"Reasonable Grounds" – kind of sounds like a new coffee joint, doesn’t it? Like a place that you’d find lawyers tending to that every day habit. In the DUI defense world, reasonable grounds means so much more.

The Idaho Court of Appeals reminded us a few weeks ago that it doesn’t take much to require a driver to take an "evidentiary breath test" (Breathalyzer) in Idaho. The odor of an alcoholic beverage, an admission you’ve been drinking and red, glassy or watery eyes is probably enough! In State v. Nicolescu, officers rolled onto the scene of an accident in which Nicolescu’s car had been struck by a driver who ran a red light. On contact, they found Nicolescu with red, blood-shot and watery eyes. Nicolescu admitted he had been drinking. When officers tried to perform the Gaze Nystagmus, Nicolescu’s injuries – including a scratched cornea from the collision – prevented them from finishing the task. They produced an Alco-Sensor and had him blow. That Alco-Sensor is not an "evidentiary breath test," but it’s accuracy is arguably enough to provide "some" information about how much alcohol Nicolescu had in his system at that time he was driving.

I have seen the Alco-Sensor before, but that device is not evidentiary in the sense that a court would rely use it on which to decide guilt at trial. However, Nicolescu’s failing Gaze Nystagmus (6 points before abandoning the test due to the scratched cornea), plus the eyes, admission and odor, when added to the Alco-Sensor result, were viewed by the State as enough to require Nicolescu to take the Breathalyzer. His resulting .103 and .096 were over the limit, so Nicolescu was charged with driving under the influence (DUI).

The Magistrate suppressed the Breathalyzer results on the theory that officers were not permitted to require Nicolescu to take the Alco-Sensor, and without that result, they lacked probable cause or reasonable suspicion to require him to take the evidentiary breath test. The State argued the officers had a reasonable suspicion that Nicolescu was driving impaired, and also argued Nicolescu had consented to take the test. The Magistrate found that he had not consented and no other exception to the warrant requirement existed to save the Breathalyzer result. On appeal, the district court found the preliminary breath test (Also-Sensor) was part of an investigative detention, and that the officer only needed reasonable suspicion to perform that first breath test. Magistrate reversed, state wins and now the Court of Appeals gets to weigh in (ala Judge Gratton).

On appeal the State argued that the preliminary breath test only requires reasonable suspicion to administer, and the officers had a reasonable suspicion that Nicolescu was driving while impaired, based on the totality of the circumstances (which included the Alco-Sensor). Nicolescu argued that absent the Alco-Sensor, the officers lacked facts necessary to require him to take the evidentiary breath test (Breathalyzer). 

The bottom line? The Court says that based on Idaho Code § 18-8002, a motorist implicitly consents to "evidentiary testing" if the police have "reasonable grounds" to believe the motorist is intoxicated. "Reasonable grounds" is an even lower standard than reasonable suspicion or probable cause – low enough, arguably, that an admission you have been drinking, plus "red, watery, glassy, and bloodshot" eyes, plus the odor of alcohol can be enough to make you take the Breathalyzer with or without that Alco-Sensor test.

Here’s my take away – the Court of Appeals reminds us that our consent to take the test comes from the state’s extension of the privilege to drive. We drive, therefore we consent – as our Existentialist friends might say. And that officer doesn’t need much to require us to take the Breathalyzer under Idaho Code § 18-8002. Not probable cause. Not reasonable suspicion. 

Just reasonable grounds – whatever that means!