State v. Gray5/17/2004
follow all the required procedures in performing the HGN test, the results of which **628 were questionable anyway because of the possible head *755 trauma suffered by Gray. The court found as fact that the only credible evidence of Gray's intoxication was the odor of alcohol, her admitting to drinking, and the alco-sensor results showing the presence of alcohol. Because none of these factors addressed whether Gray's intoxication impaired her so that she was rendered a less safe driver, the court concluded that no probable cause supported the arrest and granted the motion.
2. The probable cause needed to conduct a DUI arrest requires that the officer "have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely." (Emphasis supplied.) Malone v. State. [FN3] If the evidence shows only that the driver is intoxicated but does not show that such has impaired him, the evidence is insufficient to show probable cause for DUI. State v. Batty; [FN4] State v. Burke. [FN5] "[I]mpaired driving ability depends solely upon an individual's response to alcohol. Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver." (Punctuation and footnote omitted.) Baird v. State. [FN6]
FN3. Malone v. State, 261 Ga.App. 420, 421, 582 S.E.2d 561 (2003).
FN4. State v. Batty, 259 Ga.App. 431, 432, 577 S.E.2d 98 (2003).
FN5. State v. Burke, 230 Ga.App. 392, 393-394, 496 S.E.2d 755 (1998).
FN6. Baird v. State, 260 Ga.App. 661, 663(1), 580 S.E.2d 650 (2003).
The five cases cited by the State where evidence supported a probable cause finding all contained an additional factor showing impairment. See Boyd v. State [FN7] (erratic driving, bloodshot eyes, slurred speech); Temples v. State [FN8] (bloodshot, watery eyes); Singleterry v. State [FN9] (erratic driving, glassy, watery eyes, and slowness in exiting car); State v. Smith [FN10] (unsteady on feet); Herkert v. State [FN11] (bloodshot eyes and erratic driving). Duvall v. State, [FN12] also cited by the State, does not concern a probable cause analysis.
FN7. Boyd v. State, 259 Ga.App. 864, 865-866(1), 578 S.E.2d 472 (2003).
FN8. Temples v. State, 228 Ga.App. 228, 231, 491 S.E.2d 444 (1997).
FN9. Singleterry v. State, 227 Ga.App. 155(1), 489 S.E.2d 42 (1997).
FN10. State v. Smith, 196 Ga.App. 876, 877, 397 S.E.2d 304 (1990).
FN11. Herkert v. State, 177 Ga.App. 610(1), 340 S.E.2d 251 (1986).
FN12. Duvall v. State, 250 Ga.App. 87, 88-89(2), 550 S.E.2d 479 (2001).
We decline the State's invitation to overrule State v. Holler, [FN13] which held that a trial court did not abuse its discretion in refusing at a suppression hearing to admit the numerical results of an alco-sensor test for purposes of establishing probable cause. Not only do we discern no error in that opinion, but here the State never even *756 attempted to admit the numerical results of that test during the suppression hearing.
FN13. State v. Holler, 224 Ga.App. 66, 68-69(1), 479 S.E.2d 780 (1996).
Finding that all alleged indicia of impairment were caused by the accident or lacked credibility, and that Gray had adequately explained the accident to the officer (see Burke, supra at 394, 496 S.E.2d 755 (accused had explanation for wreck)), the trial court concluded that the only evidence of DUI was the presence of alcohol in Gray's body. Accordingly, the court did not err in finding that the arrest lacked probable cause and in suppressing the results of the chemical test conducted while Gray wa
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