Probable Cause to Arrest in Georgia DUI Cases

Probable Cause is the cornerstone of the 4th Amendment to the United States Constitution.  The Georgia Constitution offers even greater protections against unreasonable search and seizure.

The Back story of our Forth Amendment Rights:

The framers of our Constitution are generally seen as wise old men, spending weeks, if not months, wrestling with the language and provisions found in it and the accompanying Bill of Rights.  United States history students are taught of the struggles and compromises between members of that August group and how they eventually hammered out the documents that would guide our nation throughout its long history.

Much of what went into the final Bill of Rights however, was in response to what the colonists at the time viewed as atrocities performed by the former government of the colonies, the British.  The right to bear arms, freedom of the press and of speech, and freedom of religion, all of these were added in response to British attempts to control the colonists and keep any thoughts of uprising under control.

The principles of the Fourth Amendment are prime examples of the reactionary nature of the Constitution and the Bill of Rights.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The British government viewed the colonies as lawless lands, run by mobs of unruly heathens.  It feared that colonists were taking advantage of the distance between themselves and the Crown, and guarded against what they perceived as threats vigorously.  Reports from local governors only added to the fire, instilling the belief that it was all the authorities could do to maintain order on a daily basis, requiring the need for extreme measures in many circumstances.

Requests for military presence were common.  Reports of smuggling were nearly constant and clearly gave the Crown fits of rage, as British officials in the colonies complained they were not entitled to search a person's premises without reason.

King George II took action by authorizing general Writs of Assistance to local customs officials.  A Writ of Assistance was a command by the Crown to other agencies to offer assistance to the customs officials in searching whatever and where ever they felt smuggled goods might be hidden.  There was no requirement that a search was based on any sort of evidence, and also no provisions for recovery of damages should any property be destroyed.

General writs of assistance played an important role in the increasing tensions that led to the American Revolution and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In New England smuggling had indeed become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British subjects. The colonists had several problems with these writs. They were permanent and even transferable: the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law.

All writs of assistance expired six months after death of the king, at which time new writs had to be obtained. With the death of King George II in October 1760, all writs would expire on 25 April 1761. The crisis began on 27 December 1760 when news of King George II's death reached Boston and the people of Massachusetts learned that all writs faced termination.

There were several landmark cases challenging the writs, mainly headed by Boston attorney James Otis, Jr.  (The Paxton case, the Malcom Affair).  All of the challenges failed, naturally, but the illegality of the writs, the trampling of rights as seen by the colonists and the overreaching tyranny of the British government all contributed to the eventual beginning of the American Revolution.

Once we had declared our independence from the Crown, the forefathers laid out quite specifically and simply that there would be no issuance of a warrant absent a showing of probable cause.  Of course, no matter how simple the language, once in the hands of law enforcement, attorneys and judges, it can become complicated.

Probable Cause in the United States:

The United States Supreme Court has a long established history of creating precedent surrounding the issue of probable cause.  Probable cause comes into play in several arenas.  Probable cause must exist in order for a police officer to obtain a search warrant to search a suspect's premises, or any place where contraband or evidence might be found.  Probable cause must exist for an arrest.  Probable cause must exist for a Grand Jury to issue charges against an individual.

In this article we are mainly concerned with those cases relating to DUI charges.  Probable cause to arrest an individual for a DUI is the focus of thousands of evidentiary hearings each year in Georgia.  An evidentiary hearing is a legal proceeding, set not in front of a jury, but only the judge assigned to the case.  One party to a suit requests the hearing through one or more written 'Motions.'

A motion generally outlines the facts of the case briefly (only enough to explain the necessity for the hearing) and lays out the laws as they apply to the facts and the legal issue being discussed.  Motions are generally not decided upon without a hearing, though sometimes the parties will submit the issue based upon the written motions and just let the judge decide as a matter of law.

