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Port Orange DUI Policies And Procedures

Attorney Kevin J. Pitts is a Daytona Beach DUI Attorney that frequently handles Port Orange 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 2010. Mr. Pitts has obtained the Port Orange DUI Policies and Procedures through a public records request.  If you are accused of a DUI in Daytona Beach, Port Orange or the surrounding areas contact Mr. Pitts at 386-451-5112 to set up a free consultation.

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Daytona Beach DUI Attorney Kevin J. Pitts

The purpose of this directive is to establish policy and procedures for the enforcement of state laws prohibiting the operation of a motor vehicle while impaired due to alcohol or other controlled substances in accordance with FS 316.193, Driving (or in actual physical control of) a Motor Vehicle Under the Influence of Alcohol or Controlled Substances (DUI); or FS 316.1934(2)(b) Driving While Impaired (DWI).

The primary objective of DUI enforcement is to reduce alcohol and/or drug related traffic offenses through training and equipping patrol units to apprehend and process alcohol or drug-impaired drivers.

Enforcement of DUI traffic laws is an important duty of the law enforcement officer charged with protecting the public welfare. Drivers impaired by alcohol and/or drugs represent a serious threat to public safety. A comprehensive DUI enforcement program is necessary.

Florida law requires law enforcement officers to seize the driver’s licenses of persons arrested for DUI under certain circumstances. The underlying intent of the law is to provide an immediate impact at the time of the DUI arrest. This directive will address law enforcement efforts in the areas of detection, apprehension, arrest, processing, and seizure of driver licenses. The procedures contained herein are intended to provide a uniform method for investigating and processing a DUI violation.

It shall be the policy of the Port Orange Police Department to vigorously enforce the DUI traffic laws of the State of Florida. All uniformed officers shall make a concerted effort to detect and apprehend those persons suspected of violating DUI and DWI laws. All officers affecting an arrest for violation of FS 316.193 shall adhere to the provisions of FS 322.2615 relating to the seizure and suspension of driver licenses.

  • While each DUI traffic stop is unique, the following procedures shall be followed as closely as is It is recognized that in some cases the level of intoxication may be so high that some procedures may be impractical. If an intoxicated driver becomes belligerent, it may become necessary to physically secure the offender to minimize the danger of injury to the public, the officer, and/or the offender.
  • All patrol officers shall complete DUI detection and field sobriety training in the Field Training Program and receive appropriate in-service refresher training at the shift level as needed.
  • All department personnel conducting preliminary or evidential chemical tests for intoxication shall complete operator training programs, and appropriate in-service training as required. (CALEA 1.11)
  • All department personnel conducting preliminary or evidential chemical tests shall be certified in accordance with FDLE requirements. (CALEA 1.11)
  • An impaired driver may be detected in a variety of Frequently, the officer may first suspect the driver is intoxicated upon the initial face-to-face meeting after stopping the vehicle for some other reason. If the officer suspects intoxication prior to the traffic stop, it is important that the officer first establish reasonable suspicion to stop/approach the offender during this phase. Reasonable suspicion to stop a vehicle may be established by the following means:
  • The officer observes a violation of state or local traffic laws, or other violation that gives the officer cause to stop the vehicle for the purpose of investigation or to take enforcement action.
  • The officer observes specific behavior or driving style that indicate a high probability that the driver may be impaired by alcohol and/or drugs.
  • The officer locates the occupied vehicle based upon a description from a citizen’s complaint of erratic, improper, or reckless driving.
  • The vehicle and/or occupants are suspected of involvement in a criminal act.
  • The vehicle and/or driver have been, or are suspected of, involvement in a recent traffic accident.
  • In car video cameras, in cars so equipped, shall be activated to record the driving characteristics of the vehicles operator.
  • Officers shall exercise due care and caution in following impaired drivers and be alert for unusual or inappropriate reactions from the driving.
  • The officer shall note the indicators present and shall be able to articulate those factors in any subsequent arrest reports and/or court proceedings. 
  • Once reasonable suspicion has been established, the officer shall conduct a traffic stop in accordance with the provisions of Directive 61.3 Traffic Enforcement. The officer shall carefully observe the driver’s actions and driving during this phase to gather further evidence to support an arrest.
  • If at all possible, and without jeopardizing officer safety, traffic stops and/or field sobriety battery should not take place in the parking lots or environs of restaurants and bars.
  • Once the vehicle has been stopped, the officer shall approach with The officer will be alert to signs of intoxication due to alcohol and/or drug use. This investigative process is continuous as long as the officer is in contact with the offender. The following procedures shall apply, when applicable.
  • Upon the initial approach to the vehicle, the officer should look into the vehicle interior for such plain- view evidence as open containers of alcoholic beverages or narcotics residue or paraphernalia.
  • The officer should request the driver’s license, vehicle registration, and insurance card. The officer shall note the driver’s actions when asked to retrieve these The officer shall be alert for the odor of alcoholic beverages and shall note any physical characteristics indicating alcohol and/or drug use.
  • If the driver is suspected of being intoxicated, he/she will be asked to exit the The officer will note the driver’s balance, demeanor, speech, and general appearance.
  • The officer will advise the driver of the specific reason for the traffic stop (i.e. speeding, improper lane change, equipment violation, etc.). At this point the officer may proceed with processing the traffic infraction while continuing to observe the driver for signs of impairment due to intoxication.
  • Upon a reasonable suspicion that the driver may be impaired due to alcohol and/or drugs, the officer will request a back-up unit to assist.
  • Field sobriety exercises and interviews shall be video taped unless extenuating circumstances such as bad weather, safety hazards at the location, or the driver is violent or too impaired to perform the Officers may videotape and conduct the exercises in the holding facility if such extenuating circumstances exist on the scene.
  • If using a handheld camera, the back-up unit shall activate the video camera with the arresting officer and the offender in front of the camera. The arresting officer shall use the DUI Processing Form throughout the investigation and taping.
  • Once video taping has begun, it should not be stopped or interrupted until the physical performance exercises have been completed, unless the camera is stopped for a legitimate If the camera is stopped, the time will be noted on camera when stopped and when taping is resumed.
  • The arresting officer will announce his/her name, the date, time, location and case number following the format on the DUI Processing The officer will follow the format in conducting the performance battery and questioning of the defendant. The officer may deviate from specific questions when the circumstances of the case or exercises call for additional explanation.
  • The officer will explain that the defendant should first watch the officer demonstrate each exercise and not try the exercise until asked by the officer. The Standardized Field Sobriety Battery shall consist of the Walk and Turn, One-Leg Stand, and HGN exercises. The physical condition of the subject may require the administration of sobriety exercises such as the “finger count and hand pat”, or the Modified Romberg Balance exercise. 
