Jones v. State (May 7, 2012)
___ Ga ___, ___ S.E.2d ___ (Docket No. S11G1054)
Jorgensen v. State (1993) 207 Ga.App. 545, 428 S.E.2d 440 held that normal driving, even if it incidentally evades a DUI checkpoint, does not justify a warrantless detention. Subsequent to Jorgensen , several published decisions from Georgia held that abnormal or unusual actions (albiet legal) which are taken by a motorist to seemingly avoid a DUI checkpoint may support a warrantless enforcement stop. See Terry v. State (2007) 283 Ga.App. 158, 159, 640 S.E.2d 724 and cites therein.
Citing Jorgensen , the Georgia Supreme Court reversed Appellant’s DUI conviction, declaring that “[w]ithout evidence of a specific driving violation or maneuver to support the officer’s belief that [the motorist] was trying to avoid the roadblock , … the trooper lacked reasonable suspicion to stop [the motorist]." (emphasis added)
Burglin commentary : It’s troubling how the GA courts cite Jorgensen for purportedly establishing a rule that says abnormal driving (e.g., sudden turn, reduction in speed, or braking) justifies a warrantless detention even in the absence of a vehicle code violation, so long as it appears to have given the officer a reasonable basis to believe the motorist was trying to avoid a DUI checkpoint. This runs counter to the U.S. Supreme Court’s reasoning in Whren v. United States (1996) 517 U.S. 806 (any traffic violation is grounds for a stop, even if it’s pretextual). The Whren Court concluded that it’s impractical to apply a “reasonable officer" test to vehicle stops, but in the absence of a vehicle code violation, GA trial courts must try to figure out whether a cop’s “belief" about a driving maneuver was to avoid a checkpoint. In other words, the judge will have to determine if the cop reasonably interpreted a legal driving maneuver as evidencing the defendant driver’s intent to avoid a checkpoint. Wow - that’s an awful lot of speculation and hunch. Of course, they have apparently just assumed that purposeful avoidance of a checkpoint is grounds for a warrantless stop, which is perhaps even more disturbing!