In most cases however, a hearing is set and one or more witnesses are required to come down as testify to those facts that might be necessary to establish the legal irregularity or the legal correctness of a particular action. We have previously discussed evidentiary hearings as they relate to stops in DUI cases and whether there was a valid legal reason for the officer to make a citizen stop his car to conduct an investigation.

This article deals with the issue of probable cause as it relates to DUI arrests, however.  A Motion to Dismiss, based on a lack of probable cause is a common tool for defense attorneys to challenge the amount of evidence gathered by law enforcement officers when they conducted the DUI investigation.  It is essentially the defense attempting to prove to the judge that the officer did not have enough evidence to support the arrest.

What Happens During A DUI Investigation:

In a DUI case most of the evidence gained by a police officer is from taking advantage of the naivety of drivers.  Before the driver is stopped, evidence is already being gathered against the suspected DUI driver.  Such evidence includes, weaving on the roadway, following too closely, failure to maintain lane, stop sign violations and of course, accidents.  All of this evidence of probable cause is gathered before the driver is even stopped.

Once a driver is stopped, the officer will begin noting other 'signs and symptoms' of intoxication.  He looks for red/watery eyes, slurred speech, trouble producing documents, and the odor of alcohol on the driver's breath or person.  These indicators of intoxication are observed before the driver even knows he is suspected of a crime.

Attempts can be made to minimize the collection of these pieces of evidence, only rolling the window down a crack, just enough so that you can hear the officer and slide documents through, making sure you have your license, insurance and registration within easy reach at all times, not looking the officer directly in the face, keeping your eyes forward instead of looking into the light he will inevitably shine in your face...these are all things that might make an officer suspicious, but that do not lead to self incrimination. However, and experienced DUI Task Force officer will easily recognize any attempt of a driver to avoid detection.

The next part of the investigation is one most drivers could avoid altogether if they were aware of the law.  Asking you to step out of the vehicle to perform field sobriety tests is the way in which most officers gather their evidence to place you under arrest. Officers commonly ask a suspected driver,"I'd like you to do some test so I can see if you're okay to drive home."

To most people this seems like a reasonable request.  But it's designed to arrest people for DUI.  The officer is not trying to see if you can drive home.  He's trying to gather enough information so that he can arrest you.  He will not tell you that these tests are voluntary (they are) and that you can decline to perform them (you can) and that everything he observes he will make note of and use against you in court (he will). An experienced officer generally is able to get a layperson to submit to testing through moderate coercion and intimidation.  Even subtle coercion is enough to convince people to submit to testing because of the unequal position a person is in comparison to an armed police officer.

Standardized Field Sobriety Tests:

One of the prosecution's major sources of evidence in a DUI case are the standardized field sobriety tests (SFST's).  Developed by police departments across the nation and standardized by the National Highway Traffic Safety Administration (NHTSA), the battery of field sobriety tests that are given in DUI stops by officers are the subject of legal attacks from defense attorneys around the globe.  The tests are supported by studies commissioned by NHTSA, and in effect, it's the fox guarding the hen house.  The government sets the standards and does the studies “validating” the standards without any peer review.

Because of their subjective nature, coupled with the fact that they are administered by police officers in the field with little or no real training, along with their inherent bias towards believing everyone they stop is guilty, the field sobriety tests are the one part of the DUI investigation where you will do your case the most harm.  Generally, an officer who has observed a traffic violation and then smells alcohol on your breath is not going to let you drive home and is simply using the SFST's to give himself a reason to arrest you.  As general rule, once field sobriety testing begins, the officer has already made his to make an arrest.

There are two different types of field sobriety tests: standardized and non-standardized.  In this article we will discuss the methods and the meaning behind only the standardized field sobriety tests. The standardized field sobriety tests have been evaluated by the US Department of Transportation's National Highway Traffic Safety Administration, or NHTSA, in a study conducted by the Southern California Research Institute in 1975.

The standardized tests that DUI officers generally use are the Horizontal Gaze Nystagmus (HGN), the One Leg Stand (OLS), and the Walk and Turn (WAT) tests.

