Probable cause to search exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” To illustrate, in Illinios v. Gates, police received an anonymous letter stating, “you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates . . . .” The letter went on to give the couple’s address and describe in detail how the couple operated—that Sue would drive a car to Florida where the car was loaded with drugs and that Lance would fly to Florida, pick up the car, and drive it back. The letter also stated that the car would contain “over $100,000 in drugs” and that the Gates presently had “$100,000 worth of drugs in their basement.” Police decided to pursue the tip and were able to confirm that (1) a Lance Gates had an address that matched the one given in the letter, and (2) one “L. Gates” had a flight reservation to West Palm Beach. Through surveillance, law enforcement further confirmed that (3) Lance Gates took that flight, (4) went to a West Palm Beach Holiday Inn registered to a Susan Gates, and (5) the following morning, Lance and an unidentified woman left the motel in a Mercury with Illinois plates heading north on the interstate. Police compiled this information into an affidavit and submitted it to a judge who subsequently issued a search warrant for the Gates’ car and residence. Some twenty-two hours later, police were waiting for the couple as they arrived home. A search of their car uncovered 350 pounds of marijuana, and a search of their home uncovered more marijuana, weapons, and other contraband.
In holding that the facts of this case presented probable cause to issue the search warrant, the Supreme Court adopted the “totality of the circumstances test.” That test requires an issuing judge to “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” The court explained that probable cause deals with probabilities, which are “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” The Court further described probable cause as a “fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
Excluding evidence obtained through a search warrant for lack of probable cause is statistically improbable—but not impossible. On several occasions and for good cause, the Court has refused to give law enforcement carte blanche treatment. Most famously, the Supreme Court does so in cases involving third party informants. In Nathanson v. United States, for instance, customs agent Francis Laughlin received information from prohibition officials and from another informer that J.J. Nathanson had liquor illegally concealed within his premises. A judge subsequently issued Laughlin a search warrant which read, in pertinent part, as follows:
Francis B. Laughlin has stated under his oath that he has cause to suspect and does believe that certain merchandise, to wit: Certain liquors of foreign origin a more particular description of which cannot be given, upon which the duties have not been paid, or which has otherwise been brought into the United States contrary to law, and that said merchandise is now deposited and contained within the premises of J. J. Nathanson said premises being described as a 2 story frame dwelling located at 117 No. Bartram Ave. . . . .
In finding the warrant lacking of “any statement of adequate supporting facts,” the Court held that the warrant violated the Fourth Amendment. The Court pointed out that the “legality of the seizure depends upon [the warrant’s] sufficiency,” and that the test for sufficiency is whether the warrant issued upon probable cause. “Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefore from facts or circumstances presented to him under oath or affirmation. Mere affirmance or belief or suspicion,” the Court stated, “is not enough.”
As in Nathanson, the Court in Aguilar v. Texas also rejected a search warrant for insufficiency. There, two officers obtained a warrant to search the home of Nick Aguilar. In support of their application, the officers submitted an affidavit that read, in pertinent part, “[a]ffiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” Based upon this information alone, a Justice of the Peace issued a search warrant. The subsequent search conducted pursuant to the warrant revealed the evidence upon which Aguilar was later convicted: heroin.
In finding the warrant insufficient, the Court listed its reasons: “the mere conclusion that petitioner possessed narcotics was . . . that of an unidentified informant. The affidavit . . . contains no affirmative allegation that the affiant spoke with personal knowledge, . . . it does not even contain an affirmative allegation that the affiant’s unidentified source spoke with personal knowledge.” The Court observed that the magistrate “necessarily accepted without question the informant’s suspicion, belief, or mere conclusion.” Therefore, the Court concluded, “the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause[,] and . . . the evidence obtained as a result of the search warrant was inadmissible at petitioner’s trial.”
