On September 23, 2014, the Court of Appeals of Georgia decided the Holland v. State [i], which serves as an excellent review of the law pertaining to probable cause to arrest someone for DUI and the legal sufficiency of the blood test. The relevant facts of Holland, taken directly from the case, are as follows:
[O]n June 28, 2011, State Trooper Michael Garmon was called to investigate an accident. Garmon determined that Holland was driving a pickup truck, that Holland was attempting to turn left, i.e., southbound, onto U. S. Highway 27, that Holland failed to yield to traffic, and that he was struck by a northbound patrol car driven by Carroll County Deputy Thomas Lanning. Garmon attempted to speak with Holland at the scene but Holland was “a little hysterical at the time” and he did not provide any information. Garmon admits that he did not gain any information at the scene to suggest that Holland was under the influence of drugs or alcohol. Although Holland testified that he did not see the police car, hear a siren, or see emergency lights, Officer Lanning testified at trial that at the time of the collision his blue lights and siren were activated and that he gave this information to Garmon at the hospital.
At the hospital where Holland was taken following the accident, Garmon questioned Holland again. Garmon observed that Holland was “a little slow in responding,” that his speech was slurred, that he was “a little withdrawn,” and that his eyes were “very bloodshot and watery.” Garmon asked Holland whether he was taking any medications, and Holland responded that he took Lorcet and Soma on a daily basis and that “it makes [me] sleepy . . . just like I am now.” When Garmon asked why Holland pulled out in front of the other vehicle, Holland replied that he “had the cars beat, but the officer didn’t know.” Garmon then conducted the horizontal gaze nystagmus (“HGN”) on Holland while Holland lay in his hospital bed. Garmon observed four “clues”: “lack of smooth pursuit” and “distinct nystagmus at maximum deviation” in each of Holland’s eyes. Garmon testified that any more than two HGN “‘clues’ indicates a certain level of impairment.” Based on these observations, Garmon concluded that Holland was under the influence of drugs, and he therefore arrested Holland for driving under the influence of drugs and read Holland the Georgia Implied Consent Notice. Holland consented, his blood was drawn and tested, and Garmon instructed Holland to turn himself in upon his release from the hospital. [ii]
Holland filed a motion to suppress with the trial court and the court denied the motion. Holland appealed the denial of the motion to suppress to the Court of Appeals of Georgia. On appeal, Holland argued (1) that the Trooper lacked probable cause to arrest him for DUI and obtain a blood test, (2) that the chain of custody for the blood that was sent to the crime lab was insufficient, and (3) that the evidence of narcotics in his blood was insufficient to prove he was DUI.
Regarding whether the officer had probable cause to arrest Holland, the court stated:
When reviewing a question of probable cause, one must remember that [t]he facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability – less than a certainty but more than a mere suspicion or possibility. Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge that the suspect was actually in physical control of a moving vehicle while under the influence of alcohol [or drugs] to a degree which renders him incapable of driving safely. Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907) (2010) (citation and punctuation omitted). [iii]
The court then looked at the facts of Holland’s case to determine if there were sufficient facts to establish probable cause to arrest for DUI. The court first noted that Holland appeared to have driven in such a manner as to cause a traffic accident. Second, the court noted that Holland admitted that he was taking Lorcet and Soma and those drugs make him sleepy. Third, the court noted that the Trooper observed that Holland’s eyes were bloodshot and watery and his speech was slurred at the hospital. Lastly, the court noted that the Trooper performed HGN and observed four of six clues. As such, the court held that the Trooper had probable cause to believe that Holland had been driving under the influence of drugs.
Regarding the second issue of whether the state sufficiently showed a chain of custody of Holland’s blood sample, the court first stated:
Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negate every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. Mickens v. State, 318 Ga. App. 601, 602 (1) (734 SE2d 438) (2012) (punctuation and footnote omitted). [iv]
In Holland’s case the state introduced the following evidence of the chain of custody for Holland’s blood sample: The blood was drawn and placed in a sealed test kit by technician Jessica Nation; this was witnessed by Trooper Garmon. Ms. Nation put Holland’s name on the kit and provided it to Trooper Garmon. Trooper Garmon turned the kit in to the mailbox for UPS at his Trooper Post in Villa Rica. UPS picked up and delivered the kit to the GBI crime lab. There, an employee received the kit, checked to ensure the tubes were sealed, and photographed the tubes. These photographs were produced as evidence. The blood was then tested and re-tested. It was positive for presence of the cocaine metabolite, benzoylecgonine. The court of appeals held that the above evidence was sufficient to establish the chain of custody and that the sample tested was, to a reasonable degree of certainty, that of Holland.
The final issue was whether the evidence of cocaine metabolites in his blood was sufficient to convict him of DUI. The court stated:
In Georgia it is illegal for a person to operate a vehicle while there is any amount of a controlled substance or its metabolites or derivatives in his or her blood or urine. OCGA § 40-6-391 (a) (6). Here, the State presented evidence to show that while driving a truck, Holland was involved in an accident at an intersection, which led to an investigation of whether Holland was driving in violation of Georgia law. A blood test revealed that Holland had benzoylecgonine, a metabolite of the controlled substance cocaine, in his blood. The evidence was therefore sufficient to sustain the conviction. See, e.g., Page v. State, 296 Ga. App. 431, 437 (3) (674 SE2d 654) (2009). [v]
As such, the court affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A14A1119 (Ga. App. 2014)