Breath Mints Support Limo Driver’s DWI Bust

FORT WORTH (CN) - Prosecutors can support drunken driving charges by pointing to breath mints that a limo driver took at a traffic stop, a divided appeals court ruled.

Trooper Preston Fulford initiated the stop in Lewisville in August 2010 after observing Robert Richardson change lanes without signaling and nearly collide with a motorcycle.

There were red flags from the get-go, according to the ruling, which notes that Richardson allegedly pulled his vehicle over on the fog line, very close to the lanes of traffic. Fulford said there was also a faint scent of alcohol in the car, and that Richardson appeared nervous.

The plan to issue Richardson a written warning allegedly changed when Fulford returned to the vehicle and noticed the "overwhelming" odor of breath mints.

In the ensuing investigation to determine whether Richardson had been driving while intoxicated, "Fulford asked Richardson if he had put a breath mint into his mouth, Richardson confirmed that he had, and Trooper Fulford asked Richardson to step out of the vehicle," the court noted. "Trooper Fulford testified that he had not yet advised Richardson that he was free to leave or that the traffic stop was otherwise complete, but he could not recall if he had previously returned Richardson's driver's license or given him the written warning. He also testified that the reasons to suspect intoxication at that moment were the failure to maintain a single lane of traffic, stopping the vehicle very close to the fog line, the mild odor of alcoholic beverages, the passengers' denials of alcohol use, the empty pill bottle, and the breath mints."

Though Richardson testified that he did take a breath mint, he denied that he did so to mask the odor of alcohol. He also testified that he returned his driver's license and warning ticket to the trooper after he was asked to exit the vehicle.

Richardson pleaded guilty to a DWI a Denton County judge refused to suppress the evidence. The court concluded that Fulford had reasonable suspicion to continue the traffic stop in the totality of the circumstances, up to and including smelling the breath mints.

A divided three-judge panel of the Ford Worth-based Second District appellate court concluded that Fulford was justified in continuing the stop to investigate DWI.

"The trial court found that Trooper Fulford returned Richardson's driver's license contemporaneously with noticing the smell of breath mints," Justice Anne Gardner wrote for the majority. "And before smelling the breath mints, Trooper Fulford had previously observed or learned of Richardson's failure to maintain a single lane of traffic, Richardson's quick deceleration when pulling the vehicle off of the highway, Richardson's parking the vehicle very close to the fog line, the empty pill bottle, Richardson's nervousness, the mild odor of alcoholic beverages, and the passengers' denials of alcohol use. These facts, which Trooper Fulford identified during his testimony at the suppression hearing, were sufficient to provide him with reasonable suspicion that Richardson had been driving while intoxicated."

Texas case law provides that, once an officer concludes the investigation of the conduct that caused the traffic stop, continued detention is allowed for issuing a citation.

"Once the the reason for the stop has been satisfied, the stop may not be used as a 'fishing expedition for unrelated criminal activity,'" Gardner wrote. "However, if an officer develops reasonable suspicion during a valid traffic stop and detention that the detainee is engaged in criminal activity, prolonged or continued detention is justified."

In a dissenting opinion, Justice Lee Ann Dauphinot criticized her colleagues for imposing "conflicting rules of procedure" on trial courts regarding motions to suppress depending on which side succeeds.

"The majority here confuses the criminal rules of procedure with the civil rules of procedure," Dauphinot wrote. "When the state prevails in defeating a defendant's motion to suppress, the trial court is not required to enter a separate written order apart from that dictated into the record. When, however, the defense prevails, someone must draft a written order, which the trial judge must then sign and file in the record of the case."

These "schizophrenic rules of procedure" substantially increase the timetable for prosecutors to appeal suppression motions that the defense win at trial, she added.

Dauphinot said the panel should have stayed consistent with the court's earlier rulings, flawed as she believes them to be.

Follow @davejourno

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