The Chicago Tribune recently report on how restaurants and bars are being required by insurance companies as a prerequisite to cover to train waiters, waitresses and bartenders on when to say when.  Can you say two drink maximum?  I’d like a glass of wine with dinner?  I’m sorry sir you already had two cocktails at the bar we have a two drink maximum.  Enter ”new temperance movement,” quoting Stephen Greger, loss control director for commercial business at Fireman’s Fund Insurance Co. The California-based insurer made alcohol safety training a requirement for liquor liability coverage about 10 years ago.

“‘There is a growing societal awareness of drinking because of MADD (Mothers Against Drunk Driving) and SADD (Students Against Destructive Decisions),’ he said, noting that pressure from such groups contributed to the 2000 federal law lowering the legal blood alcohol content, or BAC, limit for driving in the United States to .08. That means less than one drop of alcohol can be present in the bloodstream for every 1,000 drops of blood; some experts said there is pressure to further revise it downward to .05.”

The Constitution has left the Building and the Sunday School is in control.  These are in essense the opening salvos in the war on social drinking or the new prohibition.  By continuing restrictions on drinking and driving, utilizing inaccurate breath testing devices with sampling variances of +/- 0.02, and insurance restrictions on drinking establishments, your freedom to drink responsibly is slowly disappearing.

Georgia Breath Testing manuals actually show that drivers are less likely to have an accident from 0.01 to 0.05 than people who don’t drink probably because they know they have been drinking and are extra attentive but the alcohol has not effected there physical dexterity.  From 0.05 to 0.08 alcohol has no effect on the typical person.  Above 0.08 to 0.12, the jury is out but my experience is that most of my clients look sober and when presented to juries receive not guilty verdicts on the less safe alternative to blood alcohol DUIs. Stand up for your rights to responsibly consume alcoholic beverages or prepare to be casaulty in the war on social drinking.  

On July 24, 2005, Lieutenant Mike Matics of the City of Decatur (Georgia) Police Department decided to implement a roadblock.  The roadblock was part of the “Hundred Days of Summer Heat” statewide anti-dui campaign.  The Lieutenant had participated in Atlanta-Metropolitan wide meetings on the campaign and was familiar with the policy behind the campaign.  At roll call that evening, the Lieutenant told his officers that if they had enough man-power, they would have a roadblock in a specific area based on his knowledge of two DUI fatalities in a specific area.  The roadblock was “appropriately mark” (this typically would mean roadblock ahead signs, emergency cones, flashlights with orange cones, reflective police vests, and/or  police cars with activated emergency lights on both sides of the road) and all cars were stopped.

In Georgia for a roadblock to be valid, the evidence must show that (1) a supervisor rather than field officers decided to implement the roadblock; (2) all vehicles were stopped: (3) any delay to motorists was minimal; (4) the roadblock is well identified as a police check point; and (5) the screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.  Baker v. State, 252 Ga. App. 695, 696 (1) (556 SE2d 892) (2001).   Additionally the primary purpose of the roadblock must be legitimate. Id.

Bennett argued that there was no competent evidence of a primary purpose of the roadblock.  He contended that the only competent evidence with inadmissible hearsay regarding the “Hundred days of Summer Heat.”  He also contended that Lt. Matics discussing the “Hundred days of Summer Heat with supervisor was hearsay.  The Court reasoned that the fact that the policy behind the roadblock did not “mitigate” the Lieutenant’s authority to implement a roadblock for potential seatbelt and DUI infractions both of which it held are permissible purposes for a roadblock.

The Court rejected Bennett’s contention that the roadblock was a roving patrol as the decision to have a roadblock was made at the spur of the moment by a shift supervisor citing Thomas v. State, 277 Ga. App. 88 (625 SE2d 455) (2005).  The Court distinguished the Thomas case, supra, reasoning that in Thomas the decision to implement the roadblock was made in the middle of the shift in the middle of a parking lot [instead of at the beginning of the shift in the roll call room?] and there was a lack of evidence that the officer had authority to implement a roadblock.   The Court found that based on the record this was not a spur of the moment decision and the Lieutenant had authority to implement the roadblock. [the court cites no evidence from the record of this other than the note the Lieutenant testified that police department policy was followed in the implementation of the roadblock but nothing is indicated that the departmental policy granted authority to the Lieutenant to order the roadblock? Reasoning that deciding to have a roadblock at the beginning of a shift as opposed to the middle is disingenuous]
The motion to suppress the stop was denied.

