MARICOPA COUNTY SHERIFF S OFFICE POLICY AND PROCEDURES

Transcription

1 Related Information MARICOPA COUNTY SHERIFF S OFFICE POLICY AND PROCEDURES Subject DRIVING UNDER THE INFLUENCE (DUI) Supersedes EB-3 ( ) Policy Number EB-3 Effective Date INTRODUCTION This Policy establishes guidelines for handling persons suspected of driving under the influence (DUI). POLICY AND PROCEDURE 1. DEFINITION: For the purpose of this Policy, the following term shall apply: A. Driving Under the Influence (DUI): The act of driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, vapor releasing substance, or combination thereof, as specified in Arizona Revised Statutes (ARS) , and impaired to the slightest degree. 2. Officers should standardize their investigative procedures, and provide detailed documentation of DUI investigations. A. At the time of contact, officers should note the following, at a minimum: 1. Road, weather, and lighting conditions, and traffic congestion at the time of the officer s observation of the suspect s driving. 2. The description and general condition of the suspect s vehicle. 3. The suspect s driving reactions to the existing conditions and the patrol vehicle s emergency lights and siren. 4. The driver s ability to bring his vehicle to a safe or reasonable stop. 5. The presence and location of any other occupants within the suspect s vehicle. B. Officers should document the time the suspect stopped driving the vehicle. 3. Officers shall approach the suspect s vehicle in a cautious manner, being cognizant of the suspect s actions and behavior. Officers should note the suspect s general appearance, attitude, level of understanding, demeanor, speech, coordination, and any evidence of intoxicating beverages or drugs on or about the driver, including drug paraphernalia. After requesting that the suspect produce his driver s license, particular attention should be paid to the amount of time it takes the driver to fulfill the request, and the manner in which it is accomplished. When the driver produces the license, officers should ask him about its status. If the suspect replies that his driver s license is currently revoked, suspended, or denied, the officer shall ask how he became aware of the status. Conversation regarding license status shall be documented in the Incident Report (DR).

2 Policy EB-3, Driving Under the Influence (DUI) 4. All occupants within the suspect s vehicle should be interviewed. Names, and relevant comments, should be documented in the DR as an aid to any further investigation or prosecution. 5. When an officer has reasonable suspicion that a suspect is DUI, the officer will ensure that appropriate tests are administered. A. When administering field sobriety tests (FSTs), officers shall use the Standardized Field Sobriety Test Worksheet. If FSTs are not administered, the circumstances shall be thoroughly documented in the DR. B. ARS provides officers the authority to conduct preliminary breath tests (PBTs), administered at the scene prior to arrest. The administration of the PBT should occur after the FSTs have been administered, and prior to arrest. C. Only officers certified by the Arizona Peace Officer Standards and Training Board (APOST), or in the APOST certified training course, may perform Horizontal Gaze Nystagmus (HGN) testing on suspects. D. If the suspect fails to satisfactorily complete the FSTs, but does not display strong indications of alcohol impairment, physical, mental, or drug related impairment should be considered. 1. If the officer determines that the impairment is the result of the driver s being physically or mentally challenged, he shall attempt to arrange alternative transportation, avoiding undue embarrassment to the person. 2. If the officer believes drugs are the cause of the impairment, a drug recognition expert (DRE) should be requested to assist. a. Supervisory approval should be sought prior to contacting a DRE. There are several experts available on-call through the Traffic Collision Investigation and Reconstruction Section (Traffic), and others may be on duty in larger agencies, and available to assist. b. If a DRE responds, the officer shall stay with him, and assist as required during the administration of the examination. c. When obtaining urine samples for DRE testing, only officers of the same sex will witness the specimen collection. 6. When probable cause is established, and the suspect is arrested, he will be advised of the specific charge by the arresting officer. Prior to any postarrest, crime-related questioning, the officer shall advise the suspect of his Miranda rights. Although advisement is all that is required by statute, it is desirable to read the Miranda warnings from either the Alcohol Influence Report Form, or a standard rights card. The suspect s responses should be accurately recorded in the DR. The suspect should be searched, properly restrained, and secured in a patrol vehicle for transport to the nearest MCSO booking facility, or when appropriate, to the closest location where blood or breath testing is available. Officers shall attempt to obtain Alcohol Content (AC) test samples within two (2) hours of the time the suspect was observed driving. A. Care should be taken to prevent injury to the suspect, whose reduced stability may increase his risk of injury. 2

