In Armentrout v. State 332 Ga. App. 370 2015, Armentrout was convicted following a stipulated bench trial of driving under the influence of alcohol less safe and per se. On appeal, Armentrout contended that the trial court erred in denying her motions to suppress evidence recovered from the traffic stop and the results of the state administered chemical test arguing that the roadblock was unlawful. In this case, the police submitted a proposed roadblock to establish safety checkpoints to enhance safe travel and that the primary purpose of the roadblock was to conduct a check of driver’s licenses and to identify drivers who are under the influence of drugs and/or alcohol. The Court of Appeals reversed the trial court’s decision holding that the State failed to prove that the Police Department’s overall checkpoint program had a legitimate primary purpose as required to demonstrate the lawfulness of Armentrout stop at the roadblock in that there was no written evidence or testimony to show the actual roadblock program had a purpose other than ordinary crime control. Contact a Douglas county criminal defense lawyer today for help with your case.
Monday, August 22, 2016
As an Atlanta Criminal defense lawyer and DUI attorney, I often see stops that are called in on a Bolo from an anonymous caller. These stops are always problematic because nobody knows the true motives of that person who called the police or even if they are even telling the truth. A recent appellate decision has come down that states fairly clearly that those stops even though are anonymous can give the police officer articulable suspicion to stop the vehicle and investigate if the driver is in fact DUI. In Blanks v. State, the Georgia Court of Appeals upheld the trial court’s decision to deny blanks motion to suppress holding that an anonymous emergency 911 call was sufficiently reliable to be considered in determining whether an officer had reasonable article suspicion to conduct a traffic stop. Relying upon the recent Navaratte United States Supreme Court decision, the court held that the fourth amendment to the United States Constitution permits a brief investigative stops when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. The reasonable suspicion necessary to justify an investigatory stop is dependent upon the content of information possessed by police and its degree of reliability. The standard takes into account the totality of the circumstances. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence and less than is necessary for probable cause. In this case, the officer relied upon an emergency 911 call in which an anonymous caller provided information to the effect that the driver in front of him was driving erratically in speeding. Additionally, the caller was reporting information live on mostly keeping the vehicle and site. Furthermore, the caller provided live updates on the vehicle’s location as well as an additional detail when asked by the dispatcher about how the vehicle was being operated during the time the caller was on the telephone. Per the Court of Appeals, the police officer responded to the dispatcher’s report based on the anonymous emergency nine one two had sufficient descriptive information such as the make, model and color of vehicle to effectuate a stop even though the officer did not have the license tag number of the vehicle, a description of the vehicle, or any indication of wrongdoing other than speeding.
In State v. Barnes 331 Ga. App. 631 2015, the State appealed the trial court’s order granting Barnes motion to suppress the result of her state administered breath test following her arrest for driving under the influence. The State contended that the trial court erred in finding that after being read the implied consent notice, Barnes had clearly refused to take the state administered test and had not later rescinded her refusal. The State also argued that the trial court erred in finding that Barnes did not rescind her refusal by voluntarily taking the breath test. In this case the officer read Barnes the implied consent notice twice. During the second reading of the implied consent notice, the officer misread the notice stated that if Barnes submitted to the test results indicated an alcohol concentration of .0 grams or more, her driver’s license could be suspended for more than a year. At the end of the second reading of the notice, Barnes responded “no I thought I just did that.” Another officer then explained that the portable breath test was different from the test referenced in the implied consent notice, and Barnes responded okay. The arresting officer testified that she interpreted Barnes’s response is the rescission of her refusal and acquiescence to the breath test. The Georgia Court of Appeals remanded the case back to the trial court holding that in considering whether Barnes statement oh okay constituted a rescission of her prior refusal to take the official state breath test, the court was required to consider whether the police officer’s actions were reasonable and fair under the totality of the circumstances. Contact a DUI lawyer in Douglas county for help with your DUI case.
DUI LAW UPDATE
By far, the bill at the greatest impact on DUI defense practice is the defense of traffic cases is Senate Bill 100. Senate Bill 100 resolves the discrepancy between the definition of commercial motor vehicle in O.C.G.A section 40-1-1 and O.C.G.A section 40-5-142. Effectively July 1, 2015 the definitions will be the same. This can be useful in DUI defense because some officers may not realize that a vehicle qualifies as a commercial motor vehicle under the new definition, and the reading of the wrong warning can be grounds for the suppression of test results or a refusal. Senate Bill 100 also contains a wonderful opportunity for drivers who have had their licenses canceled or their applications for a license denied due to a suspension in another state. The language in O.C.G.A section 40-5-22 (c) prohibits issuance of a license to such individuals, and the Court of Appeals recently upheld the DDS’s interpretation of this code section in Wolff v. Georgia Department driver services 330 Ga. App. 552 (2015). Senate Bill 100 at subsection D to O.C.G.A section 40-5-22 which will allow the DDS to issue a limited driving permit to such drivers if they are otherwise eligible for such limited driving permit in accordance with paragraph one of subsection (a) of code section 40-5-64. Another significant change enacted in Senate Bill 100 is the elimination of mandatory license suspensions for fraudulent or fictitious use of or application for license as provided in code section 40-5-120 or 40-5-125 or any felony violation of article 1 of Chapter 9 of title 16 if such offense related to an identification document as defined in code section 16-9-4. Section 4-15 of Senate Bill 100 repeals the driver’s license suspensions imposed upon drivers under age 21 in O.C.G.A section 40-5-57.1 for underage possession of alcohol, and section 4-16 repeals the suspensions for such offenses found in O.C.G.A sections 40-5-63 E and F. Section 40-17 of Senate Bill 100 replaces the language in O.C.G.A section 40-5-64 to allow the holder of a limited driving permit, including a ignition interlock limited driving permit, to drive for work purposes in addition to driving to and from work. Section 4-18 modifies a controlled substance language in O.C.G.A section 40-5-75 to apply only to convictions for DUI of drugs under O.C.G.A section 40-6-391(a)(2), (a)(4), and (a)(6). The suspension will no longer apply to drug offenses that do not involve the operation of a motor vehicle while under the influence of controlled substances or alcohol. It appears that a first or second suspension within five years would be eligible for a limited driving permit under O.C.G.A section 40-5-76 if the defendant is participating in a drug Court program. No other permit authorization can be found in the code. Section 4-24 modifies the language of O.C.G.A section 40-6-15 relating to driving with a suspended registration to allow for one plea of nolo contendere every five years to avoid the license suspension contemplated in O.C.G.A sections 40-5-54 and 40-5-63. Senate Bill 100 provides that almost all its provisions are effective on July 1, 2015 and it is intended to be applicable to offenses that occur on or after that date. Contact a Douglas County DUI lawyer for help with your DUI charge.