Editorial: One element is noticeably absent in the Court’s decision and that is that the roadblock must be implement by a “programmic level supervisor” for legitimate primary purpose at a particular location, at a particular time for a particular purpose.  How can a shift supervisor be a programmic level supervisor.  There is no evidence of a grant of authority from the chief or other supervisor for this particular roadblock.  Blanket grants of authority are frequently upheld but not in keeping with the idea of  a “programmic level supervisor” deciding to have a roadblock for legitimate primary purpose at a particular location, at a particular time for a particular purpose.   We do not even know  what the departmental  standard  operating procedure says or  whether is  binding on the officer  with  regard to any delegation of authority from supervisors.    The  real problem is that  Supreme Court jurisprudence  requires  forethought and planning.   Deciding to have a roadblock  on the night of the roadblock without  talking to supervisors because  you  went to a conference  a month ago  is  not enough.   There should be a  discussion with supervisors regarding an  identifiable  problem at a  particular time of  night  at  a specific  location, a decision to commit resources  to the area,  perhaps  an assignment of  Officers from other shifts to participate in the roadblock.   Signs, Cones and Flashlights are not required by the Constitution for  roadblocks  but forethought  is  and having to  go back to the  office or  bring special equipment in the field  is  evidence of that forethought.   In conclusion ,  spur of the moment roadblocks are a  threat to our  constitutional  rights.

During a DUI investigation, police must arrest you prior to reading the breath test rights or implied consent rights.  If they do not, the breath can be suppressed.  As consent is not implied until after arrest, Officers can not arrest for “suspicion” of DUI in Georgia and then take you to the station to see how you do on the sit down “intoxilyzer 5000″ breath test or the state administered chemical test.  The field breath test is not admissible as to a result only positive or  negative.  So comments like if you pass the State test I like you go or if you blow under 0.08 I won’t charge you with DUI or if you blow under 0.08 you are good to go equal a breath test excluded from evidence.  See, Cooper v. State, 277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood in the absence of probable cause violates the Fourth Amendment prohibition against unreasonable searches and seizures and holding that implied consent without probable cause is illegal); Buchanon v. State, 264 Ga. App. 148 (2003)(holding that consent is only implied if a person is arrested for a violation of O.C.G.A. § 40-6-391 and implied consent prior to arrest or without probable cause is improper)Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004) (Holding that the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State, 279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in serious injuries and officer had probable cause to believe that defendant was driving under influence, officer did not need to arrest defendant before reading of implied consent rights. However, where accident did not involve serious injuries, suspect needed to be under arrest before implied consent rights were read).  We have won several DUIs using this defense.

During a DUI investigation, police must arrest you prior to reading the breath test rights or implied consent rights.  If they do not, the breath can be suppressed.  As consent is not implied until after arrest, Officers can not arrest for “suspicion” of DUI in Georgia and then take you to the station to see how you do on the sit down “intoxilyzer 5000″ breath test or the state administered chemical test.  The field breath test is not admissible as to a result only positive or  negative.  So comments like if you pass the State test I like you go or if you blow under 0.08 I won’t charge you with DUI or if you blow under 0.08 you are good to go equal a breath test excluded from evidence.  See, Cooper v. State, 277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood in the absence of probable cause violates the Fourth Amendment prohibition against unreasonable searches and seizures and holding that implied consent without probable cause is illegal); Buchanon v. State, 264 Ga. App. 148 (2003)(holding that consent is only implied if a person is arrested for a violation of O.C.G.A. § 40-6-391 and implied consent prior to arrest or without probable cause is improper)Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004) (Holding that the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State, 279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in serious injuries and officer had probable cause to believe that defendant was driving under influence, officer did not need to arrest defendant before reading of implied consent rights. However, where accident did not involve serious injuries, suspect needed to be under arrest before implied consent rights were read).  We have won several DUIs using this defense.