While Gates, Nathanson, and Aguilar laid the groundwork in constitutionally defining what does and does not amount to probable cause, none specifically deal with the DWI offense. Texas lower courts, however, show no shortages of such determinations. In Siolo v. State, for example, the Thirteenth Court of Appeals upheld an officer’s finding of probable cause for a warrantless DWI arrest and subsequent blood draw where a driver, in addition to failing a number of sobriety tests, “had blood-shot eyes, slurred speech, a strong odor of alcohol coming from him, and unsteady balance.” The probable cause standard in DWI cases, however, is not necessarily that high. In Mitchell v. State, the Third Court of Appeals upheld an officer’s finding of probable cause for a warrantless DWI arrest and subsequent blood draw based solely on the fact that the “investigating officer saw the accused behind the steering wheel and detected a strong odor of alcohol about him.”
While an overwhelming majority of probable cause determinations in DWI cases are upheld, all are not. Although extensive research has yet to uncover a case where blood analysis obtained pursuant to a search warrant was excluded for lack of probable cause, such a situation is far from unimaginable. Consider, for example, Commonwealth v. Kohl, a consolidation of two cases decided by the Pennsylvania Supreme Court where both cases had fact patterns similar to those of Schmerber. While the two cases did not involve search warrants, like Schmerber they both involved warrantless searches pursuant to probable cause determinations by law enforcement. In the first case, Bruce Kohl drove his car into a pole and then a retaining wall, rendering Kohl unconscious and killing his two passengers. Investigating officers “did not observe any signs of alcohol consumption by Kohl or any other evidence that alcohol had been consumed prior to the accident.” Nevertheless, a police officer from the accident scene, without a warrant and without placing Kohl under arrest, requested that the hospital take a blood sample from Kohl for alcohol content analysis. The sample revealed Kohl’s blood alcohol level to be 0.15. Upon his release from the hospital a month later, police arrested Kohl for DUI vehicular homicide.
In the second case, police responded to a one-vehicle accident involving a tree stump and a utility pole. In the car’s passenger seat they found a man dead. At a nearby residence, police found Sharon Danforth who identified herself as the driver and who had left the scene to call for help. Danforth told police that she had met a man who told her that he lived near her, and she had agreed to give him a ride home. During the ride, however, the man lunged at her and tried to remove her blouse. Trying to defend herself, she lost control of the vehicle and crashed. She then ran for help. Later, while Danforth was at the hospital being treated for minor injuries, police continued to ask her questions. At no time, however, did police suspect that Danforth was under the influence of alcohol: she did not smell like alcohol; her eyes were not blood shot; she needed no assistance walking. Notwithstanding, police decided to request a blood sample. It revealed Danforth’s blood-alcohol level to be 0.21. She, like Kohl, was arrested and charged with DUI vehicular homicide.
At trial, both defendants filed motions to suppress the results of their blood tests, and both were denied. The intermediate court vacated and remanded both cases, however, because it opined that officers lacked probable cause to believe that either driver was under the influence; the searches, therefore, were unreasonable and thus unconstitutional. The Pennsylvania Supreme Court agreed:
The facts underlying the instant appeals do not meet the standard enunciated in Schmerber. Neither of the appellees was under arrest at the time the blood samples were drawn; nor did the circumstances establish probable cause to arrest the appellees. In both cases, the Commonwealth concedes that the police did not observe any signs or evidence indicating that the appellees were operating the vehicles under the influence of alcohol or a controlled substance.
There being no probable cause for the searches, the court held that the “results of the blood tests were improperly admitted as evidence . . . .”
Intermediate Texas courts have similarly rejected officers’ findings of probable cause for DWI arrests and subsequent warrantless blood draws. In State v. Comeaux, the Third Court of Appeals upheld a trial court’s ruling to suppress BAC results. There, after crossing the yellow line of a two-lane road, a car collided head-on with a van driven by Purvis Comeaux. The investigating officer, Dixon, found no evidence to indicate that Comeaux was at fault. Although Dixon found unopened beer cans from the van, there were no empty cans and no other reasons to suspect that Comeaux had been drinking alcohol. Regardless, another officer at the hospital, Jackson, requested part of an already drawn blood sample pursuant to an official form entitled “Statutory Authorization Mandatory Blood Test Specimen.” Among other things, the form stated that Jackson had placed Comeaux under arrest and that Jackson was requesting the sample pursuant to the Texas mandatory blood draw statute. At the time, however, Jackson had not spoken to Comeaux, had not informed Comeaux that he was under arrest, and moreover, never placed Comeaux under arrest.
