Daytona Beach DUI Attorney

Attorney Kevin J. Pitts is a Daytona Beach DUI Attorney that frequently handles South Daytona DUI cases. Mr. Pitts is a former Daytona Beach DUI prosecutor that has focused his practice exclusively on criminal defense, DUI defense and traffic ticket defense since leaving the State Attorney’s office in 2010. Mr. Pitts has obtained the Ponce Inlet DUI Policies and Procedures through a public records request.  If you are accused of a DUI in Daytona Beach, Ponce Inlet or the surrounding areas contact Mr. Pitts at 386-451-5112 to set up a free case evaluation.

South Daytona DUI Attorney Kevin J. Pitts

SOUTH DAYTONA POLICE DEPARTMENT POLICY AND PROCEDURE DIRECTIVE DUI ENFORCEMENT 608 EFFECTIVE: 08/25/2014 RESCINDS: 06/2013 REFERENCE: F.S.S. 316.193, 322.34(9)(a) CFA STANDARD 4.0: (22.03M-A), (22.06M);(23.01-C);(30.12M) APPENDIXES:

PURPOSE To establish guidelines for conducting DUI countermeasure programs which are designed to reduce alcohol and drug related crashes. DISCUSSION Drivers impaired by alcohol and/or drugs represent the single most dangerous threat to the life and safety of the people who use the streets and roads of this state. It is estimated that as many as 45% of all traffic fatalities are alcohol or drug related. Only comprehensive and coordinated countermeasure programs which include enforcement, education, and public support will have an impact on people who drive under the influence. These countermeasures are aimed at protecting innocent motorists.

POLICY 608.1 It will be the policy of the South Daytona Police Department to take an aggressive approach towards the detection and apprehension of persons who drive under the influence. Officers must be alert in noticing signs of impairment, and act accordingly when stopping someone suspected of driving under the influence 608.2 Officers must follow established procedures for stops, Standardized Field Sobriety Exercises, videotaping, and breathe testing.

608.3 Detection is the first step in any DUI enforcement action. The officer’s observations are crucial in establishing probable cause upon which the arrest decision is based. Officers are expected to conduct a thorough and complete investigation to obtain all possible evidence concerning the subject’s impairment and formulate an appropriate arrest decision based on the evidence accumulated.

608.4 In the event that the subject’s impairment or actions are not sufficient enough to support an arrest for DUI, officer discretion shall allow for alternative steps. Alternative steps shall include but are not limited to: (CFA 22.03M-A) 608 – Page 2

 Calling a taxi cab for the subject (providing they have means for payment of the taxi fare)

 Calling another person with a valid driver’s license to take custody of the subject.

TRAINING 608.5 All Police officers shall be afforded the opportunity to attend the Standardized DUI Detection and Field Sobriety Training and receive refresher training when available.

STANDARDIZED FIELD SOBRIETY AND VIDEO PROCEDURES 608.6 This policy shall establish a standard procedure regarding DUI related contacts within the Department including initial roadside exercises, video procedures, and crash cases. Because of the multitude of different variables involved in DUI situations, the following policy shall serve as a general guideline which may be adapted in unusual circumstances.(CFA 22.06M)

608.7 When an officer comes in contact with a subject that he believes may be in violation of Florida Statutes regarding driving under the influence, he shall advise dispatch of this fact.

608.8 Whenever possible, a back-up officer shall respond to assist the initiating officer.

608.9 Either the initiating officer or the back-up officer should use an in-car video camera to record the field sobriety exercises.

608.10 The officer shall follow the procedures outlined in the South Daytona DUI Processing Form and request the subject to perform the listed physical performance exercises.

608.11 Only officers who are familiar in the use of an in-car camera should use these cameras.

608.12 The officer shall endeavor to find a clear, level ground in the area of the initial contact where the exercise is to be performed. The area should be safe from motor vehicle traffic and well lit if possible. 608.13 Upon completion of the field sobriety exercises, the initiating officer shall take appropriate police action based upon the probable cause obtained.

608.14 If the subject is arrested for DUI and they agree to submit to a breath test, they should be transported to SDPD or the nearest location available for a breath test operator. If the subject refuses the breath test after the officer reads the subject implied consent, then the officer is encouraged to transport the subject directly to the Volusia County Branch Jail (VCBJ) after the necessary paperwork is completed.

608.15 If the subject chooses to contact an attorney, the subject will be allowed access to a telephone, if available, to contact his attorney.

