By on July 20, 2010

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is against the law of Wisconsin to operate a motor vehicle while intoxicated,” Chief Judge Richard S. Brown wrote in an unpublished ruling.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 “Suffice it to say that these decisions, both published and unpublished, include an officer or a citizen having observed traffic violations, erratic driving, mechanical defects with the vehicle, unexplained accidents or multiple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.

Source: PDF File Wisconsin v. Meye (Court of Appeals, State of Wisconsin, 7/14/2010)


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8 Comments on “Wisconsin Court Overturns Smell-Based DUI...”

  • avatar

    So wait, the cop didn’t even do a Breathalyzer?

    I’m guessing this has a very limited scope and will not stop cops from doing breathalyzers at check points cause they “smell alcohol.” It reminds me of an old joke.

    She: You’ve been drinking beer, I smell it on your breath.

    He: No I’ve been eating frogs legs, what you smell is the hops.

    • 0 avatar

      The officer would have needed probable cause to require her to take a Breathalyzer. As the judge pointed out, under the circumstances, the officer couldn’t even be sure of the source of the alcohol smell and did not observe any other indicators of her driving under the influence. The circumstances here are unique and unusual so, you’re correct that its scope will probably not be far reaching.

    • 0 avatar

      Well then under what probable cause did the officer arrest her in the first place?
      Since he assumed she was drinking and did in fact arrest her, then why not use the breathalyzer?

    • 0 avatar

      Did he ever do an actual BAC test? If this is just an issue of probable cause for the officer to detain her and perform a BAC test, then what is the probable cause when they set up check points and randomly pull over drivers? Those DUI checkpoints have survived legal challenges and there seems to be a heck of a lot less probable cause under those circumstances (none is less than any right?).

  • avatar

    I guess the officer will be smelling marijuana from now on. Then, incidental to an arrest…

  • avatar

    Seems to me that the officer did a poor job of articulating his PC. That and he got greedy for the DUI. I don’t know if Wisconsin has an alcohol intoxication statute like Kentucky does, but here it’s basically look drunk, act drunk, and smell drunk while in public and you’re good to go. It’s a $100 fine and sit in the passive intake area of the jail until you blow under .08 on a PBT.

    If you’re so concerned about somebody’s level of impairment that you don’t want risk waiting for them to drive away, following them for a couple of miles to document their impairment, and then making the stop because you’re afraid they won’t be able to even make it out of the parking lot without killing somebody, then just hook ’em up on the sidewalk for AI. They don’t drive and the immediate threat to public safety is removed.

  • avatar

    It is perfectly within a cop’s purview to talk to someone he thinks might be on the verge of getting in trouble. Saying hello and offering an impromptu lecture on the dangers of drinking and driving right under a cop’s nose just might do the trick. It’s not about arrests and tickets all the time, folks. Or shouldn’t be anyway.

    Who doesn’t remember being a teenager hanging out on a summer night with a bunch of friends and having a cop pull up just to say hi? Doesn’t show up in the statistics, but that’s the point.

  • avatar

    Was the cop suspended or otherwise sanctioned? Of course not, he can go right back to abusing his power.

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