  • Generally, no more than three explanations and/or demonstrations of the same exercise will be The defendant will be allowed no more than three attempts at performing the same exercise. The officers will not give any opinion to the defendant as to his/her performance of any exercise. The terms ‘pass, fail or points’ shall not be used in any documentation of the battery. The wording shall be that the defendant ‘exhibited clues’ when referring to performance.
  • The officer will question the defendant as to use of controlled substances if, upon completion of the field sobriety battery, the arresting officer suspects’ illegal drug use.
  • The defendant will be allowed to make any statements and explanations as desired.
  • The camera operator will capture a full-face close-up view of the defendant for at least 15 seconds during initial interview.
  • If sufficient probable cause has been established, and all elements of the DUI violation (including operation or actual physical control of a vehicle, while under the influence of alcohol and/or a controlled substance, within this state, when affected to the extent that the person’s normal faculties are impaired) have been clearly established, the officer shall advise the subject that he/she is under The offender will be handcuffed immediately.
  • The defendant will be asked if he/she will submit to a breath If the defendant refuses to submit to testing per Florida’s implied consent law the officer will read the defendant the Florida Implied Consent Law and the associated penalties.
  • The defendant will be read the Miranda Warnings and asked if it is understood.
  • The defendant will be searched and seat-belted inside a caged department This point shall be the end of the video taping. (CALEA 41.3.3,)
  • The officer shall immediately notify Communications of the arrest. This will be the official time of arrest.
  • The officer shall make appropriate disposition of the defendant’s vehicle and property in accordance with Directive 41-11 Vehicle Towing (or authorized alternatives), arrange for transportation and safety of any passengers.
  • The subject will be transported to the holding facility for evidential testing (if not refused) and processing in accordance with Directives 70-1 and Directive 71-1.
  • The breath-alcohol test shall be the normal test requested of a DUI offender.
  • The arresting officer shall assure that evidential chemical test(s) are conducted in accordance with state/local requirements. See details below under ‘Chemical Testing’ heading.
  • If the subject’s BAC is less than .08%, the officer shall investigate for drug usage or medical conditions that may be the cause of impairment. 
  • Those suspected of being under the influence of drugs will be requested to provide a urine or blood sample for drug See additional details under the ‘Chemical Testing’ heading below. A Drug Recognition Expert may be made available to assist with screening the defendant. Reference Directive 41-17 DRE for call-out protocol.
  • An officer may require a person to submit to blood testing only when the officer has probable cause to believe that the driver was the operator of a vehicle involved in a crash resulting in serious bodily injury or death pursuant to provisions and restrictions of FS 1993(1) – see the DHSMV Affidavit of Refusal form for details. See also information below under the heading ‘Chemical Testing – Blood/Urine.’ Absent consent, exigent and unusual circumstance a search warrant will be required to obtain a blood sample. Reference the procedures delineated in 61-7.
  • If the offender becomes ill, unconscious, or otherwise incapacitated, he/she shall be transported to a hospital emergency room for treatment. If incapacitation occurs prior to the taking of a breath sample, and a blood sample is taken resultant of the examination/admittance process, officers may subpoena the blood test result and or request a search warrant to seize the blood sample if preserved.
  • A Blood Withdrawal FDLE/ICP Form will be completed when applicable and attached with the original paperwork. The back of refusal form shall not be used for this purpose.
  • Upon receipt of laboratory results indicating a BAC level of .08% or higher, or indicating the presence of drugs, the subject will be charged on a standard UTC. The officer will indicate ‘issue by warrant’ on the offender signature line. The driver license will be suspended administratively by the Bureau of Driver Improvement.
  • Persons arrested for DUI are required by state law to remain in jail for eight (8) hours or until the blood alcohol drops to .05%. All DUI arrestees will be transported to the County Jail.
  • When sufficient evidence of impairment pursuant to FS 1934(2)(b) .000 to .079 BAC – exists to establish probable cause for arrest, officers shall charge under this statute and transport the arrestee to the county jail. Every effort will be made to gather evidence through the observations of the officer and appropriate testing.
  • An arrestee who is suspected of DUI but produces a .08% BAC or less shall not be released from custody based on the BAC level When the BAC result is less than .08%, the officer shall notify his/her supervisor. The supervisor will consult with the officer on the appropriate disposition of the arrestee. Under no circumstances shall the arrestee be released from custody when the officer believes the person is unfit to drive. (CALEA 61.1.11)
  • If a DRE has determined that the impairment is resultant of a medical condition and not drug influence then the arresting officer should proceed as directed by the DRE or a supervisor; minimally 
  • The arresting officer should complete a Driver’s Re-examination form and an effort should be made to contact a responsible person to take custody of the subject and their vehicle keys.
  • If the vehicle was towed the operator/owner will need to contact the tow company and complete the normal repossession procedures, to include payment of tow fees, to have the vehicle returned.
  • Commercial Motor Vehicle Operators: FS 62 provides that a driver who has any alcohol in his or her body may not drive or be in actual physical control of a commercial motor vehicle. A violation of this section is a moving violation and may be charged under this statute separately from any violation of FS 316.193. Refer to FS 322.63 for CDL implied consent requirements when a driver is suspected of drinking alcohol or using drugs while driving.
  • CDL operators charged under 322.62 are prohibited from driving for a period of twenty-four (24) hours. A Notice of Commercial Driver’s License/Privilege Disqualification shall be completed for breath test refusals under this statute (when there is no citation issued for FS 193). Breath test results in excess of .08% shall be charged under FS 316.193 DUI.
  • Discretionary privilege: Members of the department may be required to handle certain individuals in accordance with the provisions of Directive 1.6 Uncommon Enforcement Procedures. Officers shall refer to this directive when encountering the following individuals in regard to DUI charges: diplomats, military personnel, federal or commercial vehicle operators, Congressmen, foreign nationals and juveniles.
  • DUI Bicycle cases: Members of the department are strongly encouraged to use a DUI arrest of a bicycle rider as a final All other means of resolving the problem will be explored before a subject is charged with DUI. Alternatives to a DUI arrest include, but are not limited to:
  • Disorderly intoxication charge, if applicable;
  • Transport to the branch jail, or a detoxification or medical treatment center pursuant to the Marchman Act.
  • The subject is to be arrested for another violation, such as an outstanding warrant or another unrelated crime.
  • If an arrest is deemed necessary due to aggravating circumstances, such as the rider caused (or nearly caused) an accident, property damage and/or injury to another, the following procedures differ from a DUI involving a motor vehicle:
  • No DUI UTCs is A regular UTC will be issued for refusals and breath test results of over .08% BAC.
  • The subject’s license shall not be seized.
  • A Refusal form, if applicable, will be completed for documentation.
  • Miranda Warnings will be read if the subject is removed from the scene due to weather conditions or the subject is going to be arrested for another Miranda applies to verbal responses during the interview, but does not apply to submission to the breath test.
  • Notations of the blood-alcohol level on all forms shall be written in the following format:

