Adhering to the old adage of, "If it walks like a duck and quacks like a duck, then it just may be a duck," the District of Columbia Court of Appeals has ruled that when police charge someone with an open container law violation, they don't have to administer a chemical test to prove the liquid is alcohol.
In a precedent-setting opinion (PDF) issued today, the appellate judges found that while chemical testing is often used in narcotics cases, police officers are capable of deciding that a liquid is alcohol based on smell.
“This case presents an opportunity for us to address the following question, in a published opinion, for the first time: whether, in the absence of a chemical test of the liquid in the glass jar that allegedly contained alcohol, the evidence was sufficient for conviction,” they wrote.
In the underlying case, U.S. Park Police came across the appellant, Chrishana Derosiers, asleep in a parked car in May 2008. The police spotted a glass jar in the center console that contained a clear liquid.
Noting that Derosiers appeared “groggy” and “very disoriented,” police detected the smell of alcohol not only on her breath, but coming from the car as well. After smelling the clear liquid, they identified it as vodka; in a footnote, the appellate judges cited the trial judge’s note that vodka has an alcohol content of about 35 to 40 percent.
Once police officers had identified the liquid as alcohol by smell and charged Derosiers with unlawfully possessing an open container, they emptied the jar. A judge found Derosiers guilty when the case went to court.
Represented on appeal by Washington-based solo practitioner Aaron Price Sr., Derosiers argued that the conviction was invalid without a scientific test. The appellate judges wrote that while certain drug cases require additional testing to confirm the identity of narcotics, “sensory observations of experienced officers” have long been accepted as sufficient in alcohol-related cases.
“District of Columbia courts have accepted as proof the judgment of police officers who testified, based on their experience and good-faith sensory observations, as to the identity of an allegedly alcoholic beverage,” they wrote.
Price could not immediately be reached for comment this afternoon. Ariel Waldman, senior counsel to the city attorney general, said his office is “gratified by the court of appeals’ decision.”
The opinion “affirms the conviction secured by our hard-working prosecutors for possession of an open container of alcohol in a vehicle,” he said. “We intend to continue to prosecute vigorously alcohol and vehicle-related public safety offenses in the District of Columbia.”
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