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 Stadnisky v. State, A06A2497, March 8, 2007, the Georgia Court of Appeals held that a driver has a duty to stay at an accident scene by statute until identification and insurance information is exchanged and it does not matter if a police investigation is unconstitutional as being made without reasonable articulable suspicion of criminal wrong doing until the insurance and identification information is exchanged. Further, the Court held that the State does not have to prove that a driver did not drink alcohol within the two hours after the accident prior to the police arriving if there is no reasonable circumstantial evidence that he did drink. The morale of this story is if you have been drinking and get in an accident exchange id and insurance and politely leave.
Cunningham v. State, A07A0173, the Court of Appeal held that in an DUI accident case under Hough v. State, 279 Ga. 711 (2005) probable cause need only be discovered prior to the state administered chemical test to make the test constitutional. In Cunningham, there was an accident involving several fatalities. The at fault driver swerved without warning into on coming traffic. The driver had been taken to the hospital. The Georgia State Patrol trooper decided that the driver was impaired and sent someone to the hospital to get a blood test. The Trooper then searched the Driver's purse left at the accident scene and discovered prescription pain medication and steel wool which is indicative of crack cocaine use. The Court held that even though the discovery occurred after the decision to perform a test as long as the discovery of the pills and drug paraphenalia occurred prior to the test the requirement of probable cause is satisfied under Hough, supra. Get the test in at any costs.
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.
In the State v. Snyder, A06A2225, March 20, 2007, the Georgia Court of Appeals held that an illegal blood test made without arrest for DUI under Hough v. State. 279 Ga. 711 (2005) can be become legal under Hough,supra,
if a personal involved in the accident subsequent to the accident
dies. In this case, the Defendant was not seriously injured and
in a neck brace and the Officer gave the driver a portable breath test
on the alcosensor which was positive for alcohol. No field
evaluations were done as the driver was in an ambulance so there was
not sufficient probable cause to arrest for DUI based on a positive
result on an alcosensor. The passenger was seemly unhurt with
lacerations on his face and was transported to the hospital, but
several days later died. The Court of Appeals held that it does
not matter when he died just that he died. Interestly enough,
there is no mention of how the State linked the death to the DUI
accident without testimony from a qualified medical professional.
There is no evidence that any doctor or other health professional
testified at all. This means that if an illegal test is
administered without arrest and an injured party to the accident dies
or there x-rays come back with a fracture weeks or even months later,
an illegal test of the blood breath or urine can magically become legal
and apparently without testimony from a qualified medical professional
establishing a casual link between the DUI accident and death or
serious injury. We can only hope for cert. to the Supreme
Court.
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.
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.
I was a juror in the DUI case held in state court last week. I am also the mother of four and very against drinking and driving. I know that this is murder on our streets and my children have been told time and again that they would be in the worst kind of trouble if they ever did drink and drive or even get into a car with a person under the influence of alcohol.
As for the charges against this particular man, the judge actually dropped the two counts of child endangerment charges. The police officers failed to obtain the correct information needed to prosecute these charges. It was not a cut and dry case.
Court overturns ruling in DUI case Thursday, August 24, 2006 BY PETE SHELLEM of The Patriot-News
It was a case that prompted the president judge of Commonwealth Court to upbraid some judges for ignoring the constitution in the name of stopping drunk driving.
At issue: If a police officer outside his jurisdiction stops a vehicle and the driver refuses to take an alcohol breath test, can the license of the driver be suspended for a year?
The answer is no, according to a ruling this week by the state Supreme Court.
To obtain legal advice, please call (770) 961-5511 or email George C. Creal, Jr., P.C. at firm@georgialawyer.com. George C. Creal, Jr., P.C. is a law firm representing those charged with DUI or driving under the influence of alcohol or drugs. We have been representing DUI Defendants for ten years in the City of Atlanta, Acworth, Alpharetta, Athens, Austell, Avondale Estates, Ball Ground, Barnesville, Big Canoe, Calhoun, Canton, Carnesville, Carrollton, Cedartown, Chatsworth, Chattahooche Hills, Clarkston, College Park, Commerce, Conyers, Covington, Dahlonega, Dallas, Decatur, Doraville, Douglasville, Duluth, Dunwoody, East Point, Fairburn, Forest Park, Forsyth, Fort McPherson, Fort Gillem, Gainesville, Grayson, Griffin, Hampton, Hapeville, Helen, Holly Springs, Johns Creek, Jonesboro, Kennesaw, LaGrange, Lake City, Lawrenceville, Locust Grove, Loganville, Lovejoy, Marietta, McDonough, Morrow, Newnan, Norcross, Palmetto, Peachtree City, Powder Springs, Roswell, Sandy Springs, Senoia, Smyrna, Stockbridge, Stone Mountain, Suwanee, Thomaston, Tucker, Union City, Villa Rica, Winder, Woodstock, and Zebulon and their surrounding counties including Fulton, Clayton, DeKalb, Henry, Fayette, Rockdale, Gwinnett, Cherokee, Forsyth, Coweta, Cobb, Douglas and Spalding. We also represent Defendants upon request outside of the Atlanta area throughout the State of Georgia.
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