HGN TEST:

The Horizontal Gaze Nystagmus test, or HGN is perhaps the most scientifically relevant of the SFST's, but also one of the easiest to improperly administer.   Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at extreme angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.

When performing the test, the officer will generally hold a pen approximately 12-15 inches from the subject's face and slightly higher than eye level.  The subject's eyes should be clearly visible and well lit for the officer.  He should not however, position the subject so that the flashing lights from his patrol car are visible to the subject as this may cause nystagmus on its own.

The officer should have the subject remove his or her glasses.  Glasses and contacts do not allegedly affect the test results, but glasses may hinder the officer's observation of the eyes.

There are three parts of the test, or three things the officer is looking for: Lack of Smooth Pursuit, Nystagmus at Maximum Deviation and Onset Prior to 45 Degrees.

Lack of Smooth Pursuit - this is noted if the officer observes a jerkiness to the movement of the eye as it travels back and forth over a horizontal line.  Officers generally describe this to a jury as looking like a windshield wiper moving across a dry windshield.

Maximum Deviation - Nystagmus at maximum deviation occurs when the officer causes the subjects eye to follow his pen to the farthest angle possible.  The officer will allow the eye to rest in that position for at least four seconds and will note whether nystagmus is present in that position.  If nystagmus is present at maximum deviation, to the officer it will appear as if the eye rests for a moment and then begins a slight bouncing.

Onset Prior to 45 Degrees, or Angle of Onset - The officer moves the stimulus at a speed that would take about four seconds for the object to reach the edge of the suspect's left shoulder. The officer notes this clue if the point or angle at which the eye begins to display nystagmus is before the object reaches forty-five degrees from the center of the suspect's face. The officer then moves the object towards the suspect's right shoulder. For safety reasons, law enforcement officers usually use no apparatus to estimate the forty-five degree angle. Generally, forty-five degrees from center is at the point where the object is in front of the tip of the subject's shoulder.

This test may result in up to six 'cues' of impairment.  You'll note the three possible examples of nystagmus listed above and they are checked in both eyes.

If an officer observes and testifies that he observed at least four of the above listed cues of impairment while administering the HGN test, he will follow his testimony with the supposition offered by NHTSA that this means there is approximately an 88% likelihood that the subject was at or above a .08 BAC at the time of the test.

As you can see the HGN test is one of the most powerful tools the prosecution has, aside from the blood, breath or urine test.  It will be offered as direct evidence of impairment, at or near the time of driving.

An experienced Georgia DUI Attorney will be able to attack the HGN test itself, the officer's qualifications to administer the test and the results offered at trial in order to discredit, and/or give the jury a reason to disbelieve the effectiveness of the test, minimizing its damage to the defense case.

ONE LEG STAND (OLS):

The One Leg Stand test is another of the Standardized Field Sobriety Tests established by NHTSA.  The test itself is neither scientific nor complicated, but the officer must make sure that the subject understands the instructions.  He or she does so by both explaining the test and demonstrating it.

In performing the test the subject is instructed to stand with his feet together, hands at his sides.  He must raise one foot off the ground 6-8 inches, toe pointed and maintain that position while counting from 1001-1030.

While the subject performs the test, the officer looks for four signs that indicate the person may be intoxicated:

Swaying while balancing – Although it is natural for humans to sway slightly in order to keep their balance, the officer is trained to look for marked swaying, such as a back-and-forth movement.

Using the arms to keep balance – If the subject raises his or her arms more than six inches from the side of the body, this is a sign that he or she is having significant difficulties maintaining balance.

Hopping on the anchor foot in order to maintain balance – It is permissible for a person to move the anchor back and forth slightly, but raising it off the ground is not allowed.

Resting the raised foot on the ground three or more times during the required thirty seconds – The person is considered unable to complete the test.

