Actor Anthony Mackie wants a judge to dismiss a driving under the influence charge (Dui), insisting it was wrong of police to arrest him merely for having bloodshot eyes and smelling of alcohol.

The Captain America star was stopped by cops in New York in 2013 as he drove his car along a road in Harlem.

Officers allegedly smelled booze and suspected MACkie had been drinking, but he refused to submit to a roadside breath test so was taken to a police station and charged with Dui.

During MACkie's trial at Manhattan Criminal Court this week (ends20Feb15), his lawyer argued the cops had no right to arrest the actor purely based on his appearance.

According to New York Post gossip column Page Six, defence attorney Mike Miller told the court, "It's clear that the mere smell of alcohol and bloodshot eyes doesn't give the officers justification to arrest him."

The trial continues.