Welcome to my blog. Here, I will post articles concerning law enforcement practices, procedures, training and philosophies. The articles will stem from questions that I am frequently asked as well as contemporary events. Please feel free to provide feedback and to send me suggestions for more pieces.
Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room leaving me free to do as I pleased for the most part, but the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren't exactly a secret.
In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court's creation of a real fiction.
Please note that I am by no means arguing against these rights as such a presumption would be false. I'm just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as "turning back the clock" on legal protections and as "trimming Miranda rights". Well, this is just a nit that I have to pick. Miranda didn't and doesn't grant or guarantee rights. It's the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.
Notes:
-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the "separate but equal" policy that allowed racial segregation in schools.
-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn't be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.
-Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.
Below is the 2-3-4 rule. The "2" is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The "3" is for the three tiers of police-citizen encounters as outlined by the courts, and the "4" list the four ways in which a peace officer may legally enter a dwelling.
Two Types of Legal Authority (LA)
Reasonable Articulable Suspicion (RAS)
A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience that criminal activity is afoot.
Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
Probable Cause (PC)
A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person.
IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.
Three Types of Police-Citizen Encounters
Verbal/Consensual Encounter: Tier 1
No legal authority is needed to approach a citizen. The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer. An officer may ask for consent to search during a verbal encounter.
Case References: Florida v. Bostic 501 US 429; US v. Baker, 01-16585 (2002)
Investigatory Detention/Brief Stop: Tier 2
An officer must have RAS to make an investigative stop. The suspect can only be held for a reasonable amount of time. Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer's initial suspicion has been satisfied and all identification checks have been made.
An officer may handcuff a suspect during a brief stop only when necessary for the officer's, the public's, or the suspect's safety. The suspect must be advised that they are not under arrest. An officer may frisk for weapons if the officer has RAS that the suspect is armed and presents a threat.
Case References: Terry v Ohio 392 US 1 (1968); United Sates v. Arvizu 534 U.S. 266 (2002)
Arrest: Tier 3
An officer must have PC to make an arrest. The officer should conduct a search incident to arrest. The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.
Four Legal Ways to Enter a Dwelling
Consent
Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order). Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
Warrant/Court Order
An officer can enter a suspect's home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling.
Case Reference: Payton v. New York 445 U.S. 573 (1980)
Exigent Circumstances
An officer may enter a dwelling without a warrant when exigent circumstances exist. Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
Hot Pursuit
The officer must be pursuing the suspect for an arrestable offense. The suspect must know that he or she is being pursued, and the suspect must be in actual flight.
Judge Steve C. Jones, a Superior Court judge in Clarke and Oconee Counties, has been nominated for a position on the United States District Court for the Northern District of Georgia. This news is both outstanding and disappointing at the same time. Judge Jones will be a wonderful addition to the federal courts, but sadly, it means that we will lose him locally.
I would like to pass along some information about Judge Jones. A few months ago, he presided over an aggravated stalking case in which the defendant chose to represent himself (he had a legal advisor on hand). Due to the defendant's lack of familiarity with court room procedure, what normally would have been a two or three day trial turned into a five day trial with three of those days the trial lasting past 8:00PM. Obviously, this was a very taxing experience for the jury.
I have always respected Judge Jones, but in the minutes after the trial concluded my respect for him reached a new level. He printed out a copy of the Sixth Amendment to the United States Constitution and passed it out to the jurors. For those of you that do not remember from your middle school civics class, the Sixth Amendment guarantees the right of a defendant to a trial by an impartial jury.
After giving each juror a chance to read it, he then talked of the other rights guaranteed in the Bill of Rights and said that if the right to a trial by jury can be sacrificed then all of the other rights can be sacrificed as well. It showed that he is a man that respects the Constitution as a guiding principle and not an anachronism. It shows that he believes in the rights of the individual and not simply the textual context of law.
This is the type of judge that I want to see on the federal bench ruling on Constitutional issues and applying the Constitution to the cases brought before him. May his confirmation be quick, and may his tenure on the federal bench be long!
The tragic death of a not quite two-year-old child on the Georgia 10 Loop has spurred a considerable amount of discussion locally concerning what a driver should do when approached by an emergency vehicle operating in emergency mode.
Georgia law addresses this issue in 40-6-74 O.C.G.A. stating:
"(a) Upon the immediate approach of an authorized emergency vehicle or a vehicle belonging to a federal, state, or local law enforcement agency making use of an audible signal and visual signals meeting the requirements of Code Section 40-6-6, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.
(b) This Code section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway."
At the time that I write this, the wreck is still under review; so, I will not get into specifics of the investigation, and I do not intend this piece to be a criticism of any of the parties involved. I am simply attempting to address the issue in hopes that it will prevent similar occurrences. The general facts of the case are that an ambulance was en route to a call and was traveling on the Georgia 10 Loop, a four-lane divided highway that forms a perimeter route around Athens and passes through Clarke and Oconee Counties. Upon seeing the ambulance, a driver stopped in the roadway and was struck from behind by a pickup truck. A third vehicle was also struck during the collision. The above facts are sufficient for the purposes of this discussion, and I will not delve into the other issues arising from this tragedy at this time.