The results of the test indicated that Comeaux had a BAC of 0.17. Based upon that evidence, police charged Comeaux with DWI. At trial, Comeaux moved to suppress the results, and the trial court granted the motion. On appeal, the State argued that Comeaux was under arrest at the time of the blood draw, and thus, the search was lawfully conducted incident to the arrest under the exigent circumstances exception. In upholding the suppression, however, the appellate court implicitly assumed Comeaux was under arrest and found “no evidence that Dixon or Jackson had probable cause to arrest appellant,” and therefore, “it was not unreasonable for the [trial] court to refuse to find that Dixon had probable cause [for the arrest].” In sum, these cases illustrate a fairly wide spectrum of what amounts to probable cause with some overlap into a fairly narrow spectrum of what does not.
Once a neutral and detached magistrate makes a finding of probable cause, challenging that finding becomes arduous. In order to uphold the search warrant, the trial court must simply find that the magistrate had a substantial basis for concluding that the search would uncover evidence of wrongdoing. Furthermore, trial courts will generally give a magistrate’s probable cause finding wider latitude than that which is given to similar determinations by law enforcement because the magistrate’s detached scrutiny provides a “more reliable safeguard against improper searches and seizures than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’” A magistrate’s wider latitude, however, is not without its limits.
[T]he magistrate [must] purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police. A magistrate failing to manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application and who acts instead as an adjunct law enforcement officer cannot provide valid authorization for an otherwise unconstitutional search.
Often times, a trial court will make evidentiary rulings on evidence obtained pursuant to a search warrant in a pretrial hearing. In Texas, both sides are permitted to appeal that ruling. To reverse, appellate courts generally require a clear abuse of discretion by the trial court; that is, the trial court’s ruling must be outside the zone of reasonable disagreement.
On occasion, however, both trial courts and appellate courts misapply these standards. A Florida DUI case, State v. Brown, illustrates probable error on the part of both. There, Joe Brown struck and killed a cyclist. After driving on some 500-600 yards, Brown reversed to the scene, accidentally backing his car over the cyclist’s body. Oblivious, he then went forward again, rolling over the body a second time. The investigating officer detected the odor of alcohol on Brown’s breath and in his car, noted that Brown’s eyes were bloodshot, but failed to give him a sobriety test. However, Brown admitted to the officer that he had consumed at least two beers, and based on all the evidence—some three or four hours after the accident—the officer ordered a blood test under Florida’s mandatory blood draw statute. The results indicated that Brown’s BAC was 0.12, and authorities later arrested him for DUI manslaughter.
In evaluating the evidence, the trial judge ruled that it was not enough to show Brown was “under the influence” of alcohol in accordance with the state’s mandatory blood draw statute. The Florida District Court of Appeals reversed, describing a very wide statutory definition of “under the influence” in the context of Florida’s mandatory blood draw statute, meaning “something more than just having consumed an alcoholic beverage” but also “something less than intoxicated.” It concluded that the facts of the case were sufficient “to establish probable cause for the blood draw.”
In reaching its decision, the Brown appellate court not once mentioned the standard of review by which it was bound—abuse of discretion—nor did it state or imply that there was any abuse of discretion by the trial court. In short, the appellate court conducted its review de novo. Although the trial court probably made a poor judgment by excluding the evidence for lack of probable cause, it probably was within the zone of reasonable disagreement as to whether the totality of the circumstances, including the veracity and basis of knowledge of witnesses of which the trial court—not the appellate court—was in the best position to evaluate, indicated a fair probability that the blood draw would reveal evidence of a crime. Furthermore, although the appellate court was correct in its definition of “under the influence” under Florida law, it failed to show or indicate any abuse of discretion by the trial court. The lesson for litigants on either side is, thus, (1) win the motion to exclude at the trial court level, and (2) defend at the appellate level by stressing the abuse of discretion standard of review.
