Bostic v. State, A15A0600, Reversed, June 25th, 2015.  Perry Bostic appealed from the Trial Court’s denial of his motion to suppress his state-administered alcohol breath test from the Laurens County Superior Court wherein the Trial Court found that Police had “probable cause” to arrest him for DUI.  The Court of Appeals agreed with Bostic and reversed.  Bostic was stopped by the Dublin Police Department for having a tag frame obstruct his license plate.  The Dublin Police Officer noticed that Bostic’s eyes are bloodshot and watery.  Bostic admitted to drinking one beer one hour earlier.  The Officer performed a portable breath test which was positive for the presence of alcohol.  No other field tests were performed as the Officer was not certified to perform field sobriety evaluations.  Bostic also admitted to having a suspended license from a previous DUI conviction. The video showed that Bostic answered all of the Officer’s questions promptly and his speech was clear.  In the video, Bostic exited the car, walked normally and his gait was steady.

The Court of Appeals found that these facts did not support a finding of probable cause for DUI.  Probable Cause exists for an arrest where the objective facts known to the officer establish a probability that the suspect has been engaged in illegal activity. A probability is less than a certainty but more than a mere suspicion or possibility.  Campbell v. State, 313 Ga App 436, 438, 721 SE2d 649 (2011); Gregoire v. State, 285 Ga App 111, 113(1), 645 SE2d 649 (2007). To arrest a driver for DUI less safe in Georgia, a Police Officer must have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree that renders him incapable of driving safely.  The mere presence of alcohol is not the issue.  State v. Sanders, 274 Ga App 393, 396, 617 SE2d 633 (2005). The mere fact that a suspect admits to having consumed alcohol before driving does not provide the probable cause necessary to support a DUI arrest. Handley v. State, 294 Ga App 236, 237, 668 SE2d 855 (2008); State v. Ellison, 271 Ga App 898, 901 (3)(b), 611 SE2d 129 (2005).   Impaired driving ability depends solely upon an individual’s response to alcohol. Because individual responses to alcohol vary, the presence of alcohol, in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver.  Ellison supra at 902 (3)(b).  See also, Armour v. State, 315 Ga. App. 745, 747 (1), 728 SE2d 270 (2012) (“evidence which shows only that a defendant had [alcohol] in her body while driving provides insufficient probable cause to arrest for DUI”) (punctuation and footnote omitted; emphasis in original); Slayton v. State, 281 Ga. App. 650, 652 (1), 637 SE2d 67 (2006) (“a positive alco-sensor result shows only the presence of alcohol, not that the driver is intoxicated and it is less safe for him to drive”).

The Trial Court’s order found that the only evidence of impairment was the consumption of beer, the appearance of his eyes, and the positive result on the alco-sensor or portable alcohol breath test device. This evidence rises only to the level of suspicion or possibility which is not sufficient for a finding of probable cause.  This case is significant not only as a significant DUI probable decision but it represents one of a handful if not the only Georgia Appellate case where a Judge was reversed on probable cause and not the more typical situation where the Appellate Court simply affirmed the Trial Court’s decision as not being an abuse of discretion. It goes back to my underlying theme in recent opinions of if there is a video it’s de novo.

-Author: George Creal

Atlanta DUI Attorney | DUI Lawyer Atlanta