DUI in Georgia can be charged as Driving or being in actual physical control of a moving  vehicle.  Lack of Driving or Failure to Move is a great defense.  Police often assume vehicle occupants drove while impaired to whereever they are parked.  Unless the vehicle is on the side of a long strecht of abandoned road or in a Krystal (White Castle for you westerners) drive thru, there is not a very good inference of driving.  Additionally, the driver is doing the right thing by parking and sleeping it off.  I have won many jury trials using this defense.  They always provide lots of reasonable doubt.

Athens Clarke County Officer Gregory Gilchrist, 36, was arrested on a drunken-driving charge early Thursday, (February 15, 2007) morning in southeastern Clarke County.  An unknown type of chemical test indicated that he had a blood-alcohol content level of 0.185 although it is not clear if this was a field breath test, a blood test or an Intoxilyzer 5000 test.  He is accused of driving his pickup truck through a red light and hitting the side of a car traveling through the intersection. The woman in the car wasn’t injured. Gilchrist claims he was making a left turn with a green arrow.

Gilchrist has been placed on administrative leave pending an internal investigation. He also faces possible discipline for breaking departmental policies.

No  further information is available.   All criminal defendants are innocent until proven guilty.   Several  interesting points are  brought  out by the news coverage of this incident.   First,  probably no blood test was done.   The  blood result is really a breath result which has estimated that the  Officers  blood alcohol content is 0.185.   In  reality no knows  the Officers Blood Alcohol Content.    The  breath machine assumes  a certain  physiology  including weight, body fat, body temperature,  blood to breath ratio of  1:2100  when in fact that can range from 1500-2500.  It assumes the Officer was observed 20 minutes prior to testing for belching or burping.   It also assumes the Officers’s blood alcohol had peaked.  If the Officers blood alcohol was rising his the alcohol in his blood would not be equally distributed and could give a breath reading of 300% of his actual blood alcohol.   I have had clients who have passed all field test walk and turn, one leg stand, finger to nose, alphabet and blown 0.190.  Either there is something wrong with the breath testing machine or my client is a freak of nature.  

In Wright v. State, the Georgia Court of Appeals held that a roadblock was constitutional if it was initiated by a Sergeant supervising all Troopers at a particular Post and he used a Roadblock Approval Form. The Sergeant testified that under an unintroduced Georgia State Patrol Policy he has the authority to authorize roadblocks. In Georgia a police roadblock is constitutional provided that, among other things, the decision to implement the roadblock was supervisory personnel rather than officers in the field. Moreover, the Court reasoned that the supervisory officer must have a valid primary purpose for the roadblock other than merely seeking to uncover evidence of wrongdoing. In establishing the lawfulness of the a roadblock, the state has the burden of presenting some admissible evidence, testimonial or written, that the supervisory officers decided to implement the roadblock, decided when to implement it, and had a legitimate primary purpose for it.

This a bad decision because it ignores the requirement that the supervisor be a programmic level supervisor and not a supervisor in the field. A roadblock is valid when the decision to implement the checkpoint was made at programmatic level with for an appropriate purpose by supervisory officers and not officers in the field, and the supervisor had a legitimate primary purpose.

