The Georgia Court of Appeals has turn DUI probable cause analysis upside down with the new case of Handley v. State, A08A1577, decided October 24, 2008.  Probable Cause is what is required to arrest someone for a crime.  It is a very low standard. Frequently referred to as the speed bump on the road to justice.  It is the opposite of a reasonable doubt.  In the past the Court of Appeals has found that anything from odor of alcohol to an actual act of less safe driving is required to find probable cause basically up holding the trial court's discretion on an any evidence standard or right for any reason.  In a situation, when facts are undisputed, the Court of Appeals can judge the evidence against the legal standard as a trial court would which is called "de novo" review.  That is what happened in the Handley case.  It is remarkable because it has previously been thought that a trial court had pretty much unrestrained discretion to find probable cause to arrest for DUI, less safe or not.  Now that has changed.

In Handley, the Athens-Clarke County Sheriff's Deputy pulled over the driver for no tag, smelled alcohol, got the driver to admit to drinking, and administered a positive or negative portable breath test which registered positive. That is it.  He arrested the driver for DUI.  She tested over the legal limit at the jail on the Intoxilyzer 5000.  The Georgia Court of Appeals held that is not enough.  Odor, admission of drinking and a positive alcosensor is not enough to establish probable cause for a DUI arrest as a matter of law.  This becomes the new base line in DUI arrests.  So no moving violation, odor, positive portable breath test and your Atlanta or Georgia DUI should be dismissed in court if there are no other indicators of DUI driving.  

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