DUI Procedure

Legal Requirements for a Road Check in Georgia

I am not looking to get into a debate concerning road checks, roadblocks, check points, or whatever you want to call them.  That is not the purpose of this posting.  The purpose of the post is simply to provide the information as it was requested.

To download and read an article from the  Prosecuting Attorney’s Council of Georgia on the topic: click here.  The article goes over the history of the Georgia court’s rulings in this area as well as two recent case that expanded upon the requirements.  I’m not going to rehash all of it since it is readily available.

The short version is that here are the seven requirements handed down by the Georgia courts to consider a roadblock legal are:

1.  The roadblock was implemented pursuant to a checkpoint program that has, when viewed at the programmatic level, an appropriate primary purpose other than general crime control;

2.  The decision to implement the specific roadblock in question was made by a supervisor in advance, and not by an officer in the field;

3.  All vehicles that passed through the roadblock were stopped, rather than random vehicle stops;

4.  The delay to motorists was minimal;

5.  The roadblock was well-identified as a police checkpoint;

6.   The screening officers staffing the roadblock possessed sufficient training and experience to qualify them to make an initial determination as to which motorists should be subjected to field sobriety testing; and

7.  Under the totality of the circumstances, the stop of the defendant was reasonable under the Fourth Amendment.

Again, I am not looking to get into a debate concerning roadblocks.

DUI Info: Part II

In this post, I tried to provide a basic understanding of a DUI incident.  In Part II, I will focus specifically on the voluntary field sobriety evaluations.

Please note that I referred to them as both as voluntary and as evaluations.  By voluntary I mean just that.  A driver has no obligation to perform the evaluations.  Failure to do so is not an indicator of intoxication.  In fact, some people will not be able to do them due to medical screening issues built into the evaluations.  As for the term evaluations, they are commonly termed as “tests”, but this is not accurate as “tests” indicates that they are on a pass/fail basis, which is not correct.  They are an evaluation tool that allows the peace officer to make a determination based on the totality of the circumstances.

The actual correct term for the evaluations is Standardized Field Sobriety Evaluations (SFSE) with emphasis on the “standardized”. The evaluations, at least the standardized version of them, are scientifically proven and accepted. They should be completed in the prescribed order. There are only three SFSEs. They are the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Any evaluation used other than those three are non-standard. A peace officer must successfully complete a training course to be certified to conduct the standardized evaluations.

Nystagmus is an involuntary jittery or twitching eye movement. While some nystagmus may be natural, it is readily induced by alcoholic beverages and some drugs. As it is not a voluntary movement, it is not able to be controlled by the individual; so, it is a very telling evaluation. It does require several medical screenings for the evaluation to be valid. For instance, a person who does not have equal pupil size or their eyes do not track equally is medically screened out from participating in this evaluation. Nystagmus is checked for by passing a stimulus back and forth at a distance of 12 to 18 inches from the eyes. The first several passes are to conduct the medical screenings. The rest are to check for smooth pursuit, nystagmus at maximum deviation, and the onset of nystagmus at prior to a 45 degree angle of the eyes. As for smooth pursuit, the eyes should smoothly follow the stimulus as it moves back and forth and not exhibit jerking movements, which are an indicator of intoxication. As for maximum deviation, an intoxicated person is likely to show sustained and distinct nystagmus as the stimulus is held at the furthest point of the back and forth passing of the stimulus. Finally, the onset of nystagmus prior to the eyes reaching a 45 degree angle when following the stimulus. Vertical nystagmus is also checked, but vertical nystagmus is not an indicator of drugs as is commonly believed. It is an indicator of a high intoxicant level for the particular person.  Training for what to look for in the eyes is conducted through the use of videos of the eyes of people at various intoxication levels.  The use of live drinkers is now discouraged for this training.