‘0.08 g/210L’ – this is an abbreviation for ‘0.08 grams of alcohol per 210 liters of breath’ using an example for .08% BAC.  The actual test result figure will be substituted for the ‘.08’ figure.

  • The officer will issue a FL DUI Uniform Traffic Citation, seize the driver license(s) and attach the license to the blue copy of the UTC under the following circumstances: (CALEA 1.11)
  • Drivers with a BAC of .08% or higher; OR
  • Drivers who refuse to take a breath, blood or urine test. This applies regardless of the BAC level in the case of a subject who takes the breath test but refuses a blood or urine test.
  • A Uniform Traffic Citation may be issued for Driving While Impaired (DWI), FS 316.1934(2)(b) when: (CALEA 1.11)
  • The BAC is below .08%, but above .05%, OR
  • An arrestee has a BAC less than .08%, is suspected of being under the influence of drugs, and has submitted to a urine or blood test for drug testing.

The driver license is not subject to immediate seizure/suspension in these cases.

  • The following documents in addition to the SA707 and incident report are required when the arrestee has submitted to a breath test:
  • After the breath test, the operator must complete the Breath Test Result Affidavit (FDLE/ATP form 38). The operator’s name must be signed, printed and attested to.
  • The arresting officer will complete the DUI Processing form.
  • The arresting officer will complete the DUI checklist.
  • The defendant will be provided with the results of his/her breath tests.
  • The original forms will be submitted with the arrest package to the supervisor. A copy of the test results and Alcohol Influence form will be attached to the jail paperwork.
  • The following documents in addition to the SA 707 and incident report are required when the arrestee refuses a breath test:
  • The original refusal form HSMV 72054 must be attested to and submitted in with arrest A copy of the refusal must be sent to the County jail with SA 707.
  • Completed Alcohol Influence report must be submitted with the arrest A copy will be attached to the jail paperwork.
  • The officer will complete the DUI checklist.
  • The subject’s driver license(s) will be attached to the blue copy of the citation.
  • Department forms and reports must be completed as required thoroughly documenting all evidence gathered during the investigation and indicating the results of all field sobriety exercises and/or chemical tests administered.
  • The officer will forward the citation(s), all reports and supporting documents to the shift supervisor for review prior to See Directive 71.1 Prisoner Processing heading ‘Document Distribution’ for further details on distribution of arrest documents.
  • The purpose of this directive is to establish uniform procedures for the enforcement of the under age 21 DUI law.
  • FS 2616 states that it is unlawful for a person under the age of 21 to drive a vehicle if the person has a blood alcohol level (BAC) of 0.02 or higher.
  • FS 2616(l)(b) permits a law enforcement officer to detain any person under the age of 21 for the purpose of obtaining a breath test if the officer has probable cause to believe that the person was driving or in actual physical control of a motor vehicle while having a measurable breath alcohol level.
  • A driver under the age of 21 whom has a BAC of 0.02 or higher will have his driving privilege suspended for a period of six months for the first violation.
  • The person under age 21 who refuses to submit to a lawful breath test will have his driving privilege suspended for one year for a first refusal.
  • The Port Orange Police Department has adopted the following procedures in the enforcement of this law.
  • Lawful contact must be made before an underage driver can be checked for a violation of 2616. Lawful contacts include:
  • Traffic stop related to Florida law;
  • Contact at a sobriety checkpoint;
  • Contact at the site of a traffic crash;
  • A consensual encounter with an underage driver.
  • Officers will conduct a DUI (as described in this directive) investigation to rule out the possibility that the driver is legally impaired under FS 316.193 by:
  • Interviewing the driver, verifying the driver’s age and check for signs of impairment;
  • Assessment of the driver’s performance on Standardized Field Sobriety exercises;
  • Ruling out probable cause to make an arrest for DUI when appropriate. 
  • A violation of section 322.2616 is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an However, section 322.2616(18) states that it does not bar prosecution under section 316.193.
  • Check for a violation of FS 2616. If probable cause does not exist to arrest the driver for DUI, the driver may be in violation of the .02 law. The officer will determine if there are indications that the driver has been drinking, such as the odor associated with alcoholic beverages, opened or unopened containers in the vehicle, or other signs. If the officer believes that the driver is possibly in violation of 322.2616 the officer will:
  • After observation of the driver for 15 minutes, a request will be made that the supervisor responds to the area with a Portable Breath Testing devise (PBT).
  • The officer will request the driver to perform a breath test consisting of two samples on the The operator will have been trained in the use of the PBT.
  • If the two breath samples yield BAC of 0.02 or higher the officer will take the driver’s license and issue a suspension using forms provided by DHSMV.
  • If the driver refuses to give a breath sample, the officer will read the implied consent warning to the If the driver continues to refuse, the officer will take the driver’s license and issue a suspension using forms provided by DHSMV.
  • If the driver gives one breath test and refuses to give a second sample, the officer will take the action that is warranted based on the first sample.
  • A driver 16-20 years of age who is suspected of DUI but produces a .08% BAC or less and is not arrested for another violation shall not be released from custody based on the BAC level When the BAC result is less than .08%, the officer shall notify his/her supervisor. The supervisor will consult with the officer on the appropriate disposition of the subject. The parent or legal guardian of a juvenile driver will be contacted and requested to respond to take custody of the juvenile.
  • Officers shall fully document all .02 law investigations including the circumstances of the stop and the steps taken to insure the safety of the driver.
  • Officers completing a suspension under FS 2616 shall complete the following documentation:
    • The notice of suspension provided by DHSMV.
    • The probable cause affidavit.
    • The PBT breath test result affidavit, if applicable.
    • The affidavit of refusal to submit to a breath test, if applicable.
    • Secure the driver license to the notice of suspension.
  • Drivers will not be charged under both If a driver is arrested for DUI and found to be less than 21 years of age, the officer will not write a suspension under 322.2616. The normal DUI suspension procedure will be utilized.
  • Operation of the PBT – only trained operators will administer breath tests with the PBT.
  • PBT operators will follow the manufacturer’s procedure for conducting breath tests.
  • The manufacturer’s procedures will be included with the PBT.
  • PBT operators will maintain a log of all breath tests conducted.
  • Routine care and service of the PBT – Department intoxilyzer maintenance technicians will be responsible for maintaining the PBTs as follows:
  • All PBTs will be calibrated according to manufactures recommendations.
  • All PBTs will be checked for accuracy according to manufacturer’s instructions.
  • The PBT maintenance technician will keep a service log of all service performed on all the PBTs.
  • Persons arrested for DUI must be observed for at least 20 minutes to insure they have not taken anything by mouth nor regurgitated before the breath test is administered. This observation can be by the arresting officer and does not require the breath test technician to observe the subject for an additional 20 minutes.
  • An FDLE certified operator will administer the breath test. The operator will follow FDLE rules, regulations, and procedures while administering the tests.
  • If the Intoxilyzer 8000 instrument displays a low pressure warning for the “Dry Gas” Standard, the Breath Test Operator shall advise a supervisor immediatly.
  • All breath test operators will utilize latex protective gloves and eyewear during the entire breath test process to protect against biological infectious The breath-testing officer will use special care in handling and disposing of the used mouthpiece.
  • department will not offer blood or urine tests as a routine procedure. The department is not obligated to inform defendants that they may request independent testing.
  • If the defendant requests a blood or urine test, the request may be granted only after the defendant has submitted to the breath test. Blood or urine tests will be administered at the defendant’s own Department personnel will afford the defendant a reasonable amount of time to have the tests conducted by individuals of the defendant’s own choosing within the Halifax area.
  • Defendants requesting tests will be provided with a phone and a If the defendant locates a local facility, the officer will verify that the subject has the money in possession to pay for the test. The subject will be transported to a hospital, clinic, or other medical facility for the purpose of obtaining test samples. An authorized person as defined in Florida Statute 322.261 will obtain the test samples from the defendant.
  • Independent test requests and the officer’s compliance (or attempts) shall be fully documented in the arrest report, including the names of the facility and person drawing the The officer shall have no evidentiary duty regarding this sample.
  • Crash investigations – when an officer investigates an accident and determines that one or more of the drivers may be impaired and cannot submit to a breath test, the officer shall request that a sample of the suspected person’s blood be drawn for analysis. Absent consent, exigent and unusual circumstances a search warrant will be required for a forced blood draw. Reference procedures in Directive 61-7.
  • Conscious victims shall be informed of the implied consent If not conscious, and a search warrant has been issued, the blood sample shall be drawn as follows:
  • The officer shall make the request at the scene, when a doctor, paramedic or other authorized person is administering medical treatment.
  • A paramedic can be summoned to the scene of an accident or the holding facility to draw blood from a DUI suspect, even though the paramedic is not there for medical treatment reasons.
  • Should the person/accident victim be transported to a medical facility for treatment, the officer shall inform the medical personnel that a blood sample is needed.
  • The investigating/requesting officer shall supply the test kit.
  • The officer shall remain with the subject while the blood is drawn to maintain chain of custody.
  • The Department of Health and Rehabilitative Services specifies in Chapter 10-D-42, Implied Consent, that certain procedures must be followed in the collecting and labeling of blood samples for the purpose of determining blood alcohol, chemical or controlled substance content.
  • Blood testing: All blood specimen containers shall be labeled and shall contain as a minimum the following information:
  • Name of person tested,
  • Date and time specimen collected,
  • Initials of personnel administering or collecting the specimen.
  • Blood specimens shall be collected in a container containing sodium fluoride or other acceptable anticoagulant-preservative substance. The container shall be stoppered or sealed to prevent loss by evaporation.
  • Failure to comply with this procedure could constitute grounds for dismissal of charges against the defendant. Clotted blood samples will not be analyzed for blood alcohol content.
  • A Toxicology Work Request form will be completed by the arresting officer and submitted with the property receipt. The blood specimen will be place in a locked evidence refrigerator.
  • Urine Testing: 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.
  • Whenever possible, the arresting officer shall witness collection of the urine, using due regard for the privacy and sex of the 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 who is the same sex as the subject may be requested to do so.
  • When collecting and physically processing a urine specimen, the officer shall wear rubber gloves provided by the department.
  • Sterile plastic containers, stocked in the evidence processing room, shall be used to collect urine. The officer shall insure that the sample contains 50 milliliters of urine, as indicated on the container.
  • The officer shall seal the container with evidence tape and affix a label containing the following information:
  • Subject’s name;
  • Date and time sample was taken;
  • Case number;
  • Name of person collecting specimen;
  • Name of arresting officer (if different than the person-collecting specimen).
  • A Toxicology Work Request form will be completed by the arresting officer and submitted with the property receipt.
  • The urine specimen will be placed in the locked evidence receipt.
  • Inspections of the Intoxilyzer 8000 shall be completed once per calendar month in accordance with FDLE Rule 11D-8 and FDLE/ATP form 39 AGENCY INSPECTION PROCEDURES – INTOXILYZER 8000.
  • The agency inspector shall keep the original FDLE/ATP Form 40, which is generated after the inspection, in a securely locked cabinet or storage facility.
  • Copies shall be distributed to:
    • The Port Orange Records Section for the purpose of court and deposition proceedings.
    • The State Driver Improvement office.
  • Prior to completing the inspection, insure that the Intoxilyzer area has been properly stocked with sterile mouthpieces, and Intoxilyzer operational checklist.
  • The Agency Inspector will insure that a monthly report is provided to the Patrol Division Commander/Captain. The monthly report will be due within five days of completing the inspection and will minimally contain the following information:
  • A list of any problems with procedures or equipment that was revealed during the inspection;
  • A plan of action to correct any problems detected;
  • Any scheduled or unscheduled repairs that are being done on any breath testing equipment.
  • The Agency Inspector is responsible for insuring that any and all problems with equipment and/or procedures that are used in connection with the breath testing equipment are reported to the Patrol Division Commander/Captain. The Agency Inspector shall bring any issue that might affect the prosecution of any case to the attention of the Patrol Division Commander/Captain.

