It can be difficult to overcome probable cause to be pulled over for a DWI, at least that’s what one Lafayette County, Missouri, man learned.

He set out to appeal a circuit court judgment which sustained revocation of his driving privileges. He claimed the arresting officer did not have probable cause to believe he was driving intoxicated when he was pulled over for speeding.

The appellate court upheld the lower court’s decision when there was evidence the man had delayed pulling over without any good cause.  Furthermore, the court pointed out that the Defendant admitted to significant alcohol consumption; had difficulty walking and maintaining balance; had watery and bloodshot eyes; and the arresting officer testified that in his professional opinion he believed Defendant to be impaired.

The facts of the case are that on November 8, 2018, at 10:49 p.m., a law enforcement officer observed the Defendant driving 47 miles per hour in a 35.

When the officer approached him he detected a strong odor of alcohol on the man’s breath. When asked if he had consumed alcohol, the man replied: “[N]o, I spilled a beer on me.” The man later admitted to drinking four or five beers earlier in the evening at a local bar and that he was driving home from the bar when he was stopped.  The officer also stated that the driver’s pupils were constricted and his eyes were glassy, bloodshot, and watery.

The officer asked the Defendant to step out of his vehicle and to walk to the patrol car to sit in the front seat.

While walking, the man struggled “quite a bit” to walk, however, the officer noticed the man was significantly overweight. It was at this point that he was asked to submit to field sobriety tests, to which the man stated he had been through this before and that “he was not going to take any test because he could not pass them.” The officer arrested him on suspicion of driving while intoxicated.  He was taken to the police station where he refused to complete the complete any field sobriety tests.

He was then read the Implied Consent language from the form and was asked to take a breath test. The man refused. The officer gave him the correct documentation regarding revocation of his license.

The Defendant argued that he was not impaired from the consumption of alcohol at the time of his arrest. He pointed out that other than a brief delay in pulling over, the officer observed no signs of impaired driving while he observed the car in motion.

Nor were there observations of difficulty with motor skills in removing his license from his wallet and handing it to the officer.

The odor of alcohol was due to someone else spilling a beer on him.  And the reason he could not perform field sobriety tests was that his physical condition of being overweight. Even the officer’s report states that he was unsure if the difficulty in walking was from his weight or impairment.

He argued that he could not perform a breathalyzer because he has COPD and can’t blow hard enough for the machine to obtain a result. The officer also testified that there can be other reasons than alcohol as to why a person’s eyes are bloodshot or watery and that the Defendant was actually “speaking pretty well.”

The appellate court stated that all of this evidence would support the trial court reaching a different conclusion, but as noted in our standard of review, the court will consider all evidence consistent with the trial court’s judgment and disregard all contrary evidence.

The court in its discussion references case law: “‘Reasonable grounds’ is virtually synonymous with probable cause.”  Probable cause requires more than a mere suspicion of intoxication, but less than absolute certainty. Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). “Probable cause to arrest for driving while intoxicated exists when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” Id. at 587. Missouri courts have found a combination of observations indicating intoxication are sufficient for a finding of probable cause. Id. at 588. Even absent field sobriety tests, probable cause is proven using other indicators of intoxication such as: an odor of alcohol, behaviors, mannerisms, and physical expressions.”

The appellate court held that the “indicia of Defendant’s delay in pulling over when there was no road condition that would have made pulling over difficult or dangerous; his watery, glassy, and bloodshot eyes; strong odor of alcohol; difficulty walking and maintaining balance; admission of significant alcohol consumption; and the officer’s testimony that, based on his knowledge of people impaired by alcohol in his professional and personal life, he believed the man was impaired by alcohol are sufficient to support a finding of probable cause to arrest the Defendant for driving while intoxicated.”  The lower court’s decision is affirmed.