The Walk and Turn evaluation is an evaluation of both a person’s ability to follow directions as well as their ability to walk in a straight line and maintain their balance. Obviously, there are medical conditions that could prevent a person from being able to complete this evaluation; so, it is important for the officer to ask good screening questions. The exercise should be demonstrated by the officer prior to the driver participating. Of note here, I have bad ankles due to a chronic medical condition as well as an injured knee. Prior to demonstrating this evaluation, I always informed/inform the driver of this so that they had a better perspective of the evaluation and the physical ability needed to do complete it. This evaluation involves the participant beginning from a prescribed position, taking nine steps touching heel to toe with each step, turning in a prescribed and demonstrated manner, and then taking nine heel to toe steps back to the starting point. The line walked should be straight with the participant’s arms by their side and with their eyes watching their feet as they walk. The officer is looking to see if the driver steps off line, fails to touch heel to toe with each step, and whether or not the driver raises their arms from their side to maintain their balance.

The One Leg Stand evaluation involves the driver raising one foot approximately six inches off of the ground and with the toe pointed. Their arms should be at their side, their support leg should be locked at the knee, and their eyes should be focused on the toe of their extended foot. Like the Walk and Turn, there are medical/physical conditions that could legitimately prevent a person from being able to participate in the evaluation. In this evaluation, the officer watches to see if the driver is able to maintain their balance without hopping or swaying and without touching their foot back to the ground.

The above are the standardized evaluations and they should be completed in the order as described. There is no pass/fail point at which a person is declared intoxicated to the point of being DUI or not. The officer makes a determination based upon everything observed during the contact to include slurred speech, the odor of an alcoholic beverage on the driver’s breath, and their coherence, appearance and demeanor. Again, they are completely voluntary. If a driver chooses not to participate, the peace officer must make a determination at that point whether or not to proceed with an arrest. I do not have statistics to reflect any specific percentage as to how many times I made an arrest after conducting the exercises versus letting a person go. The latter category would be the higher percentage.

There are many non-standard evaluations that can also be used. There is a myth that just will not be put to rest when it comes to one of these. Whether or not a person can say the alphabet backwards is not an indicator of intoxication. I do not know how many times when asking a person if they would participate in voluntary SFSEs tell me that they would do so but they wanted to let me know up front that they could not say the alphabet backwards. I usually try to keep a straight face and say something along the lines of, “Okay, we’ll skip that one then.” I did/do commonly ask people to say (not sing) the alphabet. I never had a person mess up the alphabet that did not provide a considerably high blood alcohol content sample. Of course, in order for this evaluation to have any merit, it must be established that the person in question knows the alphabet. I did have one occasion when a Columbian national stated that he did not know the alphabet in English. I hope that Mrs. Bailey would be proud to know that many years after high school Spanish class that I still remembered the Spanish alphabet and was able to complete the evaluation.

Click here to see a form that we use when conducting SFSEs to help ensure that the evaluations are done correctly.  It accompanies a DUI arrest report.

I hope that the above helped provide you with a clearer picture of field sobriety evaluations.  It is a difficult topic to tackle without getting into the minutia of the details, and some aspects of the topic just do not easily translate into text.

DUI Info

I get a lot of questions concerning DUI laws in Georgia, and there seems to be a lot of misconceptions concerning such cases; so, I prepared the following information piece. I have tried to cite statutory and case law when possible while mixing in some my personal experiences and understanding. This is not intended to be a comprehensive document.

Intro (See 40-6-391 and 40-6-392 OCGA):

Georgia DUI law allows for two types of DUI charges to be made. The first type is per se, which is a term that means “in and of itself”. In other words, it is a level of intoxication at which the law presumes that a driver is intoxicated to the point that they are unsafe to operate a vehicle. There are several different levels of per se. For a driver over the age of 21 and not operating a commercial vehicle, the per se level is .08. For a driver under the age of 21 and not operating a commercial vehicle, the per se level is .02. For a driver operating a commercial vehicle, the per se level is .04.

The second type of DUI charge that can be made is a “less safe” case. A less safe case can be made when the person is under the influence to the point where they are less safe to drive. There are no specific presumptions based on blood alcohol content (BAC) in a less safe case. The case is upon the observations of the arresting officer from everything from the suspect’s driving, to their demeanor during the contact, to field sobriety exercises. This type of arrest must be articulated by the officer.

DUI cases can be made for those driving under the influence of drugs as well. Please note that DUI of drugs is not limited to illegal drugs. A person can be DUI from legally prescribed drugs just as if they had been smoking marijuana.

