DEPARTMENTAL GENERAL ORDER 07-03

Transcription

1 DEPARTMENTAL GENERAL ORDER BRIDGETON POLICE DEPARTMENT OFFICE OF THE CHIEF OF POLICE INDEX: Administrative Revocation Blood/Urine Tests Driving While Intoxicated Zero Tolerance MSHP Central Reposit01y MAY26,2014 CANCELS: PROCEDURE 303 DATED March 1, 1995 Alcohol and Drug Related Driving Offenses Breath Tests Refusal to Submit to Alcohol Chemical Tests Blood Alcohol Content ALCOHOL AND DRUG RELATED DRIVING OFFENSES PURPOSE The purpose of this General Order is to establish policy and procedure for the arrest of drivers suspected of being intoxicated or impaired, or the stopping of persons under the age of 21 suspected of violating the Zero Tolerance Law. 1. ARREST PROCEDURES 1.1. When a police officer encounters a situation where probable cause exists to believe that the operator of the motor vehicle is in an intoxicated or drugged condition, the officer shall arrest the offender for DWI or other appropriate charge, regardless of the driver's age The arresting officer shall advise the driver of the Missouri Implied Consent Law for each test administered, reading directly from the Alcohol Influence Report. The Implied Consent Law authorizes chemical tests of breath, blood, saliva and urine Once the arrest is affected and prior to any inteitogation, the arresting officer shall advise the driver of their constitutional rights per the Miranda Decision, reading directly from the Alcohol Influence Report (DOR Fo1m 2389).

2 1.4. The law allows two types of tests per arrest, not including use of a PBT (Preliminary Breath Test) There is no limit to the actual number of tests perf01med as long as only two types oftest are administered. For example, an officer affects an arrest and during the course of the investigation two breath tests and one blood test are administered. In this case three tests were performed. This is permissible as there were only two types of tests administered, breath and blood The types oftest administered are dete1mined by the attesting officer or his/her supervisor. The suspect cannot consent to one test and refuse to take a second test or a second type of test. This constitutes a refusal on the part of the suspect For example: A suspect has consented to take a breathalyzer test. Upon completion of the test the officer decides to have blood drawn. If the suspect refuses this second type of test it is a "refusal." The results of the first test are evidentiary and are to be retained and documented. The second test is a refusal, which is also evidentiary, and is also to be documented. The entire case is considered a refusal The policy of this Department is that a breath test shall be the primary test administered The PBT does not count as a chemical test. If the driver consents to testing, the a11'esting officer shall ensure that the test( s) is administered If a person, when requested to submit to a test, requests to speak with an attorney, the person will be granted twenty minutes in which to attempt to contact an attorney. If upon completion of the twenty minute period the person continues to refuse to submit to any test, it shall be deemed a refusal The arrested subject does not have a constitutional right to have his/her counsel present when he takes the breath test; therefore, the police officer does not have to wait until counsel arrives before administering the test. However, if counsel is present, counsel may not be excluded. 2. BREATH TESTS 2

3 2.1. Prior to the breath test, a 15-minute observation of the subject shall be done by a cmtent Type II or Type III permit holder. By definition, this observation period is the minimum 15-minute continuous period that ends when a breath sample has been provided in the breathalyzer. Those positions are defined as follows: Type II Operator - trained to maintain the breathalyzers, train Type III Operators, and operates breathalyzers Type III Operator - trained to operate the breathalyzer only During the observation period the operator shall remain close enough to a subject to reasonably ensure, using the senses of sight, hearing or smell, that a test subject does not smoke, vomit, or have any oral intake during the observation period Only personnel with a valid Type II or Type III ce1tificate may operate the breathalyzer If the breathalyzer results indicate the subject's blood alcohol content as 0.30 of one percent or higher, the subject should be immediately transported to a hospital for a fit for confinement If the arresting officer dete1111ines that the subject needs a fit for confinement either before or after the breath test, the officer will immediately transfer the subject to any area hospital that conducts the exam. This may be based on the subject exhibiting an altered mental capacity beyond what may be considered standard intoxication (e.g. extreme signs of speech shming and/or walking difficulties or an inability to stand) All breath tests will be documented in the breathalyzer's log book by the testing officer, including tests by officers from other departments. The log book will be kept near the breathalyzer at all times The breathalyzer is to be left on or off- based upon the manufacturer's recommendation. Type II Operators will perfo1m a maintenance test on the breathalyzer instruments as required by system requirements and state law Any errors or problems with a breathalyzer should be reported to the Depmtment's Type II Supervisor address noted in the front of the breathalyzer log. The breathalyzer should be tumed off and placed "out of service", if necessary. 3

