Everyone knows driving drunk is illegal.

But drinking and then getting behind the wheel is not, a state appeals court pointed out in an opinion Wednesday overturning a drunken driving conviction against an Oshkosh woman.

Brittany Meye, 22, was arrested last year after a Pewaukee police officer smelled a strong odor of alcohol around her and her passenger when they stopped to get gas around 3:30 a.m. The officer arrested her for a second drunken driving offense before she had even driven away.

Meye was subsequently found guilty in Waukesha County Circuit Court of second offense drunken driving, but her 45-day prison sentence was put on hold pending the appeal.

The District 2 Court of Appeals overturned that conviction Wednesday, ruling that the officer should not have stopped her if his only reason was the smell of alcohol.

The officer testified that he didn't see anything else -- erratic driving, mechanical problems with the car or unusual behavior by Meye -- that would warrant a stop.

Online court records do not indicate Meye's blood alcohol content at the time of the stop. Her attorney, Kevin Keane, said he did not recall what her level was.

There is no legal precedent for stopping someone for suspicion of drunken driving simply because they smell like alcohol, the appeals court said. The officer's reason for stopping her was even weaker because he wasn't sure if the alcohol smell was coming from her or the passenger, the court said.

The case would have been entirely different had the officer smelled marijuana, which is illegal in the state, the court said.

"The court made the right decision, clearly," Keane said. "It's not illegal to drink and drive. It's not illegal to have alcohol on your breath. She did nothing to indicate she was intoxicated when the officer stopped her."

Waukesha County District Attorney Brad Schimel said he had not read the opinion and had no immediate comment.

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