How Do the Police Know if I’m Drinking Alcohol?

Earl Reid told the police officer that the drink at his feet was “just Kool-Aid,” but the cop was incredulous. The D.C. Court of Appeals, however, was not. Reid won on appeal. Maybe that drink was just Kool-Aid after all?

Here’s the story:

Officer Andrew Zabavsky of the D.C. Metropolitan Police Department had been on routine bike patrol back in May 2005 when he confronted a group of people outside a house on Girard Street in Northwest. One man holding a green cup with white cherries on it said he was drinking alcohol. “Sorry about that,” the man told the cop.

Zabavsky had a “roadside breath test” with him and waved it over the cup that had been sitting at Reid’s feet. The device detected alcohol vapor and gave a reading of .352. (The roadside breath test is a preliminary test to determine impairment, and its results are generally not admissible at trial.)

Reid was charged in D.C. Superior Court with possession of an open container of alcohol, a misdemeanor. Reid’s breath smelled like alcohol, Zabavsky later said at a bench trial before Judge Stephen Eilperin. Reid’s eyes were red and bloodshot. Zabavsky was the only witness.

At trial, Zabavsky said he’s used the roadside breath test “hundreds of times” in different ways—including the waving-the-device-over-an-open-container test.

Zabavsky is trained to perform field sobriety tests. But the officer acknowledged he is not trained in using the RBT to detect for fumes in containers. Eilperin found Reid guilty. Case closed? No.

On appeal, Christopher Kemmitt argued for Reid in February that the officer—and the judge—had failed to prove that the drink in Reid’s cup fit the definition of “alcoholic beverage” (any drink with more than .5 of 1 percent of alcohol by volume). Kemmitt wasn’t reached for comment. Sidney Bixler, an assistant attorney general for the District of Columbia, declined to comment.

That magic number of .352? That might mean .352 blood alcohol content—on a person. The D.C. Court of Appeals spends eleven pages digging into an analysis of the .352 number and what it may—and may not—mean.

“The core problem is that the raw numerical reading the RBT produced does not prove that the alcohol concentration threshold was passed, because Zabavsky did not establish an acceptable scale from which one could interpret that reading,” Judge Stephen Glickman wrote in the unanimous decision, which was joined by Judge Inez Smith Reid and Senior Judge James Belson. Click here for the opinion.

What if the RBT was picking up a positive reading from “residual alcohol” vapors? That might have happened, the appeals court said, “had Reid finished a strong alcoholic drink and refilled his cup with ‘just Kool-Aid’ before going outside.”

The RBT, the court said, might register different readings depending on how close it’s held to the container and whether there’s a breeze. And, of course, whether the drink was shaken—or stirred, as the appeals court noted.

“Taking all the uncertainties into consideration, we think Zabavsky’s testimony failed to eliminate the possibility of a false positive test,” the appeals court said. “False positives, after all, are not unknown even when a breath test device is used correctly—concerns over reliability have led many states to exclude RBT-type evidence from criminal trials.”