4 2.9. Individuals who intentionally attempt to provide inadequate or false breath samples may be requested to submit to a blood or urine sample. 3. BLOOD AND URINE SAMPLES 3.1. Blood and/or urine samples shall be obtained under the following circumstances: When a driver suspected of being intoxicated is transported to a hospital due to injury or illness; or When an intoxicated driver is involved in a motor vehicle accident and subsequently attested for Assault Second Degree, Involuntary Manslaughter, or the accident involves substantial property damage; or When a driver is suspected of being under the influence of drugs (if a breath test has already been administered, blood or urine may be taken as the second test) or ' ' At the direction of a search warrant when a driver has refused to submit to a chemical test; or If the driver is unable to give consent (i.e. unconscious, deceased or otherwise incapable of refusing) the officer shall request that medical personnel draw blood. Section RSMo. states that medical personnel at the request of Law Enforcement "... shall withdraw blood for the purpose of dete1mining the alcohol content of the blood... " If medical personnel refuse to draw blood the officer shall contact the Duty Prosecutor to obtain a search wattant If blood and/or urine samples are to be obtained, the below procedures shall be followed: Officers, when seizing blood as evidence of an alcohol or drug related driving offense, will use a MSHP kit. The MSHP Lab system provides BAC submission kits to the Police Department and area hospitals Officers are to check the expiration date of the blood vial in the kit prior to the draw. If the tube is expired, they are to obtain another kit. Ifthere is no kit available at either the hospital or the station, then use a hospital-supplied greytopped blood collection tube that contains the additive Sodium Fluoride, to 4

5 obtain at least 10 ml of blood. The grey topped tube will then be placed in a sharps container to prevent breakage during transp01i to the MSHP The officer shall witness the tests and receive the samples from the person who perfo1med the procedure. The person performing the procedure shall complete the section marked "Statement of Blood Drawer" in the Alcohol Influence Report The tube is to be placed into the MSHP box which is to be sealed with evidence tape. The tape is initialed by the seizing officer along with their DSN. The complaint number is then to be written on the box The instructions in the kit may indicate that SHP-205 should be prepared. This form is intended for use by the MSHP and does not need to be prepared or included when submitting the kit The Officer will prepare a Laboratory Analysis Request (LAR) to be sent with the kit. One form is to be submitted for each kit submitted. Officers will continue to prepare an evidence receipt The MSHP kit, LAR, and evidence receipt are to be secured in the evidence refrigerator. It is not necessary to place the kit into an evidence envelope as long as the kit is properly sealed with evidence tape Any typical DWI case will simply require one MSHP kit. If there is a suspicion that drugs other than alcohol are an intoxicant, two blood draws are to be performed. As noted, two MSHP kits are to be used; one for each draw as well as two LAR forms. The complaint number is to be written in each kit prepared In the case wherein a search wairnnt is used for the blood draw, the Prosecuting Attorney's Office commonly requires two draws an hour apart. In this case, one kit is used per draw. Each MSHP kit and LAR is to be additionally labeled with the time of the draw. Officers are to read the search wan-ant carefully to ensure that they are aware of the conditions of the search, and the manner in which it is to be executed. 4. WARRANTS 4.1. Officers are required to apply for a search warrant when a suspect of a DWI refuses to submit to chemical tests in the following circumstances: 5

