A DUI case has come down to whether a police officer could have smelled alcohol on a man's breath from the inside of a fast-food drive-through window.
LORI PILGER / Lincoln Journal Star | Posted: Monday, August 20, 2007 7:00 pm
A DUI case has come down to whether a police officer could have smelled alcohol on a man’s breath from the inside of a fast-food drive-through window.
Cody Schaaf’s attorney argued at his trial Monday in Lancaster County Court that he could not.
The City Attorney’s office argued he could.
Schaaf, 24, was picked up on suspicion of first-offense DUI at 3 a.m. March 20 after ordering four cheeseburgers in the McDonald’s drive-through at 10th and Arapahoe streets.
When he got the to pick-up window the fast-food employee asked Schaaf to pull ahead and wait.
Lincoln Police Officer Kenneth Marrow took the food to Schaaf’s car after he said he observed, from inside the drive-through window, that Schaaf had bloodshot, watery eyes and slurred speech and that he could smell alcohol coming from the car.
At trial on Monday, both sides agreed, for the most part, about what happened — even that Schaaf had a blood-alcohol level above the legal limit.
Schaaf’s attorney, Mark Rappl, said the issue was whether Marrow could have made the observations he said he did from seven feet away.
In May, Rappl challenged the stop in a motion, asking Judge James Foster to suppress evidence gathered by Marrow, arguing he didn’t have reasonable suspicion to stop Schaaf.
The officer testified in July that Schaaf had made a wide turn in the drive-through early that morning and had bloodshot, watery eyes and slurred speech. Marrow also said he smelled alcohol on Schaaf’s breath from inside the window, seven feet away.
On Aug. 6, Foster ruled in favor of the prosecution, saying the officer’s belief was reasonable based on Marrow’s observations and the time of day.
Foster denied Rappl’s motion, which led to Monday’s trial. The judge is expected to issue a ruling Sept. 21.
Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.