Questions & Answers

“Probable cause” means facts and circumstances within an officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in circumstances shown, that a suspect has committed, is committing, or is about to commit an offense. The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. Thus, speculation, conjecture, opinion, or rumor cannot support a finding of probable cause.

Reasonable doubt has been defined as doubt for which a jury can give a reason; doubt for which a specific reason can be given; the doubt of a fair-minded, impartial juror; doubt which leaves the mind wavering, unsettled, and unsatisfied; and doubt based on common sense and reason. For example, a reasonable doubt may arise from the presence or lack of evidence, lack of credibility by a witness, including the alleged victim, so called eye witness, or police officer.

Yes. The officer has to have either “probable cause” or what is called, “reasonable articulable suspicion” to stop your vehicle.

In order for an officer to have “probable cause” to stop your vehicle or arrest you for a crime, it requires merely a probability- less than a certainty but more than a mere suspicion or possibility that you committed a crime. For example, if the evidence, through an eye witness, video and/or audio recording, or if the officer sees you committing a crime, he/she has more than a mere suspicion that you committed a crime. He/she then has “probable cause” to stop your vehicle and arrest you for a particular crime. In other words, it is more probable that you committed a crime. That still does not mean you will be automatically convicted. The prosecutor still has to prove your case “beyond a reasonable doubt.”

An officer may also conduct a brief investigative stop of a vehicle only when such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. For example, if a crime occurred and witnesses describe the getaway vehicle as a brown in color F-150 Ford pick-up truck, driven by a white male with a beard and the driver and the vehicle fit that description in the general area where the crime took place, minutes after the crime occurred, the officer has a right to stop the vehicle to conduct an investigative stop. He/she may not have enough “probable cause” to arrest you but he/she can detain you to investigate.

You do not ever have to consent or give the officer permission to search your car. However, if the officer insists on searching your vehicle even after you refused to give permission, it is better not to interfere. If the officer conducts a search of your vehicle over your objection, if he/she finds something incriminating against you, hire a defense lawyer who is experienced in filing motions to have the evidence found inside the vehicle thrown out and the prosecutor will not be able to use the evidence at trial.

DUI stands for driving under the influence of either alcohol, drugs, or inhalants, and in Georgia there are six different kinds of DUI. There are two types of alcohol related DUI charges: “per se” and “less safe.” A “per se” DUI is when the blood alcohol level of the accused is greater than the legal limit of 0.08 grams, or greater within three hours of driving or being in actual physical control of a moving vehicle from alcohol consumed prior to or while driving.  A Georgia DUI can also be “per se” if an illegal drug like cocaine, but not marijuana, is found in the blood or urine of the accused. Under current law, a Georgia Marijuana DUI can only be prosecuted if the State can prove that the driver was a less safe driver or incapable of driving safely because of marijuana use.

The other type of Georgia DUI is known as a “less safe” DUI. A “less safe” DUI is when a driver is arrested for DUI but no breath or blood result is available. “Less safe” means that the driver is less safe to drive as a result of consuming alcohol or drugs before or while driving in comparison to not having ingested any drugs or alcohol. A less safe DUI can be proven in three ways: direct evidence of erratic driving, like an accident or weaving; circumstantial evidence of less safe driving inferred from standardized field sobriety tests; and circumstantial evidence of a driver’s appearance and/or demeanor, i.e., odor of alcohol, unsteadiness, staggering, stumbling or slurred speech.

I tell my clients to never take the HGN test. The HGN test is a test where the officer is looking for twitching in your eyes due to disequilibrium caused by alcohol in the body. The officer will ask if you are wearing contacts, then he will ask you to follow his instructions. The failure to follow instructions is allegedly an indication of alcohol impairment. The officer will ask you to follow a stimulus like a pen or his finger. The officer then passes his pen or finger side to side and up and down approximately 15 inches from your face to determine if he/she sees any twitching of the eyes which indicates to him/her a high blood alcohol level. What the police don’t tell you is that they learned in training that the HGN does not always work. First, everyone has a natural nystagmus or twitching in the eye. Second, strobe lights or flashing lights can cause the eye to twitch. Third, sudden changes in heat and cold can cause the eye to twitch among other things. Under Georgia law, you have the right to refuse the HGN test and an officer cannot force you. If you are arrested without performing this test, this is one less piece of evidence the police or prosecutor can use against you in court.

Field Sobriety Tests are performed by officers at the scene to help them determine if a person is under the influence of alcohol or drug.  Examples of these tests are One Leg Stand, Walk and Turn, The Alphabet Test and The Finger to Nose test. I tell my clients that there is no benefit to performing these field tests. In fact, some people cannot perform these tests well even without alcohol or drugs in their body. There are several reasons to perform poorly. A person can have poor balance, not physically fit, overweight, current or previous injury, or nervous. If you perform any of these tests poorly, it only gives police more reason to accuse you of being under the influence.  Under Georgia law, you have the right to refuse all of these tests. If you are arrested without performing these tests, this is one less piece of evidence the police or prosecutor can use against you in court.

The Alco-Sensor is a handheld device that is used by police at the scene to determine if a person has alcohol in his/her system. It does show a numerical result which lets the officer know how much alcohol you have in your system. In Georgia, the Alco-Sensor test is only admissible in court as positive or negative for the presence of alcohol and not admissible as a numerical result. The Alco-Sensor is highly inaccurate and has no ability to filter or distinguish between breath alcohol and substances which mimic alcohol in infrared light.  However, many police officers use this reading to decide whether to arrest a person for being under the influence of alcohol. Under Georgia law, you have the right to refuse to blow into the Alco-Sensor and an officer cannot force you. If you are arrested without performing this test, this is one less piece of evidence the police or prosecutor can use against you in court.