 


Volusia County Sheriff’s Office DUI Policies And Procedures

Below are the Volusia County Sheriff’s Office DUI policies and procedures obtained from a public records request by Daytona Beach DUI Attorney Kevin J. Pitts. Attorney Kevin J. Pitts focuses his practice on DUI defense, criminal and civil traffic defense and criminal defense in Daytona Beach, Volusia County, Seminole County and the surrounding areas. If you are accused of a DUI in Volusia County contact Daytona Beach DUI Lawyer Kevin J. Pitts at 386-451-5112 to set up a free consultation.

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Daytona Beach DUI Attorney Kevin J. Pitts

TITLE: DUI ENFORCEMENT PROGRAM CODIFIED: 61.6 EFFECTIVE: 12-2015 RESCINDS/AMENDS: 61.6/06-2008 ATTACHMENTS: 0

PURPOSE

The purpose of this Directive is to establish policy and procedures for the enforcement of state laws prohibiting the operation of a motor vehicle while impaired due to alcohol or other controlled substances, (FSS 316.193, Driving or Actual Physical Control of a Motor Vehicle While Impaired Due to Alcohol or Controlled Substances; or, Driving With An Unlawful Blood-Alcohol Level (DUI)), and state law regarding zero tolerance (FSS 322.2616).

DISCUSSION

Enforcement of DUI traffic laws is an important duty of the law enforcement officer charged with protecting the public welfare. Drivers impaired by alcohol and/or drugs represent a serious threat to public safety. A comprehensive DUI enforcement program is necessary. This multi-faceted program includes not only enforcement of the traffic laws, but also education, prosecution, substance abuse treatment programs, and public support. Current Florida Law also requires law enforcement officers to seize the driver’s licenses of persons arrested for DUI under certain circumstances. The underlying intent of the law is to provide an immediate impact at the time of the DUI arrest. This directive will address law enforcement efforts in the areas of detection, apprehension, arrest, processing, and seizure of driver’s licenses. Procedures contained herein are intended to provide a uniform method for the agency’s enforcement countermeasures programs against alcohol and drug related traffic offenders.

POLICY

It shall be the policy of the Volusia County Sheriff’s Office to vigorously enforce the DUI traffic laws of the State of Florida to include the state’s zero tolerance law, FSS 322.2616. All uniformed Deputies shall make a concerted effort to detect and apprehend those persons suspected of violation of FSS. 316.193, Driving or Actual Physical Control of a Motor Vehicle While Impaired Due to Alcohol or Controlled Substances; Driving With An Unlawful Blood-Alcohol Level, and those persons under 21 y/o/a in violation of FSS 322.2616 (zero tolerance law). All Deputies affecting an arrest for violation of FSS 316.193 shall adhere to the provisions of FSS 322.2615 relating to the seizure and suspension of driver’s licenses.

PROCEDURE

61.6.1 While each DUI traffic stop is unique, the following procedures shall be followed as closely as is practicable. It is recognized that in some cases the level of intoxication may be so high that some procedures may be impractical. Also, if an intoxicated driver becomes belligerent, it may become necessary to physically secure the offender to minimize the danger of injury to the public, the officer, and/or the offender.

DETECTION PHASE

61.6.2 An impaired driver may be detected in a variety of ways. Frequently, the Deputy may first suspect the driver is intoxicated upon the initial face-to-face meeting after stopping the vehicle for some other reason. If the Deputy suspects intoxication prior to the traffic stop, it is important that the Deputy first establishes probable cause to stop/approach the offender during this phase. Probable cause to stop a vehicle may be established by the following means: A. The Deputy observes a violation of State or local traffic laws, or other violation, which gives the Deputy cause to stop the vehicle for the purpose of investigation or to take enforcement action. B. The Deputy observes specific behavior or driving style that indicate a high probability that the driver may be impaired by alcohol and/or drugs. 12-2015 Page 2 of 9 Directive: 61.6 C. The Deputy locates the occupied vehicle based upon a description from a citizen’s complaint of erratic, improper, or reckless driving. D. The vehicle and/or occupants are suspected of involvement in a criminal act. E. The vehicle and/or driver has been, or is suspected of involvement in a recent traffic accident. 61.6.3 Regardless of the means by which the Deputy comes into contact with an impaired driver, the Deputy must establish sufficient probable cause to stop and investigate. The Deputy shall note the indicators present and shall be able to articulate those factors in any subsequent arrest reports and/or court proceedings.

APPREHENSION PHASE

61.6.4 Once probable cause to stop a vehicle has been established, the Deputy shall conduct a traffic stop in accordance with the provisions of VCSO Directive 61.3. Often, it is at this time the Deputy may first become suspicious that the driver may be impaired. The Deputy shall carefully observe the driver’s actions and driving during this phase to gather further evidence to support an arrest.

INVESTIGATIVE PHASE

61.6.5 Once the vehicle has been stopped, the Deputy shall approach with caution. The Deputy will be alert to signs of intoxication due to alcohol and/or drug use. This investigative process is continuous as long as the Deputy is in contact with the offender. The following procedures shall apply, where applicable. 61.6.6 Upon the initial approach to the vehicle, the Deputy should look into the vehicle interior for such plain-view evidence as open containers of alcoholic beverages or narcotics residue or paraphernalia. 61.6.7 The Deputy should request the driver’s license, vehicle registration, and insurance card. The Deputy shall be alert for the odor of alcoholic beverages and shall note any physical characteristics indicating alcohol and/or drug use. 61.6.8 If the driver is suspected of being intoxicated, they will be asked to exit the vehicle. The Deputy will note the driver’s balance, demeanor, speech, and general appearance. 61.6.9 The Deputy will advise the driver of the specific reason for the traffic stop (i.e. speeding, improper lane change, equipment violation, etc.). At this point the Deputy may proceed with processing the traffic infraction while continuing to observe the driver for signs of impairment due to intoxication. 61.6.10 Upon a reasonable suspicion that the driver may be impaired due to alcohol and/or drugs, the Deputy will advise the driver they are suspected of a DUI violation. 61.6.11 The Deputy should proceed with the DUI investigation and may ask specific questions concerning the driver’s consumption of alcohol or drugs.

FIELD SOBRIETY EXERCISES

61.6.12 If conditions warrant, the driver will be asked to take a Field Sobriety Exercise (FTE). If the driver agrees, the Deputy shall carefully observe the driver’s performance during the exercises and accurately record the results. The Deputy will administer at least three (3) of the acceptable Standardized Field Sobriety Exercises (SFSE) approved by the National Highway Traffic Safety Administration (NHTSA). These three acceptable exercises include:

A. HORIZONTAL GAZE NYSTAGMUS EXERCISE: [This exercise may only be administered by those Deputies who have attended a 24-hour Field Sobriety Exercise training class and who have been instructed in the proper use and procedures of the HGN] Please remove your glasses (if worn). Inquire as to contact lenses or documented eye irregularities (soft contacts will not cause any problems; however some older hard contact lenses may prevent maximum reach at maximum deviation). Put your feet together, hands at your side. Keep your head still and look at and follow this stimulus with your eyes only. Keep looking at the stimulus until the exercise is over. Try not to move your head. Do you understand the instructions?

B. ONE-LEG-STAND EXERCISE: Stand with heels together, arms and hands hanging straight down to the sides. Raise one foot approximately six (6) inches off the ground and hold that position. Count out loud from one to thirty in the manner, “one thousand one, one thousand two…….one thousand thirty.” The Deputy will time the driver for thirty (30) seconds, at which time the Deputy may then cease the driver’s counting if the count of 30 is not yet met by the driver.

