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State v. McCaig6/30/1988
r's license, pupil reaction to light, and picking up small coins, were available to make an objective judgment as to his ultimate determination. After giving the one test, and as to that test, at no time during the suppression hearing did the officer indicate upon what he based his decision finding that the defendant had failed the test. He did not state that the defendant's eyes quivered during the test nor did he give any possible score by the defendant on the test. Thus, no evidence is present that would possibly indicate on what basis from the test the officer decided the defendant was intoxicated. The officer simply "felt" the defendant was intoxicated.
Upon a review of the record in toto, at best, all that can be shown is that the defendant smelled of alcohol and, in fact, admitted to drinking three beers. All the remainder of the prosecution's witness' testimony fails as a matter of law or incomplete testimony.
Even stretching the "totality of the circumstances" test to its utmost, I am of the opinion that the prosecution did not even come close to bearing its burden of proof that the officer had probable cause to arrest the defendant-appellant.
For the above-stated reasons, I would reverse the trial court's ruling on the motion to suppress, finding said ruling to be contrary to law.
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