Tag Archives: BAC

New Smyrna Beach DUI Policies And Procedures

Kevin J. Pitts is a a New Smyrna Beach DUI Lawyer that frequently handles Daytona Beach 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 New Smyrna Beach DUI Policies and Procedures through a public records request.  If you are accused of a DUI in Daytona Beach, New Smyrna Beach or the surrounding areas contact Mr. Pitts at 386-451-5112 to set up a free case evaluation.

 

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New Smyrna Beach DUI Lawyer Kevin J. Pitts

NEW SMYRNA BEACH POLICE DEPARTMENT

NEW SMYRNA BEACH, FLORIDA

POLICY AND PROCEDURE DIRECTIVE

TITLE: TRAFFIC LAW ENFORCEMENT

NUMBER: 22-1

EFFECTIVE: 09/15

RESCINDS/AMENDS: 9-6-12

ATTACHMENTS: DHSMV Traffic Citation Procedure Manual

Diplomatic & Consular Privileges

POLICY

It is the policy of the New Smyrna Beach Police Department to provide for the safe and orderly flow of traffic through the jurisdiction by encouraging public compliance with traffic laws. It is policy of the department to enforce the vehicular and traffic law in a uniform manner. Uniform traffic citations will be completed in accordance with the DHSMV Traffic Citation Procedure Manual.

PROCEDURE

22.1.1 The Operations Division shall have primary responsibility for the enforcement of the Florida traffic laws, local traffic and parking ordinances.

22.1.2 Uniformed officers should, when appropriate, take enforcement action when a violation of a traffic law 22.1.3 Patrol Sergeants are responsible for:

 Supervising the traffic enforcement activities of patrol officers;

 Reviewing traffic enforcement documents (UTC’s, parking tickets, arrest reports) for accuracy and

 Inspecting traffic enforcement equipment.

TRAFFIC ENFORCMENT ACTIVITIES

22.1.4 Marked patrol vehicles shall be used for traffic law enforcement. Special purpose vehicles (unmarked cars, trucks, vans, etc.) will not be used for traffic enforcement activities unless properly equipped with emergency lights and siren. (CFA 17.08M-A)

 Officers engaged in traffic law enforcement activities may use traffic radar. Officers using traffic radar shall be certified in the operation of traffic radar. Directive 22-1 Traffic Law Enforcement (pdf) Rev. 09/15

TRAFFIC STOPS & STOPS OF UNKNOWN RISK

22.1.5 Officers may stop vehicles when they reasonably suspect that the driver or other occupants are in violation of law. Officers should be prepared to articulate the actual reason the stop was conducted.

22.1.6 Officers should stop the violator vehicle as soon as practical after the traffic offense has been committed. The following applies to emergency and non-emergency traffic stops. While initiating a traffic stop, officers should: (CFA 22.04M)

 Turn on the emergency lights; (CFA 22.04M-A)

 Activate the siren as necessary; (CFA 22.04M-B)

 At night, illuminate the stopped vehicle with the police vehicle headlights and spotlight; Hazard warning lights may be used in accordance with FS 316.2397. (CFA 22.04M-C,D)

 Use the public address system as appropriate to the situation; (CFA 22.04M-E)

 Activate the video recorder if equipped.

22.1.7 Officers conducting traffic stops must inform the Communications Center that they are stopping a

 The exact location, with the closest cross street; License plate number of the vehicle;

 A brief description of the vehicle and number of occupants.

