Before State v. Lindsay, there were established rules for determining probable cause to arrest. However, now those rules have changed in favor of the State. So here is the new standard.
Probable Cause to Arrest After Lindsay
First of all, this case involves a person charged with Habitual DWI. Maybe that is the real underlying reason for the Court’s ruling. But essentially, Lindsay claims the State did not have enough evidence to arrest him. Initially, he was stopped for an expired registration. Hence, this arrest did not start out as a DWI investigation. In addition, the officer did not see any bad driving, either before or after he activated his blue lights. However, once the officer smelled alcohol, the focus of the stop switched. Also, the officer noticed the driver’s license was revoked for a prior DWI.
As part of the DWI investigation, the officer administered the Horizontal Gaze Nystagmus Test. While subject to challenge, this test showed 5 of 6 clues of impairment. Unless there were neurological issues, you should always see an even number of clues. Nevertheless, 4 of 6 clues indicates impairment. In addition, the driver made several Portable Breath Test attempts but was unable to provide a sample. And finally, the driver told the officer he had drank three beers at 6:00 pm the night before. Consequently, the police stop was at 2:47 am, or almost 9 hours later. Hence, if true, any alcohol from 3 beers should have cleared.
Probable Cause Under the Old Rules
While certainly suspicious, these facts show a weak case to establish probable cause to arrest. Why? First, you have only one of three standardized test results. Rather, there is no “walk and turn” or “one leg stand” testing done at all. In addition, there are no PBT results confirming alcohol, and no bad driving. Under the old rules, there is not enough evidence to arrest. However, the Court of Appeals found probable cause from the “totality of the circumstances.” Rather than apply the old standards, the Court has changed the rules significantly. More importantly, how do DWI lawyers defend their clients now?
Going forward, it appears the mere scent of alcohol along with an officer’s opinion of impairment is enough. While popular, such a standard essentially negates any real basis. Furthermore, federal guidelines for standardized field sobriety testing are not important now. So here’s the problem with Lindsay. By setting the bar so low, the Court has effectively gutted probable cause. And that is a problem for anyone facing a DWI investigation. Certainly, no one wants truly drunk drivers on the road. However, this new case “throws the baby out with the bath water.” Hopefully, the old rules will prevail again. After all, probable cause is an important right that protects all of us.