The one-leg stand test must be performed on dry, hard, level land. If a person is wearing heels above two inches, he or she is allowed to remove them. The elderly, people with back, leg, or middle ear problems, and overweight people often have difficulty with this test when sober. It is, therefore, difficult to determine for certain if they have been drinking. In these instances, officers usually substantiate the one-leg stand test with the horizontal gaze nystagmus field test or a breathalyzer test.

Of course, the one leg stand test can be difficult even for a completely sober person to complete without mistakes.  And most defense attorneys will attempt to prove that to the jury and that the test is basically designed to fail.

Yet this test is typically administered on the side of a road, often at night, when the distractions can be numerous. For example, the shoulder of the road might be uneven or covered in gravel; cars may be passing at a high rate of speed; the blue lights on the police officer's patrol car might be glaring in your eyes; etc. Additionally, people who are overweight, over the age of 65, and those who have any kind of physical limitation may be unable to perform the one-leg stand test.

Of course, NHTSA contends that if you fail the OLS, there is a 65% likelihood that your BAC is above a .10

WALK AND TURN (WAT):

The walk and turn test is the third and final field sobriety test that was standardized by NHTSA.    In the walk-and-turn test, you are instructed to take nine steps in a heel-to-toe fashion in a straight line.  After the ninth step, you then must turn on one foot and return in the opposite direction in a heel-to-toe fashion.  While you are completing the walk-and-turn test, the police officer is making note of the presence of the following seven indicators of impairment:

(1) whether you are unable to maintain your balance while listening to the officer's instructions;

(2) whether you begin walking before the officer has completed the instructions;

(3) whether you stop while walking in order to regain your balance;

(4) whether you actually touch your feet heel-to-toe;

(5) whether you step off the line while walking

(6) whether you use your arms to maintain your balance;

(7) whether you lose your balance while turning; and

(8) whether you take an incorrect number of steps.

The presence of two or more of these indicators is evidence of impairment.  That is to say, if you exhibit two or more of these indicators, your blood alcohol content (BAC) will, according to NHTSA, be over .10, at least with a 68% likelihood.

In many instances, if you have not been stopped in an area where the pavement is actually marked with a line, and since many officers do not carry tape to lay down a line for you to walk on, the test becomes even more subjective in that you are instructed to walk an imaginary line.

As you can see, the standardized field sobriety tests, though relied upon heavily by the prosecution to prove that you are 'impaired,' are largely subjective and hinge mainly on the officer's ability to accurately interpret results, road conditions and the assumption that the officer will not bring his own prejudices into the testing procedure.  As such, they are a dangerous and misleading weapon in the hands of the State. A skilled Georgia DUI Defense Attorney can attack these tests and point out to a jury the ridiculousness of using these agility tests to “prove” alcohol impairment.  In fact, the only thing these tests prove is that they are difficult for anyone to perform correctly.

Keep in mind, in Georgia these tests are strictly voluntary.  You are not required to submit to any of them, and a refusal to do SFTS's carries with it no penalty, other than the officer's annoyance.  In fact, most attorneys would advise you to refuse to submit to any of the above tests, no matter how much you've had to drink.  They are designed for you to fail.  We have had several clients have blood test result well below .08 who “failed field sobriety testing.”

Georgia Case Law on Probable Cause:

The Courts in Georgia have held that field sobriety tests, though often valuable in determining whether probable cause to arrest a driver for DUI exists, are not necessarily a requirement under the law.  Probable cause may exist even in cases where the SFTS's were administered, but the officer does not recall the results.  Georgia courts have abdicated their responsibility to hold the State to high standards insofar as DUI cases are concerned.

