Is the smell of alcohol enough probable cause to breathlyze me even if I passed the field sobriety test? 5 Answers as of September 11, 2010

Driving home from a bar in Mammoth Lakes, CA on vacation, I was pulled over. It was snowing and I was driving a 2010 4x4 Jeep Wrangler. The officer later explained to me that he noticed my tags were expired and pulled me over as a result, despite running my tags and knowing that my car was registered. He explained that I had been driving fine and that I was getting a ticket for having expired tags.

However, the officer then said he smelled alcohol in the vehicle and asked me to take a field sobriety test. Even though I was wearing cowboy boots in the snow, the officer said I had passed the FST but that he needed to breathalyze me because of the odor. I blew a .11.

Did the officer have probable cause to pull me over if he knew my car was registered when he turned on his siren? And, is the smell of alcohol enough PC, even though I passed the FST, to still breathalyze me?

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Law Office of Joe Dane
Law Office of Joe Dane | Joe Dane
The big first question is going to be: did they have reasonable suspicion to pull you over in the first place? If the original basis for the stop cannot be justified, then all subsequent evidence is subject to being suppressed. If they truly knew your tags were valid, technically there was no basis for the stop. There is another Vehicle Code section that requires the display of current registration, but if the reports or their testimony at a motion to suppress can establish that.

From there, the next question - can they request a Breathalyzer? The only chemical test you're required to submit to is the official one AFTER you're arrested.. the other is voluntary unless you're under age. They can request out and if you submit, they can factor that into their determination of probable cause to arrest. Your entire case and all three reports will need to be reviewed for a more detailed analysis of your options.
Answer Applies to: California
Replied: 9/11/2010
Nelson & Lawless
Nelson & Lawless | Terry Nelson
Of course. You were stopped because the vehicle had no tags visible you admit. Any reasonable suspicion is enough to justify further investigation. The arresting officers report will very clearly describe all his reasons for the stop and the arrest, including odor of alcoholic beverage on his breath. You will get to argue about them in court, that is not necessary here. Your focus is clearly on the wrong issue complaining about the details. Any sympathy you might get from here is of no value to you. If you were arrested, you need to provide all the relevant facts and evidence to your attorney for use in any appropriate motions, plea bargaining or at trial. If this is here in Southern California, and you are serious about hiring counsel to help you, feel free to contact me.

Keep in mind: When you are arrested for DUI, upon release from jail or booking, you will be given documents that include a notice from DMV that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic one-year suspension of your license. Contact DMV and do so, timely. You can hire an attorney for that hearing if you want.
Answer Applies to: California
Replied: 9/9/2010
The Law Offices of Lance Rogers
The Law Offices of Lance Rogers | Lance Rogers
If the officer knew that your Wrangler had valid registration then, by his own admission, there is NO probable cause to stop you. This is an arguable issue for a Motion to Suppress Evidence pursuant to California Evidence Code section 1538.5. If the stop was unconstitutional then the resulting evidence (PAS test, breath test, etc.) must also be excluded as "fruit of the poisonous tree."

In any event, a competent attorney should be able to negotiate a better than average plea agreement with the risk to the prosecutor that the entire case could be dismissed based on the search and seizure violation.
Answer Applies to: California
Replied: 9/9/2010
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
To pull you over the officer has to have probable cause for a traffic stop. Driving with expired tags is probable cause for a stop. As the officer was going to give you a ticket for expired tags even after the stop this indicates that he had probable cause.

Once you have been stopped then the officer can require you to take a field breath test if he has reason to believe you are under the influence. His statement that he smelled alcohol is all he needs.
Answer Applies to: California
Replied: 9/9/2010
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