C. HEEL-TO-TOE WALK AND TURN EXERCISE: Put the left foot on the line and the right foot directly in front of it, touching heel-to-toe. Hands kept straight at the sides. At the officer’s command, take nine (9) steps forward, heel-to-toe, counting each step out loud. After taking the last step, keep the front foot in place and turn using a 12-2015 Page 3 of 9 Directive: 61.6 series of small steps with the rear foot, rotating on the ball of the front foot. Take nine (9) steps, heel-to-toe, in the new direction returning to the point of beginning. 61.6.13 There will be cases, such as crashes involving injuries to the impaired suspect, where the exercises are not applicable. In those cases, the Deputy will provide detailed documentation of the reason for deviating from performing the SFSE’s. 61.6.14

Absent the required HGN training, or the inability to perform one of the above exercises, the Deputy may also administer other recognized Field Sobriety Exercises (FSE’s). In such cases, the Deputy will sufficiently articulate how the selected exercise assisted in determining impairment. These FSE’s include:

A. FINGER-TO-NOSE EXERCISE: Stand with your feet together, arms at your side and your index fingers pointed straight towards the ground (demonstrate). Do not start the exercise until told to do so. Do you understand the instructions so far (make sure the subject understands with a verbal response). When I tell you to start, close both of your eyes and tilt your head back. When I tell you to, bring the hand and pointed index finger straight out in front of you and then bring the tip of the index finger to the tip of your nose and then back to your side without stopping (demonstrate the exercise to the subject). Do you understand the instructions so far (make sure the subject understands with a verbal response). The exercise will be conducted in the following sequence: left-right; left-right; right-left.

B. RHOMBERG BALANCE WITH RECITATION EXERCISE: Stand with your feet together and arms down by your side (demonstrate). Do not start the exercise until told to do so. Do you know your numbers from 1 to 100? And do you know the English alphabet? Based on the subject’s response, the Deputy will then follow-up with the appropriate exercise: x If Alphabet: When I tell you to begin, close your eyes and tilt your head back and keep your arms at your side. You will recite the entire alphabet out loud in a slow, non-rhythmic manner until I tell you to stop; do you understand the instructions so far (make sure the subject understands with a verbal response). Remain in the instruction position until I tell you to stop. x If Numbers: When I tell you to begin, close your eyes and tilt your head back and keep your arms at your side. Count out loud from ___ to ___ (Deputy decides the appropriate number series equal to 30 seconds of counting). Do you understand the instructions so far (make sure the subject understands with a verbal response). Remain in the instruction position until I tell you to stop. 61.6.15 When sufficient probable cause to arrest has been established, the Deputy will then advise the driver he is under arrest and may then arrest the offender. The Deputy shall retain their discretionary privilege to arrange for some other disposition in lieu of arrest in questionable cases.

ARREST/PROCESSING PHASE

61.6.16 If the offender is arrested the following procedures shall apply. 61.6.17 In all cases the offender will be handcuffed immediately following arrest and shall be secured inside a caged Department vehicle. 61.6.18 The Deputy shall immediately notify Central Communications they have made an arrest, and shall note the specific time of arrest. The time given by the dispatcher shall be the official time of arrest. 61.6.19 An appropriate disposition shall be made of the offender’s vehicle in accordance with VCSO Directive 61.13. 61.6.20 The arresting Deputy shall advise the offender of the circumstance of his/her arrest, and: A. They will be asked to take a breath test if alcohol is suspected; B. They will be asked to take a urine test if drugs are suspected; C. If the offender refuses to provide a breath sample for alcohol or a urine sample for drugs, then the offender shall be read the Florida Implied Consent Law. D. The offender shall be advised that his/her refusal could cause the suspension of their driver’s license and that any refusals could be used against them in court. E. If the offender still refuses, then the offender will be charged with DUI refusal and a Breath Test Refusal Affidavit will be completed and submitted along with all associated paper work. F. If the person agrees, then the arresting Deputy shall make arrangements to have Central Communications locate a VCSO Breath Test Operator (BTO) and the offender shall be transported to a VCSO District Office where a valid Breath Testing Instrument is located. G. The VCSO has a certified Intoxilyzer in Districts 2, 3, 4, and 5. 12-2015 Page 4 of 9 Directive: 61.6 61.6.21 The offender shall be transported to the designated location within the Sheriff’s Office to meet with the BTO for the breath test and all applicable paper work to be completed in accordance with Florida Administrative Code, Rule 11 D-8. If no agency BTO’s are on duty, arrangements may be made to have the breath test conducted by another agency. 61.6.22 Breath testing shall be conducted by BTO operators. If the breath test is given by another agency, the arresting Deputy shall adhere to this Department’s policies as closely as is practicable. 61.6.23 After arriving at the location for the breath test, the offender will be observed by the BTO for a required 20 minute observation period. This time is to ensure the offender has nothing in his/her mouth, drinks or takes anything, or regurgitates or brings anything up in their mouth that may interfere with a valid sample being obtained of their breath. This 20 minute observation time may be used to make sure the offender has been read Miranda before asking them the questions about their driving and prior actions. 61.6.24 The arresting Deputy shall be responsible for all citations, arrest reports, tow sheets, and booking of the offender. 61.6.25 The BTO operator will be responsible for all Administrative Code Rules 11 D-8 forms of the alcohol influence report, breath testing and its associated reports and forms.

SPECIAL CIRCUMSTANCES

61.6.26 The breath-alcohol test shall be the normal test requested of a DUI offender. If the breath sample reads .049 or below and the Deputy suspects impairment/intoxication is due to drugs or other controlled substances, they shall request the offender supply a urine sample to be collected and sent to FDLE for analysis. 61.6.27 In all cases where drugs are the primary suspicion for the impairment and the breath sample reads .049 or below, the Deputy will contact the Communications Center in an attempt to locate and use a Department Drug Recognition Expert (DRE); DRE’s are used for observation and screening of the offender to try and identify the type of drug(s) that may be causing the impairment of the offender. 61.6.28 After the DRE has been located and responds, it will be the responsibility of the arresting Deputy to remain with the DRE for the interview and evaluation phase of the investigation. 61.6.29 The DRE shall follow all the Administrative Rules and Regulations for completing the evaluation and shall be responsible for all the required paper work of the evaluation of the offender. 61.6.30 If for any reason the offender is incapable of giving a sufficient breath sample, the Deputy may request a blood or urine sample to be collected. The blood sample shall be taken by an authorized person as defined in FSS 316.1932(f)2a., and the offender will be transported to the nearest hospital where the blood may be taken. 61.6.31 If the offender becomes ill, unconscious, or otherwise incapacitated, he/she shall be transported to a hospital emergency room for treatment. If incapacitation occurs prior to the taking of a breath sample, a blood sample should be taken while at the medical facility.

DRIVER’S LICENSE SEIZURE/SUSPENSION

61.6.32 FSS 322.2615 provides for the seizure and suspension by the arresting officer of the driver’s licenses of persons arrested for DUI under certain circumstances. The seizure and suspension may be made only for impairment due to alcohol intake; or for refusal to submit to a blood or urine test as requested and required. The DUI Uniform Traffic Citation will be used for cases falling within the purview of this statute. In all other cases, the standard Uniform Traffic Citation will be used. 61.6.33 There are only two instances in which the driver’s licenses may be seized under this statute: A. The offender has a blood-alcohol level of .08% or higher; or B. The offender refuses to submit to a blood-alcohol test. 61.6.34 DUI Uniform Traffic Citations will be retained by the VCSO BAT Unit Coordinator and shall be made available at each of the Department breath testing locations; DUI Uniform Traffic Citations are also available electronically through use of the Iye Tek portal.

BLOOD-ALCOHOL LEVEL .08% OR HIGHER

61.6.35 In this instance it is necessary that the offender give a breath sample if the Deputy is to seize the driver’s licenses immediately. If blood or urine is taken, the licenses may be suspended at a later date after receiving test results indicating a blood-alcohol level of .08% or higher. In either case, the license is automatically suspended, 12-2015 Page 5 of 9 Directive: 61.6 administratively, for six (6) months for the first offense and for one year for subsequent offenses. This suspension has no effect upon any subsequent punitive suspension awarded by a court. The following procedures shall apply.

BREATH TEST

61.6.36 Following a lawful arrest for DUI, the breath test will be administered to the offender. 61.6.37 If any one of the test results is .08% or higher, the Deputy will issue a DUI Uniform Traffic Citation and retain any and all driver’s licenses held by the offender. This includes licenses issued by any state or foreign country. 61.6.38 The Deputy will check the first block below the Defendant’s signature line indicating that the license is suspended for driving with an unlawful blood-alcohol level. 61.6.39 The arresting Deputy will request a teletype verification of the license status to ensure there are no other suspensions currently in effect. 61.6.40 If no other suspensions/revocations are currently in effect, the Deputy will check the “YES” block on the citation indicating the driver is “Eligible For Permit?”. This allows the offender to use their copy of the citation as a ten-day (10 DAY) Temporary Driving Permit. 61.6.41 If the license is currently suspended or revoked, or there is no verification that the offender has a current license issued, the Deputy will check the “NO” block on the citation. The Deputy will indicate the reason the offender is not eligible for the permit on the line provided. 61.6.42 The remainder of the citation will be completed in accordance with the instructions issued by the Department of Highway Safety and Motor Vehicles.

