Friday, June 5, 2026
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C.A. Says Glossy Red Eyes, Smell of Cologne Are Insufficient Justification for DUI Investigation
Opinion Says Appellate Division Wrongly Found Officer Justified in Prolonging Traffic Stop By Performing Field Sobriety Examinations Based on Otherwise Innocent Factors
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal held yesterday that an officer lacked reasonable suspicion to prolong a traffic stop to conduct a driving-under-the-influence investigation based on the driver purportedly displaying red, glossy eyes and smelling strongly of cologne after he was detained for running a red light.
Presiding Justice Teri L. Jackson authored yesterday’s unpublished opinion, joined in by Justices Gordon B. Burns and Danny Y. Chou, saying:
“A driver, such as defendant, wearing strong cologne and having red, glossy eyes after completing a day’s work at a construction site, is unremarkable given the multitude of plausible explanations having nothing to do with alcohol impairment.”
Rejecting the prosecutors’ assertion that the officer in question knew from his training and experience that impaired drivers sometimes try to mask the smell of alcohol with cologne and also relied on the fact that the driver inexplicably came to a stop before running the red light, Jackson wrote:
“Firstly, it is questionable whether [the officer] was, in fact, an ‘experienced police officer’ given that he was sworn in…just three months before defendant’s arrest. In any event, putting aside his limited experience, we disagree that the factors Officer Schaffer relied on—red, glossy eyes and a strong scent of cologne—created a reasonable suspicion that defendant was driving under the influence.”
She added:
“[W]hen an officer perceives something odd yet not in and of itself suggestive of criminal activity…the officer’s perception, without more, ‘is unremarkable….’ ”
Seeking the suppression of evidence relating to the driving-under-the-influence investigation was Alvaro Emilio Garcia-Lara, who was stopped by Concord Police Officer Zachary Schaffer on Nov. 16, 2024 at approximately 2:25 a.m. After contacting Garcia-Lara, Schaffer called for the assistance of a Spanish-speaking member of the department, who arrived within a matter of minutes.
Schaffer admitted that he did not smell alcohol on the defendant but testified that he suspected that the driver may be intoxicated based on other factors. With the assistance of the other officer, he asked Garcia-Lara to exit the car and perform field-sobriety tasks.
After the driver purportedly failed the tests, he was charged with driving under the influence of alcohol and operating a vehicle with a blood-alcohol content that exceeded the legal limit.
The defendant filed a motion to suppress, seeking the exclusion of all evidence obtained in connection with the traffic stop.
On April 4 of last year, then-Contra Costa Superior Court Judge Charles S. Treat (now retired) granted the motion, opining that the observations that the defendant had red, glossy eyes and smelled strongly of cologne “are not in themselves a sufficient indication” of intoxication to justify “prolonging an otherwise legitimate traffic stop…into a get out of the car and do [field sobriety tests] type DUI investigation.”
In September, the Appellate Division of the court reversed, concluding that “the information available to Officer Shaffer did rise to the level of reasonable grounds to suspect that [defendant] was driving under the influence of alcohol.”
Div. Five granted a petition to transfer the matter for review on Nov. 13, 2025.
Jackson wrote:
“The sole issue before this court is whether Officer Schaffer had reasonable suspicion to conduct a DUI investigation after stopping defendant for a red light violation based on the officer’s observations that defendant had red, glossy eyes and smelled strongly of cologne. We think not.”
Noting that “an officer conducting a traffic stop may also investigate a suspected crime unrelated to the infraction that initially prompted the stop” so long as any examination that prolongs the stop is supported by reasonable suspicion of further criminal activity, she remarked:
“[I]n this case, there is no objective evidence defendant was engaged in conduct related to the crime of driving under the influence. Defendant’s vehicle was not weaving or swerving. Defendant did not have difficulty producing a form of identification or operating the vehicle’s controls. He did not admit to drinking. There was no odor of alcohol. Defendant’s speech was not slurred, and he did not appear uncooperative, confused, or especially nervous.”
She added: “[W]e conclude Officer Schaffer prolonged the traffic stop…in order to conduct a DUI investigation that lacked a legal justification. Viewing the entire record objectively, there is no evidence establishing reasonable suspicion to believe defendant was driving under the influence of alcohol….While ‘officers may [make inferences from their experience and specialized training] they cannot ‘rely on mere hunches.’ ”
Declining to address an assertion of racism, Jackson added in a footnote:
“Defendant identifies his ethnicity as Latino and argues that the wearing of cologne may have been a ‘racially coded indicator[]’ relied upon by the officer to prolong the detention. He relies on a consumer marketing study related to fragrance use by various ethnic groups in the United States. However, because this study is not part of our record on appeal, we decline to consider it.”
The jurist declared:
“The judgment of the appellate division is reversed, and the trial court order granting defendant’s suppression motion is reinstated.”
The case is People v. Garcia-Lara, A174834.
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