TRAFFIC ENFORCEMENT DISCRETION

22.1.8 Officers shall take appropriate enforcement action for traffic violations. They may use discretion in determining the nature of the enforcement action taken (written warning, UTC, parking ticket) in cases of minor violations. Such minor violations include, but are not limited to: (CFA 22.03M)

 Speed violations; (CFA 22.03M-B)

 Disobeying Traffic Control Devices and other moving violations; (CFA 22.03M-C)

 Equipment deficiencies; (CFA 22.03M-D)

 Parking and other non-moving violations; (CFA 22.03M-F)

 When a motorist has committed several violations, which include some minor infractions (equipment violations, etc.) officers have the option of citing the motorist for the serious violations and warning the motorist regarding the other infractions. (CFA 22.03M-G, J, K)

 Newly enacted laws and/ or regulations, unless enforcement action is mandated. (CFA 22.03M-H)

22.1.9 Suspended, revoked or canceled licenses: (CFA 22.05M)

 DWLS (Unknowingly): This is a payable moving infraction and can only be used if the violator was suspended for failing to pay a fine or for financial responsibility. It is three-point violation, and the violator may elect the school option if he/her meets the criteria. This subsection cannot be used if the violator admits that he/she knew the license was suspended, nor can it be applied to habitual traffic offenders or commercial motor vehicle drivers.

 DWLS (Knowingly): This is a criminal offense with a mandatory court appearance. The officer must specify the reason the license was suspended and the number of previous convictions in the comment section of the citation.

 DWLS (Habitual Traffic Offender): Any person specified as a Habitual Traffic Offender charged and convicted under this statute is guilty of a third degree felony.

 DWLS (Commercial Motor Vehicle Driver): When this subsection is used to charge a violator, the Directive 22-1 Traffic Law Enforcement (pdf) Rev. 09/15 officer must specify previous convictions in the comment section of the citation. See statute for specific degrees of offense based on prior convictions. 22.1.10 The preferred action for all felony/ DUI violators is a physical arrest. Misdemeanor crimes, including driving with a suspended license, will be evaluated by the officer and either a physical arrest or criminal citation may be issued. (CFA 22.03M-A, 22.05M)

PUBLIC CARRIER/ COMMERICAL VEHICLES

22.1.11 Public carriers and commercial vehicles must comply with all applicable laws, rules and regulations.

 Officers may summon assistance from the Highway Patrol or Department of Commercial Motor Vehicle Compliance for special equipment needs.

SPECIAL SITUATIONS

22.1.12 All violators shall be treated in the same courteous manner regardless of their address, race, nationality, or gender. (CFA 22.01A)

22.1.13 Members should reference the attachment for a list of diplomats or consular officials subject to traffic

JUVENILES

(CFA 22.01B)

22.1.14 Juveniles are issued uniform traffic citations and handled in the same manner as adults for traffic violations with the following exceptions:

 When a juvenile is arrested for driving under the influence the officer shall contact the Division of Juvenile Justice Intake Office (DJJ) to determine where the juvenile should be transported for the detainment period specified in FS 316.193.

 If the charge is a felony charge for leaving the scene of an accident involving death or personal injury,

316.027; A SA-707 will be completed in addition to the citation. DJJ will be contacted and will determine if the juvenile should be held secure or released.

 In addition to the citation an SA-707 will be completed for a misdemeanor violation of:

o Leaving the scene of an accident with property damage, 316.061;

o Fleeing or attempting to elude a police officer, 316.1935;

o DUI, 316.193;

o Reckless driving, 316.192;

o Making false accident report, 316.067;

o Willfully failing or refusing to comply with any lawful order or direction of any police officer or member of the fire department, 316.072.

PARKING ENFORCMENT

22.1.15 Parking enforcement is the responsibility of the Operations Division. Parking regulations shall be enforced with reasonableness and impartiality. Officers shall:

 Enforce parking regulations pursuant to state laws and local ordinances;

Directive 22-1 Traffic Law Enforcement (pdf) Rev. 09/15

 Report parking problem areas to the Operations Division Commanding Officer for assessment and action, if necessary.

22.1.16 Unlawfully parked vehicles may be towed when they present a hazard or obstruction to traffic. The vehicles shall be cited and towed in accordance with Directive 25-1 Vehicle Towing/Impoundment Procedures.

 The New Smyrna Beach Parking Violation Citation or UTC will be the only forms used to cite city and state parking violations. The citation must include a description of the illegally parked vehicle, the location, the nature of the violation, and the amount of fine.