The stop:

An officer may make a stop based upon reasonable suspicion or probable cause. As they relate to DUI/traffic stops, a probable cause stop is when an officer observes an actual violation of the law such as a moving violation or an equipment violation. A reasonable suspicion stop is when an officer observes a pattern of driving that indicates that a driver may be intoxicated, and an officer may make a stop to investigate (think Terry). Once an officer has dispelled intoxication, the stop must end unless the officer has developed other probable cause of a crime.

Weaving. Often times a driver or an officer will use the terminology of stopped for “weaving”. Weaving has two different meanings; so, clarification is in order. Weaving to some people means weaving back and forth within a lane of travel. This is not illegal; however, it can be a basis for a reasonable suspicion stop depending upon the extent of the weaving. This is something that an officer experienced in DUI enforcement can learn to recognize and is not simply the normal slight back and forth pattern that even a sober person will do within a lane. The other weaving is actually “failure to maintain” a lane of travel (see 40-6-48 OCGA). This is when a driver actually crosses over the lane dividing line or the fog line. This IS illegal and is basis for a probable cause stop. Obviously, people do this and are not intoxicated, but it is a legally sufficient reason to make a stop and can result in a ticket purely on its own.

Obviously, some violations are more indicative of DUI than others, and the violations in and of themselves should not be the sole basis for a DUI charge.


After the officer initiates the stop, he or she will make contact with the driver. Everything about the driver is being observed from eyes, speech, dexterity, comprehension and everything else. I’ve had people hand me credit cards, student IDs, and all sorts of other things when I asked for their driver’s license, for example. An officer should be paying attention for the odor of alcoholic beverages as well. The odor alone is not purely indicative of a DUI driver. A drink could have been spilled on the driver. Other occupants in the vehicle may have been drinking, and the driver may have had some alcohol, but some consumption does not automatically mean intoxication.

Field Sobriety:

Now for one of my pet peeves: These are often referred to as field sobriety tests. The term “tests” indicates a pass or fail line, and this is not the case. They should be properly termed as Voluntary Field Sobriety Exercises (VFSE or FSE). The VFSEs are a “totality of circumstances” tool for evaluation and are not a bright line pass or fail test. They are entirely voluntary. Whether or not to participate is up to the driver. My response when asked what would happen if the driver declined to participate was that I would make my decision based upon my observations to that point, and this statement was/is entirely accurate. Obviously, a person that is all over the roadway, is stammering or with slurred speech, has glassy and or bloodshot eyes, and can barely stand is more likely to get arrested than the person who slow rolled a stop sign but doesn’t “seem” plastered.

The portable breath test is NOT the state’s test of a driver’s breath. The PBT can only be used to show positive for alcohol. The actual numerical reading is not admissible in Georgia at this time, but there is a company producing a PBT that can be calibrated and has been accepted in other states. The PBT is completely voluntary.

Implied Consent (40-5-55 and 40-5-67.1 OCGA):

If the officer makes an arrest, Implied Consent comes into play. At that time (after the arrest has been made) the appropriate Implied Consent notice is read. The state can seek test(s) of the driver’s blood, breath, urine or other bodily substances. If a driver refuses the test(s) their license may be suspended for one year. After submitting to the state’s test(s), the driver is entitled to their own test(s) at their own expense and from qualified personnel. The officer must facilitate this within reason. The “within reason” part of that has been the subject of much case law.

If a driver refuses the test(s) or provides a per se sample, the officer should issue a 1205 form. This form grants a 30 day permit to drive, and the driver has a right to a hearing on the license suspension. If the driver does not provide a per se or results are pending, a 180 day sticker is placed on the DUI citation. If results later come in as per se, a 1205S form is completed starting the license suspension process.

Please note that failure to submit to each of the requested test(s) is a refusal. If asked for blood and breath and a driver only submits to blood the driver can still be considered a refusal on breath portion.

Closing thoughts:

I always seek to build a less safe case. If I don’t have a less safe case, I don’t make the arrest. The actual test(s) results were just basically an afterthought. I never had an arrest were test(s) results were obtained that did not go per se.

Once again, this isn’t comprehensive. It is merely to give a better understanding of DUI law and procedure in Georgia.