Once a person is stopped by a Law Enforcement Officer (hereinafter referred to as “LEO”), in order to detain the person for further DUI investigation, the LEO must notice something to allow the LEO to further detain the person beyond the time required to process the basis of the original Traffic Stop. From the odor of alcoholic beverages to red/watery eyes to slurred speech, the LEO may notice some physical manifestations that justify further investigation. If any such physical manifestations are notice, then the LEO will probably attempt some type of Field Sobriety Evaluations or Field Sobriety Tests (hereinafter referred to as “FSEs”) as established by NHTSA (National Highway Traffic Safety Administration).
The NHTSA-approved FSEs are the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T), and the One Leg Stand (OLS). An experienced and knowledgeable DUI Attorney will know that the HGN is a Scientific Test that is subject to the Harper standard in Georgia Courts. In addition, when performing these FSEs, the Officer must substantially comply with his training regarding the explanation, demonstration and evaluation of the FSEs.
Lastly, while attempting to form Probable Cause to believe that the motorist is DUI, the LEO may try to obtain a sample of the motorist’s breath on a Preliminary Breath Testing (PBT) Device. While the PBT is designed to give the LEO a numerical reading of the motorist’s BrAC (Breath Alcohol Concentration), the only evidentiary value of the PBT is to confirm the LEO’s suspicion of alcohol consumption, for the LEO can only testify in Court that the result was either positive or negative for alcohol. However, LEO’s can see a numerical reading of the BrAC, and the LEO often-times uses this reading to support his belief that the motorist is DUI. In order for the LEO to be able to testify about any positive reading on the PBT, a proper foundation must be laid by the State regarding the particular PBT.
In addition to foundational issues and compliance with training, if a person is deemed by a Court to be “in custody” at the time that the PBT and/or FSEs are administered, then the LEO must administer the Miranda warning prior to administration in order for the results to be admissible. Unfortunately, Georgia Courts have held that Traffic Stops are generally not custodial for Miranda purposes; however, an experienced and knowledgeable DUI Attorney will know what to look for in order to determine if your particular situation potentially rises to a custodial situation.
Furthermore, given that FSEs and the PBT are seen as “consensual,” a LEO cannot require you to perform and submit to either or both. However, the LEO is not required to explain to you that the FSEs or the PBT are consensual. Your particular situation should be evaluated to determine if the particular facts or circumstances made it appear that the FSEs or PBT were not consensual, and, thus, inadmissible.
As you can tell, if you are the subject of a valid initial encounter with a LEO, issues abound as to whether the LEO actually had Probable Cause to arrest you for DUI. Furthermore, the bases for forming the Probable Cause may be inadmissible for a myriad of reasons. In order to assist you in determining whether Probable Cause existed for your arrest, contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you.