Pulling to the right and stopping sounds simple, and under ideal conditions it would be easy to achieve; however, ideal conditions would preclude the need for emergency response in the first place. Traffic congestion may not allow for a driver to move immediately to the right and stop. Other mitigating but certainly not alleviating factors are that vehicle manufacturers are producing vehicles that virtually shut out road noise, and the market is burgeoning with communication and media devices that often get used within vehicles creating more distractions. It is not uncommon at highway speeds for the sound of the siren and the emergency vehicle to "arrive" at virtually the same time thus not allowing for much reaction time on the part of drivers. This is why it is important for the drivers of emergency vehicles to not look upon the lights and sirens as creating a magic bubble that will give them instant right of way and a clear path to their call.
Pulling to the right as soon as practicable and stopping until the emergency vehicle passes is the preferred and expected response. Simply pulling to the right and continuing may prevent the emergency vehicle operator from being able to make a right hand turn. If you stop and allow it pass prior to continuing, it should allow enough time and space for the emergency vehicle to make any necessary maneuvers.
I am frequently asked questions concerning the jurisdiction of various law enforcement agencies within the state; so, I thought a rundown of the various agencies and other jurisdictional questions would be in order.
First, I want to clear up the matter of traffic law. Traffic law may be enforced anywhere in the state by any officer. This is codified in 17-4-23 O.C.G.A. and has been upheld numerous times in the Court of Appeals.
Arrest warrants are typically addressed to "any peace officer" and can be executed by any peace officer within the state regardless of whether or not they are in their jurisdiction. Peace officer is the proper term that applies to all officers certified and employed under Title 35 Chapter 8 of Georgia law.
Mutual aid agreements may be instituted among agencies, and officers can be sworn in through multiple agencies as well as being deputized.
Peace officers are also citizens and may still make a citizen's arrest when outside of their jurisdiction.
Throughout this article I will refer to all of the above as "previously excepted".
Local
Office of Sheriff
Note that I wrote Office of Sheriff and not Department of Sheriff. The Sheriff is a constitutional officer deriving his or her powers from Georgia's Constitution and common law. The Sheriff's Office is not a department of county government, and the Sheriff is not subject to the county government; a fact often lost on county governments. The Sheriff is the chief law enforcement officer in the county. Sheriffs and their deputies have statewide jurisdiction.
The Sheriff is an elected position serving four year terms. Due to the elected nature of the office, the Sheriff's Office is directly accountable to the people which it serves. Some offices are completely "at will" meaning that all employees serve completely at the discretion of the Sheriff. Others are set up so that the Sheriff appoints certain members within the organization. Either way, a new Sheriff coming into office is likely to lead to a transformation of the office; so, it is easy for the people to directly voice approval or disapproval with the service being provided by their Sheriff's Office via the voting booth.
Every county in Georgia has a Sheriff's Office as a constitutional requirement. The Sheriff operates the jail and provides court security as well as being responsible for serving civil papers and executing arrest warrants. A "full service" Sheriff's Office also provides primary law enforcement within unincorporated areas of the county and may contract with municipalities to provide such services within municipalities. Whether or not a contract is in place, the Sheriff still has full jurisdiction within municipalities in his/her county. Having a contract in place simply allows for the municipality to claim that it is providing an essential service under law (discussed more in depth later). Of the 159 Sheriff's Offices 147 are full service offices
County Police Departments
Twelve counties in Georgia have established county police departments which have a department head appointed by and accountable to the county government. In the counties in which such agencies exist, they assume the primary law enforcement function in unincorporated areas of the county and in municipalities by contract. County police officers only have jurisdiction within their county except as previously excepted.
The twelve counties with such agencies are Chatham, Clarke, Clayton,
Cobb, DeKalb, Dougherty, Floyd, Fulton, Glynn, Gwinnett, Henry, and Polk.
One item of note concerning county police agencies should be mentioned here. Frank Rotondo, the Executive Director of the Georgia Association of Chiefs of Police (GACP), in his article in the 2010 1st Quarter Newsletter of the GACP writes that a county cannot operate police services within a municipality without a service delivery agreement between the county and the municipality in place, which is in fact what the Georgia Constitution states in Article IX. So, unless such an agreement is in place, a county police agency does not have jurisdiction in municipalities within its respective county. Mr. Rotondo incorrectly argues that this applies to Sheriffs. As noted above, Sheriffs receive their duties and authority from the Georgia Constitution and not from the county government. This section of the constitution applies to agencies created by the county and not the constitutional Office of the Sheriff. Suppose a municipality does not have a police department and it has no formal contract in place with the Sheriff. Under Mr. Rotondo's interpretation, the residents of the municipality would have no police services whatsoever as the Sheriff would not be able to provide such services to citizens within his or her county. This argument simply is neither logical nor consistent with the powers, duties, and authorities vested in the Sheriff. Furthermore, state law (15-16-10 O.C.G.A.) clarifies that the Sheriff has the same powers within incorporated municipalities as he or she does in unincorporated areas of the county.