3 Effective Date B. When a full-custody arrest has been made, a search of the driver s compartment of the suspect s vehicle is permitted. Contraband or evidence may be seized and placed into evidence. C. The disposition of the suspect s vehicle shall be in compliance with Policy EB-5, Vehicle Towing Policy. A property inventory of the suspect s vehicle shall be completed if the vehicle is impounded or towed. 7. Implied Consent: Any person who operates a motor vehicle gives consent, subject to the provisions of ARS or , to a test or tests of his blood, breath, urine, or other bodily substance, for the purpose of determining alcohol concentration or drug content, if arrested for a violation of ARS Arizona s implied consent law requires the suspect to submit to, and successfully complete, the test or tests offered by the officer. If he refuses to be tested, he is to be informed that his license or permit to drive, or non-resident driving privilege, will be suspended or denied. Before serving the suspect with the State Motor Vehicle Division s (MVD) Implied Consent Affidavit for violation of Implied Consent or Administrative Per Se, officers shall read the admonition on the Affidavit form to the suspect, verbatim. Reading the admonitions to the suspect prior to offering the tests is not required by statute and may result in refusal to test. Statute requires only that the suspect be advised of the provisions of Implied Consent and Administrative Per Se, and then only after refusal. However, the reading of the admonitions prior to offering the tests is favored by prosecutors and MVD Hearing Officers. Each officer should choose the timing of the admonitions carefully, based on the needs of his investigation, and his abilities in court. 8. Breath Tests: If breath tests are to be administered, the statement on the Breath Test Advisory Form (BTA), should be read to the suspect, verbatim, as requested by the County Attorney s Office. It informs him of his right to an independent test. He may have a physician, registered nurse, or other qualified person of his own choosing, administer a test or tests in addition to any tests administered at the direction of the officer. Independent blood or urine tests, requested by a suspect booked into an MCSO jail, will be conducted in accordance with Policy DO-4, Independent Testing Procedures for DUI Arrests. The BTA should be signed by the suspect at this time, to document his acknowledgement. A. Unless otherwise impossible, all breath tests shall be duplicate tests. Beyond the analysis provided by the breath testing instrument, no breath samples will be externally collected, retained, or provided to the suspect. 1. The second test must be no less than five (5) and no more than ten (10) minutes after the first, and must be consecutive. Both tests must be successfully completed. Deficient samples do not meet this criteria. 2. The results of the two (2) tests must be within ±.020 AC. If they are not, additional tests must be given until two (2) consecutive tests are within ±.020 AC. B. The operator conducting the breath tests must possess a valid permit, issued by the Arizona Department of Health Services, for the device being used. C. The operator must follow the operational checklist, as approved and outlined by the Department of Health Services for the specific model of breath test instrument being used. D. Deprivation/Observation period: A fifteen (15) minute deprivation period shall precede the first test. The suspect may not take anything by mouth during the deprivation period. The deprivation period may include transport time, does not have to be monitored by a certified breath test operator, and can be conducted under an officer s indirect attention. E. If the results of the test are substantially lower than expected for the level of impairment shown by the suspect, the officer should consider the assistance of a DRE, as specified in this Policy. 3

