In State v. Goode, A09A0362, the Georgia Court of Appeals upheld a Cobb County Trial Judge’s grant of a motion to suppress based upon an Officer’s lack of probable cause to arrest for DUI. The alleged DUI driver was first observed by the officer driving normally but the DUI Police Officer decided to run a check on her tag. The tag came back as suspended. The Officer initiated a traffic stop. The DUI officer smelled a strong odor of alcohol. The alleged DUI driver admitted to drinking a little more than one glass of wine at her employment as a waitress 20 minutes earlier. Her eyes were glassy and watery but not red and bloodshot. A preliminary breath test for alcohol indicated positive. The alleged DUI Drive passed the walk and turn test and one-leg stand. A second alcosensor test indicated a positive for alcohol. An HGN test or eye jerking test was performed but excluded as the DUI Officer did not follow his training in the administration of the test. The DUI officer then arrested the alleged DUI driver for DUI.
The Court of Appeals held that the standard for probable cause to arrest in a DUI is to “have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders [her] incapable of driving safely.” The Court reasoned that if the evidence merely shows that a driver is intoxicated and does not show that the consumption of alcohol has impaired the ability to drive, there is no probable cause to arrest for DUI. 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 driver was impaired.