(Author's Note: Mr. Rotondo wrote his article in response to Senate Bill 295 introduced in the 2010 session of the Georgia General Assembly. This bill, if passed, would have prohibited municipal police agencies from operating speed detection equipment on interstate highways. Mr. Rotondo incorrectly extended this to municipal police departments not being able to enforce any traffic law or work wrecks on the interstate highways, and using this false argument that the Sheriff could not do so within city limits without a service delivery agreement in place, makes a claim that the Georgia State Patrol would then be the only agency allowed to enforce traffic laws on the interstates. This simply is not so. On top of Mr. Rontondo being wrong the authorities, duties, and powers of the Sheriff, he is wrong on how the proposed bill would impact municipal agencies as the bill only deals with the operation of speed detection devices and not general traffic law enforcement or wreck investigations. I offer no opinion on SB295. I am simply addressing the legal issues raised within the article. SB295 did not pass.)
Why county police?
This is a very good question. The state constitution mandates that each county must have a Sheriff. The 12 county police agencies are a creation of their respective county commissions and are under the control of said commissions. As noted above, the Sheriff is independent of the county government. A logical examination of the question leads me to believe that the county police agencies were created so that the respective county commissions could exert control over law enforcement within the county. Whether or not the reader comes to the same conclusion as did I, such creations clearly change the direct line of accountability.
This is a double-edged sword. Whoever is in control is also the final repository for blame when things go wrong. Usually, the appointed chief is the fall guy whether or not the failure was his or her own creation.
The creation of a county police department could previously be done simply by an act of the county commission. State law now requires that the creation of such an agency must be put before the qualified electors (voters) of the county in question. If such an effort fails, the question cannot be put before the voters again until four years has passed (see 36-1-20 O.C.G.A.). It should be noted that all of the county police agencies currently in existence were created prior to the requirement of the issue being put before the voters.
Municipal Police Department
Obviously, cities may establish their own police departments. The officers that work for such agencies only have jurisdiction within the limits of their respective municipality other than as previously excepted. Under Georgia law, municipalities must provide at least three from a list of 11 of essential services either directly or by contract in order to maintain their charter (see 36-30-7.1 O.C.G.A.). Among the list of these essential services is police service. A municipality may claim that it is providing police services by maintaining its own police department, or it may contract with the Sheriff's Office or county police department (should one exist) to provide police services within the municipality. The Sheriff's Office may patrol and answer calls within a municipality without such a contract in place, but the municipality cannot claim this as providing an essential service.
Municipal agencies are typically headed by a chief of police who is appointed by and directly accountable to the municipal government. As to who in the municipal government appoints the chief and to whom the chief directly reports will depend upon the structure of the particular government in question.
Constables
Yes, I said constables. Georgia law (15-10-110 through 116 O.C.G.A.) still allows for the appointment of constables, but they are elusive critters. I do not know of any constables currently active anywhere in the state. If any reader knows otherwise, please let me know. Constables may be created by local legislation of a county's governing authority, and they are appointed by and serve at the pleasure of the chief magistrate of the county. They have the power to execute warrants, summons and returns, etc of the magistrate court. They may only arrest with a warrant or by direction of and in the presence of a judge. Constables are not peace officers under Georgia law (they are in some other states). Constables may be substituted with marshals, which leads us to...
Marshals
Unlike constables, marshals may be peace officers. The actual function and peace officer status of marshals varies depending on the agency. In some places such as Fulton County, marshals are full-fledged peace officers with the power to enforce traffic laws and make arrest (substitute for constables as described above). Richmond and Muskogee Counties also have marshals which are sworn officers. Please keep in mind that the examples provided are not an exhaustive list. In other places, marshals are code enforcement officers or similar. They can issue citations for code violations and the like, but they do not have arrest powers. Furthermore, both municipalities and counties may appoint and employ marshals.
On Campus
Campus police agencies and their legal authority vary depending upon the type of institution to which they belong. For instance, there are differences between campus agencies of units of the University System of Georgia (USG) versus that of a private college, and the legal authority of school board police agencies differ as well. Campus agencies also tend to vary as to how proactive they are. Agencies on college campuses typically are answerable to the institution's administration whereas agencies of a school system are typically answerable to the respective school board. The authorities and definition of a campus and its officers as they relate to institutions of higher education are found in 20-8-1 O.C.G.A. This applies to both public and private institutions. Campus officers have jurisdiction on the actual property of their institution and 500 yards in any direction from that property. A campus officer may go off campus to investigate a crime that occurred within his or her jurisdiction, and as they are peace officers that fall into the all of "previously excepted" categories I listed above.
