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. 

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