Georgia DUI Cases of Note

  

Red and Glassy Eyes Not Georgia DUI Probable Cause

Monday, October 03, 2016
Georgia DUI Probable Cause

 On May 18, 2016, the Georgia Court of Appeals affirmed Governor Nathan Deal's son, Jason Deal's finding of no probable cause in Dawson County Superior Court, in Blanchard v. State, A16A0086, May 18, 2016. Wendy Blanchard was arrested for DUI, open container and driving on a suspended license. At 3 pm on July 23, 2014, Deputy Taffar of the Dawson County Sheriff's Department observed a vehicle a few car links ahead pull off the road. The Deputy pulled behind to offer assistance. Blanchard informed the Deputy that she had run out of gas. Deputy Taffar offered to take Blanchard to a gas station. Once in the car, Deputy Taffar asked for her Drivers License. Blanchard responded that she did not have one with her. Deputy Taffar asked for a name. Blanchard gave a false name which would not come up in the system. Blanchard gave her real name and date of birth which showed a suspended license. She was then arrested. 

Taffar then arranged to tow Blanchard's car and asked her if she had any contraband in her purse before he took her to jail. She responded that she had a vodka and kool-aid in a bottle. At that point, Deputy Taffar noticed that Blanchard had red and glassy eyes, a slight odor of alcohol, admitted one and half drinks before driving and tested positive on a portable alcohol breath test device. 

Photo Courtesy of Wikimedia Commons

The State alleged that there was evidence of impairment including: an odor of alcohol, bloodshot and watery eyes, admission of drinking before driving, slight confusion, using a car door for balance and positive breath test on a portable breath test device. However, the Court of Appeals held that even with video of evidence of a stop, a trial court does not have to believe the testimony of a witness just because certain buzz words are used. 

The Trial Court found that Blanchard admitted alcohol consumption, the Deputy noted only a slight odor of alcohol after he arrested her but none prior to the arrest, slightly bloodshot and watery eyes but only after Blanchard had been crying, and a positive result on a preliminary breath test. There was no evidence of impairment according to the trial court only the mere presence of alcohol. 

The Court of Appeals found that Blanchard appeared normal in the video and that the Deputy did not notice the alcohol until almost 45 minutes of the video had elapsed. The Court of Appeals held that blood shot and watery eyes does not require a finding of impairment for purposes of probable cause, although it has found as much in the past. See, State v. Ellison, 271 Ga. App. 898, 901 (2005); Temples v. State, 228 Ga. App. 228, 331 (1997)(holding evidence sufficient for probable cause when an Officer noted an odor of alcohol, bloodshot and watery eyes, and a positive test result on a portable breath test); Bostic v. State, 332 GA. App. 604, 605 (2015)(insufficient probable cause for DUI arrest when only odor of alcohol, bloodshot and watery eyes but not glazed or unfocused; and a positive result on a portable breath test.); State v. D'Amato, 302 Ga. App. 181, 183(2010)(holding bloodshot eyes and pale skin may support impairment, such evidence does not require a finding of impairment.) Further, there was no evidence that Blanchard's eyes were glassy or unfocused. The Trial Court attributed the red and watery eyes to crying and not to alcohol impairment, and the Court of Appeals play a crucial role in upholding the findings of a trial court if there is any evidence to support it. 

-Author: George Creal



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