Units of the University System of Georgia (USG) may establish police departments that are answerable to the president (or designee) of the respective institution. These agencies have original jurisdiction on any property owned, leased, or under the control of the Board of Regents and 500 yards in any direction (see 20-3-72 O.C.G.A.) from said property. These officers are peace officers. As stated previously, as sworn officers they may enforce traffic law or execute warrants anywhere in the state. If executing a search warrant off campus, they are required by state law to have a local officer present.
Please note that in the above paragraph that the jurisdiction is based on property of the Board of Regents and not the respective institution alone. This means that officers from one USG institution have full jurisdiction on the campus and property belonging to other USG institutions. If you happen to frequent UGA football games, you may have seen officers from other USG institutions working at the games. They have the same legal authority as do the UGA officers on the UGA campus.
Georgia Military College (GMC) is unique in that it is a public college, but it is not part of the University System of Georgia.
The jurisdiction of a campus agency belonging to a private college or university is the same as that of an officer working for a public institution; however, they are limited to the campus of their respective institution and immediate area and do not have jurisdiction on other campuses.
Under 20-8-5 O.C.G.A., local boards of education may establish police departments with full police jurisdictions at their facilities and properties.
State of Georgia
The Georgia Department of Public Safety (DPS) is made up of the Georgia State Patrol (GSP), the Capitol Police, and the Motor Carrier Compliance Division (MCCD), which is primarily concerned with commercial vehicle issues. The DPS is headed by a Commissioner appointed by the Governor. The Commissioner carries the rank of Colonel.
The Georgia Bureau of Investigation (GBI) is headed by a Director that is appointed by the Governor. Contrary to what many people think, the GBI does not have blanket original jurisdiction statewide; however, there are a few specific areas such as drugs and fraud where the GBI may exert original jurisdiction. Other than those instances, in order for the GBI to become involved in a local case they must be requested to do so by the head of a law enforcement agency, a prosecutor, or the head of a local governing authority. The GBI investigates all in-custody deaths and has original jurisdiction on state property, and it operates the crime labs.
The Department of Natural Resources (DNR) employs Conservation Rangers (game wardens) as part of the Wildlife Resources Division to enforce wildlife, environmental, boating and other state and federal laws. They are full-fledge certified peace officers with state-wide jurisdiction. The Parks, Recreation, and Historic Sites Division also employees Rangers, but these rangers are may or may not be POST certified peace officers. The Governor appoints members of the Board of Natural Resources which oversees the DNR.
There are a myriad of POST certified officers working for the state; so, I focused primarily on those agencies for which the average citizen is likely to encounter. There are many certified officers/agents that work in administrative capacities in which interaction with the general public is limited. Some examples are investigators that look into food stamp fraud or revenue agents investigating tax issues. Some of licensing boards, the Secretary of State, the Agriculture Commissioner, and others also have POST certified investigators that investigate issues relating to professional licenses or fraud. There are also numerous state run buildings that have facility police on the grounds. An example of this would be state run mental health hospitals. Furthermore, there are parole officers and probation officers. Trying to a compile a comprehensive list would be daunting.
In this post, I tried to provide a basic understanding of a DUI incident. In Part II, I will focus specifically on the voluntary field sobriety evaluations.
Please note that I referred to them as both as voluntary and as evaluations. By voluntary I mean just that. A driver has no obligation to perform the evaluations. Failure to do so is not an indicator of intoxication. In fact, some people will not be able to do them due to medical screening issues built into the evaluations. As for the term evaluations, they are commonly termed as “tests”, but this is not accurate as “tests” indicates that they are on a pass/fail basis, which is not correct. They are an evaluation tool that allows the peace officer to make a determination based on the totality of the circumstances.
The actual correct term for the evaluations is Standardized Field Sobriety Evaluations (SFSE) with emphasis on the “standardized”. The evaluations, at least the standardized version of them, are scientifically proven and accepted. They should be completed in the prescribed order. There are only three SFSEs. They are the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Any evaluation used other than those three are non-standard. A peace officer must successfully complete a training course to be certified to conduct the standardized evaluations.