A police roadblock is constitutional provided that, among other things, the decision to implement the roadblock was made by supervisory personnel rather than officers in the field. Blackburn v. State, 256 Ga. App. 800; 570 S.E.2d 36 (2002). Moreover, the supervisory officers must have a valid primary purpose for the roadblock other than merely seeking to uncover evidence of ordinary criminal wrongdoing. Id. In establishing the lawfulness of a roadblock, the state has the burden of presenting some admissible evidence, testimonial or written, that supervisory officers decided to implement the roadblock, decided when and where to implement it, and had a legitimate primary purpose for it. Id. A Standard Operating Procedure can be evidence of authority to implement a roadblock but if it is relied upon it must be followed otherwise the roadblock must be authorized independently of the Standard Operating Procedure. In Harwood v. State, 262 Ga. App. 818, 821 (2003), the Court did not require that the roadblock comply with the standard operating procedures requiring cones and flashlights only because Sgt. Tammaro’s authority for the roadblock was based upon verbal authority from his supervisor and was not dependent on the standard operating procedure and was therefore not a constitutional minimum requirement of programmatic level supervisor authority. In Dymond v. State, 248 Ga. App. 582, 584(2001), the Court was dealing with an employee handbook and not a standard operating procedure. The Dymond Court found that the witness testified that “the handbook at issue as an employee manual and testified that it did not set forth “our standard operating procedure.” The Dymond Court found that no testimony showed otherwise. Finally,although State v. Sherrill, 247 Ga. App. 708, 712 (2001) found Standard Operating Procedures not required to be followed, it has been expressly overruled and the Standard Operating Procedure was not cited as the basis for the officer’s authority to implement the roadblock.
A roadblock must be conducted pursuant to a plan devised by supervisory personnel and not by officers in the field using their unfettered discretion. Baker v. State, 252 Ga. App. 695 (2001).
A supervisor has been defined as in Ross v. State, 257 Ga. App. 541(2002), as a Lieutenant in the field at the time the roadblocks in issue were established, not as a field officer participating in the roadblocks, but as the supervisor on the scene; and that he supervised the Traffic Unit of the Clayton County Police Department as its officer-in-charge, supervising six full-time traffic officers and, on a part-time basis, five officers assigned to the DUI task force; and Chief of Police policy authorized him to order roadblocks as a supervisor; and he ordered the roadblocks, determining where and when they would occur; and that the officers who executed the roadblocks had not participated in the decision to do so; and that the roadblocks were set up to check drivers for sobriety and operator’s permits.
In Harwood v. State, 262 Ga. App. 818 (2003), the Court of Appeals found that Sargent Tammaro who implemented the roadblock was an supervisor at the programmatic level as he was, as a sargent, the supervisor of the department’s traffic enforcement unit; and that his authority to implement roadblocks came from the department’s policy manual and from his supervisor, who had delegated the task to him; and he did not participate in the roadblock.
Permissible primary purposes are those which serve “special needs, beyond the normal need[s of] law enforcement,” and include elimination of immediate, vehicle-bound threats to life and limb, e.g., sobriety checkpoints and driver’s license examination, special circumstances such as border patrol checks near borders, and emergencies such as “an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” Baker v. State, 252 Ga. App. 695 (2001).
The purpose in the minds of the officers in the field, as evidenced by their testimony or their actual conduct at the roadblock, is not conclusive on the threshold issue of the supervisor’s purpose. Id. Neither “collective knowledge” of the field officers nor the actions of the officers on the scene are competent evidence of purpose at the “programmatic level.” Id. At 702.
The phrase “decision to implement” includes deciding to have this roadblock, and where and when to have it. Baker v. State, 252 Ga. App. 695, 702 (1) (556 S.E.2d 892) (2001).
The Baker Court overruled the following decisions: State v. Sherrill, 247 Ga. App. 708, 710 (2) (545 S.E.2d 110) (2001) (witness had “no personal knowledge of the supervising officer who actually authorized the roadblock, and the State was unable to come forward with this information at the hearing”); Boyce v. State, 240 Ga. App. 388 (523 S.E.2d 607) (1999) (field officer decided); Albert v. State, 236 Ga. App. 146. 147 (1) (511 S.E.2d 244) (1999) (although roadblock was established “pursuant to departmental policy,” decision to implement this roadblock made by field officers); Payne v. State, 232 Ga. App. 591 (502 S.E.2d 526) (1998) (witness did not know which supervisor made decision; no evidence of supervisor’s primary purpose); Heimlich v. State, 231 Ga. App. 662, 500 S.E.2d 388 (1998)(supervisor issued “standing order” permitting; field officers decided time and place); Mims v. State, 201 Ga. App. 277 (410 S.E.2d 824) (1991); and Evans v. State, 190 Ga. App. 856 (380 S.E.2d 332) (1989).
In Heimlich v. State, 231 Ga. App. 662 (1998), which was expressly overruled by Baker, is most analogous to the Wright Court’s position that supervisors may delegate authority to field officers as to when and where to hold road blocks. Field Sargents simply are not programmatic level supervisors unless they are supervising a Departmental Unit. A Post is essentially a field office. A Field Officer is not equivalent to a Departmental Unit.
Further the State must prove that all vehicles were stopped as opposed to random stops; the delay to motorists was minimal; the roadblock operation was well-identified as a police checkpoint; and the screening officer’s training and experience were sufficient to qualify him to make an initial determination as to which motorists should be given field sobriety tests for intoxication. Thomas v. State, 277 Ga. App. 88; 625 S.E.2d 455 (2005). These factors are not general guidelines, but are minimum constitutional prerequisites. See Thomas, supra.

