Editorial: Odor Of Alcohol in Arizona DUI Cases

I have noticed a new trend among Phoenix area DUI officers in testimony. They are starting to answer questions with a simple "that would overstep my area of expertise" to quantify (fill in what ever I happened to be asking about). An example is odor of alcohol on the person's body or breath. In the past, most officers in Arizona would quantify the odor of alcohol by saying either strong, medium or mild. For most officers, this would relate to the proxiimity to the arrestee before they could smell it. For example, 5 feet away and it is strong, but if the officer had to get right in the person's face, then it is mild.

The problem with this type of testimony is that alcohol is essentially odorless, and every officer who wanted to maintain any credibility on the witness stand would have to admit under cross examination that they can not not tell time of drinks, type of drinks, amount of drinks, strength of drinks or impairment from odor.

So the new trend, and maybe they are teaching this in continuing police officer education or something, is to say something like… "my job is not to decide subjectively how strong an odor is. Yes, it was there. But I would not want to give the impression that I can divine impairment or BAC from the smell. It is only my job to decide whether I think the person is impaired to the slightest degree (as is the law in Phoenix and throughout Arizona), and if they are, to arrest them for DUI and let the breath or blood test sort it out.

As a DUI defense attorney, I have a couple of problems with this answer. 1) It shows the cop is more honest, and the worse thing for my clients' cases are honest cops (I can almost always poke holes in the liars' stories). 2) It puts more emphasis on the chemical test, which, if damaging, is not what I want the judge or jury to focus on.

I'm all for officers being honest and straightforward. Heck, I usually make friens with them during cases. But they are being honest at the expense of DUI defendants throughout Arizona.

Now, if this trend of refreshingly honest officers continues, then all the state of Arizona would have to do is pass some DUI laws that make sense, AND start using chemical testing methods that are accurate and don't produce fales highs for alcohol levels, and I would have to find work elsewhere because a Arizona DUI case would be indefensible.

For now, however, I forsee a long future before the above happens, and therefore a fruitful present for me challenging what tries to pass for science in courtrooms in the Phoenix area.