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Signs of impairment - Defending your innocence -

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Signs of impairment - Defending your innocence

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Defending Your DWI: An Odor of Alcohol and Red Glassy Eyes Means You’re Drunk, Right?

Officers’ observations of “red, glassy eyes” and the “odor of alcohol” are two phrases that are parroted in almost each DWI case. Our New Hampshire criminal defense lawyers routinely challenge these observations by demonstrating that a plethora of environmental factors can influence the appearance of these “symptoms”.

Did you know that the notion of “red, glassy eyes” as a sign of alcoholic impairment was debunked by the United States Department of Transportation itself back in 1997? In their report, the U.S. DOT stated:

“…Bloodshot eyes, while associated with alcohol consumption, also are a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies.” Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BAC’s below .10 (1997)

Take into consideration the following snippet of a cross-examination:

Lawyer: Is it not true Officer X that being fatigued can cause the appearance of red eyes? 
Officer X: Yes.
Lawyer: You do not know how long my client was awake before the DWI stop, correct? 
Officer X: Yes, that is correct. 
Lawyer: Would you agree that allergies can create redness of the eyes?
Officer X: Yes.
Lawyer: Do you know if my client suffers from allergies Officer? 
Officer X: I do not. 
Lawyer: Did you contact my client’s physician to follow up on this issue?
Officer X: I did not. 
Lawyer:  Can cigarette smoke cause the eyes to appear red in color?
Officer X: Yes.
Lawyer: Did you inquire of my client how many cigarettes he had smoked over the duration of the night? 
Officer X: I did not. 

Alcohol is not the only factor that can cause the appearance of watery, red, or bloodshot eyes. Other potential causes include:

§  An emotional state

§  Cigarette smoke

§  Infections

§  Eye strain

§  Disease

§  Contact lenses

§  Dry air

§  Fatigue

§  Prescription medications

§  Diabetes

A cross-examination on the issue of red, glassy eyes could potentially go on indefinitely. When one considers the numerous alternative reasons for the appearance of red, glassy eyes, it hardly seems as though this observation can serve as compelling evidence of intoxication.

Odor of Alcohol

Police Officer’s Testimony: “I approached the vehicle from the driver’s side and instantly detected a strong alcoholic odor emanating from the driver.”

There are certain things that are guaranteed in life, like taxes and death. Another guarantee is that almost each DWI police report will feature a condemning claim by the arresting police officer that he or she detected “the odor of an alcoholic beverage” either coming directly from the motorist themselves or from the interior cabin of the vehicle. Yes, the fact that your DWI police report will repeatedly echo the phrase “odor of alcohol” is almost an absolute certainty.

At first glance, a claim to smell the odor of alcohol might seem like damning evidence of guilt and intoxication. One could easily erroneously conclude that if a motorist smells like a brewery, he or she is intoxicated. However, in reality, the phrase is absolute junk. It reveals nothing about a motorist’s level of sobriety or how fit they were to operate an automobile.

Ethyl alcohol features no smell. What the police officer is detecting is an aroma – the flavoring used to provide a beverage with its taste. In general, the beverages that have the strongest aroma, such as wine and beer, are also the ones that contain the least amount of actual alcohol. There are certain quite strong alcoholic beverages, such as vodka and scotch, which actually produce a faint, light smell.

What If I Have Been Drinking Non-Alcoholic Beer?

Non-alcoholic beer is often referred to as “near beer”. Even after drinking a near beer, the chances are that you are still going to smell like a brewery. However, regardless of the strong odor that is wafting from your person, it does not change the fact that you have absolutely no alcohol in your system or bloodstream.

Standing alone, the odor of alcohol does not create enough probable cause for a police officer to make a DWI arrest. Remember that New Hampshire’s state laws make impaired driving illegal, not driving a motor vehicle after having had a single drink, and it is absolutely imperative for a police officer to have sufficient probable cause before an arrest for any crime.

“The mere odor of alcohol about a driver’s person….maybe indicia of alcohol ingestion, but it is no more a probable indication of intoxication than eating a meal is of gluttony.”  Saucier v. State, 869 P. 2d 483 (1994)

Our New Hampshire criminal defense lawyers ensure that both the judge and the jury understand that no correlation exists between the amount of alcohol a client has consumed and the mere presence of an alcoholic odor. An odor does not inform a judge or jury of what type of alcohol was consumed (i.e. mixed drinks, wine, or beer), how much alcohol was drunk, at what time the alcoholic drinks were consumed, over what duration they were consumed, or in what quantity the alcohol was consumed.

Do I Have to Answer a Police Officer’s Questions?

It is not uncommon for arresting officers to ask a suspect what they have had to drink or if they have been drinking at all. Remember that you are not legally obligated to answer this question. Politely inform the police officer that you are refusing his invitation to answer questions with a DWI attorney present. The officer is legally required to respect your decision. It really is that simple.

When it comes to New Hampshire DWI cases, time is a critical factor. Therefore, if you have been accused of or arrested for, a DWI crime in New Hampshire, you need to contact an experienced and skilled DWI attorney as quickly as possible. This is where our lawyers can step in to offer their assistance. We can be reached by telephone, email, or through our website.



Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship and the information on this site is not legal advice and may be inaccurate or not applicable to your case. Each case is different.

Mailing Address: Dan Hynes PO BOX 598 Merrimack, NH 03054