June 25, 2015
DUI. Laurens Superior Court. Before Judge Gillis.
Natalie K. Glaser, for appellant.
L. Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.
BRANCH, Judge. Andrews, P. J., and Miller, J., concur.
Perry Bostic appeals from an order of the Laurens County Superior Court denying Bostic's motion to suppress the results of his alcohol breath test, which were obtained following Bostic's arrest for DUI less safe. Specifically, Bostic contends that the trial court erred [332 Ga.App. 605] in finding that police had probable cause to arrest him for DUI. We agree and therefore reverse the order of the trial court.
The evidence in this case was uncontested and consisted of the testimony of the arresting officer and a videotape of the traffic stop of Bostic's car and his subsequent arrest. Moreover, on appeal Bostic does not dispute any factual findings made by the trial court in its order denying his motion to suppress. Rather, he contends that the trial court erred as a matter of law in finding that these facts provided probable cause to arrest Bostic for DUI. Accordingly, because there are no disputed facts, we review de novo the trial
court's application of the law to those facts. Williams v. State, 318 Ga.App. 715 (734 S.E.2d 535) (2012). See also Silva v. State, 278 Ga. 506, 507 (604 S.E.2d 171) (2004).
The record shows that Michael Talbott, an officer with the Dublin Police Department, observed a car driven by Bostic with the license plate partially obscured by the frame surrounding the tag. Talbott therefore initiated a traffic stop of the vehicle. Upon making contact with Bostic, Talbott noticed that Bostic's eyes were bloodshot and watery, so the officer asked Bostic if he had been drinking. Bostic responded that he had consumed one beer approximately one hour earlier. In response to further questions from Talbott, Bostic admitted that his driver's license was currently suspended as a result of a previous DUI charge. The officer then asked Bostic if he would be willing to " take some tests," and Bostic agreed. Talbott had Bostic exit his vehicle and walk to Talbott's patrol car where Talbott administered an alco-sensor test, which showed that alcohol was present on Bostic's breath. Talbott did not conduct any field sobriety tests because, as best he could recall, he was not certified at that time to conduct such tests.
Based on Bostic's admission that he had consumed a beer earlier in the evening, the appearance of his eyes, and the positive alco-sensor test, Talbott arrested Bostic for DUI less safe. Talbott then read Bostic Georgia's implied consent notice and after being asked [332 Ga.App. 606] three times, Bostic agreed to submit to an alcohol breath test. The results of that test showed that Bostic had a blood alcohol level above the legal limit.
Bostic was subsequently indicted for improper display of license plate, driving without a license, DUI per se, and DUI less safe to drive. Prior to trial, Bostic filed a motion to suppress the results of his alcohol breath test on the grounds that Talbott lacked probable cause to arrest him for DUI. Following
a hearing on that motion, the trial court denied the same, but certified its order for immediate review. Bostic then filed an application for an interlocutory appeal, which we granted. This appeal followed.
Probable cause exists for an arrest where the objective facts known to the officer establish a probability that the suspect has been engaged in illegal activity. See Campbell v. State, 313 Ga.App. 436, 438 (721 S.E.2d 649) (2011). A " probability" is " less than a certainty but more than a mere suspicion or possibility." Gregoire v. State, 285 Ga.App. 111, 113 (1) (645 S.E.2d 611) (2007) (footnote omitted). Thus, to arrest a suspect for DUI less safe to drive, an officer must " have knowledge or reasonably trustworthy information that a suspect was [332 Ga.App. 607] actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely. Mere presence of alcohol is not the issue." State v. Sanders, 274 Ga.App. 393, 396 (617 S.E.2d 633) (2005) (punctuation and footnotes omitted; emphasis supplied). Accordingly, the mere fact that a suspect admits to having consumed alcohol before driving does not provide the probable cause necessary to support an arrest for DUI. Handley v. State, 294 Ga.App. 236, 237 (668 S.E.2d 855) (2008); State v. Ellison, 271 Ga.App. 898, 901 (3) (b) (611 S.E.2d 129) (2005). " 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 defendant was an impaired driver." Ellison, 271 Ga.App. at 902 (3) (b) (punctuation and footnote omitted). See also Armour v. State, 315 Ga.App. 745, 747 (1) (728 S.E.2d 270) (2012) (" evidence which shows only that a defendant had [alcohol] in her body while driving provides insufficient probable cause to arrest for DUI" ) (punctuation and footnote omitted; emphasis in original); Slayton v. State, 281 Ga.App. 650, 652 (1) (637 S.E.2d 67) (2006) (" a positive alco-sensor result shows only the presence of alcohol, not that the driver is intoxicated and it is less safe for him to drive" ).
Here, the evidence shows that Talbott did not have probable cause to believe that Bostic's driving ability was impaired due to alcohol consumption. The officer testified that he initiated the traffic stop not because of Bostic's driving, but because of an obstructed license plate. The video of the stop shows that Bostic answered all of Talbott's questions promptly and that his speech was clear. Bostic can be seen on the video exiting his vehicle and walking to the patrol car, and his gait was steady and otherwise normal. Although Talbott testified that Bostic's eyes were bloodshot and watery, there is no evidence that Bostic's eyes were glassy or unfocused. As the trial court's order reflects, the only evidence of a potential impairment available to Talbott was Bostic's admission that he had consumed a beer earlier that evening, the appearance of his eyes, and the alco-sensor test showing the presence of alcohol. While this evidence could give rise to the suspicion or possibility that Bostic was an impaired driver, it " is insufficient as a matter of law to constitute probable cause to arrest [Bostic] for driving under the influence." Handley, 294 Ga.App. at 238 (fact that officer smelled alcohol on driver's breath and that alco-sensor test revealed the presence of alcohol did not provide officer with probable cause to arrest driver for DUI) (citations omitted). See also State v. Damato, 302 Ga.App. 181, 182-183 (1) (690 S.E.2d 478) (2010) (fact that officer smelled alcohol on defendant's breath, that her eyes were bloodshot, and that she admitted having [332 Ga.App. 608] consumed alcohol several hours before was insufficient to provide the officer with probable cause to arrest for DUI); Ojemuyiwa v. State, 285 Ga.App. 617, 620 (2) (647 S.E.2d 598) (2007) (although two officers detected " a strong odor of alcohol" coming from the defendant's person, that fact did not support an arrest for DUI where " there was no evidence presented whatsoever as to [the defendant's] manner of driving, that her speech was slurred, her gait unsteady, or her eyes red and glassy" ). Compare Armour, 315 Ga.App. at 747 (1) (probable cause to arrest for DUI existed where officer detected odor of burnt marijuana, driver admitted smoking marijuana daily, driver's eyes were bloodshot and her pupils dilated, and officer's
evaluation of driver's performance on field sobriety tests led him to conclude she was an impaired driver); Sultan v. State, 289 Ga.App. 405, 409 (2) (657 S.E.2d 311) (2008) (probable cause supported arrest for DUI where evidence showed that the officer detected the odor of alcohol coming from driver's vehicle, driver admitted to having consumed alcohol, her breath tested positive for the presence of alcohol, her speech was slurred and her eyes were red and watery, and she failed the one-leg stand field sobriety test).
Given that Talbott lacked probable cause to arrest Bostic for DUI, we reverse the order of the trial court denying Bostic's motion to suppress any evidence obtained as a result of that arrest.
Andrews, P. J., and Miller, J., concur.