6 If the driver has two or more previous DWI/BAC convictions and/or arrests (disposition unknown) or guilty pleas resulting in S.I.S. (Suspended Imposition of sentence), or; If the driver has one or more intoxication related Involuntary Manslaughter, Assault Second Degree or Assault Second Degree on a Law Enforcement Officer convictions; or; If the driver has been involved in a motor vehicle accident and subsequently arrested for Assault Second Degree, Involuntary Manslaughter, or the accident involves substantial property damage 4.2. The officer shall contact the Duty Prosecutor to obtain a search wattant: As noted, the type of test and the manner in which that test is administered is defined by the search warrant If the wa11'ant specifies more than one blood test then a separate Blood Draw Kit will be used for each test. The time of each draw is noted on the kit If the driver has two or more previous DWI/BAC convictions and/or arrests (disposition unknown) or pleas resulting in S.I.S. (Suspended Imposition of Sentence), or one or more intoxication related Involuntary Manslaughter, Assault Second Degree or Assault Second Degree on a Law Enforcement Officer convictions, the officer must make felony wanant application with the Prosecuting Attorney's Office and shall not issue a citation for DWI or any other offense. This is required even ifthe suspect's record is not sufficient for enhancement The driver should be held 24 hours and the officer should make watrnnt application while the driver is in custody unless the dliver suspected of a felony DWI is compliant in submitting to a chemical test (volunteer blood/breath) and a record check indicates no prior convictions of serious violent assaults, assaults involving DWI or similar charges, etc. In these cases the officer has the option of releasing the subject pending the application of warrants (RP AW) Upon warrant application, officers shall complete a warrant application supplemental report. 6

7 5. ADMINISTRATIVE REVOCATION 5.1. The Missouri Department of Revenue has the authority to suspend or revoke a person's driving privilege when they refuse to submit to a chemical test or when a chemical test reveals that they were driving a motor vehicle while the alcohol concentration in their blood exceeded the limits provided in Section , RSMo (0.08% for DWI and 0.02% for Zero Tolerance) The officer shall issue the driver a Notice of Suspension/Revocation entitled "USE ONLY WHEN TEST RESULTS ARE OBTAINED" (DOR Form 2385) when the driver's B.A.C. is greater than 0.08% or a minor violating the Zero Tolerance law has a B.A.C. greater than 0.02% The officer shall issue the driver a Notice of Revocation entitled "USE ONLY FOR REFUSAL TO TEST" (DOR Form 4323) when the driver refuses to submit to a chemical test A Notice of Suspension/Revocation (DOR Fotms 2385 or 4323) should be issued regardless of whether a driver's license is cunently suspended or revoked The officer shall seize the offender's Missouri driver's license when the driver's B.A.C. is greater than 0.08%, when a minor violating the Zero Tolerance law has a B.A.C. greater than 0.02% or when the driver refuses to submit to a chemical test (Do not seize out-of-state driver's licenses) If the driver does not have their driver's license in possession, the Notice of Suspension/Revocation will still be issued and the officer will check the "No" box in the "Valid License Sunendered" section If the driver does not have a Missouri driver's license, but is licensed by another state, the officer will check the "No" box in the "Valid License Sunendered" section of the Notice of Suspension/Revocation. The officer will write the words "Out-of-State License" to the right of the "No" box. The officer should write the state of issue next to the driver's license number at the top of the form Officers should not seize a driver's license when the test results are unknown pending a Police Crime Laboratory analysis. In this case, the officer will receive a letter from the Department of Revenue requesting the results of the 7

