If you were to read police officer’s reports as often as myself and my colleagues do as Criminal Defense Attorneys, you would quickly notice some trends that officers have while writing those reports, not just in Williamson or Travis County but among law enforcement agencies in many different agencies and jurisdictions.
Some of these trends are easy to understand and are encouraging to see. However, there are many that are not as straightforward and even troubling when you really start to think about why these repeated elements are always found/reported.
One trend that I see in almost every Driving While Intoxicated police report that I read is a report of a detectable “odor” of alcohol from the arresting officer. I can cycle through the reports from every current and past client I have in Williamson, Travis, Hays or Bell that has or was arrested for DWI and find that the arresting officer in that case claimed to detect the “odor” of alcohol in all but a very small number of cases.
You may think that it would make sense for a person who is arrested for Driving While Intoxicated to smell of alcohol, and it certainly does make some logical sense. So why is this concerning? There are a number of reasons:
1) Not every person charged with DWI is guilty
I have several clients who have been arrested and charged with Driving While Intoxicated that were legitimately innocent. There are numerous situations where I have clients who were proven to not have alcohol in their system by scientific tests that the State themselves conducted. So, if there was no alcohol in their system, why is there an arresting officer swearing that there is a detectable odor of alcohol? Further, in situations where that scientific testing shows that there is alcohol in their system, but the amount of alcohol is under the legal limit, what significance does an officer’s detection of an “odor” of alcohol have?
2) Not every DWI concerns alcohol
There are many situations where the allegation that is made against somebody arrested for Driving While Intoxicated is that they were intoxicated by a substance other than alcohol. However, there are numerous cases where even though it may ultimately be shown that a person had no alcohol in their system, but rather some type of narcotic drug or other intoxicating substance, the arresting officer still noted a detectable “odor” of alcohol early in the investigation.
3) “Odor” of alcohol vs. metabolized alcohol
There is a difference between the general smell of alcohol and the smell of metabolized alcohol. Alcohol can mean lots of different things. It can mean beer, wine, liquor, mixed drink or any other number of different variations or combinations. These can each smell very different and very distinct. However, once alcohol is digested and broken down by the liver, it then gives off a distinctive odor that is a result of the byproduct of the liver doing its job. This can be referred to as the odor of metabolized alcohol. The odor of metabolized alcohol almost certainly indicates that a person has consumed alcohol while the general odor of alcohol could mean any number of different things such as a drink being spilled or even just being somewhere in the general proximity of alcohol. This may seem like a very technical argument, but there’s certainly a difference between drinking a rum & coke and having one spilled on you and an officer can muddy the waters in an investigation if the correct terminology is not used.
4) Effectiveness of “odor” of alcohol in determining intoxication
Does the “odor” of alcohol or metabolized alcohol give any reliable indication of a person’s level of intoxication?
5) Officer truthfulness
This goes along with a question that is necessarily raised by points #1 and #2. We have no way of fact-checking an officer who claims to detect an “odor”, so how much weight can this be given
With all of these in mind, it’s clear why reports of an “odor” of alcohol being made in almost every Driving While Intoxicated case in Williamson, Travis and surrounding counties is so concerning.
How can there be an “odor” of alcohol in cases where it is shown by scientific evidence that there is no alcohol involved? There may be some legitimate explanations, but I always tend to think the easiest explanation is often the correct one, and that explanation is that officers are lying. They lie because it supports the narrative that they are pushing and there is very little that can ever be done to show that they are lying. At the end of the day, a case will either be dismissed due to a lack of evidence and/or an officer can just claim they were mistaken.
As to points #3 and #4, what guidance is there to support that an “odor” of alcohol is even a useful tool to determine intoxication with any accuracy? Alarmingly little given the frequency in which it is used as the basis of an arrest for Driving While Intoxicated. There have been very few scientific studies done into this question. In fact, it appears that only 3 studies have been conducted and published. These studies were done in 1932, 1985 and 1998 and it could easily be argued that the sample sizes of these studies were small enough to be insignificant. These studies are interesting and are certainly worth looking into if you want more information. For our purposes, I simply want to point out 3 things:
1) The studies suggest that there is a false-positive rate which supports the idea that officers are incorrect at a statistically significant rate when reporting odor.
2) They also suggest there is a very significant false-negative rate, meaning that odor was not detected despite significant concentration rates of alcohol in people’s blood. I find this to be significant because it suggests that officers would not detect an odor of alcohol a significant amount of the time when investigating a Driving While Intoxicated case where a person was truly under the influence of alcohol and yet, almost every single case that I have worked on where there was alcohol involved, an officer reported that odor. There are almost no examples that I can report where an odor was not detected and an officer still made an arrest for Driving While Intoxicated. This indicates to me that the odor of alcohol seems to almost be a “necessary” finding for these officers to make for them to feel legitimacy in an arrest. If that is the case, it would certainly lead to officers feeling a pressure to lie about this odor or perhaps convince themselves there is an odor when there is not actually one present.
3) The studies are all pretty clear that odor of alcohol alone has no reliable correlation to the level of alcohol in a person’s system. The same odor of alcohol may be present in somebody who is well below the legal limit and somebody who is 3x the legal limit.
So what conclusions can be drawn from all of this information? Unfortunately, without further facts, not a whole lot. Every case is different and there will always be facts other than odor that must be considered.
If you’ve been arrested for Driving While Intoxicated in Williamson, Travis or surrounding counties, contact an attorney with Villanueva, Salazar & Tucker. This is your life, don’t delay getting the justice you deserve.
Sources:
Widmark(1932) - The theoretical foundations and the practical application of forensic-medial alcohol determination.
Compton(1985) - Pilot test of selected DWI detection procedures for use at sobriety checkpoints.
Mokskowitz, Burns, Ferguson(1998) - police officers detection of breath odors from alcohol ingestion