Does the Odor of Alcohol Equal Probable Cause?

By Andrew Mishlove on September 16, 2019


Man pulled over by the policeThe term “probable cause” often comes up in the context of drunk driving and intoxication cases. Many people in the state of Wisconsin who are charged with drunk/intoxicated driving are unfamiliar with what that term means, which is why having a skilled OWI/DUI defense lawyer on your side is so important. Attorneys Andrew Mishlove and Lauren Stuckert are here to offer insight and legal advice for people charged with drunk driving or operating a vehicle while on drugs.

The team at Mishlove & Stuckert, LLC would like to consider the basics of probable cause, specifically how it relates to the smell of alcohol in a vehicle or on a driver’s breath. The issue is more complicated that it may seem on the surface.

What Is Probable Cause?

Probable cause essentially means that there is sufficient evidence and information available to make a reasonable assumption that a crime has been committed.

In the case of drunk driving stops, a vehicle swerving on the road or failing to remain in its lane is typically considered probable cause for a traffic stop.

Legal Cases About Alcohol Odors and Probable Cause

There is a case in the Supreme Court of Wisconsin that addresses the issue of the smell of alcohol and OWI charges.

In the case of the State vs. Goss, a man was pulled over for issues related to his license plate. While pulled over, the police officer found out that Goss had four prior OWI/DUI convictions and a revoked driver’s license. Given these facts and the smell of alcohol on his breath, the officer asked Goss to take a breathalyzer test.

The Wisconsin Supreme Court ruled that given Goss’ prior convictions, the smell of alcohol did constitute probable cause to check for sobriety during the traffic stop.

The Smell of Alcohol Does Not Always Mean Intoxication

The smell of alcohol in a vehicle or on a driver’s breath may seem like a black-and-white situation with regard to probable cause. They say that where there’s smoke there’s fire, so clearly where here’s alcohol, there’s an OWI/DUI charge, right?

Not so fast.

Just because there is the smell of alcohol in a vehicle does not mean there is probable cause to suspect drunk driving. Non-alcoholic beer has the same smell as normal beer, for instance. Additionally, passengers may have alcohol on their breath, but that does not mean the driver is drunk. Alcohol may have been spilled within the vehicle as well.

Ultimately, we should consider the Goss case for context. Given the prior OWI convictions, the smell of alcohol on the man’s breath added to the evidence that drunk driving had occurred. The smell of alcohol alone, however, should not be the sole determinant of intoxication.

Our Drunk Driving Lawyers Are Here to Help

Again, there are fine distinctions with regard to probable cause that motorists may not realize or be familiar with. That’s why it’s so important to work with a drunk driving defense attorney. They can assess your case and the circumstances of your arrest and then determine if there was sufficient reason for you to be pulled over. If not, your lawyer can work to have your charges dropped or your penalties reduced.

Discuss Your Case with Skilled Lawyers

For more information about legal options after a drunk driving arrest, be sure to contact our team of OWI/DUI defense lawyers. The team at Mishlove & Stuckert, LLC can be reached in Milwaukee at (414) 206-6918 and in Waukesha at (262) 207-4527.

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