DUI Probable Cause: State v. Encinas, A09A2151, (February 12, 2010).  The Court of Appeals affirmed the finding by the Trial Judge in Bibb County State Court in Macon, Georgia that there was no probable cause to arrest Mr. S. Encinas for DUI.

The Trial Judge found that Encinas was driving 70 in a 55 mph zone, riding against the fog line but did not cross over it, had bloodshot eyes, glassy eyes, and an odor of alcohol.  Encinas’s speech was not slurred nor did he fumble with his license when stopped.  Encinas refused field sobriety tests after the HGN test or eye jerking test and refused a state-administered test of his breath on the Intoxilyzer 5000.   The Court of Appeals held that there was no evidence that alcohol affected Encinas’s ability to drive but merely showed the presence of alcohol in his body.  Therefore, there was not sufficient probable cause to arrest Encinas and his DUI should be dismissed relying on Ellison  v. State State v. Batty.