Dear PAO,
Last election, I decided to drink my favorite whiskey after casting my vote. As I opened the bottle and placed it on top of a table, a law enforcement officer happened to pass by, saw the liquor, and arrested me for allegedly violating the liquor ban. I denied drinking any liquor yet, but one officer claimed that I smelled and looked intoxicated person. Is my smell and appearance enough to say that I have violated the liquor ban?
Kurei
Dear Kurei,
Drinking or taking intoxicating liquor is considered a violation of Section 261 (dd) (1) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, which states that:
“Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense: xxx
dd. Other prohibitions:
Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly certified by the Ministry of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph.”
There are several ways to determine whether a person is intoxicated. One of which is provided under Section 6 of Republic Act (RA) 10586 or the “Anti-Drunk and Drugged Driving Act of 2013,” which provides that:
“Section 6. Conduct of Field Sobriety, Chemical and Confirmatory Tests. – A law enforcement officer who has probable cause to believe that a person is driving under the influence of alcohol, dangerous drugs and/or other similar substances by apparent indications and manifestations, including overspeeding, weaving, lane straddling, sudden stops, swerving, poor coordination or the evident smell of alcohol in a person’s breath or signs of use of dangerous drugs and other similar substances, shall conduct field sobriety tests.
If the driver fails in the sobriety tests, it shall be the duty of the law enforcement officer to implement the mandatory determination of the driver’s blood alcohol concentration level through the use of a breath analyzer or similar measuring instrument. xxx.”
Smelling and appearing intoxicated are not synonymous to taking intoxicating liquor, and such appearance is not enough to prove that the person violated the election liquor ban. This was the pronouncement of the Supreme Court in the case of Omandam vs. People of the Philippines, G.R. No. 275788, July 7, 2026, penned by Honorable Associate Justice Alfredo Benjamin S. Caguioa, viz.:
“Strikingly, in lieu of these readily available and more reliable means of verification, the prosecution rests its case solely on the bare assertion that Omandam appeared groggy, spoke in a slurred manner, and emitted the odor of alcohol, coupled with other equivocal and uncorroborated circumstances.
These omissions cannot be dismissed as mere procedural lapses. They reflect a marked departure from established standards designed to ensure accuracy and fairness in criminal investigation, particularly in the ascertainment of intoxication. The failure to employ available objective methods without any explanation seriously undermines the credibility of the prosecution's evidence and creates a material evidentiary gap, especially in this case where the fact of alcohol consumption constitutes the very gravamen of the offense.”
Applying the above-quoted decision to your situation, your appearance and odor alone is not enough to sustain conviction for violation of the liquor ban. The police officer who arrested you should have employed established procedures to determine if a person is intoxicated, such as sobriety, chemical, and/or confirmatory tests. If the police officer failed to do this, and instead relied solely on your appearance and odor which resembles an intoxicated individual, any case filed against you may be dismissed on the basis of the pronouncement of the Supreme Court in the above-mentioned case.
We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@ manilatimes.net
