Use of breath mints can be considered evidence a driver is intoxicated, according to a divided Texas Court of Appeals ruling delivered earlier this month. The three-judge panel made the decision in the case of limousine service driver Robert Richardson who was stopped in Lewisville, Texas on August 25, 2010 while transporting customers from the airport.

Texas Department of Public Safety Trooper Fulford was about to issue a speeding ticket to a motorcycle on Interstate 35E when he noticed Richardson's Chevy Tahoe change lanes without signaling, almost hitting the motorcycle. Trooper Fulford was concerned primarily about the bad driving, but in the back of his mind he thought it could also be a case of driving under the influence (DUI). Once stopped, there was a mild odor of alcohol in the Tahoe, the passengers denied drinking, and Richardson was nervous. Trooper Fulford told Richardson he would write him a warning for his failure to signal before changing lanes. When he returned from his squad car with a warning notice in hand, Trooper Fulford said he noted an "overwhelming" odor of breath mints.

"Did you just take a breath mint?" Trooper Fulford asked.

When Richardson said yes, he was ordered out of the Tahoe. From there, he was arrested and convicted of DUI. Richardson appealed, arguing the traffic stop was complete after the trooper handed him back his driver's license with a warning, and that anything that happened beyond that point amounted to an illegal detention. The Texas judges acknowledged the principle that once a traffic stop concludes, it should not be used as a fishing expedition for unrelated criminal activity. The court had to decide whether the use of breath mints constituted a specific articulable fact suggesting another crime had been committed beyond the bad lane change.

The appellate judges agreed with the trial court that all of the clues Trooper Fulford picked up on prior to smelling the breath mints combined to provide the suspicion needed to make the search reasonable and consistent with the Fourth Amendment.

"These facts, which Trooper Fulford identified during his testimony at the suppression hearing, were sufficient to provide him with reasonable suspicion that Richardson had been driving while intoxicated," Justice Anne Gardner ruled for the court. "We overrule Richardson's sole point. Having overruled Richardson's sole point, we affirm the trial court's judgment."

A copy of the decision is available in a 70k PDF file at the source link below.