Into the belly of the beast

Here's a link to Richard Alpert's DWI Case Law on the Texas District and County Attorneys Association website.

I found two cases summaries to be quite interesting as they relate to an officer's developing probable cause to arrest a motorist for driving while intoxicated.

Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth, 2008, pet. ref’d).

Officer may consider defendant’s refusal to do Field Sobriety Tests when determining the issue of probable cause to arrest.

Texas Dept. Of Public Safety v. Nielsen, 102 S.W. 3d 313 (Tex.App.—Beaumont, 2003, no pet.).

Substantial evidence existed of probable cause for driver’s arrest for driving while intoxicated (DWI) where police officer noticed several signs of intoxication including alcoholic odor coming from vehicle, driver’s refusal to make eye contact with officer, driver’s refusal to roll down window, driver’s response that he had consumed two to four beers when asked if he had been drinking, and driver’s refusal to take field sobriety tests. The totality of the circumstances is substantial evidence of probable cause for Nielsen’s arrest.

These cases seem to say that an officer may arrest a motorist for DWI absent field sobriety tests when that arrest decision is made after the motorist declined to perform the tests. Thus questioning an officer about when he made up his mind that he had probable cause to arrest a motorist for DWI becomes very important in determining if there was, indeed, probable cause for the arrest.

Based on these cases, the odor of an alcoholic beverage by itself, or in conjunction with bloodshot eyes or slurred speech, don't give rise to probable cause to arrest for DWI absent more evidence of intoxication.