 The citation shall be issued to the driver if the motor vehicle is attended or if the driver can be located within a reasonable period of time. If the vehicle is unattended, the officer shall issue the ticket to the registered owner and attach the ticket to the vehicle in a conspicuous place.

 When issuing the citation to a vehicle, the officer will conduct a check on the vehicle license tag to insure that the tag and vehicle match. No parking citation will be issued if teletype confirmation of the vehicle tag and description cannot be made.

DUI

(CFA 22.03M-A, 22.06M)

22.1.17 If sufficient probable cause has been established, and all elements of the DUI violation have been clearly established, the officer shall advise the subject that he/she is under arrest.

 The officer shall immediately notify Communications of the arrest. This will be the official time of

 The defendant will be asked if he/she will submit to a breath test. If the defendant refuses to submit to

 The defendant will be searched and seat-belted inside a caged department vehicle. (CFA 17.09M,

 The officer shall make appropriate disposition of the defendant’s vehicle and property in accordance

 The defendant shall be transported to the Police Department for testing and processing.

 If the subject’s BAC is less than .05 G/210L, the officer should investigate for drug usage or medical testing per Florida’s implied consent law the officer will read the defendant the Florida Implied

Consent Law and the associated penalties.

 An officer may require a person to submit to blood testing only when the officer has probable cause to

 A Blood Withdrawal FDLE/ICP Form will be completed when applicable and attached with the

 Upon receipt of laboratory results indicating a BAC level of .08% or higher, or indicating the presence with Directive 25-1 Vehicle Towing/Impoundment Procedures (or authorized alternatives), arrange for transportation and safety of any passengers conditions that may be the cause of impairment.

o Those suspected of being under the influence of drugs will be requested to provide a urine or blood sample for drug testing 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 316.1933(1) – see the DHSMV Affidavit of Refusal form for details. Absent consent, exigent and unusual circumstance a search warrant will be required to obtain a blood sample. (Blood Draw Guide) original paperwork of drugs, the subject will be charged on a standard UTC. The officer will indicate ‘issue by warrant’ on the offender signature line.

22.1.18 When sufficient evidence of impairment pursuant to FS 316.1934(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.

Directive 22-1 Traffic Law Enforcement (pdf) Rev. 09/15

22.1.19 If the offender becomes ill, unconscious, or otherwise incapacitated, medical assistance will be provided. 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.

 If a driver refuses to provide a blood sample and has been taken to a medical facility, officers should ask medical personnel if blood was drawn resultant of the examination/admitting procedure. If a sample was taken officers may request a subpoena for the blood information and/or make application for a search warrant to seize the blood sample. Officers should not request the blood draw as the request may be determined to circumvent the warrant requirement.


Ponce Inlet DUI Policies And Procedures

Attorney Kevin J. Pitts is a Daytona Beach DUI Attorney that frequently handles Ponce Inlet 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 consultation.

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Daytona Beach DUI Lawyer Kevin J. Pitts

PURPOSE

The purpose of this Directive is 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 those who use the streets and highways 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 those who drive under the influence.  These countermeasures are aimed at protecting innocent motorists life and property.

POLICY

611.1 It will be is the policy of the Ponce Inlet Police Department to make the detection, apprehension and prosecution of persons who drive under the influence a priority.  Officers must be alert in noticing signs of impairment and act accordingly when initiating a traffic stop. for suspicion of driving under the influence.

611.2 Officers must follow established procedures for traffic stops, standardized field sobriety exercises and breath testing.

611.3 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.

611.4 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 action to include but not be limited to:

  • Calling a taxi cab, providing means are available for payment.
  • Calling a person with a valid driver’s license to take custody of the subject.

TRAINING

611.5 All officers will be afforded the opportunity to attend the Standardized DUI Detection and Field Sobriety  Enforcement Training.

