Georgia DUI Blog

     Although a number of PBT’s are approved for use in Georgia, the most common is the Alco-Sensor IV, which is manufactured by Intoximeter, Inc.  This preliminary breath testing device employs a fuel cell technology that is not specific for ethyl alcohol.  Nevertheless, it is used by police as a “screening” device when making their DUI arrest decisions.

     An Alco-Sensor only captures one milliliter of breath.  It cannot be adjusted for a person’s actual blood-to-breath ratio, body temperature, or gender.  In addition, it does not have a “slope detector” to rule out errors from the suspect’s mouth alcohol.  When this preliminary breath testing device only captures one milliliter of breath and registers .08, the Alco-Sensor IV unit is analyzing .00000038 gram of ethanol, or .38 nanograms per milliliter.  One nanogram is the same as one part per per billion, so .38 is a little more than one-third of one part per billion. 

     Despite these shortcomings, some states have allowed an Alco-Sensor with an attached printer to serve as an evidential breath testing device.  After all, more admissible breath tests means more DUI convictions, and that is exactly what the neo-prohibition advocacy groups want - more convictions.  The Georgia courts, recognizing their limitations, have resisted the State’s efforts to introduce preliminary breath test results into evidence.  If the subject ever comes up, now you know why the Georgia courts are right.  

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Since January 14, 2009 when the Georgia Court of Appeals decided State v. Rish (A08A1922), Prosecutors have been jumping for joy and defense lawyers have felt like the sky is falling.

 

The sky is not falling, chicken little, but DUI defense has been dealt a blow as it relates to Motions to Suppress for lack of probable cause.  However, this case has been a bit over exaggerated by those that have not read it closely.

 

Background:

The trial court granted Rish’s Motion to Suppress for lack of probable cause and the State Appealed.  The Court of Appeals then affirmed the trial court’s ruling as it relates to the DUI less safe count, but went on to find that there was probable cause for a DUI per se arrest.

 

The Facts:

On June, 24 2007, the Early County 911 call center received a call about a customer that smelled of alcohol and was behaving erratically.  This customer was leaving a Subway restaurant and the caller gave a description of the car he was driving as well as the boat he was towing and his license plate number.

 

Deputy Morgan arrived at the restaurant and observed the vehicle in question and began to follow it down the road.  The deputy initiated a traffic stop approximately five minutes later for Failure to Maintain Lane after he observed the car “weave within its lane” and after the trailer’s right tire ran off the road.

 

Rish admitted to the deputy that he had consumed 3 to 4 alcoholic beverages earlier, with the last one being 30 minutes before the traffic stop.  The deputy asked Mr. Rish to take an alco-sensor, which is a brand of preliminary breath testing device.  He took the test and was arrested for DUI.

 

The Ruling:

The three-Judge panel of the Court of Appeals (Miller, Blackburn and Ellington) reversed the trial court’s ruling and found that there was probable cause to support an arrest for DUI Per Se (a BAC of over .08 grams).  Specifically, the court mentions that the two alco-sensor tests on the side of the road “were over .08” and that can be considered by police officers to determine if there is probable cause.

 

Some Important Things to point out:

1. This case DOES NOT hold that alco-sensor numerical results are admissible for any purpose.
2. This opinion does not mention how or why the record reflects that the results of the alco-sensor “were over .08.”  State v. Holler (224 Ga. App. 66) is still good law as far as I can tell.  The lawyer should always object to any mention of the results of the alco-sensor that goes beyond whether or not it was positive or negative for the presence of alcohol.  I suspect the lawyer did not object to the statements regarding the alco-sensor.
3. The numbers mentioned in Footnote 1 are Intoxilyzer results, NOT alco-sensor results.
4. The Court cites Kellogg v. State, 288 Ga. App. 265, 270 (2007), for the proposition that in determining whether or not probable cause exists for a DUI per se case, the factors to be considered may include the suspect’s admission to drinking and the results of an alco-sensor.  HOWEVER, the Kellogg case DID NOT admit the numerical results the alco-sensor, only that it was positive for the presence of alcohol.  It should also be noted that they were dealing with the lower per se limit of .02 in that case since Mr. Kellogg was under 21.

 

Summing up:

I think it is pretty clear that Rish is wrongly decided and this panel’s reliance on Kellogg is misplaced.  The Court completely ignored well settled law on alco-sensors, which are very unreliable to begin with.  ALWAYS object to the numerical results of an alco-sensor.  Always object to any statement about the results that goes beyond positive or negative.  A statement that says it was “high” or “over .08” is also objectionable.

 

Note:  I have it on good authority that a motion for reconsideration on these issues has been filed.  I will keep you informed of what happens.

 

 

Rob Leonard is DUI lawyer practicing in Cobb County, Georgia. He is certified as a field sobriety testing instructor and as an evidentiary breath alcohol technician. Visit Rob's Website

I was playing with my new Alcosensor IV from Intoximeters, Inc..  It is Georgia’s portable breath tester of choice.  I found that the “mouth alcohol” (residual alcohol from having recently taken a drink) lasts much longer than I would have thought.  My drink of beer had me over the legal limit for almost five minutes and wasn’t back down to where it ought to be for a good fifteen minutes.

The significance of this is huge when we are talking about a police officer’s formulation of his decision to arrest.  Don’t think for a second that the number on the alcosensor isn’t what drives arrests.  When a citizen is literally drinking and driving with an open container in the car, chances are that they will blow a high number on the Alcosensor if they agree to blow.  This reading will be inflated and not reflective of their true BAC.  This is a bad problem with officers that administer the Alcosensor prior to the SFST’s.  He becomes biased and loses all objectivity in grading and scoring the SFST’s. 

The PBT is recommended for use after the field sobriety tests, although an officer will frequently employ before other FST’s, which fundamentally prejudices his evaluation of the other tests. Administration of the PBT after the other field sobriety tests (FST’s) also helps the officer comply with an industry recommended 15 minute deprivation time period. The Alcosensor IV operating manual specifically recommends a 15 minute waiting period. However, officers frequently ignore this recommendation and direct motorists to blow into a PBT before the administration of other FST’s.

In the 1980’s PBTs were (in many States) originally intended to be used after the FST’s to ensure the officer is working with an alcohol issue as opposed to drugs or a diabetic condition (Qualification not Quantification). Over the course of time in many states the PBT result has become admissible evidence (Qualification and now Quantification). But, the PBT is not accurate for determining BrAC. Carry over effect, lack of mouth alcohol detection, improper deprivation period, lack of calibration maintenance, and fuel cell maintenance are some of the top issues in cases involving a PBT. On the Alcosensor, the calibration adjustment screw is exposed on the side of the unit and assessable to the operator. The unit even comes with its own mini screwdriver to adjust the value up or down. Georgia allows any police officer to administer a PBT, and any of them can adjust the calibration of a PBT.