608.16 The subject shall be given ample opportunity, no longer than 15 minutes, to make the appropriate phone call(s). Upon completion, the appropriate procedures will be completed and the subject should be given the opportunity to take a breath test. 608 – Page 3

DUI ARRESTS AND BREATH TESTING 608.17 Violators shall be arrested and a charging affidavit completed for all offenses that constitute a crime pursuant to Florida Law (driving under the influence, reckless driving, leaving the scene of a crash with injury, etc.) when probable cause exists. 608.18 When a subject has been arrested for DUI, the violator shall be given the opportunity to take a breath test whenever possible and practical.

608.19 Breath tests shall be administered by a certified breath test operator who shall conform with the rules and procedures adopted by the Implied Consent Program of the Florida Department of Law Enforcement. Breath test operators are responsible for ensuring they attend mandatory retraining courses in order to maintain their certification.

608.20 The operator will be responsible for entering the information into the breath test instrument as well as completion of the following applicable paperwork:

 Breath Test Result Affidavit

 Refusal Form 6

08.21 Information entries should be completed on ALL breath tests performed on the instrument, even if not of evidential value.

608.22 All information entered MUST be accurate and complete.

608.23 If subject’s BAC does not substantiate impairment, check for drugs or medical condition that may cause impairment. Notify the Shift Supervisor immediately. If deemed appropriate, and with the approval of a supervisor, an on-duty Drug Recognition Expert (DRE) may be contacted for assistance. A DRE will not conduct an evaluation on any subject who has a BAC above 0.08%, or who has refused a breath test. In addition, should the subject’s BAC analysis result indicate extreme impairment with a result of 0.30% or higher, notify the Shift Supervisor immediately and: (CFA 30.12M)  Attempt to obtain another breath sample after another 20 minute observation period. This is to see if the subject’s analysis result is increasing or decreasing.  If the result indicates a decrease, proceed as with any DUI arrest. If the result indicates the same or an increase, the subject may be suffering from alcohol poisoning and should be transported to the hospital for a medical evaluation.

608.24 Conduct supplementary chemical test(s) in accordance with State requirements.

608.25 If the subject refuses to submit to an evidential chemical test, complete appropriate forms to invoke the implied consent sanction.

608.26 The operator should notify the breath testing agency inspector of any malfunction, deviation, or needed changes relating to the breath testing instrument.

608.27 If a breath testing operator is not available or on-duty at the time, a breath test should be requested from a surrounding police agency prior to calling-out a department operator (based upon the supervisor’s discretion). 608 – Page 4

608.28 If another police agency requests a breath test and/or video to be conducted by this Department, the supervisor should be notified and make the decision if an operator is available and if the current activity level permits such assistance.

608.29 Operators will complete an Incident Report when breath tests are conducted for outside agencies.

608.30 If the requesting agency sends their own operator to perform the breath test, they may be allowed access to the breath testing instrument and video equipment if available.

608.31 When a breath/blood/urine test has been conducted on a subject, the subject has a right by Florida Statutes to an independent test of his blood. If a defendant makes such a request, upon completion of the DUI and other processing procedures, the subject should be given access to a telephone in order to make arrangements for his independent blood test.

608.32 If the subject is able to make the necessary arrangements for an independent blood test via telephone, then the subject should be transported to the location for the test within a reasonable distance of the Police Department.

608.33 If the subject has not been able to make arrangements for the test, normal procedures and transport to VCBJ shall not be delayed. The subject is responsible for the proper evidence procedures relating to the independent blood test.

DUI ARREST PAPERWORK 608.34 This policy shall provide requirements and guidelines for the issuance of DUI citations, seizure of drivers licenses, issuance of temporary drivers permits and proper completion of related paperwork under the DUI administrative suspension law, effective 10/01/90, for drivers who have a BAC of .08 or higher or who refuse the breath/blood/urine test.

608.35 All DUI citation forms are to be completed in accordance with the procedure outlined in State of Florida Policy, Section IV-B, DUI (BAC .08% or above) Uniform Traffic Citation Procedures for Completion, that have been issued to all SDPD Police Officers.(CFA 22.06M)

608.36 All driver licenses in the subject’s possession shall be confiscated, attached to the paperwork and submitted to the DL Bureau of Administrative Review.