To summarize, probable cause to search exists when, based on the totality of the circumstances, there exists a fair probability that evidence of a crime will be found in a particular place. Because all Texas DWI blood searches first require a DWI arrest (based upon probable cause to believe that a crime was committed), whether there was probable cause to arrest for DWI is dispositive of whether there was probable cause for the blood search. Therefore, the controlling issue in a probable cause challenge is whether there was probable cause for the DWI arrest—that is, whether, based on the totality of the circumstances, there existed a fair probability that (1) a person was driving (2) who did not have his “normal use of mental or physical faculties” (3) due to the “introduction of alcohol . . . or any other substance into the body.”
Presumably, issues will most often arise with the second and third elements. Factors officers and magistrates use to determine the second element include the following: (1) whether the driver was driving erratically; (2) whether the driver performs poorly on roadside sobriety tests; (3) whether the driver’s behavior is abnormal; (4) whether the driver was involved in an accident;  (5) whether a driver has slurred speech; (6) whether a driver has unsteady balance; and (7) whether and to what extent a person has been drinking. Not included as a factor is whether a driver has refused any one sobriety test. Factors officers and magistrates use to determine the third element include the following: (1) whether the driver has alcohol on his breath; (2) whether there is an odor of alcohol within the car; (3) whether there are open containers in the car; (4) whether the driver has bloodshot eyes; and (5) whether the driver admits that he has been drinking. While it is not clear how many of these factors or what combinations of factors are required, it stands to reason that one or more factors are needed to support each element in order to show probable cause.
Once a probable cause determination for a search has been made by a magistrate, excluding the evidence that the search produces becomes arduous: the trial court need only have found that the magistrate had a substantial basis for his conclusion. Challenging at the appellate level requires a finding that the trial court abused its discretion in admitting the evidence. Attorneys making probable cause challenges are likely to be left, not unlike some of their clients, high and dry.
 Gates, 462 U.S. at 238. Because the test to determine probable cause is the same with or without a warrant, this article will discuss cases with and cases without a warrant interchangeably in establishing what amounts to probable cause. While this might not be the most accurate assessment due to the certain amount of deference given to the magistrate, challenges to warrantless searches are far more common and also establish the same standards by which magistrates are bound.
 462 U.S. 213 (1983).
 Id. at 225.
 Id. at 225-26.
 Id. at 226.
 Id. at 226-27.
 Id. at 227.
 Id. at 230. In doing so, the Court explicitly rejected the Aguilar and Spinelli “two-pronged test” for determining whether an informant’s tip satisfied probable cause, id. at 230-37, which required that an affidavit based on an anonymous tip must (1) reveal the informant’s “basis of knowledge” and (2) provide sufficient facts to establish either the informant’s “veracity” or the “reliability” of the informant’s report. See Aguilar v. Texas, 378 U.S. 108 (1964), abrogated by Gates, 462 U.S. 213; Spinelli v. United States, 393 U.S. 410 (1969), abrogated by Gates, 462 U.S. 213.
 Gates, 462 U.S. at 238.
 Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).
 Id. at 232.
 The framer’s intent in drafting the Fourth Amendment was to “prohibit the general warrants and writs of assistance that English judges had employed against the colonists.” Virginia v. Moore, 128 S. Ct. 1598, 1603 (2008); see Payton v. New York, 445 U.S. 573, 583-584 (1980); Boyd v. United States, 116 U.S. 616, 624-627 (1886).
 290 U.S. 41 (1933).
 Nathanson v. United States, 63 F.2d 937, 937 (3d Cir.), rev’d, 290 U.S. 41 (1933).
 Nathanson, 290 U.S. at 44 (emphasis added).
 Id. at 46-47.
 Id. at 46.
 Id. at 47.
 378 U.S. 108 (1964).
 Id. at 109.
 The Court took note that a “reviewing court may consider only information brought to the magistrate’s attention.” Id. at 109 n.1; Giordenello v. United States, 357 U.S. 480, 486 (1958). Thus, any other information communicated by law enforcement to a magistrate but not contained within the affidavit may not be considered for purposes of appellate review as to the warrant’s sufficiency.
 Aguilar, 378 U.S. at 109.
 Id. at 110.
 Id. at 113 (internal quotations omitted).
 Id. at 114 (internal quotations omitted).
