LEGAL GUIDE
Written by attorney James Morris Balagia | Jul 28, 2010

Another Bad DWI Arrest

Here's a story that hits real close to home in every jurisdiction in America. I have DWI attorney friends in every state in the union and we constantly exchange information about our cases to help us do our jobs more effectively. One of the statements that we read in every police offense report is that the "odor of alcohol" was present. Well, I have news for you - if you drink any amount of alcohol the odor of an alcoholic beverage will be present every time. One thing I argue about this issue is that if my client admits that he had some amount of alcoholic beverages then the smell just proves that the client is telling the truth. And no cop can smell that odor and tell us: how much was consumed; what was consumed; when it was consumed; what it was mixed with; if the person ate with the alcohol; what proof the alcohol was; and it goes on and on. That's why I tell my friends not to answer any question about drinking because the officer will always turn it into intoxication. State urges court to set standard for DUI stops By Brian Mackey Law Bulletin staff writer SPRINGFIELD -- The state has asked the Illinois Supreme Court whether the odor of alcohol on a driver's breath is sufficient on its own for police to detain a driver and conduct a field sobriety test. Defendant Julie Levitt was pulled over for an equipment violation but ultimately was arrested on a charge of driving under the influence of alcohol. She successfully moved to quash her arrest and suppress evidence of the sobriety test, both of which were affirmed last month by the Appellate Court. Now the state has petitioned the high court for leave to appeal, contending that while it's an issue of first impression in Illinois, "numerous sister jurisdictions" have held that the smell of alcohol can provide a police officer with the reasonable suspicion necessary to prolong a traffic stop. In the early morning hours of June 30, 2005, Levitt was pulled over in Effingham for driving without a license plate light. When State Police Trooper Cory Bogard approached her vehicle, he told Levitt why he stopped her and asked for her license and proof of insurance. According to the petition, Bogard "could smell a strong odor of an alcoholic beverage" while talking to Levitt and, when asked, she said she'd had two drinks. Bogard directed Levitt to get out of the car and take a field sobriety test; she was arrested and charged with DUI but, according to the Appellate Court, was not cited for the license plate light violation. After a suppression hearing with stipulated facts, Effingham County Associate Judge James R. Harvey granted Levitt's motions to quash her arrest and suppress the evidence. "This is not a situation where there was a strong odor of alcohol and slurred speech," Harvey said in a ruling from the bench recounted by the appeals court. "But for the license plate light ... [t]here wasn't any other observable traffic violation which would support speculation of intoxication." The state filed a certificate of impairment and appealed, but on Jan. 2, the 5th District Appellate Court affirmed Harvey's decision. Justice James K. Donovan wrote the order, which was not published in accordance with Supreme Court Rule 23; Justices Melissa A. Chapman and Bruce D. Stewart concurred. "The sole issue in this case is whether there was a reasonable suspicion that the defendant was operating a vehicle under the influence of alcohol to justify further detention for the administration of field sobriety tests," Donovan wrote. Noting that the stop was based on an equipment violation, Donovan wrote, "The defendant was not stopped because she was weaving in her lane of travel, driving across the fog line, or otherwise operating the vehicle in an erratic manner. ... "Based on the stipulated facts, there is no indication that the defendant had slurred speech or bloodshot eyes. There is no indication of a disheveled appearance. There is no indication that the defendant appeared confused during her interactions with the trooper or that she fumbled for her driver's license when the trooper requested it." In short, Donovan wrote, there was no evidence the driver was impaired. "It has been long recognized that there is a difference between evidence of alcohol consumption and evidence of impairment as a result of the consumption of alcohol," Donovan wrote, citing People v. Schneider, 362 Ill. 478 (1936), and People v. Boomer, 325 Ill.App.3d 206 (2001). "The trooper's observation of a strong odor of an alcoholic beverage is a subjective one. Because the state stipulated to the facts, the trooper did not have an opportunity to articulate the specific facts and inferences that led him to suspect that the defendant was impaired," Donovan wrote. "An ill-defined, subjective observation of a strong odor of alcohol may be evidence of consumption, but standing alone not impairment, particularly when the other objective observations do not reflect impairment." In its petition for leave to appeal, the state contends that the Appellate Court substituted the "reasonable suspicion" standard for warranting field sobriety tests with the higher "probable cause" standard. "There is an absence of authority in Illinois regarding whether a strong odor of alcohol is sufficient for 'reasonable suspicion' purposes," the petition contends, but "the closest case on point" is People v. Carlson, 307 Ill.App.3d 77 (3d Dist. 1999). In Carlson, an officer saw a car on the side of the road with its engine off. Concerned for the driver's safety, he tapped on the window and smelled alcohol on the motorist. He ordered the defendant out of the car, and the defendant "appeared unsteady and apparently wet himself," according to the petition. The Carlson court held that the initial encounter was justified under the officer's "community caretaking" function. But when the window was rolled down, the officer then "had an articulable suspicion that the defendant had violated section 11-501 of the Illinois Vehicle Code ... and he was justified in asking the defendant to step outside for a further investigation pursuant to Terry v. Ohio," the Carlson court held. Carlson, the state's petition contends, suggests the "strong odor of alcohol" alone is enough to support reasonable suspicion, and that Levitt's case has resulted in an appellate split. The state also cites similar cases from other states that have found an odor of alcohol sufficient: State v. Thornley, 141 Idaho 898 (2005); State v. Stansbury, 234 Ga.App. 281 (1998); Layton City v. Bennett, 741 P.2d 965 (Utah 1987); and State v. Rogers, 124 N.C.App. 364 (1996). The state is represented by the Office of the State's Attorneys Appellate Prosecutor, with staff attorney Patrick D. Daly, Deputy Director Stephen E. Norris and Director Norbert J. Goetten. The state is also represented by Effingham County State's Attorney Edward C. Deters and Attorney General Lisa M. Madigan. The case is People v. Julie Levitt, No. 104178.

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