New Technology Being Developed for DUI Detection and Enforcement

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New Technology DUI Detection
Breath testing has come a long way since the first breathalyzer was released in 1958.

Law enforcement is currently developing technology that would allow the police to estimate the blood alcohol content (“BAC”) of a driver by analyzing the breath sample from outside a moving vehicle.

The developers of the new technology are claiming that through the use of laser technology, the device can determine if the driver’s BAC is in excess of .10 – which is greater than the legal limit in most states.

Novel BAC detectors are not new to the industry in the last decade. For instance, in 2011 some Georgia police departments started using breath-analyzing flashlights. The flashlights look like any other normal flashlight, yet when held 5 to 10 inches from the driver’s mouth, it can signal whether the driver has been drinking a small, moderate or large amount of alcohol.

What is new about this latest laser technology is that it may be used to serve as a legal justification to stop a vehicle and conduct a DUI investigation – whereas the old technology was generally only useful during a DUI investigation that had already been initiated.

This could create problems for law enforcement unless the new device can be shown to have enough reliability to create what is termed “reasonable articulable suspicion” for the traffic stop.

For example, one of the weaknesses of the technology is that it may not be able to distinguish between the BAC of a passenger versus the BAC of the driver. This would be particularly problematic for law enforcement officers attempting to justify a traffic stop of vehicles with more than one person in the car.  Because it is not illegal for sober drivers to have impaired passengers, a traffic stop based solely on this technology may not satisfy the constitutional requirements of the Fourth Amendment.

Another flaw suggesting the inherent unreliability of the technology is the laser’s inability to distinguish between a spilled amount of alcohol and the alcohol being emitted via the driver’s breath. The laser’s accuracy could also be drastically affected by the air conditioner, the fan or open windows.

Until such reliability concerns are adequately addressed by the manufacturers, we are not likely to see the use of this laser technology being relied upon to justify the stop of a vehicle. In all likelihood, at least while the technology is in its infancy, we are more likely to see it being used by the police to initially identify problematic drivers and follow them to observe any unsafe driving maneuvers that are traditionally relied upon to justify a traffic stop and initiate a DUI investigation.

However, if recent history has taught us anything, it is that this technology is developing at an ever-increasing pace. After the first breathalyzer hit the market in 1958, it wasn’t until 1967 that the first electronic breath testing device was developed. The next milestone wasn’t for another 12 years, when in 1979 the Alcolyser was introduced to the market. Thereafter we saw technology making marked improvements once every decade.

In the most recent 5 years however, the speed of development and the proliferation of technologies has been remarkable. The increasing focus on safe driving and eliminating drinking and driving entirely — along with increased government spending has fueled a profitable business industry aimed at creating tools to increase DUI enforcement.

What happens when an officer approaches your home and sees evidence of a crime through the home’s window?

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Window Search
Generally speaking, the United States Constitution protects individuals from unreasonable searches by law enforcement. However, the definition of an unreasonable search varies. In order to understand what your rights are, it is helpful to examine how the courts determine what is an unreasonable search.

One of the first and most important questions that must be answered is – where was the police officer standing when he looked through the residential window? Is the window visible from the street, or was the officer standing in the yard – also known as “curtilage“ – when he peered through the window.

The definition of reasonableness can hinge on whether the officer was authorized to be standing where he was when he looked through the window. The courts recognize that individuals do not have an absolute right of privacy in their yard, in part because the general public has access to certain parts of your yard.

For instance, the UPS deliveryman would be authorized to deliver a package by walking on the designated pathway to your front door. As a result, the courts generally recognize that the path a delivery person could use to approach your front door is also available to law enforcement. Thus, if an officer happens to see illegal activity through a window while walking along the path to your front door, then he is legally authorized to make an arrest, or initiate an investigation based upon that information.

However, if that same officer walks around to the back of the house and peers through a window, such a search would normally be deemed unreasonable and he would not be able to use any of the information he obtained as a result of that illegal search.

