318 Ga. App. 237
Ga. Ct. App.2012Background
- The state appeals a suppression order suppressing evidence seized after an unlawful arrest for DUI-less safe.
- Suppression hearing showed the arresting officer lacked probable cause to suspect Jennings drove under the influence to be less safe.
- On September 27, 2006, officers responded to a suspicious vehicle outside a residence and found Jennings asleep behind the wheel with engine and lights on.
- Observations included odor of alcohol, unsteady gait, glassy/bloodshot eyes, slurred speech, and a positive alco-sensor test.
- The officer did not administer field sobriety tests due to lack of certification and cited gravel/uneven terrain as a potential explanation for unsteadiness.
- The trial court found presence of alcohol but failed to show that Jennings was impaired to the extent of being a less-safe driver; the court admitted witness credibility but found insufficient evidence for arrest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for DUI-less safe arrest | State contends evidence showed impairment to less-safe driving. | Jennings argues alcohol presence alone does not prove less-safe impairment. | Probable cause not shown; suppression affirmed. |
| Video recording review and waiver | State argues trial court should have reviewed video evidence. | Jennings argues the court refused to review the video. | Waived for appeal due to failure to object; no error. |
Key Cases Cited
- Handley v. State, 294 Ga. App. 236 (Ga. App. 2008) (de novo legal review with deferential fact findings)
- Damato, State v. Damato, 302 Ga. App. 181 (Ga. App. 2010) (presence of alcohol alone not enough for DUI arrest; requires less-safe impairment)
- Ojemuyiwa v. State, Ojemuyiwa v. State, 285 Ga. App. 617 (Ga. App. 2007) (presence of alcohol and belligerence insufficient for less-safe DUI)
- Cummings v. State, Cummings v. State, 272 Ga. App. 886 (Ga. App. 2005) (failure to object to videotape limits appeal)
- State v. Gray, State v. Gray, 267 Ga. App. 753 (Ga. App. 2004) (absence of sufficient evidence for DUI-less safe despite alcohol presence)
- State v. Ellison, State v. Ellison, 271 Ga. App. 898 (Ga. App. 2005) (standards for reviewing trial court factual findings)