Caleb was pulled over by a Georgia State Patrol DUI Nighthawk on I-16 for speeding (71 m.p.h. in a 55 m.p.h. zone) at 3:56 a.m. Nighthawk wrote in his report that he smelled “the odor of an alcoholic beverage in the vehicle.” Nighthawk opened the truck door and told Caleb to step outside. Caleb did as instructed. Nighthawk wrote that Caleb’s “eyes were watery and bloodshot and his speech was slow and slurred.” He asked Caleb how much he drank, and Caleb said he had three drinks with the last one over an hour ago. And then the conversation goes like this.
Nighthawk: “Do you have any weapons on you?”
Caleb: “No sir.”
Nighthawk: “Do you think you have had too much to be driving?”
Caleb: “No sir.”
Nighthawk: “Any weapons on you?”
Nighthawk: “Any weapons in the truck?”
Caleb: “No.” (Nighthawk frisks Caleb for weapons)
Nighthawk then got Caleb to do some Field Sobriety Tests, (a.k.a. Roadside Agility Tryouts). He did the eye exercise (aka Horizontal Gaze Nystagmus,) and the Walk and Turn exercise. Nighthawk asked Caleb to do a Preliminary breath evaluation on the side of the road, and Caleb said, “No.” At that point Nighthawk arrested Caleb for DUI less safe § 40-6-391(a)(1) and Speeding in Excess of maximum limits § 40-6-181. Nighthawk cuffed Caleb and placed him in his car and read the Georgia Implied Consent Notice, and asked Caleb if he would take a breath test. Caleb said, “No.” He refused to take the breath alcohol test.
Caleb showed none of the 24 possible DUI Detection clues for driving. Speeding is not one of the 24. He drove perfect. During the personal contact phase, the Nighthawk found four clues: bloodshot eyes, odor, admission of drinking, and slurred speech. On the video there was no slurred speech. Caleb walked fine. Caleb had normal natural movements. He looked good.
During the Horizontal Gaze Nystagmus exercise the Nighthawk held the stimulus way too high, well above his head, for 61% of the time. This invalidated the whole exercise. Nighthawk also did the passes too fast. The speed he did each clue invalidated the eye exercise.
Nighthawk had Caleb do the Walk and Turn exercise wearing flip flops. He told Caleb that he didn’t have to do the One Leg Stand because he was wearing flip flops. He said, “Flip flops are not good shoes.” I agree. The 2013 Field Sobriety Manual says that if someone is wearing flip flops or platform shoes, give them the opportunity to take them off. Nighthawk didn’t do this. He had Caleb do the walking exercise in flip flops. This invalidated the Walk and Turn.
Under Georgia law drinking and driving is not illegal. Driving with a blood-alcohol content above .08 is illegal. Driving while you are under the influence of alcohol to the extent you are a less safe driver is illegal, but drinking and driving itself is not illegal. This case would have been perfect for a Jury trial. We were ready to do that. But, the Prosecutor gave Caleb an offer to plead guilty to Reckless Driving and that it what he did. This is a win in my book.