 Id. at 115-16. The Court in Gates overturned the two-pronged test implicitly applied in Aguilar. Gates, 462 U.S. at 238. That test, however was the more stringent of the two. See id. at 230-31. Even so, Gates implied that the facts of Aguilar still failed to establish probable cause under the new test. Id. at 239 (“An officer’s statement that ‘affiants have received reliable information from a credible person and believe’ that heroin is stored in a home, is . . . inadequate.”).
 The DWI offense is somewhat unique in that a DWI warrantless arrest almost always precedes a DWI search subsequent to a search warrant. In Texas, for instance, the law requires that in order to initiate a statutorily mandated blood draw, among other things, a DWI suspect must first be arrested for DWI. Tex. Transp. Code § 724.012(b). Therefore, all Texas cases involving the search of a suspect’s blood without consent should involve suspects who are already under arrest. The two probable cause issues—whether there exists probable cause for an arrest, and whether there exists probable cause to search the suspect incident to that arrest—are mutually dependent. Schmerber, 384 U.S. at 770 (“facts which established probable cause . . . also suggested the required evidence and likely success of a test of petitioner’s blood for alcohol”); Brown v. State, 725 So.2d 441, 445 (Fla. 5th DCA 1999) (probable cause analyses for DWI arrest and DWI blood search are the same). Therefore, cases where law enforcement alleges probable cause to arrest for DWI and cases where it alleges probable cause to conduct a DWI blood search will be discussed interchangeably. Furthermore, the situation where a Texas DWI suspect who has not been arrested but whose blood has been searched without his consent should raise serious questions as to either the legality of that search (if initiated under color of section 724.012(b) of the Transportation Code) or its compliance with established procedure (if initiated in accordance with the “No Refusal” program). This concern might not exist in other states where the law does not require a DWI arrest prior to initiating a statutorily mandated search. See, e.g., Fla. Stat. Ann. § 316.1933(a)(1) (West 2006) (“If a law enforcement officer has probable cause to believe that a motor vehicle driven by . . . a person under the influence of alcoholic beverages . . . has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person . . . to submit to a test of the person’s blood . . . . [T]he testing required by this paragraph need not be incidental to a lawful arrest of the person.”) (emphasis added); Brown, 725 So.2d 441 (reversing trial court by upholding officer’s finding of probable cause in ordering blood test without arresting driver after driver hit and killed a cyclist based on the following evidence: alcohol on driver’s breath and in driver’s car, driver’s bloodshot eyes, and driver admitting he had had at least two beers; no roadside sobriety test was administered).
 See, e.g., Tex. Dept. of Pub. Safety v. Walter, 979 S.W.2d 22, 28 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (upholding probable cause for warrantless DWI arrest where officer “smelled a strong odor of an alcoholic beverage on [suspect’s] breath, [suspect’s] balance was somewhat unstable, and [suspect] failed to complete the alphabet and counting tests correctly”); Nottingham v. State, 908 S.W.2d 585, 589 (Tex. App.—Austin 1995, no writ) (upholding probable cause for warrantless DWI arrest where officer (1) smelled the odor of alcoholic beverage, (2) appellant admitted to the officer that she had been drinking, and (3) appellant later failed horizontal gaze nystagmus (“HGN”) test); see also Porter v. State, 969 S.W.2d 60 (Tex. App.—Austin 1998) (upholding probable cause for warrantless public intoxication arrest where (1) suspect engaged in “rambling and paranoid conversations” demanding to speak to deceased former Texas Governor John Connally, (2) suspect had loud speech often too slurred to understand, and (3) officer discovered drug paraphernalia in defendant’s sock).
 No. 13-01-665-CR, 2002 WL 31084435 (Tex. App.—Corpus Christi 2002, pet. ref’d) (not designated for publication).
 Id. at *1.
 821 S.W.2d 420 (Tex.App.—Austin 1991, pet. ref’d).
 Id. at 424; see infra note 101 (questioning whether the facts of Mitchell amounted to probable cause for a warrantless DWI arrest).
 615 A.2d 308 (Pa. 1992).
 Id. at 310.