4 Policy EB-3, Driving Under the Influence (DUI) F. If the suspect refuses the test or tests, a search warrant for blood or urine may be requested. However, it is recommended that a search warrant be requested only in connection with Aggravated DUIs (felonies). Traffic can be contacted for questions regarding this procedure. 9. The MVD Implied Consent Affidavit Form will be completed after successful test results indicating a.10 AC or higher, a.04 AC or higher involving a commercial vehicle, or the suspect s refusal to submit to, or properly complete requested testing, even if blood was obtained through a search warrant. Submission of the affidavit for refusal is not an impediment to later prosecution if analysis of the blood obtained by search warrant indicates sufficient AC. The appropriate driver s license status shall be indicated on the Affidavit form. If the driver s license is confiscated, the officer will complete the following steps: A. An Arizona driver s license issued to the suspect which is in the suspect s possession will be attached to the Affidavit form. If the driver s license is not available, the officer shall explain the reason in the appropriate section of the form. An out-of-state driver s license will not be seized. B. The temporary driving permit portion of the affidavit will be completed, with the appropriate validation, or a reason explaining why it was marked not valid. Suspects must surrender a valid Arizona driver s license and sign the driving permit in order to receive a valid permit. A suspect with an out-of-state license shall not be issued a temporary permit. The suspect s signature is only required to activate the temporary driving permit. The suspect should not be allowed to sign the affidavit except to obtain the permit. C. The Affidavit form and any attachments must be completed, forwarded, and received by the Arizona Department of Transportation (ADOT) within five (5) calendar days. The blue copy shall be retained with the DR. D. The affidavit will not be completed when the test results indicate less than.10 AC, less than.04 AC involving a commercial vehicle, or if the suspect submitted to other than a breath test. If blood is drawn and later analyzed, showing a.10 AC or higher, or a.04 AC or higher involving a commercial vehicle, an affidavit shall be completed at that time, and sent to ADOT. E. If the suspect is to be cited and released, and desires an independent blood test, he must make his own arrangements for the test after his release. The arresting officer shall not unduly detain the suspect. 10. A suspect who is deceased, unconscious, or otherwise in a condition rendering him incapable of refusing an alcohol/drug test or tests will be considered not to have withdrawn his consent, and the tests may be administered. If the suspect is conscious and is capable of answering, he shall be asked to submit to a test of blood, urine, or other bodily substance. As provided in this Policy, if he hasn t been advised of the implied consent law prior to the request, upon refusal he shall be so advised. A. Any blood, urine, or other bodily substance samples shall be collected using accepted collection procedures. Blood may only be drawn by a physician, registered nurse, or other qualified person. An Office paramedic is a qualified person, as long as he is not the arresting officer. If the hospital has drawn the sample and has a form which must be completed, officers shall complete the form. Officers should read the form carefully, and correct anything which is not in compliance with current requirements. Any corrections made shall be noted in the DR. An Office blood collection kit shall be supplied to medical personnel for the collection of blood samples, but for other bodily fluids, including urine, appropriate, sterile containers should be requested from hospital personnel. 4

5 Effective Date B. When blood, urine, or any other bodily substance is taken from a suspect by hospital medical personnel for any reason, ARS J requires that a portion of that sample shall be provided to the officer, if requested, whether or not the suspect has given his consent. Officers must have probable cause to believe the suspect was driving under the influence, and should make every effort to notify the hospital, in as timely a manner as possible, of the intent to secure a portion of the sample. C. If a hospital employee refuses to provide the requested blood sample, the officer will make the request to the hospital supervisor or administrator. If the request is still denied, the officer will document the refusal in the DR. Additional information to be documented in the DR includes the names and dates of birth of the hospital employees who refused to provide the requested blood sample; the date and time of the refusal; and the addresses and business telephone numbers of the hospital, and the involved employees. This information shall also be documented in a separate DR, and submitted to the Vehicular Crimes Section of the County Attorney s Office requesting the issuance of a complaint. This Section does not apply in a federal facility such as the Veterans Administration Hospital, which is not bound by state statute. VA personnel may be able to assist, within their own regulations. D. Any blood, urine, or other bodily substance drawn for testing will be placed into evidence by completing the MCSO Property Invoice Form and a Department of Public Safety (DPS) Analysis Request Form. These forms will be forwarded with the blood collection kit, or the vial containing the sample. The sample shall be considered biohazardous, and as such, shall be packaged and transported to the Property and Evidence Room for refrigeration, in accordance with Policy GL-2, Bloodborne Pathogens. The DR number will be clearly written on the vial or blood collection kit, and the Property Invoice Form. Property and Evidence personnel shall be responsible for transporting the sample to the DPS laboratory for analysis. If the officer has not witnessed the drawing of the blood, he shall ensure that documentation from the hospital, sufficient to establish the chain-of-custody, is attached to the DR. 11. A suspect who formerly refused to be tested, but who reconsiders, will be permitted to take the offered test if he is still in the custody of the arresting officer, the request is made within two (2) hours of the time the suspect stopped driving, and the officer and suspect are still at the site where the testing instrument is located. 12. When probable cause exists that a driver has committed misdemeanor DUI, he should either be cited and released, or booked. In no event shall an impaired driver be permitted to resume operation of a motor vehicle. The appropriate statutes will be listed on the citation form or arrest record. A. A noncommercial operator whose AC is.05 or less will not be charged without the existence of other competent evidence, or unless drugs are suspected, and a DRE evaluation was completed. Any evidence of impairment which may be due to drug use shall be documented fully in the DR for submission to the County Attorney for a complaint. B. A suspect whose AC is more than.05, but less than.10, may be charged when the evidence gathered clearly indicates that the person is under the influence, or impaired to the slightest degree. A DRE evaluation may be appropriate. Any evidence of additional impairment, not reflected in the AC results, which is due to drug use in combination with, or instead of, alcohol shall be fully documented in the DR. C. A driver whose AC is.10 or higher should be cited or booked for DUI, alcohol. D. The driver of a commercial motor vehicle, as defined in ARS , who is operating the vehicle in furtherance of a commercial enterprise, and whose AC is.04 or higher, should either be cited and 5

