Driving After Drinking In Moderation Could Get You Arrested In Maryland

In December 2013, Maryland’s highest Court issued a decision that allows any driver in Maryland to be arrested for DUI if a police officer smells an odor of alcohol. Until the Court of Appeals decision in Motor Vehicle Administration v. Spies, it was generally understood that no driver should be arrested unless a police officer has probable cause to believe the driver was “impaired” by alcohol. This means the officer has to observe something about the driver that would lead the officer to believe the driver’s coordination is impaired by alcohol. But now a police officer may arrest a Maryland driver on nothing more than an odor of alcohol – even if the driver exhibits perfect coordination.

On September 4, 2011, a Maryland State Trooper pulled Mr. Spies over for some unidentified traffic violation. The officer detected a “moderate” odor of alcohol from Mr. Spies and asked him to perform standardized field sobriety tests. Spies refused. There was no evidence that Spies had difficulty driving the car. There was no evidence that he had trouble finding his license or registration. There was no evidence he had slurred speech. Nor was there evidence Spies exhibited any difficulty standing or walking. Nevertheless, the officer placed Spies under arrest, transported him to the station, and demanded that Spies take a breath test. Spies refused. His case came before the courts when Spies challenged the 120 day suspension of his license for refusing to take the breath test. He argued that there was insufficient evidence of impaired coordination to require that he take the breath test.

Maryland’s Court of Appeals unanimously disagreed, holding that the “moderate odor” of alcohol was, by itself, sufficient for the officer to demand that Spies take a breath test. The Court did not say that an odor of alcohol amounts to probable cause for an arrest. In fact, the Court held that an officer does not even need probable cause. Instead, an officer only needs “reasonable grounds” – a “low quantum of suspicion” – to believe a driver may be under the influence of alcohol and/or drugs. This standard, however, conflicts with the requirement of the Fourth Amendment that no person should be arrested unless there is “probable cause” to believe that a crime has been committed. Which is probably why the Court did not say that “reasonable grounds” or a mere odor of alcohol amounts to probable cause to arrest a driver for DUI. Instead, the Court said that the odor of alcohol allows the officer to request that the driver take a breath test.

Here is the problem: the breath test machine is at the police station. To make the request, the officer has to take the driver to the station. That means the driver is going to be placed in handcuffs. The officer will likely have the driver’s vehicle towed to an impound lot – which may cost the driver $150 to $300 to get the vehicle back. Once at the station, the driver is typically cuffed to a table (for officer safety). There, the driver will be given an opportunity to read a long litany of consequences that may flow from failing a breath test or refusing the test. Then, the driver will be asked to take the test.So, allowing an officer to “request” a breath test, necessarily allows the officer to effectively arrest the driver. What is a “moderate odor” of alcohol? The Court did not say. Therefore, a “moderate odor” is whatever a police officer decides it will be.

The Court’s decision could lead to some real-world difficulties. First, any person who has a drink and sets out on the road with an odor of alcohol could find themselves being hauled down to the police station. You may be that responsible person who cuts yourself off at one drink because you know you have to drive home. If the officer smells that drink and calls the odor “moderate,” you could be going to the station and getting your car out of impound the next day.

The decision in MVA v Spies also gives police officers unfettered discretion to arrest drivers in a manner that cannot be challenged. Maybe you get pulled over at 1 a.m. for a broken tail light and all of a sudden an officer is asking for consent to search your car. You say, “No thank you.” If that officer says he smells an odor of alcohol, you are going to the station and your car is getting searched as a “search incident to an arrest” or an “inventory search.” Once you finally get together with your attorney, there is no realistic way to challenge the officer’s assertion that he or she smelled an odor. More and more police cruisers are being equipped with cameras. Some DUI cases get thrown out of court because the officer’s assessment of the driver’s impairment does not match what is shown on the video. Yet, there is no technology that can record and verify an officer’s assertion about a moderate odor of alcohol.

As a rationale for this expanded authority of police officers against Maryland citizens, the Court explained that DUI laws are “not meant to protect drivers who are suspected of drunk driving” and are designed “to prevent unscrupulous or incompetent persons from engaging in the licensed activity.” In other words, the police get to do this because the law is designed to catch the bad guys. Of course, all criminal laws are designed to catch the bad guys. Such reasoning would justify the eventual erosion of every constitutional right and afford no protection to the rest of us from unscrupulous or incompetent police officers.

No doubt, driving a vehicle while under the influence of alcohol is a serious problem in the United States. The National Highway Traffic Safety Administration reports that 10,076 people lost their lives in drunk driving collisions in 2013. That’s one death every 52 minutes. Thus, it seems that with regard to DUI laws in Maryland, the Courts have come down on the side of exercising an abundance of caution. Therefore, if you decide to go for a drive after drinking – even in moderation – be prepared to also take a ride.