dissenting.
I would affirm the trial court. The state argued that “the most important factor” supporting probable cause to arrest in this case was defendant’s refusal to submit to field sobriety tests. As the majority correctly observes, that reliance is misplaced in the light of State v. Nagel, 320 Or 24, 880 P2d 451 (1994). The remaining question is whether the other facts found by the trial court are sufficient to constitute probable cause for arresting defendant for DUII. 136 Or App at 299.1 believe those facts rise only to the level of a reasonable suspicion that defendant was driving under the influence. That is not enough. An arrest requires probable cause.
*301In my opinion, there are only two inculpatory factors in this case — defendant’s bloodshot eyes and an odor of alcohol emanating from the car. There are also two exculpatory factors — defendant had no difficulty retrieving his driver’s license and his speech was not slurred. In order to conclude that Bressler had probable cause to arrest, the majority either has concluded as a matter of law that the two inculpatory factors alone are sufficient, or it has concluded that there is legal significance to the other factors. Taxi drivers are among those who will be interested to learn that, if they are called to pick up an intoxicated passenger at a tavern in the early hours of the morning and, upon leaving the parking lot, commit the common traffic infractions of driving out of a parking lot without signaling and failing to signal a lane change, they are at risk for being arrested for DUII.
Significantly, in all of the cases cited by the state to support its argument that Bressler had probable cause to arrest defendant, both we and the Supreme Court required more evidence of intoxication than was present here. E.g., Nagel, 320 Or at 24 (bloodshot and glassy eyes; difficulty retrieving license; odor of alcohol from defendant); State v. Moylett, 313 Or 540, 836 P2d 1329 (1992) (ran into stopped truck; odor of alcohol from defendant; bloodshot and watery eyes; slow and slurred speech; admitted having three alcoholic drinks); Arndt v. Motor Vehicles Div., 80 Or App 389, 722 P2d 45 (1986) (speeding; crossed fog line; odor of alcohol from defendant; slurred speech; bloodshot eyes); State v. Reddish, 78 Or App 219, 715 P2d 495 (1986) (rear ended car stopped at intersection, killing one and seriously injuring another; odor of alcohol from defendant); State v. Niles, 74 Or App 383, 703 P2d 1030 (1985) (slow to respond to officer requests; bloodshot and watery eyes; swayed as he walked; slurred speech; odor of alcohol from defendant); Howder v. Motor Vehicles Div., 21 Or App 564, 535 P2d 552 (1975) (weaving in traffic; odor of alcohol from defendant; slurred speech). Those cases are still good law and I do not understand why the majority has departed from them in this case.
I dissent.