Trooper Had Reasonable, Articulable Suspicion to Require Driver to Get Out of Car and Submit to Field Sobriety Tests

State v. Klamar, Minn.Ct.App., 12/10/2012.  At about one in the morning a state trooper saw a car that was stopped on the right shoulder of Interstate 94.  The trooper pulled up behind the parked vehicle at which point he saw the passenger vomiting from the open door.  Ms. Klamar was not the passenger.   Somewhat incredulously, the trooper testified that when he approached the passenger door he smelled not vomit but booze “emanating from the vehicle.”  The trooper, still on the passenger side, asked Mr. Klamar what the problem was; she told him, one hopes politely, that her friend was throwing up.  The trooper claimed that he could see that Ms. Klamar’s eyes were bloodshot and watery.  He asked her if she’d had anything to drink.  “One drink.” she said.  With that, the trooper demanded that Ms. Klamar get out of the car and approach the trooper’s vehicle.

The trooper then had Ms. Klamar perform field sobriety tests, on which she did “poorly.”  He then gave her a preliminary breath test on which she blew a .122.  The trooper arrested her and the state charged her with driving while impaired.  Ms. Klamar moved to dismiss the charge, saying that the trooper didn’t have a reasonable, articulable suspicion of criminal activity to expand the “welfare check” into a sobriety check.  The trial court dismissed the case and the state took an appeal.

The court of appeals agreed with the trial court that the trooper seized Ms. Klamar when he ordered her to get out of her car and come over to the trooper’s squad car.  See State v. Day, 461 N.W.2d 404 (Minn.Ct.App. 1990).  So, was the seizure constitutionally reasonable?  Now, the trial court found that the trooper was not a credible witness, especially when he said he could see Ms. Klamar’s bloodshot, watery eyes from the passenger side of the car, even though he did not shine a flashlight on her.  The court of appeals deferred to that finding but pointed out that the trial court did not specifically discredit the trooper’s testimony that he smelled alcohol “emanating from the vehicle.”  With these additional facts the court of appeals concludes that the trooper could reasonably conclude that driving while impaired was going on:

Klamar was seated in the driver’s seat of a vehicle that was stopped on the shoulder of an interstate at approximately 1:00 a.m., there was one passenger in the vehicle, there was a strong odor of alcohol emanating from the vehicle, the source of the odor was unknown, and Klamar admitted that she had consumed “one drink.”

The Minnesota Supreme Court held way back in 2005 that a generalized odor of alcohol emanating from a vehicle did not create a particularized suspicion of criminal activity – in that case, open bottle - to seize the driver.  State v. Burbach, 706 N.W.2d 484 (Minn. 2005).  Didn’t matter.  Even if it did, there’s always the fall back:  Pennsylvania v. Mimms, 434 U.S. 106 (1977), that says that officer safety supports the removal of the driver from a lawfully stopped car.  Of course, here, to get to Mimms, the court had to plow through Burbach; otherwise, they don’t have a lawful seizure. 

Having got Ms. Klamar lawfully out of the car it’s easy enough to justify requiring her to submit to the field sobriety tests, not as an extension of the initial stop, but because the trooper (again, for the first time?) smelled alcohol “emanating from Klkamar,” and because her eyes were bloodshot and watery.  Trial court reversed.