This is very similar to what occurred in the case of Arp v. State, A14A0390 (decided June 3, 2014). There, the Georgia Court of Appeals examined a series of events that resulted in the arrest of a home owner for having a large amount of marijuana that was visible only through a backyard window.

In Arp, the police were not looking for drugs. Rather they were chasing a suspect – Mr. Watson – who had an active arrest warrant for misdemeanor obstruction of an officer (a relatively low-level offense). Watson was trying to avoid the police, and law enforcement learned he had been picked up by a friend in a red car earlier that day. The police ran a search on that friend and found a last known address for her. They went to that address and observed a red car parked out front.

The police knew Watson had a reputation for running from the police, so in order to prevent him from escaping them, they entered the property and split up – some agents in the front and others positioned in the back to catch Watson if he tried to run. The agents in the backyard did not see Watson. However, when they peered through the window, they did see a woman hiding a container of marijuana. They entered the home, and instead of finding the fugitive they had originally been searching for, they arrested Arp for possession of marijuana.

Arp challenged the illegal search in court. Arp argued that the officers were not authorized to be in his backyard. As it turns out, Arp had no connection with Watson – the person the police were originally chasing. For Arp, it was simply an unhappy coincidence.

The Court of Appeals reversed the conviction for marijuana possession – declaring this search, through Arp’s back window to be unreasonable under the Fourth Amendment of the Constitution.

What is the difference between a legal and an illegal traffic stop?

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Legal Traffic StopOne of the most fundamental tenets of a “free society” is freedom from unwarranted attention from the police. In our country, generally speaking, the police may not simply detain and search people who are otherwise lawfully minding their own business.

If an officer sees you walking down the street and wants to speak to you, he is entitled to approach you and engage you in a conversation. He can ask for your name, where you are going, or any other information he is curious about. However, he is not allowed to compel you to answer any of his questions. Technically speaking, you are free to simply ignore his requests, just as you are free to ignore any other person’s unwanted attention.

The officer is only allowed to detain you, or otherwise force you to interact with him if he has a belief that you are engaged in criminal activity. The legal term is “reasonable articulable suspicion of criminal activity.”

For example, if you are drinking a beer while walking down the street, then the officer would be authorized to insist that you stay with him until he gives you permission to leave. It is the illegal conduct that invites the attention of law enforcement.

In the context of traffic stops, the criminal activity that invites this kind of police attention may be something as benign as a broken taillight. Technically speaking, a broken taillight is a criminal offense in Georgia, and as a result, it authorizes an officer to stop you and initiate an investigation of that broken taillight. In the absence of a traffic violation, an officer is not authorized to force you to pull over and interact with him.

Quite frequently these types of seemingly inconsequential initial encounters turn into much more serious investigations. Once the officer has pulled you over for a legal reason (no matter how minor), he is now authorized to investigate any other type of illegal activity that he may witness. For instance, if the officer smells the odor of alcohol coming from the car once the window has been rolled down, he is authorized to “extend the scope of the stop” beyond the initial taillight investigation.

The examples discussed above are fairly straightforward. We know that drinking a beer on the public street or having a broken taillight would be a clear violation of the law and as a result, an officer would be authorized to briefly detain a person in either of those cases.

But not all situations are quite as clear-cut. In Williams v. State, (decided April 30, 2014) the Georgia Court of Appeals declared a traffic stop illegal despite the officers’ strong suspicion that the driver was engaged in drug activity.

Williams involved an elaborate investigation of drug trafficking in DeKalb County. Police suspected that large amounts of marijuana were being sold out of a particular residence. One investigator had been at the door of the home and smelled a strong odor of raw marijuana. The house was placed under extensive police surveillance. They observed a steady stream of people coming in and out of the house. Williams was in one of the cars that came to the house. He went inside with a backpack and shortly thereafter, he exited with the same backpack and returned to his car. Once the car pulled out of the complex the police conducted a traffic stop (in the absence of any traffic violations) and they discovered a large amount of marijuana.