608.37 A temporary permit shall be issued when:  The subject possesses a valid DL  If the subject professes to have a valid DL, even if not in possession and the computer system is down  If the subject does not have a DL in his possession but it can be verified by computer

608.38 If the subject does not have a DL in his possession, check the “no” box by license surrendered, and insert the reason DL not surrendered in the space provided.

608.39 If you cannot confirm a DL due to the computer system being down, write “computer down” in the “eligible for permit” area.

608.40 A temporary permit will not be issued when the defendant’s license is under suspension or the defendant does not have a DL in possession and a computer check reveals “no record found.” 608 – Page 5

608.41 Even if the subject refuses to take a breath, blood or urine test, the defendant will still be issued a temporary drivers permit if the subject meets the eligibility requirements.

608.42 Duplicate temporary permits may not be issued. The only exception to this will be Commercial Driver License holders, who will be issued both the permit and the CDL disqualification form, which will immediately place the CDL holder out-of-service from operating a commercial motor vehicle.

608.43 Original signatures are not required on all copies of Charging Affidavit or on the refusal forms. But, these forms must be officially sworn to, including the raising of the right hand.

608.44 After the necessary paperwork is completed, the defendant is to be transported to the Volusia County Branch Jail. The bond is to be indicated on the Charging Affidavit when the prisoner is transported to the jail.

608.45 If the breath test results are under .050 g/210L, the defendant shall be requested to submit to a urine test, (as under Florida Implied Consent Rules). The Shift Supervisor will be immediately notified by the arresting officer.

608.46 If, after completing the urine test, it is apparent to the arresting officer and the Shift Supervisor that the defendant is not giving any indication of being impaired or under the influence of drugs or alcohol, the defendant shall be released, if no other charges or circumstances are pending to prevent release. These types of situations should rarely, if ever occur. If it does, the Shift Supervisor shall complete a memo to the Patrol Commander explaining the circumstances.

608.47 Refusal to submit to the requested urine test will be treated as a refusal and the defendant will be transported to the VCBJ.

608.48 The detainment of Juveniles arrested for Driving under the Influence is not addressed in Florida Statute 316.193. Police officers should contact the Department of Juvenile Justice Volusia Regional Center (formerly known as DYS) to determine where the juvenile should be transported for his/her detainment period. However, DJJ may not receive an intoxicated youth into their facility without a hospital clearance. After the hospital clearance, DJJ may accept the youth or authorize the juvenile be released to a parent or guardian.

608.49 When the defendant is transported to the Volusia County Branch Jail, the following paperwork should be sent to the jail:  The original Charging Affidavit  Copy of Implied Consent or Refusal to Submit form  Copy of DUI packet  Copy of Breath Test Result affidavit  White copies of all DUI and UTC citations, including the CDL disqualification form for CDL holders

608.50 Copies of citations and the CDL disqualification form (if applicable) should be made for Records and remain with the report. Please copy the original pages of the documents so that Records has clear copies. BLOOD TEST REQUEST

608.51 If the subject refuses to submit to a blood test when requested, a DUI citation is to be issued with a refusal form completed and submitted with the Charging Affidavit. (CFA 22.03M-A, 22.06M) 608 – Page 6

608.52 Remember, ALL charges and citations relating to a crash shall be completed at one time — either when blood is drawn or when the blood results return. (See Policy and Procedure Directive 607, Traffic Crash Investigations.)

608.53 If blood is drawn from the defendant, a “Certification of Blood Withdrawal” is to be signed by the person drawing the blood and submitted with the report.

608.54 A toxicology services “Work Request Form” shall be completed by the investigating officer on all blood and urine samples. A copy is to be made for the report and the original is to be placed on the outside of the Booking Office refrigerator.

608.55 No forms are to be sealed in the specimen container. Follow the directions on the instruction sheet, affix the necessary labels and obtain the required initials.

608.56 Blood and urine specimens are evidence and shall be placed in the booking room refrigerator, with the refrigerator door being locked. The evidence tag and toxicology work request form are to be placed on the outside of the refrigerator.

608.57 If the defendant is arrested for DUI and transported to the hospital because of illness or injuries, and the defendant is going to be admitted to the hospital, the defendant can be ROR’d at the hospital. (CFA 22.06M)

608.58 All the officer needs to do in this case is issue the appropriate citations, if applicable, and give the defendant his copies.