Nystagmus is an involuntary jittery or twitching eye movement. While some nystagmus may be natural, it is readily induced by alcoholic beverages and some drugs. As it is not a voluntary movement, it is not able to be controlled by the individual; so, it is a very telling evaluation. It does require several medical screenings for the evaluation to be valid. For instance, a person who does not have equal pupil size or their eyes do not track equally is medically screened out from participating in this evaluation. Nystagmus is checked for by passing a stimulus back and forth at a distance of 12 to 18 inches from the eyes. The first several passes are to conduct the medical screenings. The rest are to check for smooth pursuit, nystagmus at maximum deviation, and the onset of nystagmus at prior to a 45 degree angle of the eyes. As for smooth pursuit, the eyes should smoothly follow the stimulus as it moves back and forth and not exhibit jerking movements, which are an indicator of intoxication. As for maximum deviation, an intoxicated person is likely to show sustained and distinct nystagmus as the stimulus is held at the furthest point of the back and forth passing of the stimulus. Finally, the onset of nystagmus prior to the eyes reaching a 45 degree angle when following the stimulus. Vertical nystagmus is also checked, but vertical nystagmus is not an indicator of drugs as is commonly believed. It is an indicator of a high intoxicant level for the particular person. Training for what to look for in the eyes is conducted through the use of videos of the eyes of people at various intoxication levels. The use of live drinkers is now discouraged for this training.
The Walk and Turn evaluation is an evaluation of both a person’s ability to follow directions as well as their ability to walk in a straight line and maintain their balance. Obviously, there are medical conditions that could prevent a person from being able to complete this evaluation; so, it is important for the officer to ask good screening questions. The exercise should be demonstrated by the officer prior to the driver participating. Of note here, I have bad ankles due to a chronic medical condition as well as an injured knee. Prior to demonstrating this evaluation, I always informed/inform the driver of this so that they had a better perspective of the evaluation and the physical ability needed to do complete it. This evaluation involves the participant beginning from a prescribed position, taking nine steps touching heel to toe with each step, turning in a prescribed and demonstrated manner, and then taking nine heel to toe steps back to the starting point. The line walked should be straight with the participant’s arms by their side and with their eyes watching their feet as they walk. The officer is looking to see if the driver steps off line, fails to touch heel to toe with each step, and whether or not the driver raises their arms from their side to maintain their balance.
The One Leg Stand evaluation involves the driver raising one foot approximately six inches off of the ground and with the toe pointed. Their arms should be at their side, their support leg should be locked at the knee, and their eyes should be focused on the toe of their extended foot. Like the Walk and Turn, there are medical/physical conditions that could legitimately prevent a person from being able to participate in the evaluation. In this evaluation, the officer watches to see if the driver is able to maintain their balance without hopping or swaying and without touching their foot back to the ground.
The above are the standardized evaluations and they should be completed in the order as described. There is no pass/fail point at which a person is declared intoxicated to the point of being DUI or not. The officer makes a determination based upon everything observed during the contact to include slurred speech, the odor of an alcoholic beverage on the driver’s breath, and their coherence, appearance and demeanor. Again, they are completely voluntary. If a driver chooses not to participate, the peace officer must make a determination at that point whether or not to proceed with an arrest. I do not have statistics to reflect any specific percentage as to how many times I made an arrest after conducting the exercises versus letting a person go. The latter category would be the higher percentage.
There are many non-standard evaluations that can also be used. There is a myth that just will not be put to rest when it comes to one of these. Whether or not a person can say the alphabet backwards is not an indicator of intoxication. I do not know how many times when asking a person if they would participate in voluntary SFSEs tell me that they would do so but they wanted to let me know up front that they could not say the alphabet backwards. I usually try to keep a straight face and say something along the lines of, “Okay, we’ll skip that one then.” I did/do commonly ask people to say (not sing) the alphabet. I never had a person mess up the alphabet that did not provide a considerably high blood alcohol content sample. Of course, in order for this evaluation to have any merit, it must be established that the person in question knows the alphabet. I did have one occasion when a Columbian national stated that he did not know the alphabet in English. I hope that Mrs. Bailey would be proud to know that many years after high school Spanish class that I still remembered the Spanish alphabet and was able to complete the evaluation.
Click here to see a form that we use when conducting SFSEs to help ensure that the evaluations are done correctly. It accompanies a DUI arrest report.
I hope that the above helped provide you with a clearer picture of field sobriety evaluations. It is a difficult topic to tackle without getting into the minutia of the details, and some aspects of the topic just do not easily translate into text.
While in common parlance people often refer to the Georgia Weapons License (GWL), previously the Georgia Firearms License, as a concealed carry permit, this term is a misnomer. Even one of the co-sponsors of the recent Senate Bill 308 that clarified Georgia's carry laws referred to the GWL as a concealed carry permit in a campaign mailer that turned up in my mailbox yesterday.
The fact remains that nothing in Georgia's carry laws require that a firearm be carried concealed. The two code sections of relevance here are 16-11-126 O.C.G.A., Carrying a concealed weapon, and 16-11-128 O.C.G.A., Carrying a pistol without a license. The first code section makes it illegal to carry a concealed weapon unless a person has a GWL. The second code section makes it illegal to carry a weapon outside of one's home and business (see code for full list of exceptions) without a GWL whether the weapon may be carried openly or concealed. Just to make sure that it is clear, the carrying of a weapon outside of those specific exceptions requires a GWL. Carrying openly requires the license, but having the license does not require that a firearm or weapon be concealed.