 Id. In both cases, police obtained samples pursuant to section 1547(a)(2) under title 75 of the Pennsylvania Consolidated Statutes, which the instant case subsequently struck down as unconstitutional under the Fourth Amendment. Id. at 313.
 Id. at 310.
 Id. at 310-11.
 Id. at 311.
 Id. Danfield actually agreed to have the sample taken; however, police never informed her that it was for the purpose of a criminal investigation. Id. In a footnote, the court dismissed the argument that Danfield consented to the test since “Ms. Danfield did not knowingly and voluntarily consent to the search.” Id. n.1.
 Id. at 310-11.
 Id. at 313.
 Id. at 314.
 See also State v. Fecci, 9 S.W.3d 212 (Tex. App.—San Antonio 1999) (upholding trial court’s suppression of non-blood test evidence based on an illegal DWI arrest for lack of probable cause where officers testified that suspect had failed to maintain his lane, had had three beers, had bloodshot eyes, smelled of intoxicants, and “didn’t do very well on [sobriety] tests,” but where officers’ testimony called into question their own credibility); State v. Williams, 814 S.W.2d 256 (Tex. App.—Austin 1991), aff’d, 832 S.W.2d 52 (Tex. Crim. App. 1992) (upholding trial court’s suppression of blood test evidence based on lack of statutorily required “reasonable grounds” of officer to suspect that defendant was intoxicated, see Tex. Transp. Code § 724.012(b), where officer determined at hospital that defendant had alcohol on breath, red and bloodshot eyes, slurred speech, and failed HGN test, but also where (1) officer “did not testify about his training or experience in administering HGN test” and (2) “record was devoid of any evidence relative to what influence, if any, injury or medication might have had on the results of the [HGN] test”).
 786 S.W.2d 480 (Tex. App.—Austin 1990).
 Id. at 485.
 Id. at 482.
 Id. Moreover, the investigating officer stated that he had “no reason to suspect that appellee had consumed any alcohol or was in any way at fault.” Id.
 Id. at 482-83. This statute is currently codified in section 724.012(b) of the Transportation Code.
 Comeaux, 786 S.W.2d at 483.
 Id. at 481.
 Id. at 485; see Schmerber, 384 U.S. at 768-71.
 Comeaux, 786 S.W.2d at 485.
 United States v. Ventresca, 380 U.S. 102, 106 (1965); see Jones v. United States, 362 U.S. 257, 271 (1960)).
 Ventresca, 380 U.S. at 106 (“in a doubtful or marginal case a search warrant may be sustainable where without one it would fall”); Spinelli, 393 U.S. at 419 (“determination of probable cause should be paid great deference by reviewing courts”); see supra note 1.
 United States v. Chadwick, 433 U.S. 1, 9 (1977) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)).
 United States v. Leon, 468 U.S. 897, 914 (1984) (internal citations and quotations omitted); see Gates, 462 U.S. at 239.
 See Tex. Code Crim. Proc. arts. 44.01(a)(5), 44.02.
 See, e.g., State v. Carr, 774 S.W.2d 379, 380 (Tex. App.—Austin 1989, no pet.); Gilmore v. State, 666 S.W.2d 136, 148 (Tex. App.—Amarillo 1983, pet. ref’d); Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008).
 Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
 725 So.2d 441 (Fla. 5th DCA 1999).
 Id. at 443.
 Id. at 444.
 Id. at 443.
 Id. The officer did not arrest Brown prior to ordering the test. See Fla. Stat. § 316.1933(a)(1); see also supra note 31, infra note 88 (contrasting Florida law with Texas law on mandatory blood draws).
 Brown, 725 So.2d at 442.
 Id. There is evidence that the trial judge mistakenly believed that the investigating officer’s proffered testimony stated that Brown’s eyes were not bloodshot. Based on the trial transcript, however, the officer actually stated “his eyes were blood shot.” Id.
