From the Georgia Court of Appeals comes a helpful case for Washington DUI attroneys on what amounts to probable cause to arrest for DUI. In State v. Encinas, 2010 WL 481357, the officer stopped Mr. Encinas for going 70 M.P.H. in a 55 M.P.H. zone and “riding against the fog line.” Upon approaching the vehicle the officer noticed that Encinas had bloodshot, glassy eyes and the he smelled of alcohol. When asked how much he had to drink Mr. Encinas replied the he had not been drinking. He had dropped somone off who had been drinking and that is why the vehicle smelled of alcohol.
Encinas was asked to exit the vehicle. The officer noted an odor of alcohol coming from the suspects breath. He perfrormed the HGN test and observed 4 of 6 clues (indicating the driver had likely consumed alcohol). Encinas declined any further roadside tests and elected not to take a breath alcohol test.
Officers also testified that Encinas did not fumble for his wallet or seem disoriented. He was steady on his feet and did not have slurred speech. Playing of the video of the arrest showed that the officer had not properly performed the HGN and thus could not be used to determine PC to arrest.
In rendering its decsion the Court of Appeals noted:
The probable cause needed to conduct a DUI arrest requires that the officer have knowledge or reasoanably trustworthy information that the suspect was actaully in physical control of a moving vehicle while under the influence of alcohol, to a degree which renders him incapable of driving safely. (This is analogous to Washington DUI standard of “affected to an appreciable degree.)
As has been found in Washington DUI cases, when the evidence shows only consumption, but not impairment, this is insufficent to support an arrest for DUI.