Nothing in the above should be construed as an argument in favor of openly carrying a weapon. I am simply seeking to clarify the law. The decision to carry openly, concealed, or at all is up to the individual.
It happened to you. You were cruising along only to see the dreaded blue lights suddenly appear in your rear view mirror. Now what do you do?
No, this isn't a piece on how to get out of a ticket or a lesson in technicalities. This is simply advice to make the stop go as smoothly as possible.
First, you want to safely move off of the roadway, preferably all the way off of a roadway if a parking lot or similar is available. If not, try to find a level spot with plenty of visibility for approaching motorist to see you. There is absolutely nothing wrong with slowing down and turning on your hazard lights to indicate you realize the officer is behind you and that you are not fleeing and then proceeding on to a safe place to stop. This may include driving to a more public or well lit place. If you have any doubts as to whether or not the person(s) trying to stop you is a legitimate officer, after slowing down and turning on your hazards, call 911 and tell the communications officer that someone is behind you with blue lights and that you are simply trying to verify that it is a legitimate traffic stop.
There are few things to keep in mind from the above paragraph. By driving to a safe location to stop, you are making it safer for the officer; so, there should not be any angst for your doing so unless the officer has some reason to think that you are leading them into an ambush or looking for a way to escape. As for calling 911, remember that cellular calls go to the nearest available tower, which may or may not be in the jurisdiction in which you are located at the time of the call; so, listen closely for the name of the agency that answers the call and provide your location clearly to the operator.
After you have stopped your vehicle, keep your hands visible and don't be moving around in the vehicle. Keep in mind that traffic stops are one of the more dangerous things that officers do; so, please don't make the officer wonder if you are reaching into your console for your driver's license or a weapon. If it is dark, turn on your interior lights. If you have dark tinted windows, roll them down to allow for greater visibility.
I am often asked whether or not a driver should inform an officer if there are firearms in the vehicle. There is no requirement in Georgia to notify officers of such firearms. There are states that do; so, research this if you will be driving out of state. My advice would be to not make an issue of the firearm(s) unless it becomes inevitable it will be an issue. With this in mind, don't put your insurance card under your pistol that you keep in the glove compartment or have your driver's license where you would have to reach across your firearm to get to it. If you have a firearm on your person and are instructed to get out of the vehicle that might be a good time to inform the officer of the firearm. If you have to reach into a compartment containing a firearm, tell the officer prior to doing so. Remember that it is perfectly legal for one to transport a firearm within a vehicle without a Georgia Weapons License (GWL); however, if a person is ineligible for a GWL, there are some restrictions as to where a firearm may be carried within a vehicle.
In the above paragraph I mentioned insurance cards. Insurance cards in and of themselves are not considered proof of insurance under Georgia law, but state law still requires that drivers have them in their vehicles. The officer should call in the vehicle's tag information to the dispatch center where a communications officer will check the tag against a state maintained data base. The data base is the determining factor for proof of insurance. The card must still be carried for accident reporting purposes.
Another common question that I get involves traffic stops that cross jurisdictional lines. This is an easy answer. Under 17-4-23 O.C.G.A, any officer may enforce traffic law anywhere in the state provided that the citation be processed in the jurisdiction in which the violation occurred. So, yes, the officer can stop you there…
First, to clear up a common misconception, there is no criminal charge of "Family Violence" in the state of Georgia. The Family Violence Act, 19-13-1 O.C.G.A., provides a list of relationships and crimes that if present in combination constitutes family violence. Of key importance in understanding the Family Violence Act is that if a peace officer has probable cause to conclude that one of the included crimes was committed involving parties of one of the included relationships, the peace officer is required by law to make an arrest. Again, the peace officer must make the arrest. It is not optional. Furthermore, the victim in the crime cannot drop the charges. This does not mean that the prosecutor must prosecute the case. It simply means that the decision of whether or not to prosecute does not belong to the victim.
The relationships listed in the act are past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, and other persons living or formerly living in the same household. These relationships once established last forever as it concerns
The included crimes are as follows: any felony, battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint (false imprisonment and kidnapping), and criminal trespass. Reasonable corporal punishment is not a crime.
The property of a married couple is community property in the eyes of the law. If during a domestic dispute one part or a married couple intentionally destroys their own property it is considered a crime (criminal trespass/criminal damage to property). Yes, destroying your own property during a domestic dispute is a crime, and as stated above, a peace office is required to make an arrest if probable cause exists.
Code section 16-3-21 of the Official Code of Georgia Annotated (O.C.G.A.) is the law that covers the use of deadly force for ALL people in Georgia. This law applies to citizens and peace officers alike. A good working definition of deadly is force that force which is likely to or intended to cause death or great bodily harm to a person.