 Id. at 443 (original emphasis). This Florida common law rule is somewhat inconsistent. The Florida DUI law states that “[a] person is guilty of the offense of driving under the influence . . . if the person is driving . . . and . . . is under the influence of alcoholic beverages . . . to the extent that the person’s normal faculties are impaired” or the person has a BAC of 0.08 or more. Fla. Stat. § 316.193(1) (emphasis added). In other words, by statute a person is “under the influence” when either impaired or when he has a 0.08 BAC or higher. For purposes of the mandatory blood draw, however, Florida courts have held that “under the influence” means only “something less than intoxicated.” Brown, 725 So.2d at 443. Thus, Florida law gives law enforcement extra room to pursue mandatory blood draws where officers suspect someone is “less than intoxicated.” The Texas statutory DWI law, although worded differently, has largely the same meaning: “[a] person commits an offense if the person is intoxicated while operating a motor vehicle” where “‘[i]ntoxicated’ means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . or (B) having an alcohol concentration of 0.08 or more.” Tex. Penal Code §§ 49.01(2), 49.04(a) (emphasis added). However, nowhere does Texas law permit the search or arrest for DWI of those suspected of being “less than intoxicated.”
 Brown, 725 So.2d at 445.
 Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008).
 See supra note 88.
 Gates, 462 U.S. at 230, 238.
 See supra note 31 and accompanying text.
 See Tex. Penal Code §§ 49.01(2), 49.04(a).
 See Brown, 725 So.2d 441.
 See Nottingham, 908 S.W.2d 585; Walter, 979 S.W. 22.
 See Porter, 969 S.W.2d 60.
 See Brown, 725 So.2d at 445 (“driver’s dangerous or reckless driving which preceded and probably caused the accident, is referenced as an objective fact or circumstances which supports a probable cause determination that the driver’s normal faculties were impaired”). It is probable that few judges will exclude for lack of probable cause where an accident has occurred. Many of the cases discussed thus far indicate that this factor plays a prominent role in many probable cause determinations.
 See Porter, 969 S.W.2d 60; Siolo, No. 12-01-665-CR, 2002 WL 31084435.
 See Walter, 979 S.W. 22, Siolo, No. 12-01-665-CR, 2002 WL 31084435.
 See Mitchell, 821 S.W.2d 420. The Mitchell case, however, gave little indication—other than describing a “strong odor of alcohol”—to what extent the defendant had been drinking. Id. at 424. Thus, whether the probable cause determination in this case presented sufficient evidence that the defendant did not have normal use of his mental or physical faculties is somewhat unsupported. After all, merely drinking and then driving is not per se illegal; driving while intoxicated is what is illegal. See Tex. Penal Code § 49.04(a) (“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”). There must be some evidence presented to indicate that a driver is intoxicated, not merely evidence that he has been drinking.
 Cf. supra pp. 6-7.
 See Schmerber, 384 U.S. at 769; Breithaupt, 352 U.S. at 433; Mitchell, 821 S.W.2d 420; Walter, 979 S.W. 22.
 See Walter, 979 S.W. 22.
 See Breithaupt, 352 U.S. at 433; Comeaux, 786, S.W.2d 480, 482 (pointing out that there were no open beer cans involved, only unopened ones).
 See Schmerber, 384 U.S. at 769; Siolo, No. 12-01-665-CR, 2002 WL 31084435.
 Nottingham, 908 S.W.2d 585.
 Imagine three separate hypothetical situations. First, a car is pulled over where the passenger clearly exhibits signs of intoxication and freely admits that he has ingested ten alcoholic drinks over the last few hours. There is, however, no evidence that the passenger has operated a motor vehicle. Second, a driver is pulled over for speeding a few miles over the speed limit and has bloodshot eyes. There is, however, no other indication that the driver does not have normal use of his mental or physical faculties. Cf. Brown 725 So.2d at 442 (trial court initially determining that evidence was insufficient to show defendant was “under the influence”); Kohl, 615 A.2d 208; Comeaux, 786, S.W.2d 480. Third, a driver is pulled over for driving erratically. There is, however, no evidence of alcohol or drug use. Cf. Kohl, 615 A.2d 208; Comeaux, 786, S.W.2d 480. Each of these three hypothetical situations lacks probable cause for one element of the DWI offense. Thus, none present probable cause for a DWI arrest.
 Ventresca, 380 U.S. at 106.
 Carr, 774 S.W.2d at 380.