LOUISVILLE, Ky. (WDRB) -- Former Louisville basketball star Russ Smith was arrested for driving under the influence over the weekend even though his blood alcohol content was below the legal limit.
It's not unheard of for suspects to be arrested for DUI after a breathalyzer test shows their BAC is below the legal threshold of .08. In fact, under Kentucky law, you can be charged when you're under the limit even if you also pass field sobriety tests.
Smith's attorney, Steve Romines, explained why that's possible.
"Field sobriety tests are designed for people to fail them," Romines said. "They are not a scientific test. They are created so it permits police to arrest. (Smith) passed every one of them."
A Louisville Metro Police officer arrested Smith a little after midnight Sunday near the intersection of Baxter Avenue and Highland Avenue. Police said they saw Smith make an illegal U-Turn while crossing several lanes of traffic in a 2018 Maserati.
Romines disputes that account and said that's not what happened.
"There was either an accident or arrest on Bardstown Road, almost directly in front of where he's at, and he turned left into the parking lot," Romines said. "So there's police lights, ambulances and sirens. So he turns left into a parking lot to not pull up into an accident scene or crime scene or whatever, and they claim it's a U-turn. The surveillance footage shows it's not. He's turning left into a parking lot."
The arresting officer claimed he smelled alcohol on Smith's breath and said Smith admitted to drinking "two Bourbon pours neat" (meaning the drink was served with no ice and was not diluted) before driving.
The arrest report indicates Smith failed a walk and turn test and "swayed" once he was asked to step out of the car. His Blood Alcohol Content (BAC) level was a 0.073. The legal limit is 0.08.
Police said Smith passed other parts of the test.
Kentucky law says drivers can still be charged with DUI, depending on the other facts of the case, if the blood alcohol content is .04 or higher but below .08.
Retired attorney Paul Gold said it's up to the officer's "discretion at the scene on whether or not to charge somebody with driving under the influence. It doesn't matter what the reading is."
Gold said, "It's important in Kentucky to remember that the prosecutor has the discretion to amend a DUI charge if it is .08 or less, but if it's .08 or higher it can't be amended.
"Knowing the little that I do (about the Smith case), it's a very winnable case on not getting a DUI conviction. I'm not talking about reckless driving or a plate that is expired," Gold said.
Romines said. "I've had multiple people that are 0.0s and they arrest them anyway." A breathalyzer test at the scene indicated Smith's BAC was .06, but another test at the jail as he was being booked showed his level had climbed to .073 — which is still below the legal limit.
"It really begs the question of why even have these tests and why even have a legal limit if the police just ignore 'em and arrest you anyway?" Romines said.
If you get pulled over for a DUI, Romines has this advice.
"You don't have to take any tests," he said. "Your 5th Amendment right guarantees you the right not to have to cooperate with police. Russ cooperated with police and you see what happened, even though he passed every test."
Romines added Smith was "so incredibly polite and gracious, even when he's been taken to jail — for something he didn't do — that's the kind of person he is."
He said Smith's tags were expired when he was arrested. Romines said they expired happened while Smith was playing overseas, but Smith knows he should have taken care of it then. He said police usually issue a citation for expired tags.
Smith was released without bail and is due in court for an arraignment hearing on June 16.
Related Coverage:
Former Louisville basketball star Russ Smith arrested, charged with DUI
Former UofL men's basketball star facing felony marijuana charge
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