DUI, Illegal Stop, Investigative Detention; Butler v. State, A10AA0736 (April 7, 2010). J. Butler was found guilty of  DUI in Columbia County Superior Court in Appling, Georgia near Augusta, Georgia.  She appealed the legality of her stop.  Staff Sergeant Thomas Harper of the Columbia County Sheriff’s Department responded to a domestic disturbance.

He saw a vehicle leaving the address of the call and flagged down the driver by waving his arm out the window. He did not activate his emergency blue lights.  The car stopped.  He asked her if she was involved in a domestic dispute.  She indicated she was so he asked her if she would mind turning around and going back to the address to discuss the dispute.  She agreed.  At the house, he noticed she was under the influence of alcohol and arrested her.

The DUI Defendant argued that it was an illegal stop.  The trial court found that it was a tier-one police-citizen encounter and did not require an articulable suspicion of criminal activity to justify the stop.  The Court of Appeals agreed and found that there was no evidence that Sargent Harper created the impression that the DUI defendant could not leave.  There were no lights (Carrera v. State, 261 Ga. App. 832 (2003)), no yelling (Causey v. State, 246 Ga. App. 829 (2000), no forcibly opening the car door (Smith v. State, 288 Ga. App. 87(2007)), or that she was prevented from leaving (Peters v. State, 242 Ga. App. 816 (2000).  The Georgia Appellate court found that she was given the choice to leave or come back.  The Georgia Court of Appeals found O.C.G.A. 40-6-395 (a)(it shall be unlawful for any driver…to willfully fail or refuse…to stop…when given a visible signal to…stop.) inapplicable since the DUI defendant was given the choice to leave.