STANDARDIZED FIELD SOBRIETY

611.6 This policy shall establish a standard procedure regarding DUI related contacts within the Department including roadside exercises and crash cases. Due to the multitude of variables involved with DUI situations, the following policy shall serve as a general guideline which may be adapted in unusual circumstances.

611.7 An officer coming in contact with a subject that they believe may be in violation of Florida Statutes regarding driving under the influence shall advise Communications.

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

611.9 The officer shall follow the procedures outlined in the Ponce Inlet DUI Processing Form and request the subject to perform the listed physical and/or mental performance exercises. (CFA 22.03M-A)

611.10 The officer shall endeavor to find a clear, level ground in the vicinity 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.

611.11 Upon completion of the field sobriety exercises, or refusal of such, the initiating officer shall take the appropriate action based upon the probable cause, obtained as a result of the totality of the circumstances. (CFA 22.03M-A)

611.12 Arrested subjects shall be transported to the Department for the breath test and/or urine sample and booking. (CFA 22.06M)

DUI AND BREATH TESTING

611.13 Violators shall be arrested for all offenses that constitute a crime pursuant to Florida Law (driving while intoxicated, reckless driving, leaving the scene of crash with injuries, etc) when probable cause exists.

611.14 The subject, arrested for DUI, shall be afforded the opportunity to take a breath test whenever possible and practical. (CFA 22.06M)

611.15 Breath tests shall be administered by a certified breath test operator who shall conform to the rules and procedures adopted by the Implied Consent Program of the Florida Department of Law Enforcement (FDLE).

611.16 The operator will be responsible for the proper completion of the following applicable paperwork: (CFA 22.06M)

  • Breath test affidavit.
  • Refusal form.

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

611.18 All log entries and signatures on the log must be legible.

611.17 If the subject’s Blood Alcohol Content (BAC) does not substantiate impairment, check for drugs or medical condition that may cause impairment.  Notify the shift supervisor immediately. (CFA 22.06M)

611.18 Conduct supplementary chemical test(s) in accordance with State requirement. (CFA 22.06M)

611.19 If the subject refuses to submit to the chemical test, complete the appropriate forms to invoke the implied consent sanction. (CFA 22.06M)

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

611.21 If a breath test operator is not available or on-duty at the time, a breath test operator should be requested from a surrounding agency prior to calling out an operator. (CFA 22.06M)

611.22 Should an outside agency request a breath test to be conducted by this Department, the supervisor should be notified and make the decision if an operator is available and if the activity level permits assistance.

611.23 Operators will complete an entry in CAD as a Special Detail when breath tests are conducted for an outside agency.

611.24 If the requesting agency sends their own operator to perform the breath test, they will be allowed access to the breath testing equipment.

611.25 Once a breath/blood/urine test has been conducted on a subject, the subject has a right, by Florida Statutes to an independent test of their own blood. Should a defendant make 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 their independent blood test. (CFA 22.06M)

611.26 If the subject is able to make the necessary arrangement for an independent blood test reasonable arrangements shall be made. (CFA 22.06M)

611.27 If the subject has not been able to make the necessary arrangements, 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. (CFA 22.06M)

DUI ARREST PAPERWORK

611.28 This policy shall provide the requirements and guidelines for the issuance of DUI citations, seizure of drivers license, 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 test and/or urine sample.

611.29 All DUI citation forms are to be completed in accordance with the procedure outlined in the State of Florida, Section IV-B, DUI (BAC .08% or above) Uniform Traffic Citation Procedures for Completion, that are available to all Department officers. (CFA 22.06M)

611.30 All drivers’ licenses in the defendant’s possession, shall be confiscated, a copy attached to the paperwork and the DL submitted with the report, to be returned to DHSMV. (CFA 22.06M)

611.31 A temporary permit (back of yellow copy) shall be issued when: (CFA 22.06M)

  • Subject possesses a valid DL.
  • Subject professes to have a valid DL, although not in possession and computer system is inoperable.
  • Subject does not have a DL in his possession but can be verified by computer.