The prosecutor argued that this traffic stop was legal, because the officers had a reasonable belief that the driver was engaged in illegal drug activity. However, the Court of Appeals disagreed.

The Court found that the officers were not authorized to stop every car leaving the suspected drug house.   Just because Williams fit the pattern of other individuals who had briefly visited the suspected drug house, this conduct was not sufficient to justify the traffic stop. Essentially, this information amounted to a hunch, or a feeling that Williams was acting in a suspicious way. And acting suspicious is not the same as engaging in criminal activity. As a result, without a traffic violation, or some other clear-cut violation of the law, the traffic stop was not warranted.

Minor in Possession of Alcohol Charge in Atlanta

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When the Braves are playing baseball at Turner Field, you can be sure that the Atlanta Police Department will be aggressively targeting alcohol consumption by minors. The actual criminal charge is not as serious as many others, but the immediate consequences of such an arrest may feel much more onerous.
DUI Penalties Page.001When a minor is caught consuming alcohol at a sporting event in Atlanta, the minor will likely be arrested as opposed to merely being issued a citation. The minor will be handcuffed and transported to the city jail to be booked in. This, in and of itself is quite unpleasant. However, it is often worse than it sounds because the trip to the jail is frequently not immediate. The minor may be kept in the back of an uncomfortable transport vehicle, handcuffed, for a lengthy period of time with other similarly situated offenders. Sometimes they may spend much of the entire Braves game in the back of a poorly air-conditioned vehicle waiting to be brought to the jail.

Once the minor arrives at the city jail, he/she will often be held there until he/she appears before a judge. If the arrest happened on the weekend, the minor could be held for one to two nights before being released. This is in part because the jail will not automatically set a bond amount for someone charged with minor in possession of alcohol.

With other types of common criminal charges like DUI, or marijuana possession, a person’s friends or family can typically post bond shortly after the individual is booked in. The jail will automatically set the bond for almost all non-violent, misdemeanor offenses.

Minor In Possession Arrest in AtlantaHowever, when the charge is minor in possession of alcohol the jail defers the responsibility of setting a bond to the courts. On the weekend, this often means that it will take until Sunday afternoon, or sometimes evening before the minor sees a judge.

The only silver lining is that often the minor is then released on a signature bond – which means they do not have to post any money in order to be released.
Suspended licenseOnce the minor is released from the jail, there are still serious consequences that he/she should be aware of. First, in Georgia, minor in possession of alcohol is classified as a misdemeanor criminal offense. That means that in addition to probation and a fine, among other things, the minor is facing additional jail time. Also, depending on whether the minor was driving at the time of the citation, he/she may be facing an automatic license suspension that the Department of Driver Services will impose once it receives notice from the court.

Call an attorney immediately if you are having trouble getting a minor out of jail in Atlanta. A lawyer may be able to expedite the process or assist in getting your friend or relative out as soon as possible.

In Georgia, O.C.G.A. § 3-3-23(a) codifies the law that makes it illegal for a minor to possess alcohol:

(1) No person knowingly, directly or through another person, shall furnish, cause to be furnished, or permit any person in such person’s employ to furnish any alcoholic beverage to any person under 21 years of age;

(2) No person under 21 years of age shall purchase, attempt to purchase, or knowingly possess any alcoholic beverage;

(3) No person under 21 years of age shall misrepresent such person’s age in any manner whatever for the purpose of obtaining illegally any alcoholic beverage;

(4) No person knowingly or intentionally shall act as an agent to purchase or acquire any alcoholic beverage for or on behalf of a person under 21 years of age; or

(5) No person under 21 years of age shall misrepresent his or her identity or use any false identification for the purpose of purchasing or obtaining any alcoholic beverage.