It is doubtful that there will ever be a DUI case in which the officer is not prepared to testify that the defendant had “an odor of alcohol” on his breath. Alcohol on the breath is the one observation that will always be encountered in the DUI case. It is also one of the more damaging.
Unless the odor can be explained or minimized, the jury will inevitably conclude that “where there’s smoke, there’s fire” – alcohol on the breath means alcohol in the body and that means a drunk driver. However, a skilled DUI defense attorney can undermine the police officer’s testimony. A seasoned trial attorney can use the officer’s own words to show that the officer’s opinions are based on nothing but a guess.
The important point to be noted is that alcohol has little or no odor. What the officer does not know is that “odor of alcohol” on a suspect’s breath is the odor of the flavoring of the drink (scotch, beer, gin, wine) that was ingested. The odor of the flavoring can be deceptive as to both the strength of the drink and the amount consumed. Beer and wine, for example, will leave the strongest “odor of alcohol” on the breath, yet they are the least intoxicating of beverages. A single can of beer can leave a stronger odor than three or four martinis.
One very effective way of illustrating the point that ethanol (alcohol) has no odor is the consumption of near beer. Near beer is a nonalcoholic beverage made from grain, malt, hops and yeast and looks, smells and tastes like regular beer. What is the effect? The person drinking near beer will have “an odor of alcohol” on his breath, despite having consumed no alcohol at all.
What is the point of all this? The point is simply that since the intoxicating element, alcohol, has no odor, the presence of an odor tells us only that a beverage normally associated with the presence of alcohol has been consumed in the relatively recent past. More important, it does not tell us how much alcohol has been consumed. There is no correlation between the amount of alcohol consumed and the odor, and certainly none between the amount and the strength of the odor. Again, beer is among the least intoxicating of beverages and yet leaves the strongest odor on the breath.
A carefully planned cross-examination of the officer on the stand can set the tone for the jury. By getting the officer to admit that the odor does not come from alcohol, that’s a good start. From there, the defense attorney needs to get the officer to admit that there is no way to tell how much someone had to drink based upon this “odor.” The defense attorney must then get the officer to admit that non-alcoholic drinks smell exactly like alcoholic drinks. Finally, the defense attorney must get the officer to admit the words “strong odor” means absolutely nothing, except maybe that the officer was close to the suspect.
Personally, I begin my cross-examinations of every officer with this line of questioning. It puts the officer on the defensive, shows the jury that the officer based his ultimate opinion on an odor that really means nothing.
If you would like to see actual transcripts of Mr. O’Toole’s cross-examinations, please call our office at 1-855-550-3476 or contact us by filling out the form on our website.