The Georgia Department of Driver Services can not suspend the driver's license of a non-resident, but it can suspend the privilege to drive on the highways of the State of Georgia of a non-resident drvier. In McHugh v. State, A07A0323, April 17, 2007, the Officer told the Defendant out of state licensed driver, "what I am about to read you deals with your license to drive and your privilege to drive in Georgia, okay."  The Court of Appeals held that this "vague" and "indefinite" "attention grabbing preface" was not the equivalent of stating that the driver would have his out of state license suspended if he refused the test.  It was merely an "introductory statement" to the implied consent and not additional, deceptively misleading information that would impair a defendant's ability to make an informed decision about whether to submit to testing.  The Court listed statements that were "deceptively misleading" in these circumstances as follows: "you're automatically charged with DUI and your license is going to be suspended"; "he would lose his driver's license"; "license may be suspended for a minimum period of one year"; "you will lose your privilege to operate a motor vehicle from six months to one year"; and "your driver's license will be suspend for six months."

    Get out the soma.  Its time for another two minutes of hate and to party like its 1984.  This is the worst kind of Orwellian Doublespeak.  And remember:

• WAR IS PEACE
• FREEDOM IS SLAVERY
• IGNORANCE IS STRENGTH

Refreshing a witnesses recollection is a method where a lawyer uses any item to refresh a witnesses recollection in court while on the witness stand.  In Ford v. State, A07A0331, April 13, 2007, the Court of Appeals held that a booking photograph can be used to refresh an officer's memory as to who a defendant is and which defendant is which.  The officer stated that he could not tell which defendant was which although he knew they were to the two women at the crime scene.   The Court of Appeals reasoned that "OCGA @ 24-9-69 permits a witness to refresh and assist his memory by the use of any written instrument or memorandum, and does not require the written document so used to have been prepared by the witness, so long as the witness tesifies from his personal recollection.  As long a witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus, a song, or a face, or a newspaper item. 

    Although a disturbing case in some instances, it is a good case for DUI defense when employing officer training manuals for field sobriety evaluations and dui detection, and the Intoxilyzer 5000 operators training manual and Intoxilyzer 5000 refresher course manual.   These manuals are a rich source of information for use in cross examining an Officer and demonstrating incompetence.  

Probable Cause is the burden of evidence required for a person to be arrested or incarcerated for alleged criminal conduct.  In Gregoire v. State, A07A0034, April 16, 2007, the Georgia Court of Appeals addressed the requirement to affirm a trial court's denial of a motion to suppress for lack of probable cause to arrest and for a bench trial convicting Defendant of DUI.   The Court of Appeal emphasized to affirm they only have to find "some evidence" that supports the Judge's opinion even in the presence of other contradictory evidence in the record.  In other words the Court of Appeals will always defer to the trial court's judgment as long as there is some evidence to support even if other evidence contradicts the ruling.   The Trial Court held that the test for probable cause  merely requires probability -less than a certainty but more than mere suspicion or possibility.   A DUI arrest only requires that an officer have knowledge that a suspect was actually in physical control of a moving vehicle while under the influence of alcohol to degree which renders him "incapable of driving safely. "  This is interesting because normally the standard is "less safe driving."   This strengthens  the proposition that "less safe" actually means "incapable of driving safely." 

     The Court of Appeals held that even in the absence of field evaluations an experienced officer's undisputed testimony of traveling at a high rate of speed, swerving in and out of lanes at least five times, crossing the gore several times, blood shot eyes, slow and uncoordinated movements, the odor of alcohol, slurred speech, and unsteadiness on feet will establish the necessary probable cause for incapable of driving safely to justify arrest.   This is interesting because it illustrates that the Court's opinion might have different if an expert had testified for the Defendant. 

    The Court finally held that evidence of the failure to adequately explain field evaluations and comply with test guidelines will not exclude field evaluations from evidence but go to the weight that the factfinder can give to the field evaluations in determining the guilt of the accused. 

    The Court of Appeals held that there are three ways to prove a less safe DUI: (1) erratic driving behavior, (2) failure to pass field sobriety evaluations; and (3) the officer's own observations, such as smelling alcohol and observing strange behavior, and the resulting opinion that  the alcohol made the driver less safe to drive.  This is noteworthy as the Court of Appeals placed a conjunctive "and" in the list and not a disjunctive "or" indicating that in this case at least all three must be present. 

In State v. Austell, A06A2171, (March 23, 2007), the Court of Appeals held that implied consent rights or the "breath test" rights must be read "at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant."  The court reviewed reasons that justify a delay in Implied consent like officer safety, securing valuables, roadway safety for the public,  fragile emotional state,  dealing with a second intoxicated driver and investigating an accident scene, cleaning up after being sprayed with pepper spray, dealing with a hazard created by a wrecked vehicle.  In the case at bar, the State Trooper arrested the defendant violently by striking him with his forearm after the defendant snatched his hands away while being cuffed.   The Trooper reasoned that he read implied consent at the Austell police station because he thought it might be safer given the Defendant's earlier resistance.  The Court held that a forty five minute delay not at the scene did not satisy the test of reading the rights as close as is reasonably possible to the time of arrest.  The Dissent argued that it was timely because the Defendant vomited in the back of the police car as further proof of the Defendant's incapacity to hear the rights.  However, as pointed out by the majority, the Trooper did not offer this as a reason.  The trial court's suppress of the blood test was affirmed.   

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 marked” (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 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.