608.59 If the defendant was involved in a crash where a human being received “serious bodily injury,” per State Statute, blood can be forcibly taken and the citations can be issued either when the blood results return from FDLE or at the time of the DUI arrest, which starts the 90 day prosecution rule. While the statute does not specifically address the obtaining of a search warrant prior to the forcible taking of blood, officers should always ask for a subject’s consent prior to obtaining blood or prior to obtaining a warrant where circumstances and time allows for the securing of the warrant.

608.60 If no one has serious bodily injury, and the defendant refuses a blood test, the officer must arrest the defendant for DUI and issue the defendant a DUI UTC, and all other paperwork at this time.

608.61 In a case where a breath test is impossible or impractical and blood has been drawn or requested, the following procedure is to be followed: (CFA 22.03M-A)  If the DUI charges are to be filed when the blood results are returned from the crime lab and the blood results show a .08% BAC or higher, a UTC is to be completed and submitted with the Charging Affidavit.  The officer is to write “unable to sign” in the area of the citation that requires the defendant’s signature. URINE TEST REQUEST

608.62 In accordance with State Law, a urine test may be required of a subject suspected to be under the influence of drugs other than alcohol. Both blood and urine collection kits are stored in the evidence supply storage cabinet in the booking office.

608.63 Whenever possible, the arresting officer shall witness collection of the urine, using due regard for the privacy and sex of the suspect. When the subject is the opposite sex of the arresting officer, an officer of the same sex as the subject shall witness collection of the urine, or if such officer is not available, an officer from another jurisdiction or DUI Technician who is the same sex as the subject may be requested to do so. When collecting urine samples, the officer shall attempt to obtain 2 ounces of urine, which is 50 milliliters, as the container indicates. 608 – Page 7

608.64 No forms are to be sealed in the specimen container. Follow the directions on the instruction sheet, affix the necessary labels and obtain the required initials.

608.65 Blood and urine samples are evidence and shall be placed in the booking office refrigerator. A toxicology “Work Request Form” shall be completed by the arresting officer on all blood and urine samples. A copy of the request form is to remain with the property/evidence page and be placed on the outside of the temporary evidence refrigerator.

SEIZURE OF VEHICLES IN DUI CASES 608.66 Under certain circumstances, a person’s vehicle may be seized and forfeited if the person driving meets the following criteria, according to F.S.S. 322.34 (9)

 The person driving the vehicle must be arrested for DUI

 The person driving the vehicle must be the registered owner or co-owner of the vehicle

 The person driving the vehicle must have a currently suspended, revoked, or cancelled driver’s license as a result of a prior conviction for DUI

608.67 If all of the above criteria are met, the officer and the Shift Supervisor must then decide if the vehicle is worth seizing.

608.68 A lien check (query lien) should be conducted through teletype to determine if money is owed on the vehicle.

608.69 Once the officer and Shift Supervisor make the decision to seize the vehicle, the officer shall advise the impounding company that the vehicle will not be released to the owner.

608.70 The officer must also complete the required seizure paperwork, (a.k.a. Forfeiture Action Form) and give the defendant a copy of such.

608.71 As in all forfeiture cases, the Shift Supervisor will ensure that a copy of the incident report, signed forfeiture form, photograph of the property/vehicle and a memorandum outlining the event is immediately forwarded to the Criminal Investigations Commander. The Commander will review and make the determination whether to proceed with the seizure. (See Policy and Procedure Directive 1204, Forfeiture.)

INTOXILYZER MAINTENANCE 608.72 It shall be the responsibility of the breath testing agency inspector to insure that the Intoxilyzer 8000 series breath testing instrument used by this department is kept clean and in good working order.

608.73 The agency inspector shall be responsible for performing the agency inspection on the instrument in accordance with the rules and procedures set by the Implied Consent Program of the Florida Department of Law Enforcement. Agency inspectors shall also be responsible for ensuring they attend mandatory retraining courses in order to maintain their certification.

608.74 The agency inspector shall ensure that proper records and logs are maintained regarding breath tests and agency inspection tests that are conducted and shall also maintain the required records with the F.D.L.E. and the Bureau of Driver Improvement regarding the breath test instrument and status of current certified technicians. 608 – Page 8

608.75 It will be the responsibility of the agency inspector to be aware of the current supply inventory and the safe storage and disposal of same.

608.76 The agency inspector shall submit an annual budget to the department administration regarding the maintenance and supply costs of the breath testing equipment.

608.77 The agency inspector will be responsible for all extra keys to the intoxilyzer cabinet and shall distribute them only after an officer has successfully completed the intoxilyzer operator’s course.