6 Policy EB-3, Driving Under the Influence (DUI) released, or booked. When the AC fails to reflect the level of impairment observed, a DRE evaluation may be appropriate. E. When possible, a misdemeanor DUI suspect should be cited and released if he has a safe means of transportation available, and it is in the best interests of the County or the public to release the suspect. F. The officer shall exercise his own judgment in determining when to incarcerate a DUI suspect. Factors that may determine whether the suspect is to be incarcerated after arrest include, but are not limited to, the following: 1. The suspect is uncooperative or combative (over and above refusing an AC test). 2. The suspect is not a local resident, or has no responsible party to assist him. 3. The suspect has a history of previous DUI arrests or convictions. 4. A records check on the suspect indicates the current DUI violation is a felony. G. A suspect can be charged with aggravated DUI under the following circumstances: 1. The suspect has previously been convicted of two (2) or more DUI violations, committed within the past sixty (60) months. This includes any combination of convictions for DUI, or acts committed in another state for DUI which, if committed in this state, would be a DUI violation. 2. The suspect has committed a DUI while driving on a suspended, canceled, revoked, or refused license from any state, excluding civil sanction, or is in violation of a restriction placed on his driver s license as a result of a prior DUI conviction, or Admin Per Se suspension. 13. When investigating DUI charges, the following procedures will be used: A. When a suspect is arrested for aggravated DUI, the officer shall forward the original DR to the district detectives for processing. B. When charging the suspect with an aggravated DUI, the officer may issue nonmoving civil citations which are not related to elements of the DUI charge, such as expired registration. Offenses which are elements of the DUI shall be made a part of the DR. C. The arresting officer may issue citations for all violations observed in a misdemeanor DUI. However, it is recommended that citations other than those for nonmoving violations not be written, as these violations may be part of the entire act of DUI. D. A suspect who has committed misdemeanor DUI while a minor (15 years of age or younger) is present in the vehicle should be charged with a Class 6 felony (ARS ). E. When Probable Cause has been established on the DUI, if the passengers include children who are required under statute to be restrained in an approved child safety seat, and they are not restrained, no citations for the child seat violation or the DUI shall be issued. The report shall be sent to the County Attorney requesting charges of DUI and Child Abuse. 6

