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Even if you had one beer, and you're at .02 - they cant do any thing to you.

Woman sues after arrest despite passing DUI breath test

By BRENDAN SMITH Staff Writer, Daytona Beach news Journal

DAYTONA BEACH SHORES ÔÇö Even though Debra Alise Griffey blew a .00 on two alcohol breath tests, she still got arrested for driving under the influence after a traffic stop here in May 1996. Griffey, 31, of Holly Hill now is suing the city, claiming false arrest and malicious prosecution. Her attorney, George S. Pappas of Daytona Beach, filed the lawsuit in circuit court last week. Pappas had sought a $100,000 settlement, which the city refused.

The suit seeks an unspecified amount of damages exceeding $15,000. Police stopped Griffey at 3:37 a.m. May 28, 1996, on South Atlantic Avenue for "failing to maintain a single lane." After passing two alcohol breath tests, she agreed to a urine test which later proved negative for the presence of drugs, the suit states. Even though her traffic citation stated "DUI - Pending Urine," Griffey was arrested that morning and sent to the Volusia County Branch Jail on $500 bond. "We can't keep them," said Public Safety Director Frank Daraio. "They have to go to the jail."

In Griffey's case, the State Attorney's Office dismissed both the DUI charge and a citation for failing to maintain a single lane three months later for lack of evidence. Daraio said the alcohol breath test isn't the deciding factor many people think it is. A person can be arrested after a traffic stop based solely on his or her performance on videotaped field sobriety tests. If the alcohol breath test proves negative, then a urine test is ordered. The driver is then arrested on suspicion of driving under the influence based on the officer's observations, Daraio said.

"Their driving is impaired," he said. "That's already been determined (by the officer)." By this point, a person who hasn't consumed any alcohol and possibly no drugs now has a criminal record and a trip to the jail.

The policy isn't an isolated one. Daytona Beach and Ormond Beach police follow a similar procedure. It's up to the officer in the field to decide if the results of the field sobriety tests constitute probable cause for an arrest, said Mike Judd, Ormond Beach police spokesman. Even if the alcohol breath tests and urine test are negative, that doesn't get the driver off the hook, Judd said. It's then up to the State Attorney's Office to decide whether to prosecute the case.

"We wouldn't let the person go," Judd said. "A lot of cases boil down to what the officer observed. If an officer wanted to, for whatever reason, he could manipulate that."

According to Griffey's arrest report completed by Officer Michael Fowler, Griffey failed four videotaped field sobriety tests. Griffey kept her balance in the tests but lost points for things like counting the number 14 twice in the one-leg lift and not keeping her eyes closed during the finger-to-nose test.

Even though the alcohol breath tests confirmed Griffey hadn't been drinking, Fowler wrote in his report Griffey smelled of alcohol and had red eyes and slurred speech. Griffey also appeared to be "confused and nervous," Fowler's report states. Fowler couldn't be reached for comment on his report Thursday.