The law allows for the use of deadly force in three situations. The first of these is to prevent death a great bodily harm to oneself. The second is to prevent death or great bodily harm to a third person, and third, to stop/prevent the commission of a forcible felony. A forcible felony is any felony that involves the threat or actual use of force against a person. See below:
16-3-21. Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution
(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:
(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
(c) Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.
(d) In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section, the defendant, in order to establish the defendant's reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
(1) Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19-13-1 and 19-15-1, respectively; and
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert's opinion.
Please note that nowhere in the above three instances was the defense of property or animals listed. As much as you might like to do so, you cannot use deadly force to shoot someone that is stealing or damaging property or stealing or harming an animal. You may legally, according to 16-3-24 O.C.G.A. us force that is NOT likely or intended to cause death or great bodily harm. See below:
16-3-24. Use of force in defense of property other than a habitation
(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
(1) Lawfully in his possession;
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.
(b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.
The question often comes up concerns if it is legal to shoot a person that is breaking into your home. This is usually followed by "should I drag him inside after I shoot him?" The answer to the first question is found in code section 16-3-23 O.C.G.A., which reads as follows:
16-3-23. Use of force in defense of habitation
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
The answer to the second part of the question is most definitely no. You most certainly should not drag the body or alter the physical evidence in any way.
It is also important to note that according to 16-3-23.1 O.C.G.A., a person using or threatening force in the code sections outlined above has no duty for a person to retreat and legally has the right to stand their ground. See below:
16-3-23.1. No duty to retreat prior to use of force in self-defense
A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.
When it comes to deadly force, we teach peace officers to evaluate potential deadly force situations using the three step guideline of ability, opportunity, and jeopardy. Ability is whether or not a person actually has the means or tools to inflict death or great bodily harm. This could be the person possessing a weapon or even their sheer physical size, for example. Opportunity would be whether or not the person was in position to actually be threat. A person possessing a knife certainly possesses the ability to cause death or great bodily harm; however, if that person is in close proximity they certainly have the opportunity, but if that person is on the other side of a four lane highway, they are not in a position to where they could actually use the knife to cause harm. Finally, jeopardy would be whether or not there was actual reason to believe the person was a threat. Just because a person has ability and opportunity does not mean they are a threat. Keep in mind that the aforementioned labels also apply to a person legally carrying a firearm. The key consideration is whether or not the person in question is behaving in a manner that would cause a person to be in reasonable fear for their life.
Hopefully, you will never be confronted with a situation in which you have to make the decision of whether or not to use such force much less actually having to use it; however, if you do, I hope that you have a better understanding of the legal parameters for doing so.
The decision to use force is an intensely personal decision. The key question is justification, not the moment in time at which one would actually use such force. It hinges on what the individual perceives and can articulate and this can depend on many factors including experience and training.
I recently saw the following videos at the Georgia Sheriffs’ Association Command Staff Conference.The use of deadly force by officers depicted in the videos is not the central theme of this article. They merely are illustrative of the fact that videos are a fixed perspective; a fact that should be considered when using them to evaluate an incident.
Please watch this video make a decision based upon only what you see in the video as to whether or not the use of deadly force was justified in this instance.
After you have watched the first video, watch this one. There is no audio in the second video.
Did your perspective of the incident change after viewing the second video?
Obviously, you realize at this point that they are videos of the same incident taken from two different in-car video systems; however, the perspectives they offer are radically different. They are exhibit A that video evidence does not always tell the complete story or give a full frame of reference for an incident. In most cases, we only have the perspective offered by a single camera.
Liken this to watching a football game on TV and reviews via instant replay. There plays where from one angle, it looks like a player was in bounds, had control of the ball, or crossed the goal line, where a different angle leads to a completely different outcome for the play in question. Why does this escape us when we watch videos of incidents?
This issue is not just one for police incidents. Think of the current case from Oklahoma where the store clerk shot the armed robber, retrieved a second firearm, and then shot the armed robber again after he was down. Would video from another angle show us more closely what the store owner saw in that case? Could such video have possibly changed the prosecutor’s decision to seek charges in that case?
The intent of this piece is not to make an argument that video evidence be completely discounted. It is simply to show that videos may not tell the whole story.
As for the incident in above videos, three independent investigations were conducted with the officers being cleared criminally and civilly in all three.
The item in the individual’s hand was a cell phone.
I get a lot of questions concerning DUI laws in Georgia, and there seems to be a lot of misconceptions concerning such cases; so, I prepared the following information piece.I have tried to cite statutory and case law when possible while mixing in some my personal experiences and understanding.This is not intended to be a comprehensive document.
Intro (See 40-6-391 and 40-6-392 OCGA):
Georgia DUI law allows for two types of DUI charges to be made. The first type is per se, which is a term that means “in and of itself”. In other words, it is a level of intoxication at which the law presumes that a driver is intoxicated to the point that they are unsafe to operate a vehicle. There are several different levels of per se. For a driver over the age of 21 and not operating a commercial vehicle, the per se level is .08. For a driver under the age of 21 and not operating a commercial vehicle, the per se level is .02. For a driver operating a commercial vehicle, the per se level is .04.
