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State v. Day4/27/1999
dmitted to recently drinking alcohol. See McClain, supra, 226 Ga. App. at 718.
Based on the undisputed facts, the court erred as a matter of law in holding an articulable suspicion was necessary to approach Day. An approach is not a stop. At the point the encounter progressed into a stop, the officer had an articulable suspicion of criminal activity.
2. The State also contends the court erred in finding the officer lacked probable cause to arrest Day.
'For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.' Waggoner v. State, 228 Ga. App. 148, 150 (2) (491 SE2d 88) (1997).
The undisputed facts show Officer Ramey did not arrest Day until after his faltering and unsteady performance of the field sobriety tests. Even in the absence of accurate field sobriety tests, smelling an alcoholic beverage on Day combined with witnessing unsteadiness and hearing him admit to recent drinking suffices for probable cause. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990).
Judgment reversed. Blackburn, P. J., and Barnes, J., concur.
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