8 6. REPORTING PROCEDURE test. When the officer obtains the test results from the Police Crime Laboratory, a supplement rep01i shall be completed documenting the test results. A copy of the test results shall be forwarded to the Department of Revenue as requested in their letter and a copy shall be forwarded to the Record Room with the supplemental report. The Depatiment of Revenue will initiate administrative revocation procedures ifthe B.A.C. results are greater than 0.08% The officer shall conduct a full Director of Revenue (DOR) and Criminal Record History and should request dispatch run a check through the MSHP "Driving While Intoxicated Tracking System" (DWITS) to determine prior Driving While intoxicated convictions/ adjudications/arrests (a copy is required). The officer shall note the results of the check in the Police Report The officer shall issue citations as follows: Persons charged with DWI shall be issued a Municipal citation for DWI unless the driver has: Two or more prior convictions and/or arrests (disposition unknown) for DWI or BAC; or Two or more Pleas resulting in S.I.S.; or One or more convictions for intoxication related Involuntary Manslaughter, Assault Second Degree or Assault Second Degree on a Law Enforcement Officer In any of these situations, a wairnnt or summons application must be made with the Prosecuting Attorney's Office for Felony DWI and the officer must not issue a citation for DWI or any other offense. Warrant application/summons application shall be made on all charges The officer should obtain the following forms when a breath test is administered via departmental breathalyzer: Printout showing blood alcohol content; 8

9 Operational Checklist (the officer must not complete checklist on Alcohol Influence Repmi (unless the arresting officer is also the breathalyzer operator); Copy of the most recent maintenance repmi completed on the breath test instrument; Ce1iificate of Analysis (if not included in maintenance repo1i); and Copy of the permits for the breathalyzer operator and the Type II Supervisor who conducted the most recent maintenance report on the breathal yzer The Alcohol Influence Repmi and related paperwork should be completed immediately or as soon as practicable In the event that an officer witnesses traffic violations or other situations that result in the arrest of a person for DWI, but is not the arresting officer, the witness officer shall complete a supplement report describing his/her observations. The supplement report is needed for DOR administrative procedures Upon completion of all paperwork, the officer shall submit the following documents to a supervisor Alcohol Influence Report (current version authorized by DOR); All citations issued to the driver; Notice of Suspension/Revocation, if issued; Missouri driver's license, if seized; Forms obtained from the breathalyzer operator, as noted above; Any other reports/forms incident to arrest Request for Recoupment of Funds Fo1m 9

10 After initial review but prior to approval, the supervisor shall review the DWI report and attaclnnents and forward them to the designated DWI report coordinator who shall review the repo1t for content and forward it to the Patrol Commander The Patrol Commander will review the report and send it to the repmting officer's supervisor with recommendations and/or corrections needed The reporting officer's supervisor will make modifications if necessary and give final approval repmt and sign the AIR report The approved report will be submitted via distribution and the DWI report coordinator will ensure proper repmting to the State Highway Patrol. 7. DRIVERS OF COMMERCIAL VEHICLES In addition to the preceding, the following procedures must be followed when the driver is operating a commercial vehicle: 7.1. The driver must be operating a commercial vehicle. A driver possessing a commercial driver license, but operating a non-commercial vehicle is treated as any other operator When the B.A. C. is unknown due to the arrestee refusing a chemical test, the officer shall complete DOR Form 4232, Affidavit of Chemical Test Refusal (for C.D.L. driver only) When the driver has an alcohol concentration of0.04% or greater, but less than 0.08%, the officer shall: Issue a Missouri Uniform Citation for Driving a Commercial Vehicle While Having Alcohol Concentration of Four One-Hundredths of a Percent or More; RSMO Complete the Alcohol Influence Repo11. If convicted, the driver will be "disqualified" from operating a commercial motor vehicle for one year. However, the driver will retain his base driving privileges (i.e., may still drive a non-commercial vehicle) The officer shall not initiate the Administrative Revocation Process for this alcohol concentration. 10