7 Effective Date Various reports and forms are required to successfully prosecute DUI suspects. Successful prosecution depends not only on a complete investigation, but also on the detail included in the DR. A. An aggravated DUI DR shall include an Arizona Criminal Justice Information System/Motor Vehicle Division (ACJIS/MVD) computer printout containing the suspect s previous DUI convictions; the suspect s current driver s license status; details which led to the apprehension; and any information such as voluntary statements, suspect s refusal of test or tests, or admissions which indicate the suspect had knowledge of his previous DUI convictions, or was aware of the current status of his driver s license. B. Every DUI DR shall contain details of the actions which led to the apprehension, and all alleged traffic violations committed by the suspect. C. The Alcohol Influence Report Form shall include the breath test and date, the officer s observations, and suspect interview information. Space is also available for copies of the breath testing device printout, a copy of the operator s breath testing device certification, and the right thumb print and fingerprints of the suspect. The Field Sobriety Test Worksheet shall also be included and attached to the DR. D. Breath testing device documentation shall include the completed breath testing device checklists, which shall be attached to the DR. One copy of the test record from each successful test shall be furnished to the suspect if cited and released, or placed in his property if booked. One copy of the test record from each successful test shall be taped to an Alcohol Influence Report Form in the DR. E. The MVD Implied Consent Affidavit Form will be completed as specified in this Policy. F. Fingerprint cards may be used as an alternative to collecting the right hand fingerprints on the Alcohol Influence Report Form. The fingerprint card, if used, will include a complete set of fingerprints, and will then be taped to a continuation sheet. G. A photograph should be taken of the suspect, with his name, date of birth, the charges, and the DR number on the back of the photo, and forwarded to the Scientific Analysis (I.D.) Section. The officer shall then note in the DR that a photograph has been filed in I.D. H. ACJIS/MVD computer printouts of the suspect s driving record will be attached to a continuation sheet. I. The Arrest/Booking Record Form will be completed if the subject is booked. Moving citations will not be documented on this form. In those cases where a subject is arrested for aggravated DUI, the following procedures will be completed: 1. The DR will be treated as in-custody, with a copy of the report being forwarded by the district detective supervisor to the County Attorney s Office for the issuance of a complaint. 2. The arresting officer must order a certified copy of the subject s official driver s license record, by calling the Operations Information Center (OIC)/Warrant Section. The MVD records will then be mailed directly to the County Attorney s Office responsible for reviewing cases from that jurisdiction. 3. A copy of the ACJIS/MVD printout indicating that the subject s license is revoked, suspended, canceled, or refused, shall be attached to the DR, and forwarded to the County Attorney s Office. 7

8 Policy EB-3, Driving Under the Influence (DUI) 4. If the suspect is being charged under ARS , DUI with two (2) priors, the officer shall request, from each appropriate court, that a certified copy of the subject s prior record be forwarded to the County Attorney s Office. The request will be made on Sheriff s Office letterhead stationery. J. Final Disposition Form (Form 27). K. Release Questionnaire (Form IV), if booked. L. Any other information, evidence, or exhibits appropriate for presentation through a written report. 15. Accidents which are DUI-related require the following forms to be completed: A. Accident-misdemeanor DUI cases require the completion of the State Accident Report Form, including all aspects of the accident and DUI violations. The officer must also complete a DR face sheet and the Alcohol Influence Report Forms. However, only one (1) narrative is required, and it shall appear on the State Accident Report supplement. B. Accident-aggravated DUI cases require two (2) distinct DR numbers: One (1) DR number is assigned to the State Accident Report Form, and the other DR number is assigned to the aggravated DUI DR. Both reports should be cross-referenced, and the aggravated DUI report should contain copies of all pages of the accident report. 16. Accidents involving impaired drivers may result in criminal prosecution for offenses other than DUI, such as homicide, aggravated assault, or endangerment. These charges must be substantiated by a thorough on-scene investigation which should include both suspect s and victims injuries, witness statements, 35mm photographs of the scene, and the names of supporting and medical personnel. Evidence shall be collected and documented relating to matters such as, but not limited to, the following: A. Identification of the suspect as the driver. B. Whether suspect s injuries are consistent with being in the driver s seat. C. Which persons involved were intoxicated or impaired. D. Actual physical control of the suspect vehicle at the time of the collision. E. Possession of keys to the suspect vehicle when the officer arrived. F. Who exercised control over disposition of the suspect vehicle. G. Alcohol or drugs found in the vehicle. 17. In fatal, or potentially fatal accidents involving alcohol or drugs, officers shall conduct their accident investigation as a criminal investigation. Evidence of impairment must still be collected, but if Traffic has been requested to assume the investigation, the suspect is not to be advised of Implied Consent, or arrested for DUI, prior to consultation with the assigned investigator. 8