BLOOD/URINE TEST

61.6.43 If blood or urine is taken, the samples will be submitted to the Evidence/ Property Section for further shipment to an appropriate lab for analysis. In this instance the driver’s licenses may not be immediately seized. 61.6.44 The offender will be issued a standard Uniform Traffic Citation charging Driving While Impaired Due to Alcoholic Beverages. 61.6.45 Upon receipt of the results of the chemical analysis of the blood or urine samples, the arresting Deputy will check for a blood-alcohol level of .08% or higher. 61.6.46 If the results indicate a blood-alcohol level of .08% or higher, the arresting Deputy will submit the appropriate reports and forms to the State Attorney’s Office, along with the appropriate citations for the offense of DUI. The Deputy may make contact with the offender and issue them the DUI Uniform Traffic Citation, and submit all reports to the Bureau of Driver Improvement, who may then suspend the offender’s driver’s license. In either case, the Deputy shall complete all needed paper work and forward to the State Attorney’s Office and the Department BAT Unit office.

REFUSAL TO SUBMIT TO BLOOD-ALCOHOL TEST

61.6.47 Following lawful arrest, the Deputy will request the offender submit to a breath test; or blood/urine test if circumstances dictate. If the offender refuses to submit to the test, the driver’s license is automatically suspended for a period of one (1) year for a first refusal, or for eighteen (18) months for a second or subsequent refusal. 61.6.48 The arresting Deputy or BTO will read the Florida Implied Consent Law to the offender and request that they submit to a blood-alcohol test. 61.6.49 The offender must then refuse to take the offered blood-alcohol test. 61.6.50 The Deputy will issue a DUI Uniform Traffic Citation and retain any and all driver’s licenses held by the offender. This includes licenses issued by any state or foreign country. 61.6.51 The Deputy will check the second block below the defendant’s signature line indicating that the license is suspended for refusing to submit to a blood-alcohol test. 61.6.52 The arresting Deputy will request a teletype verification of the license status to ensure there are no other suspensions currently in effect. 61.6.53 If no other suspensions/revocations are currently in effect, the Deputy will check the “YES” block on the citation indicating the driver is “Eligible For Permit”. This allows the offender to use their copy of the citation as a ten day (10-DAY) Temporary Driving Permit. 12-2015 Page 6 of 9 Directive: 61.6 61.6.54 If the license is currently suspended or revoked, or there is no verification that the offender has a current license issued, the Deputy will check the “NO” block on the citation. The Deputy will indicate the reason the offender is not eligible for the permit on the line provided. 61.6.55 The remainder of the citation will be completed in accordance with the instructions issued by the Department of Highway Safety and Motor Vehicles.

ADMINISTRATIVE PROCEDURES

61.6.56 In all cases falling under the purview of FSS 322.2615, two separate documentation “packets” must be prepared. One packet is to support the arrest and booking of the offender. The second packet supports the seizure and suspension of the driver’s licenses.

ARREST PACKET

61.6.57 It shall be the responsibility of the arresting Deputy to prepare and/or assemble all necessary paperwork and citations to support the arrest of the offender. These documents may include some or all of the following: A. SA-707 Arrest Report/Complaint Affidavit; B. All issued citations, including the DUI Uniform Traffic Citation; C. Alcohol Influence Report; D. Breath Test Report/Results; E. Affidavit of Refusal To Submit; F. Teletypes; G. Incident Report (if required); and H. Tow Sheet (if required).

SUSPENSION PACKET

61.6.58 It shall be the responsibility of the arresting Deputy to assemble the packet to support the seizure and suspension of the driver’s license. This packet must include the following: A. A copy of the DUI Uniform Traffic Citation; B. A copy of the arrest affidavit (SA-707) which contains an original signature and original LEO notary and is separately sworn to by the arresting officer; C. A copy of the Alcohol Influence Report; D. A copy of the breath, blood, or urine tests; or, the originally sworn Affidavit of Refusal to Submit; E. The driver’s license, if surrendered. 61.6.59 The arresting Deputy will forward the completed suspension packet to the BAT Unit Coordinator at VCSO district three where it will then be checked and recorded before being taken to the Bureau of Driver Improvement Office.

BUREAU OF DRIVER IMPROVEMENT OFFICE

61.6.60 The Department of Highway Safety and Motor Vehicles, through the Bureau of Drivers Improvement Office, reviews and processes all DUI cases in which the arresting officer seized/suspends the driver’s licenses of the defendant. All suspension packets will be sent to. Bureau of Driver Improvement 995 Orange Ave. Daytona Beach, FL 32114

CONCENTRATED ENFORCEMENT EFFORTS

61.6.61 The Department may engage in concentrated DUI enforcement efforts when deemed necessary. The Special Services Captain shall be responsible for coordinating concentrated enforcement efforts. 61.6.62 Concentrated enforcement efforts may be conducted when deemed necessary due to holidays, special events, or periods of unusually high alcohol-related accidents or arrests. 61.6.63 The targeted areas will be selected based upon accident/citation statistics involving impaired drivers, and past Department experience in identifying specific problem locations. 61.6.64 Selective roadway checks (checkpoints) for impaired drivers are also authorized for deterrence purposes. 61.6.65 The Special Services Captain may assign any personnel under his/her command to concentrated DUI enforcement efforts to include, but not limited to: 12-2015 Page 7 of 9 Directive: 61.6 A. The Special Enforcement Team; B. Traffic Units; C. Selected Zone Deputies; D. Reserve Deputies.

ARRESTING JUVENILES FOR DUI TRAFFIC OFFENSES

61.6.66 The procedure for the arrest of a juvenile for DUI will be handled in the same manner as the arrest of an adult except for the requirements surrounding the detainment of the juvenile per FSS 318.143(5).

ZERO TOLERANCE LAW

– FSS 322.2616 [OVER THE LIMIT & UNDER 21 Y/O/A] 61.6.67 Effective January 1, 1997, FSS 322.2616 was enacted which provides for the suspension of the driver’s license of any person under the age of twenty-one years of age (21 y/o/a) who has a blood alcohol level of .02 percent or higher, who is driving and in actual physical control of a motor vehicle. 61.6.68 Violation of this statute (FSS 322.2616) results in administrative suspension of the person’s driver’s license and is neither a traffic infraction nor a criminal offense unless the person is arrested for DUI in violation of FSS 316.193. 61.6.69 FSS 322.2616 provides that a law enforcement officer who has probable cause to believe that a vehicle is being driven by or is in the actual physical control of; a person under the age of twenty- one years of age while under the influence or with a breath alcohol level may lawfully detain the person and request he/ her to submit to a breath test. 61.6.70 Further, FSS 322.2616 specifically states that detention pursuant to this section does not constitute an arrest. For this reason, it has been recommended that law enforcement agencies do not transport underage drivers to a breath testing facility. Since a violation of FSS 322.26216 is not a criminal act, it is also recommended that the driver not be handcuffed, placed in an area with persons who are under arrest or taken to a detention facility 61.6.71 For the purpose of this statue, and to keep and maintain the rights of those stopped under the age of twenty- one (21), it is the policy of the Volusia County Sheriff’s Office to have a person respond to the location of the traffic stop who has been trained in the use of and who has an Alco Sensor Hand Held Breath testing Device that is and has been approved for the purpose of testing those drivers under the age of twenty-one (21) years of age, who have been lawfully stopped for committing a traffic infraction, or who were found to be in actual or physical control of a motor vehicle and have been determined to be under the influence of alcohol. 61.6.72 Any person found in violation of FSS 322.2616 shall first be read the Implied Consent Warning which is on the front part of the suspension notice. If they are found to be in violation or refuse, they shall be issued an Under 21 citation packet to include: This will include the following: A. Affidavit of probable cause; B. Breath test result affidavit, or the Refusal Affidavit (whichever is applicable); and C. Notice of suspension if the results were above a .02 and the driver was under the age of twenty- one. 61.6.73 This packet is provided by DHSMV and is located throughout the Sheriff’s Office locations. This packet, when completed along with a copy of any traffic citations and any other reports or paper work, will be forwarded to The VCSO Bat Unit to be validated and forwarded to The DHSMV Office.