The real problem with this decision is that it further erodes the forethought requirement for a Constitutional roadblock as foreseen by the U.S. Supreme Court. What is happening is that field supervisors are deciding at roll call on the night of a roadblock to have a road block. Half the time there is not the forethought that this or that area or time is particularly prone to DUIs. They don’t even go back to the Office to get Roadblock signs and cones. There is no plan no purpose. Just a boilerplate form filled out at the end of the roadblock and submitted to supervisors the next day. It is a spur of the moment decision which is exactly what the U.S. Supreme Court was trying to protect against.

Query: If the Sergeant was a programmic level supervisor why did he have to fill out a Road Block Approval Form?

In Georgia under the implied consent law, citizens are required to give samples of their blood breath or urine in order to determine if they are under the influence of alcohol or drugs. However, citizens are entitled to additional tests of their blood, breath, urine or other bodily substance from qualified personnel of their own choosing at their own expense. Georgia Courts have held that police must “reasonably accommodate” the request for an additional test. This may include taking a DUI arrestee to a hospital and perhaps not the closest one for a additional blood test. If the Dui arrestee faces an obstacle to obtaining a test and not just a sample, the Officer must reasonably accommodate the defendants request by attempting to overcome the obstacle including taking the DUI arrestee to the ATM, having friends meet him/her with money, offering to store the blood sample in the police evidence refrigerator until the arrestee can have it tested. See, Koontz v. State, 274 Ga. App. 248 (Jul. 08, 2005). In Koontz, the Court held that the Officer failed to reasonably accommodate the request for an additional test when the Officer helped the Defendant get money and took him to a hospital where the Officer knew the Defendant could not get a blood test. He saw the nurse give the Defendant his blood sample which was not sufficient to satisfy the additional blood test requirement and offer no additional help to assist the Defendant in overcoming the obstacle to obtaining his additional test. Essentially, the Officer has to not only reasonably accommodate the request but also any obstacles that arise in obtaining the additional test absent some other emergency or urgent need of law enforcement. In other words, giving a Defendant a phone book and access to a telephone at 3 am and saying knock yourself out is not enough. Additional tests are important as state testing is often not accurate.

The Sarasota Herald Tribune reported recently that a Florida Sheriff’s Deputy is under investigation after utilizing a suprise handcuffing technique. After an arrestee was told by the Officer to perform a fake sobriety evaluation as a ruse to handcuff the suspect, the Officer slammed the arrestee into the car.  While trying to get handcuffs on the Defendant, the Defendant turned around and retaliated. Police commentators have called this unreasonable policing. One such fake field evaluation is the lean forward over the hood of my car as far as you can then BAM!, slammed into the hood and cuffs go on. Another similar fake test is read the word between the flashing lights on my light bar. Americans deserve honesty and open communication in a democratic society and not police trickery.

CBS Investigative Reporters in Denver recently reported that Denver Police turned off video cameras recording DUI breath testing.  After recently suffering acquitals of DUI arrests where the defendant was not observed for 20 minutes prior to the breath test to exclude the possibility of mouth alcohol, the cameras were coincidently turned off.  Police don’t want cameras if they are showing juries that Defendants are not guilty.  In Atlanta, the some DUI Task force officers have stopped using video after regularly videoing arrest for the last five years.  No explanation is given for why not.  Atlanta Police also have new digital recorders that can not be played in court but only in police cars.  Other police agencies resist cameras for their police cruisers knowing that convictions can be harder when the arrest is on tape.  In this day and age, Americans deserve to have those vested with the public trust recording arrests.  The bottom line is it convicts the guilty and frees the innocent.  Legislators should step forward and mandate video recordings for police cruisers and DUI breath test machines.