11 7.4. When the B.A.C. is 0.08% or greater, the officer shall follow the Administrative Revocation process. 8. ZERO TOLERANCE 8.1. If the officer believes the driver is not intoxicated, but in violation of the Zero Tolerance Law (a person under the age of21, but fifteen years of age or older, with a blood alcohol content of 0.020% or greater), the officer shall arrest the offender for the traffic violation for which the offender was initially stopped Zero Tolerance offenders are not arrested for DWI and therefore shall not be issued a citation for DWI. The Zero Tolerance law is administrative only. The offender should only be charged with the traffic violations resulting from the original stop. 9. JUVENILES 9.1. The employment ofa Standardized Field Sobriety Test is permitted for a driver of any age. If probable cause is established that the driver is operating a motor vehicle in an intoxicated or drugged condition and that the driver is under the age of seventeen, then that juvenile is to be taken into custody The officer shall run a Director of Revenue (DOR) check and a Criminal Record History and have dispatch run a check through the MSHP "Driving While Intoxicated Tracking System" (DWITS) to determine prior Driving While intoxicated convictions/adjudications/arrests. The officer shall note the results and the DSN of the dispatcher conducting the check in the narrative section of the Police Report If the juvenile driver has: Two or more prior convictions and/or anests (disposition unknown) for DWI orbac; or Two or more Pleas resulting in S.I.S.; or One or more convictions for intoxication related Involuntary Manslaughter, Assault Second Degree or Assault Second Degree on a Law Enforcement Officer or, the Juvenile is in custody for any felony charge, then the matter is to be referred to the Family Court. The policies as documented in the Family Court Manual are to be followed. MPCCS 2 l.4,

12 9.4. Juveniles who are under the age of fifteen and who have been taken into custody for any offense will be referred to the Family Court. The policies, as documented in the Family Coutt Manual, are to be followed The following procedures are to be followed for juveniles who are fifteen years of age and older, but younger than seventeen years of age and have been taken into custody for an ordinance violation of driving while in an intoxicated or drugged condition The arresting officer will advise the driver of the Missouri Implied Consent Law for each test administered, reading directly from the Alcohol Influence Report If the driver consents to take a test, then the officer will contact the Family Court. The officer will advise the court of the circumstances which led to the driver being taken into custody, as well as the test being requested If the Family Court does not grant permission for the test, this does not constitute a refusal on the part of the juvenile. If the Family Court does grant petmission then the above described testing procedures are to be followed Upon completion of the testing, the administration revocation procedures are to be followed as described above in section The juvenile is not to be photographed or fingerprinted. All appropriate citations, set in cottect state or municipal court, are to be issued to the juvenile The juvenile's information shall be entered into the MSHP "Driving While intoxicated Tracking System" (DWITS) by the Civilian Personnel Coordinator or designate The driver is not to be referred to the Family Court. The repott preparation is otherwise unchanged from above. 10. State Highway Patrol Notification The Civilian Coordinator or designate will forward via distribution or electronically as indicated, without undue delay, to the Missouri State Highway Patrol "Central Repository", arrest information, including- fingerprints, photograph, and if available, any other unique biometric identification collected, charges, appropriate charge 12

13 codes, and descriptions of all persons who are arrested for intoxication-related traffic offenses as required by Missouri Revised Statutes (Public Safety Offenses, Sect / State Highway Patrol, Sect ) The info1mation will be submitted on standard :fingerprint fo1ms supplied or approved by the highway patrol or electronically in a fo1mat and mailller approved by the highway patrol and in compliance with the standards set by the Federal Bureau of Investigation in its Automated Fingerprint Identification System or its successor program Upon decision not to prosecute, the officer shall prepare a supplemental report which will be forwarded through distribution to the Civilian Coordinator or designate who will ensure the Central Repository is notified of decisions not to refer such mtests for prosecution Notification of such mtests may be accomplished by entering into arrangements with other law enforcement agencies for the purpose of furnishing without undue delay the above listed arrest information to the Central Repository upon its behalf. Adopted by Command Staff By Order of: Distribution All Department Persoilllel Colonel Donald Hood Chief of Police Missouri Police Chiefs Certification Standards 21.4,