GUIDELINES FOR ENFORCEMENT OF FSS 322.2616 61.6.74

First, you must ensure that lawful contact was made prior to an underage driver being checked for a violation of FSS 322. 2616. Lawful contacts include but are not limited to: A. A traffic stop related to a violation of Florida Law; B. Contact at a sobriety checkpoint. C. Driver’s license and equipment checkpoints. D. Contact at the site of a traffic crash. E. A consensual encounter with an underage driver. 61.6.75 First the Deputy shall rule out the possibility that the driver is legally impaired under FSS 316.193 before checking for a violation of FSS 322.2616. If the driver is found to be impaired or under the influence, then the Deputy shall proceed with a D.U.I. investigation, and if needed, an arrest should be made for D.U.I. A. Interview the driver, verify the driver’s age and check for signs of impairment. B. Check the driver for a medical bracelet, or condition. 12-2015 Page 8 of 9 Directive: 61.6 C. Have the driver perform standardized field sobriety tests if reasonable cause exists. D. Rule out probable cause to make an arrest for D.U.I. x If the decision is made to apply the use of a P.B.T. (portable breath tester), and the person provides a breath sample and that sample provided is above a 0.02 level including up to or even above an 0.08, a change cannot be made to then arrest for D.U.I. x The deputy shall rule out the possibility of D.U.I first and then proceed to enforce the FSS 322.2616. 61.6.76 If no D.U.I arrest is to be made, but there are indications of alcoholic beverage consumption, you should determine if the driver is in violation of FSS 322.2616 through the use of the P. B. T. 61.6.77 If there is no arrest for another violation and the driver is age 18-22, the driver will be released after complying with the requirements of FSS 322.2616. The driver will not be allowed to continue to drive if any presence of alcohol and or impairment is noted. All opportunities will be made to contact the legal registered owner of the vehicle and make arraignments to have the owner respond to the location and retrieve the vehicle. If the driver is the owner and no other person determined not to be under the influence is not on seen or cannot respond in a reasonable time then the vehicle will be towed according to any and all VCSO policies concerning the towing of vehicles. 61.6.78 If there is no arrest for another violation and the person is under the age of 18, the Deputy shall follow the procedures listed below: A. Attempt to contact a parent, guardian or legal custodian to come and pick up the vehicle and child; B. If contact with a responsible person is unable to be made, the vehicle shall be towed, and transportation to the violator’s residence shall be obtained. C. If any of the conditions cannot be made, a VCSO Supervisor shall be contacted and any and all VCSO policies and procedures involving juveniles shall be followed. 61.6.79 At the conclusion, the under 21 y/o/a driver shall be given his/ her copy of the .02 suspension notice and advised that his/ her driver’s license is now suspended and they cannot operate a motor vehicle. 61.6.80 They have a 10-day period that they must contact the Driver Improvement Office at 995 Orange Ave., Daytona Beach, and request a hearing about their license. 61.6.81 It should be noted that at all times during the encounter with any impaired driver and particularly with a minor, the person’s safety and any medical needs should be noted and addressed.

TRAINING, RECORDS AND MAINTENANCE OF THE PBT

61.6.82 A PBT test can only be administered by a person who has received documented training in the use of the PBT. 61.6.83 It shall be the duty and responsibility of the Volusia County BAT Unit Coordinator and/or a designated FDLE certified VCSO Inspector to conduct accuracy checks every six months. The purpose of these accuracy checks is to ensure that: A. The PBT works within acceptable guidelines as set forth by the manufacturer; B. The instrument still operates within the guidelines set forth in FSS section 322.2616(17) for devices acceptable for use of administering breath test for a person under the age of 21; C. The operation limits set for the temperature guidelines and the instrument’s tolerance levels are still acceptable given a test with a known value of alcohol dry gas. 61.6.84 The records for each of the inspection tests will be noted on the operator’s Breath Test Log Book carried and used with each instrument in the field, as well as on the matching Agency Calibration Log. 61.6.85 The Breath Test Log Book shall accompany the PBT in the field; all tests run on individuals will be noted as to: A. Name; B. Date; C. Test results of both tests; D. Officer requesting the test; and E. Name of the agency and the BTO’s name 61.6.86 The Agency Calibration Log shall be kept and maintained in the BAT Unit Office of the Volusia County Sheriff’s Office and shall show: 12-2015 Page 9 of 9 Directive: 61.6 A. Any deviations or notes of repairs, failures, or out-of-service repair needs that may be required and/or performed to the unit(s)notes; B. An accurate accounting of all downloaded tests that must be removed from the PBT periodically to keep the unit’s memory from becoming full. 61.6.87 These calibration tests and downloaded notes will be kept in accordance with the Florida State Archive Record Retention Schedule should any checks or requests of the units’ working abilities resulting from any civil or criminal hearing arise from the units’ use.


New Volusia County Marijuana Law

According to local news Volusia County recently decriminalized marijuana. The only problem is it appears that possession of marijuana is still a crime based on the new law. The only difference is that you can admit guilt and pay a fine instead of going to court and challenging the evidence against you. The ordinance is not even in effect yet but it appears that under section 1-7 marijuana possession would remain a misdemeanor. It would be a second degree misdemeanor instead of a first degree misdemeanor but some of the collateral consequences of a marijuana possession could still apply.

For some people with extensive criminal history this is probably a better option but for many people with limited criminal history it might not be better. They could likely get the charge dropped after completing a diversion or get the marijuana case amended to a charge with less collateral consequences like drug paraphernalia.

A paraphernalia case does not have the collateral consequences but would still create a public record of an admission to a crime. If you are on probation paying one of these “tickets” will definitely violate you. The county likes to call them tickets to make people feel like they forgot to buckle their seatbelt and can just pay a fine and forget about it. Many of these beach tickets are actually misdemeanor criminal charges disguised as a ticket.

The government doesn’t have the resources to prosecute all the crimes they are creating so they have now resorted to trying to trick people to admitting to a crime. It’s perfect for them because they get the money without the work. It’s only bad for you because you get the criminal record. These payable misdemeanors are usually resolved with a withhold of adjudication by paying the fine but that requires a lengthy (record sealing) process to get off your record. Many people will say that a withhold doesn’t give you a record but the benefit of a withhold of adjudication has eroded over time. It is still far better than a conviction but if you are in a competitive field you might not want an admission to a misdemeanor on your record.

The Problem

The Federal government does not always recognize a state’s withhold of adjudication. This can become a problem with financial aid. If adjudication is withheld the accused can seal their record but this can take up to 12 months. An individual can only seal 1 record in Florida and other states might not recognize Florida’s withhold. If this happens with a misdemeanor marijuana case than the accused could have problems with federal financial aid. Paying a marijuana ticket is an admission of guilt with adjudication being withheld. That admission is a public record and could cause problems for the accused.

It appears that based on the new ordinance marijuana around Daytona Beach “The Atlantic Ocean Beach” and in unincorporated Volusia County would be a second degree misdemeanor. I get this out of section 1-7 of the Volusia County ordinances. This has less serious maximum penalties than Florida’s typical 1st degree misdemeanor charge. The problem is it is still a crime and it appears the county is trying to trick people into admitting to a crime that could have serious collateral consequences. For someone with an extensive criminal record paying the fine might be a good deal if they are not on probation but it is unlikely that police would give them that option. First or second time offenders that would be eligible for diversion or could have the charge amended to something with less collateral consequences might actually come out worse by paying the fine. Here’s the cases with the federal government or other states not recognizing a withhold. These are felonies but the same logic could be applied to misdemeanors.

We affirm the district court’s ruling that one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been “convicted” for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony. United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987). State v. Heath, 279 P.3d 458 (Wash. Ct. App. 2012) (treating withholding of adjudication as a conviction for purposes of Washington law); Kasckarow v. Board of Examiners of Sex Offenders of State, 936 N.Y.S.2d 498 (N.Y. Sup. Ct. 2011) (withhold a conviction for purposes of New York sex offender registration law).

The New Law

AN ORDINANCE OF THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE COUNTY OF VOLUSIA BY AMENDING CHAPTER 78 OFFENSES AND MISCELLANEOUS PROVISIONS BY CREATING SECTION 78-3 TO PROHIBIT POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA IN UNINCORPORATED COUNTY; BY AMENDING CHAPTER 20 BEACH CODE, ARTICLE IV CONDUCT, TO CREATE SECTION 20-128 PROHIBITING POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA ON THE ATLANTIC OCEAN BEACH; PROVIDING FOR SEVERABILITY; BY PROVIDING FOR CONFLICTING ORDINANCES; AUTHORIZING INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE
SECTION I: Chapter 78 of the Code of Ordinances, County of Volusia is amended to read as follows: Section 78-3. Possession of Cannabis and Drug Paraphernalia.

