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I know a defense attorney is going to ask how I know the difference but what is the difference how is the best way to word it?

Should the report only state that there was an odor of alcohol and not comment on strong, moderate etc...?

Just curious how one would word it.
 

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Gil, I was taught to state in my report and on the stand. There was a stong, moderate or faint(which ever adj you would like to use) smell of alcohol beverage on the subjects breath.
I was also asked if I knew the subject was a diabetic? Officer did you ask the subject if he was a diabetic before you handcuffed him and placed him under arrest for OUI. Diabetic OUI offenders defense attorneys will use this as a defense (sometimes diabetics when they have a diabitic attack exhibit OUI types)
Remember: Alcohol has no odor and the defense will try in get you to say it smelled like alcohol

I am anything but an expert on OUI but the few I did have they tried this. It was also told in the academy to use this correct use of the words in discribing the subjects breath.
 

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Originally posted by BHCCPD:
I was also asked if I knew the subject was a diabetic? Officer did you ask the subject if he was a diabetic before you handcuffed him and placed him under arrest for OUI. Diabetic OUI offenders defense attorneys will use this as a defense (sometimes diabetics when they have a diabetic attack exhibit OUI types)
Good reminder...

But officer can you please tell the court the difference between a strong smell of an alcoholic beverage and a moderate smell of an alcoholic beverage?

Has anybody run into this before on the stand?
 

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I have never been asked in court what the difference is. BUT! Take this in for thought, how hard is it to smell the odor of INTOXICANTS? Is it easily smelt, or is it something you smell, but your not too sure?

You can't smell alcohol, so don't even bother with alcoholic beverages either. Say Intoxicants. Anywho, thats my take, considering I was working on become a dui(OUI in mass) instructor.
 

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Hi Gang,

The unfortunate part of this is that using faint, moderate or strong odor is your opinion. Different officers may have a different opinion what is strong and what is moderate, etc. You may have to articulate your opinion as I did once. With this I always use in my report " it's my opinion that he had a strong odor ommitting from his breath as he spoke to me".

As far as diabetics go, it's good to ask, but, remember diabetic's will usually have a fruity odor to their breath, not of stale beer


Just my thoughts,

Ed
 

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I totally agree with the above! I've had a number of people tell me that they were diabetics, and I always ask "Do you have a doctors note, name, where's your insulin...etc." Just to see what they say, you know, to help out in my report/affi. If you don't have a trained sniffer, a diabetic smell can come across as an intoxicating beverage smell.
 

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I had an OUI drugs case that went to trial a couple of years ago. The kid was smoking weed and driving. In my report I stated that " I immediately identified the odor as fresh burnt marijuana from previous training and experience". His lawyer asked me what experience. I was going to say from smoking with his momma. But here was an interesting outcome of the case. When I pulled the kid over, he handed over a blunt that he was smoking. I asked the kid if he was smoking it and how many did he smoke and he told me. The lawyer filed a motion to suppress the defendant's statements, because possession of Class D is illegal and was arrestable. He said I had enough PC for an arrest and i should have issued Miranda warning. Judge agreed, in OUI Liquor you don't have to Miranda. His statements were thrown out. His lawyer was also trying to throw out the FSTs but the judge did not allow that. HE stated the FST were using to determine impairment and there is no right of Miranda for FSTs. So remember you have an OUI drugs, and have PC, miranda. I argued that he was not in custody and was not under interrogation, therefore i did not have to issue Miranda. Judge ruled that because enough PC existed for an arrest, all statements would be self-incriminating at that point and Miranda would have to be issued. Live and learn and fight another day!!
 

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I've always articulated in my reports a strong, moderate, faint odor of alcoholic beverages. I just call it as I see it. I don't put "strong" in every case because the day will come when my other OUI reports will be summonsed and the lawyer will see that everyone had a strong odor... That doesn't look good. If the lawyer jams you up on what's strong, moderate, etc. just tell them it's subjective and your opinion. On another note, I've seen well done cases tossed out for no apparent reason other than the fix being put in. If you suspect this, call MADD. Some lawyers are very politically connected and just need to make phone calls for a fix. rhl
 

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:arrow: Just a note on the diabetics guys....... From my own experiences with a diabetic having a reaction, not only do they emit a smell similar to that of someone who has been drinking, sometimes it has an acetone scent, something like nail polish remover, they also exhibit behaviors of someone who is intoxicated, ranging from mild confusion, slurring speech, disorientation to violent and aggressive behavior. Most diabetics will carry a glucose meter, (look similar to a pocket calculator), and many carry oral glucose in a tube, which if you see, can save their lives if administered promptly. (If it is not low blood sugar, your not going to hurt them by giving it to them anyhow......so...it is worth a shot) If they are diabetic, they need prompt transport by ALS. Good to ask if they have insulin and the dr's name if they reply they are diabetic, but sometimes, they are so confused and disorientated they don't have an idea what you are saying to them. If there is a question on diabetes, I would get medical attention first to rule it out.
 

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One other side note on the diabetics, usually a lot of them will (hopefully) have a medic alert tag, or some other form of quick ID, it can save you a lot of headaches, so if the situation permits, try and determine if your possible OUI is actually a diabetic... If youre really not too swift and you get to the Intox, it might print as having acetone present... (time for the bus) at least the Intox 5000 did that, Im not sure about the other units.
 

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My FTO's taught me to say " At this time I smelled what appeared to alcohol, emanating from the driver "

So far it had worked for me...

The strength of alcohol is not in question. rhl I agree with you, it is subject to your opinion.

Involving diabetics, if you ask all your preliminary questions ie: are you on any medications, when was the last time you took any medications....ect then that covers it. when in doubt the PBT or the HGN are great indicators and when all else fails request medics to come to the scene to cover your ass. Every department is different as with different states. Thats how we do it down here in VA.

ha you can even use looking for the medication as pc for looking through the vehicle.
 

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I never use the word "appeared" in any of my cases. Here's a bad example i know someone had:

It appeared they were breaking into a vehicle. Problem is that they didn't really B&E, elements were not met. Bad juju. I use that I smelled a strong odor of alcoholic beverage emanating from the driver's breath. I don't know, that's just me. :lol:
 

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I actually didn't put in a report once weather the smell was strong, moderate or faint. The defense attorney grilled me as to how strong the odor was. When I said moderate, he asked why moderate was not in the report. Now I always denote the strength, as in "I detected a strong odor of an alcoholic beverage".
As far as strange trials, I had a defense attorney utilize the G.E.R.D. defense. GERD is a reflux problem, that if someone with this problem were to burp prior to the breath test, there would be a skewed reading. He flew a specialist in from buffalo to testify on this "disease" even though there is no medical backing to it and that this specialist never actually examined the defendant.
$12,000 and a hung jury, 1 not guilty, 5 guilty.
Second trial he pled to lesser charges with a multitude of stipulations. And he flew the specialist in again.
Total cost for defense - $17,000...what a bargain.
 
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