In Frederick v. State, 270 Ga.App. 397 (2004), the officer administered field sobriety tests but had no recollection of what the results were. The court concluded that "even without the field sobriety tests, the experienced officer's undisputed testimony that Frederick smelled of alcohol, admitted that he had been drinking, and had glassy eyes sufficed to create probable cause for the arrest."  Id .  In Temples v. State, 228 Ga.App. 228, 229 (1997), the officer pulled the defendant over because the passengers were not wearing seat belts. There was no indication of erratic driving. The officer detected an odor of alcohol on the defendant's breath, observed that the defendant's eyes were bloodshot, and administered an alco-sensor test which revealed the presence of alcohol.  Id. at 231. The court concluded that "[u]nder the totality of the circumstances, probable cause existed for [the defendant's] arrest for DUI."  Id.

Courts have often explicitly dispelled of the idea that evidence from a field sobriety test is needed. See  Cann-Hanson v. State , 223 Ga.App. 690, 691 (1996) (" Even in the absence of the field sobriety tests,  the officer's observation that [the defendant] had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence.").

Further, in Andrew Burnett vs. Unified Government of Athens-Clarke County, No. 3:08-CV-04 (M.D.Ga. 12/22/2009) the Court found "that Defendants had probable cause to arrest Plaintiff for driving under the influence of alcohol. O.C.G.A. § 40-6-391(a)(1) provides: "A person shall not drive or be in actual physical control of any moving vehicle while... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive[.]" Here, it is undisputed that Plaintiff had three to four beers. (Pl.'s Dep. 15:6-17; see Pl.'s Decl. ¶ 15.) Plaintiff was stopped for what Officer Wright observed as erratic driving. (See Wright Decl. ¶¶ 4-5.)

When Officer Wright spoke with Plaintiff, he smelled alcohol on Plaintiff's breath (id. ¶ 6), and when Officer Wright read Plaintiff a DUI implied consent notice, Plaintiff refused to consent to the State-administered chemical test (Pl.'s Decl. ¶ 8; see Wright Dash-Cam Video at 2:04:06-2:04:27). Based on these circumstances, the Court finds that Defendants had probable cause to arrest Plaintiff for driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a)(1). See, e.g., Byrd v. State, 240 Ga. App. 354, 354, 523 S.E.2d 578, 579 (1999) (noting that evidence of odor of alcohol, driver's admittance of drinking, and driver's refusal to take chemical test can be sufficient evidence, among other things, to indicate that driver was driving under influence of alcohol); cf. Cann-Hanson v. State, 223 Ga. App. 690, 691, 478 S.E.2d 460, 461 (1996) (finding that officer's observations of driver's bloodshot eyes and odor of alcohol were sufficient to arrest driver for driving under influence of alcohol); but see Clay v. State, 193 Ga. App. 377, 377-78, 387 S.E.2d 644, 645-46 (1989) (noting that odor of alcohol on breath, without other evidence of intoxication such as erratic driving or slurred speech, is insufficient to raise inference that driver is intoxicated).

Interpretation of Georgia Case Law on Probable Cause:

The case law in Georgia seems to indicate that even in the absence of field sobriety tests, the presence of the odor of alcohol, along with added evidence on erratic driving, and slurred speech might constitute probable cause for an arrest for DUI.

Once placed under arrest, an officer will invoke the Implied Consent laws and require you to submit to a test of blood, breath or urine, as he or she chooses.  Refusal to do so results in additional penalties and evidence of said refusal will be used against you should your case proceed to trial.  We will discuss the implied consent laws in future articles (i.e. at what point in an investigation they apply and what they mean).

Suffice it to say, defense attorneys across the board will advise you to decline the Field Sobriety Tests in all cases, as they only add to the evidence the officer is gathering to arrest you.  Also, attempt to minimize any direct contact with the officer as much as possible, without becoming belligerent.  It is always best if the officer places you under arrest without any real reason for which to do so.  Your defense attorney can sort out the legality of the arrest in front of the judge, hopefully resulting in a dismissal, thereby avoiding the stress of a full trial.

Contact us now to fight your case:

You have choices when you are arrested for DUI in Georgia.  Our office knows the seriousness of being charged with a crime.  We are here to help and protect your rights.  Call 24 hours a day, 7 days a week.  We are here when you need us most.