The second type of DUI charge that can be made is a “less safe” case. A less safe case can be made when the person is under the influence to the point where they are less safe to drive. There are no specific presumptions based on blood alcohol content (BAC) in a less safe case. The case is upon the observations of the arresting officer from everything from the suspect's driving, to their demeanor during the contact, to field sobriety exercises. This type of arrest must be articulated by the officer.
DUI cases can be made for those driving under the influence of drugs as well. Please note that DUI of drugs is not limited to illegal drugs. A person can be DUI from legally prescribed drugs just as if they had been smoking marijuana.
The stop:
An officer may make a stop based upon reasonable suspicion or probable cause. As they relate to DUI/traffic stops, a probable cause stop is when an officer observes an actual violation of the law such as a moving violation or an equipment violation. A reasonable suspicion stop is when an officer observes a pattern of driving that indicates that a driver may be intoxicated, and an officer may make a stop to investigate (think Terry). Once an officer has dispelled intoxication, the stop must end unless the officer has developed other probable cause of a crime.
Weaving. Often times a driver or an officer will use the terminology of stopped for "weaving". Weaving has two different meanings; so, clarification is in order. Weaving to some people means weaving back and forth within a lane of travel. This is not illegal; however, it can be a basis for a reasonable suspicion stop depending upon the extent of the weaving. This is something that an officer experienced in DUI enforcement can learn to recognize and is not simply the normal slight back and forth pattern that even a sober person will do within a lane. The other weaving is actually "failure to maintain" a lane of travel (see 40-6-48 OCGA). This is when a driver actually crosses over the lane dividing line or the fog line. This IS illegal and is basis for a probable cause stop. Obviously, people do this and are not intoxicated, but it is a legally sufficient reason to make a stop and can result in a ticket purely on its own.
Obviously, some violations are more indicative of DUI than others, and the violations in and of themselves should not be the sole basis for a DUI charge.
Contact:
After the officer initiates the stop, he or she will make contact with the driver. Everything about the driver is being observed from eyes, speech, dexterity, comprehension and everything else. I've had people hand me credit cards, student IDs, and all sorts of other things when I asked for their driver's license, for example. An officer should be paying attention for the odor of alcoholic beverages as well. The odor alone is not purely indicative of a DUI driver. A drink could have been spilled on the driver. Other occupants in the vehicle may have been drinking, and the driver may have had some alcohol, but some consumption does not automatically mean intoxication.
Field Sobriety:
Now for one of my pet peeves: These are often referred to as field sobriety tests. The term "tests" indicates a pass or fail line, and this is not the case. They should be properly termed as Voluntary Field Sobriety Exercises (VFSE or FSE). The VFSEs are a "totality of circumstances" tool for evaluation and are not a bright line pass or fail test. They are entirely voluntary. Whether or not to participate is up to the driver. My response when asked what would happen if the driver declined to participate was that I would make my decision based upon my observations to that point, and this statement was/is entirely accurate. Obviously, a person that is all over the roadway, is stammering or with slurred speech, has glassy and or bloodshot eyes, and can barely stand is more likely to get arrested than the person who slow rolled a stop sign but doesn't "seem" plastered.
The portable breath test is NOT the state's test of a driver's breath. The PBT can only be used to show positive for alcohol. The actual numerical reading is not admissible in Georgia at this time, but there is a company producing a PBT that can be calibrated and has been accepted in other states. The PBT is completely voluntary.
Implied Consent (40-5-55 and 40-5-67.1 OCGA):
If the officer makes an arrest, Implied Consent comes into play. At that time (after the arrest has been made) the appropriate Implied Consent notice is read. The state can seek test(s) of the driver's blood, breath, urine or other bodily substances. If a driver refuses the test(s) their license may be suspended for one year. After submitting to the state's test(s), the driver is entitled to their own test(s) at their own expense and from qualified personnel. The officer must facilitate this within reason. The "within reason" part of that has been the subject of much case law.
If a driver refuses the test(s) or provides a per se sample, the officer should issue a 1205 form. This form grants a 30 day permit to drive, and the driver has a right to a hearing on the license suspension. If the driver does not provide a per se or results are pending, a 180 day sticker is placed on the DUI citation. If results later come in as per se, a 1205S form is completed starting the license suspension process.
Please note that failure to submit to each of the requested test(s) is a refusal. If asked for blood and breath and a driver only submits to blood the driver can still be considered a refusal on breath portion.
Closing thoughts:
I always seek to build a less safe case. If I don’t have a less safe case, I don’t make the arrest. The actual test(s) results were just basically an afterthought. I never had an arrest were test(s) results were obtained that did not go per se.
Once again, this isn't comprehensive. It is merely to give a better understanding of DUI law and procedure in Georgia.
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