Question: Can you discuss the “odor of alcohol” that officers often cite on Maryland DUI reports?
Answer: The officer generally uses this type of observation twice in an arrest. The first time would be when the window is rolled down; the officer will at first, he will kind of lean his head in and say, “I smell a strong odor of alcohol coming from the interior of the vehicle.” Then he’ll usually back up his original statement by saying, “Once he got out of the car, I smelled a strong odor on their breath/on their person and breath.”
So that’s two confirming statements as far as a level of odor coming off the person. What that does is that aids him in reasonable and articulable suspicion and probable cause. That’s really all it does; it can, if the officer says that, the use is circumstantial evidence of alcohol being consumed. But if the person admits to having alcohol or if they take a breath test, then the odor doesn’t really matter all that much.
On the form, on the DR-15 form, there’s three different levels, three different types of odor: there’s faint, and moderate, and strong. Generally speaking, if the person is being arrested for DUI, the officer writes “strong.” But we do often see a “moderate,” and even sometimes a “faint,” depending on the amount of alcohol. Very rarely do they say “faint” and then the person blows a high number. So, they tend to side it a little bit more on the strong side.
And the judge does use that if there, say, isn’t a breath test and they have to go off of circumstantial evidence—the judge will say, “Well there was a strong odor of alcohol.” But we are just kind of taking the officer’s word. There’s no way to cross-examine the officer’s testimony as far as how he smelled. You know, because sometimes the person drinks something that doesn’t really have much of an odor at all and the officer will say “strong odor.”
So we’re really going off of the officer’s subjective opinion on the odor. There’s no way to really check it. So, the amount of weight given to it generally isn’t too much, due to the fact that we’re really just kind of going with the officer’s word as opposed to any kind of empirical data. So, yes, those are the normal different ranges of odor, and there’s usually two times that the officer confirms his suspicions.