The smell of alcohol is often cited as a contributing factor in the officer’s determination of intoxication.
However, alcohol is odorless, so the officer is actually testifying about the flavoring inherent in most beverages. Ironically, beer and wine have significantly stronger odors than hard liquor so a person can drink far less beer and wine yet smell worse than someone consuming large quantities of hard liquor.
The odor has no correlation to the amount of alcohol consumed, so an officer cannot testify about how much alcohol was ingested or when it was consumed. There are other sources that contribute to the smell of alcohol. Products that remain in the throat for extended periods of time are contributing factors, such as mouthwash, cough syrup, or deodorizing throat spray. Syrupy alcoholic beverages—Kahlua or other liquids—tend to remain in the throat for longer periods of time so the smell will be stronger.
Moreover, certain illnesses can create a breath comparable to the “odor of alcohol” and belching causes gaseous odors to remain in the throat for approximately ten minutes. Most chemical breath tests prohibit operation within ten minutes of belching, so some defendants have delayed the test by swallowing air to facilitate a belch. This is especially useful to possibly avoid the driver’s license suspension for a test refusal.
If a test is given, the result is inadmissible; if no test is given, the defendant was cooperative, but has a legitimate excuse—uncontrollable belching. Alcohol generally requires one hour to have the maximum effect on the body. If the officer claims that a strong smell of alcohol indicates recent consumption, then DUI defense attorney can argue that the defendant was not legally drunk at the time of driving because the alcohol did not have time to absorb into the bloodstream.
It is important to note that the smell of alcoholic beverages usually triggers police suspicion of a possible drunk driver. Thereafter, the officer will search for additional evidence of intoxication to substantiate a criminal charge.
To protect individual privacy from overly intrusive officers, motorists must learn to conceal their breath. There are numerous products on the market designed for breath concealment, so make an informed selection. Nu-Breath works for some, while others prefer red-hot cinnamon, pungent candy or gum. Using the appropriate product before initiating contact with an officer will help conceal offensive breath odors.