608.78 Any malfunctions in the equipment shall be brought to the attention of the Professional Standards Commander or Chief of Police as well as the area inspector for F.D.L.E.

DRIVING UNDER THE INFLUENCE (DUI) CRASHES (CFA 23.01-C) 608.79 Once a driver is suspected of being impaired, the investigating officer will take notice of all physical characteristics related to DUI for inclusion in the crash report narrative and arrest affidavit.

608.80 Statements made by the driver during a crash investigation prior to Miranda Warning being read are considered privileged under the accident/crash statutes of Florida law, F.S.S. 316.066(4).

608.81 Once an officer has completed the investigation as to the cause of the crash, the investigation into DUI can begin. (This does not mean the report must be complete, just that the facts are known and a report could be generated.)

608.82 It is important to inform the driver that the officer has “changed hats” from crash investigation to criminal DUI investigation. This is accomplished by advising the driver of the Miranda Warning.

608.83 While it is not required during typical DUI traffic stops to read a Miranda Warning, investigators should read the warning at DUI crash investigations. All statements made by the suspect can then be used against him, and the “changing of hats” difference between the crash investigation and criminal investigation into the crash have now been clearly established.

608.84 The suspect should then be given the standardized field sobriety exercises. In cases where the suspect refuses to submit to an exercise, he should be informed that refusal to submit will be used against him as evidence.

608.85 Upon completion of the exercise (or refusal of the exercise), an arrest under probable cause or release should be made.

608.86 If the suspect is incapacitated by injury and a breath test is either impractical or impossible, a blood draw of the suspect may be requested for submission to the FDLE crime lab. The blood draw can only be requested if there is probable cause to believe that the suspect is under the influence, and the suspect has been placed under lawful arrest for DUI.

608.87 If the suspect refuses to submit to the chemical test (blood draw), implied consent should be read and if refusal continues, a refusal form shall be completed and submitted with the arrest affidavit. The original copy of the refusal form will be required for the administrative suspension packet. A copy of the refusal and a DUI citation shall be submitted with the arrest affidavit. If the suspect agrees to the blood draw, the suspect should be issued the charge of DUI on a regular citation. Remember, a DUI citation can only be issued in the case of a refusal, or when the blood analysis result is known and is 0.08% or above.

608.88 If the officer has probable cause to believe that a suspect is under the influence and involved in a crash which causes serious bodily injury or death of a human being, the officer may use reasonable force to obtain a blood sample. It is imperative that the definitions of “serious bodily injury” have been fulfilled. In these crashes blood can be forcibly 608 – Page 9 taken without consent of the suspect and without the suspect being under arrest ONLY IF THE TOTALITY OF THE CIRCUMSTANCES DEEM THE EXIGENCY OF THE SITUATION MAKE THE NEEDS OF LAW ENFORCEMENT SO COMPELLING THAT A WARRANTLESS SEARCH IS OBJECTIVELY REASONABLE. If the totality of the circumstances do not deem the exigency, officers must obtain a warrant prior to obtaining blood. (The natural dissipation of alcohol in the bloodstream does not automatically constitute an exigency in every case). The DUI arrest can be made at this time, or the officer may choose to wait until the blood analysis results come back from the crime lab. Whatever time the arrest is made, the speedy trial prosecution rule begins. (See F.S.S. 316.1933(1).)

608.89 Blood samples shall be collected in the approved container provided by the Department. Prior to transmittal to the FDLE lab, samples shall be placed in the evidence refrigerator and the refrigerator door shall be locked. The evidence tag and toxicology work request form are to be placed on the outside of the refrigerator. (See Policy and Procedure Directive 706, Evidence.)

608.90 It is important that officers issue all citations at the same time, be they infractions or criminal violations. All citations that are part of the crash investigation must be issued at the same time so as to avoid double jeopardy. Remember, it is the officer’s prerogative to affect a DUI arrest at this time for serious bodily injury crashes and complete all of the arrest paperwork, or wait until the blood returns from FDLE and complete all of the paperwork then. Once again, this option is only available for DUI’s involving serious bodily injury. All other DUI’s require that an arrest must be made before the chemical test is administered.

608.91 If a suspect is arrested for DUI and transported to the hospital because of illness or injury, and the suspect is going to be admitted to the hospital, the suspect can be ROR’d at the hospital. Necessary paperwork must be completed for proper documentation of evidence.