recognizing probable cause that evidence of driving while intoxicated would be found in suspect’s blood when defendant was involved in a collision and had a strong odor of alcohol on his breath
How later courts described this case
- recognizing probable cause that evidence of driving while intoxicated would be found in suspect’s blood when defendant was involved in a collision and had a strong odor of alcohol on his breath
- finding probable cause to arrest based on a collision where appellant was driving the wrong way on a highway, gave off a “strong odor of alcohol,” and was observed in the hospital “muttering and stuttering” incoherently hours after the accident
- recognizing that officer had probable cause to arrest defendant where the defendant was involved in a collision with another vehicle and had a strong odor of alcohol on his breath
- recognizing that officer had probable cause to arrest defendant where defendant was involved in a collision with another vehicle and had a strong odor of alcohol on his breath
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
In its opinion the Beaumont Court of Appeals stated, “In Aliff, probable cause existed, in the case at bar it did not, and the State does not so contend.” Today, however, the majority says, “We do not agree [that in the instant case there was no probable cause],” and finds that Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982), “disposes of the issues raised.” If the State did not contend for probable cause, how is that one of “the issues raised”? I respectfully dissent to this kind of adjudication on review by the Court. But if the matter is to be considered we should meet the issue head on.
Probable cause in Aliff , plainly set out in the opinion at page 168, was that the DPS trooper “observed the appellant’s erratic driving and saw him pass another car on the righthand side [and] pursued the appellant at speeds in excess of 100 miles per hour [until] appellant failed to stop for a red light and collided with another vehicle.” Those are not the facts in the case at bar, and the majority does not tell us what facts do constitute probable cause. That Officer Castillo merely “detected a strong odor from appellant’s breath” surely is not enough to justify a warrantless intrusion into the person of appellant.
Moreover, supervising officer Holland requested the blood test, not Castillo. Although the majority says that Castillo “conversed” with Holland, it does not give us even a hint of content of that conversation. It seems highly unlikely that Castillo would be talking to Holland about having blood tested, since he testified that blood was taken from appellant by a doctor “for the purpose of treatment.” We are left to wonder just what probable cause Holland had in his mind for having a doctor take blood from appellant.
In addition, one must agree with Judge Teague that Aliff was wrongly decided, at least insofar as premised on the proposition it drew from Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), namely: “that the percentage of alcohol in the blood diminishes as soon as a person stops drinking,” Aliff, at 169. The “new” DWI law recognizes the fallacy of that proposition by providing that one who gives a specimen at the instance of a peace officer “may, upon request and within a reasonable time not to exceed two hours after the arrest,” have his blood drawn by a qualified person of his own choosing and have an analysis made for his own purposes. Article 6701?-5, § 3(d), V.A.C.S. 1 The reason has been partially explained in *128 a paper done by Office of the Scientific Director, Crime Laboratory Division, Department of Public Safety, viz:
“Ingested alcohol is absorbed into the blood from the digestive tract. A small amoutn is absorbed from the stomach, but most of it is absorbed from the small intestine. Foods and liquids in the stomach will slow down the rate of absorption of alcohol.[ 2 ]
... The liver oxidizes or burns up alcohol in the circulatory system. The average oxidation rate will dispose of about one-third ounce of alcohol per hour.”
“DWI: A Judicial Alternatives Manual” (The Texas Center for the Judiciary, Inc. 1984) Appendix B, p. B18.
Thus, what the Supreme Court was “told” in 1966 is not true today. Nor is it accurate to find, as Aliff did, that “alcohol in blood is quickly consumed,” or that there is “the exigency of rapidly dissipating alcohol,” id., at 170 , without some satisfactory proof to support the finding. If there is any in the record of this cause, the majority does not allude to it. As judges, we cannot find true that which is demonstrably false.
For the reasons given, I dissent.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Elsewhere we learn the reason for the slowdown:
"... The alcohol reaches the intestines via the pyloric valve. It may have been in the stomach from one-half hour up to four hours, depending upon a number of factors.
The absorption time of alcohol varies with the type of alcoholic beverage ingested, whether the beverage is diluted or not, whether food is present in the stomach, and whether the individual has stomach problems... The slower the absorption, the lower is the resultant peak blood alcohol concentration.”
Frajola, Defending Drinking Drivers 16.1.