(a) Prohibitions. It shall be unlawful for any person to possess 20 grams or less of cannabis as defined in F.S §893.02(3). or its successor. or drug paraphernalia as defined_.in.F.S .. §893.145, or its successor.

(b) Jurisdiction. This section shall be applicable only within the unincorporated areas of the county and_ as provided in Chapter 20 of this code.

( c) Penalty. Violations of this section are punishable as provided in section 1-7.

SECTION II: Chapter 20, article IV, section 20-128, of the Code of Ordinances, County of Volusia is amended to read as follows: Ordinance 2016-06 Page 1 of 2 Section 20-128. Possession of Cannabis and Cannabis Paraphernalia. It shall be unlawful for any_ person_ to _possess 20 grams or less of cannabis as_ defined_ in F .S §893.02(3), or its successor, or drug paraphernalia as defined in F.S. §893.145, or its successor. SECTION III: AUTHORIZING INCLUSION IN CODE – The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of the County of Volusia, a.S additions or amendments thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the code. SECTION IV: SEVERABILITY – Should any word, phrase, sentence, subsection or section be held by a court of competent jurisdiction to be illegal, void, unenforceable, or unconstitutional, then that word, phrase, sentence, subsection or section so held shall be severed from this ordinance and all other words, phrases, sentences, subsections, or sections shall remain in full force and effect. SECTION V: CONFLICTING ORDINANCES – All ordinances, or part thereof, in conflict herewith are, to the extent of such conflict, repealed.
SECTION VI: EFFECTIVE DATE-This Ordinance shall take effect April 1, 2016. ADOPTED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, IN OPEN MEETING DULY ASSEMBLED IN THE COUNTY COUNCIL CHAMBERS AT THE THOMAS C. KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA, THIS 3RD DAY OF MARCH A.D., 2016.

Sec. 1-7. – General penalty; continuing violations.

In this section, the phrase “violation of this Code” means any of the following:

(1) Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.

(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.

(3) Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance.

(b) In this section, the phrase “violation of this Code” does not include the failure of a county officer or county employee to perform an official duty unless the context requires otherwise.

(c) Except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. For violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense in the absence of provisions to the contrary.

(d) The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise, the imposition of civil penalties or other administrative actions.

(e) Violations of this Code may be abated by injunctive or other equitable or civil relief, and no bond shall be required, nor proof of intent or scienter. The imposition of a penalty does not prevent equitable relief. Violations of this Code are also subject to remedies prescribed in article VII of chapter 2.

(f) In any litigation commenced by the county to enforce the provisions or to enjoin a violation of this Code, the county shall be entitled to reasonable attorney’s fees incurred in such litigation. For the purpose of this Code, a reasonable attorney’s fee shall not be limited to the actual salary paid to an attorney employed by the county, but shall be computed in the manner otherwise applicable under law.

(Ord. No. 99-28, § XIII, 11-4-99; Ord. No. 2009-20, § I, 8-20-09)

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Daytona Beach Marijuana Attorney Kevin J. Pitts


Daytona Beach DUI Under .08%

We occasionally see DUI cases in Daytona Beach and the surrounding area with a breath test results under .08%. What is a greater surprise to the individual is that they are not released from jail and are charged with DUI. It is one thing when drugs are suspected and the individual tests positive for drugs or refuses the urine test. This does not mean that the individual is impaired but it does give the State something additional to pile on in an attempt to obtain a conviction. What I am focusing on in this article is the Daytona Beach DUI case under .08% with negative urine results or no urine requested. It is important that you do not underestimate the situation if you have a breath test under .08%. You still need to talk to an experienced Daytona Beach DUI attorney. The state might still try to get a DUI conviction or at least a wet reckless. Call attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.

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Daytona Beach DUI Attorney Kevin J. Pitts

Florida has presumptions in place. When you read these presumptions it can actually be a little scary. If your breath or blood results are over .08% you are presumed impaired but result can be rebutted by other evidence. Most drivers are familiar with that rule. What most people do not know is that between .05% and .079% percent you are not presumed sober or impaired. It is good to be under .08% but under Florida law it really just means that the jury is supposed to look at the evidence and decide if you are guilty of DUI or not. What is even crazier is at .00% to .049% you are presumed to not be impaired. That is good but then comes the crazy part. The law in Florida actually says the presumption of sobriety can be rebutted. According to Florida statute if the prosecutor could convince a jury by other evidence that you are impaired by alcohol at .00% then you could theoretically be convicted of DUI. Now the reality is if you are under .08% without drugs in your system or urine refusal you have a strong case. If you have under a .05% without drugs in your system or urine refusal have an extremely strong case. If you read the statute it is theoretically possible for anybody to get a DUI but the reality is most of the state’s resources are focused on cases over .08%.

Unfortunately in Florida no breath test is low enough to force the state to automatically drop the charges. It is almost unheard of for cases under .05 to get very far. We do occasionally see overly ambitious prosecutors posturing for trial with breath tests under .08% but usually the case is resolved with a dramatic reduction or dropped before jury selection. This can be hard on clients that are visiting Daytona and get arrested on vacation. Pushing the case to trial usually requires an additional trip to Florida to get the best possible result.

316.1934(2)
(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.

Seminole County Juvenile Attorney

When a child is unexpectedly arrested for an alleged crime in Lake Mary, Longwood, Winter Springs, Altamonte Springs, Oviedo, Casselberry, Sanford or the surrounding areas in Seminole County it can be scary. Your son or daughter has their entire life in front of them and you do not want them to be dragged down by a criminal record. An experienced Seminole County juvenile defense attorney can help mitigate the damage of an arrest. Your child has valuable rights and potential defenses. Seminole County also has diversion programs available to avoid a criminal record. A skilled juvenile attorney has multiple options to attempt to avoid a criminal record. If all else fails negotiation can be used to make sure that the charge can be expunged or sealed in Seminole County. The prosecutor makes the charging decision but when mitigation is presented it is not uncommon for a prosecutor to amend a charge to avoid destroying a child’s future.

Attorney Kevin J. Pitts and Kelly Johnson both have experience prosecuting and defending juvenile cases. Attorney Kevin J. Pitts started his career as a juvenile prosecutor in Daytona Beach. He moved on to handling DUI, domestic violence and other misdemeanor cases before going into private practice. Kelly Johnson is a former Seminole County prosecutor that spent time in the juvenile division before handling DUI, domestic violence and misdemeanor cases. After working for the State Attorney’s Office she went out into private practice. Our attorneys have offices in Sanford, Mount Dora and Daytona Beach. Call 407-883-6853 to talk to an experienced juvenile and criminal defense attorney.


Lake County Injunction Hearing Attorney

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If you have an injunction hearing in Lake County you need to have a Lake County injunction attorney. If you lose an injunction hearing the ramifications can be permanent. Many injunction petitions are actually a power play by a wife/girlfriend or husband/boyfriend to get an upper hand in a break up or divorce. If the wrong person hangs an injunction on you it will become a nightmare. Occasionally an ex will not be satisfied by getting and injunction on your record and revoking your right to have firearms including hunting rifles. Thats when the nightmare begins. A simple call to the police and a sworn affidavit can result in your arrest for violation an injunction. Do not try to handle an injunction hearing on your own. The initial consultation is always free. Call (352) 735-4342 to set up a free consultation. Offices in Mount Dora, Sanford and Daytona Beach.


Daytona Beach Cocaine Possession Attorney

In Florida Cocaine is considered a Schedule 2 controlled substance. Under Section 893.13(6)(a), Florida Statutes, a person found to be in “actual” or “constructive possession” of cocaine commits a third degree felony, punishable by up to five (5) years in prison or five years of probation, and up to a $5,000 fine. A conviction for cocaine possession will furthermore lead to a one-year Florida driver’s license suspension.

Daytona Beach Cocaine Trafficking Minimum Mandatory Penalties.

  • 28 grams to 200 grams = 3 year minimum mandatory sentence.
  • 200 grams to 400 grams = 7 year minimum mandatory sentence.
  • 400 grams to 150 kilograms = 15 year minimum mandatory sentence.
  • 150+ kilograms = life sentence.

If you are accused of Daytona Beach Cocaine possession or Daytona Beach Cocaine trafficking you have defenses. Common defenses include illegal stop, illegal search, knowledge, control and joint possession defenses. Call Daytona Beach Cocaine attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.