GEN-ERIC News

A judge will have to decide again whether a police officer can smell alcohol on a man’s breath from inside of a fast-food drive-through window. The prosecution believes Officer Kenneth Marrow can and did earlier this year. The attorney for 24-year-old Cody Schaaf disagrees and says the officer had no reasonable cause to stop Schaaf on suspicion of drunken driving. The stipulated trial Monday in Lancaster County Court centered on the arrest of Schaaf early in the morning of March 20. Sometime before 3 a.m., Schaaf ordered four cheeseburgers at a McDonald’s south of downtown Lincoln. As Schaaf’s car got to the pickup window, Schaaf was asked by a McDonald’s worker to pull ahead a few feet and wait for his food. The officer took the food to Schaaf’s car and eventually arrested him. Schaaf’s blood later tested out above the legal limit. A police spokeswoman said Wednesday that the officer had stopped at the restaurant because its managers had been reporting problems with drunken customers. Marrow testified during a hearing in July that Schaaf had bloodshot, watery eyes and that his speech was slurred. Marrow said he could smell alcohol coming from the car. But Mark Rappl, Schaaf’s lawyer, challenged Marrow’s account, doubting the officer could have detected the alcohol from inside the restaurant, seven feet from Schaaf.