7/20/2010Wisconsin: Court Overthrows DUI Conviction For Smelling Drunk
The Wisconsin Court of Appeals
The Wisconsin Court of Appeals on Wednesday overturned the conviction of a woman arrested for driving under the influence (DUI) because she smelled of alcohol. Brittany A. Meye, 22, stopped for gas at a Kwik Trip gas station on January 22, 2009 just before 3:30am. A Pewaukee police officer claims that he caught the scent of intoxicating beverages as Meye and her passenger walked past him into the store. After a few minutes inside, the pair returned to their vehicle, and the officer arrested Meye as she got behind the wheel. The appellate court found the officer's response inappropriate.
"It is against the law of Wisconsin to operate a motor vehicle while intoxicated," Chief Judge Richard S. Brown wrote in an unpublished ruling. "But, although unwise, it is not against the law to drink and then drive."
The arresting officer did not observe Meye driving dangerously or note any defective equipment on her vehicle that would have justified a traffic stop. He did not see anything about the way she walked to suggest intoxication. In fact, he could not even specifically state that it was Meye who smelled of alcohol.
"The weakness of this seizure is exacerbated by the fact that the officer was not sure from which person the odor of alcohol was coming from or if it was coming from both persons," Brown wrote. "Case law requires that those indicators of drunk driving used by law enforcement must be linked to the operator of the vehicle."
As a result, the court determined that throwing out the lower court's decision was not even a close call.
"We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop," Brown wrote. "Suffice it to say that these decisions, both published and unpublished, include an officer or a citizen having observed traffic violations, erratic driving, mechanical defects with the vehicle, unexplained accidents or multiple indicia of physical impairment. Not one of these cases has held that reasonable suspicion to seize a person on suspicion of drunk driving arises simply from smelling alcohol on a person who has alighted from a vehicle after it has stopped -- and nothing else."
The court noted that the outcome would have been different had the officer smelled marijuana because possession of that substance, unlike alcohol, is in itself illegal.
A copy of the decision is available in an 18k PDF file at the source link below.