611.32 If the subject does not have a DL in his possession check the ”no” box by license surrendered, and insert the reason the DL was not surrendered in the space provided. (CFA 22.06M)

611.33 If confirmation cannot be obtained due to an inoperable computer system, write “computer down” in the “eligible for permit” area. (CFA 22.06M)

611.34 A temporary permit will not be issued when the subject’s name is under suspension or the subject does not have a DL in possession and a computer check reveals “no record found.” (CFA 22.06M)

611.35 Should the subject refuse to take the blood/breath/urine test, the defendant will be issued a temporary permit should the eligibility requirement be met. (CFA 22.06M)

611.36 Duplicate temporary permits may not be issued.

611.37 Original signatures are not required on all copies of the Charging Document or on the refusal forms; however, these forms must be officially sworn to including the raising of the right hand. (CFA 22.06M)

611.38 Upon completion of necessary paperwork, the subject is to be transported to the VCBJ.  The bond is to be indicated on the Charging Document when the prisoner is transported to the jail. (CFA 22.06M)

611.39 Should the breath test fall below .050gr/210L, the subject shall be requested to submit to a urine test (per Florida Implied Consent Rules). The shift supervisor will be immediately notified by the arresting officer. (CFA 22.06M)

611.40 Refusal to submit to the requested urine test will be treated as a refusal and the subject shall be transported to the VCBJ. (CFA 22.06M)

611.41 Upon completion of the urine test, the subject shall be transported to the VCBJ.  (CFA 22.06M)

611.42 The detainment of juveniles arrested for Driving Under the Influence is not addressed in Florida Statute 316.193. Officers should contact the Department of Juvenile Justice (DJJ) Volusia Regional Center (formerly DYS) to determine where the juvenile should be transported for their detainment.  However, DJJ may not receive an intoxicated youth into their facility without hospital clearance. After hospital clearance, DJJ may authorize the juvenile be transported to the Regional Juvenile Detention Center or released to a parent or guardian. (CFA 22.06M)

611.43 The subject being transported to the VCBJ shall be accompanied by the following paperwork: (CFA 22.06M)

  • Original charging document.
  • Copies of all teletypes.
  • White copies of all DUI and UTC citations.

611.44 Copies of citations and the charging document should be made for record purposes and remain with the report. The officer will retain the pink copy. (CFA 22.06M)  

BLOOD TEST REQUEST (CFA 22.06M)

611.45 Should the subject or anyone involved in the situation receive serious bodily injury, per statute, blood can be forcibly taken and the citations issued upon receipt of the blood test results from FDLE or at the time of the arrest which starts the ninety (90) day prosecution rule.

611.46 Should the subject refuse to submit to a blood test as requested, a citation for DUI is to be completed for refusal and submitted with the charging document.

611.47 Florida Statute Section 316.1933 provides that in a DUI investigation involving death or serious bodily injury to another person, the suspect driver may be forced to submit to a blood test whenever the officer has probable cause to believe the suspect was under the influence of intoxicating beverages or drugs and caused or contributed to the crash.  Recent Court rulings have forced some changes to this procedure.  When dealing with a DUI investigation involving death or serious bodily injury no forced blood draw should occur without a search warrant unless you encounter serious difficulties in your attempts to get a warrant or other circumstances make getting a warrant impractical.

  • No warrant is necessary, even in cases involving serious bodily injury or death, if the suspect consents to the blood draw.
  • The limitations of F.S. 316.1933 remain in effect. Officers can only compel a blood draw in cases where there is probable cause to believe that the suspect was under the influence of alcohol or drugs and   was wholly or partially at fault in a traffic crash causing death or serious bodily injury to another person.
  • A DUI suspect who refuses to cooperate with testing should be charged and/or processed for the refusal under the appropriate subsection of F.S. 316.1932 even when a warrant is obtained and testing ultimately accomplished.
  • If the suspect is unconscious or otherwise incapable of either consent or refusal, all officers must make every attempt to secure a search warrant. The existence of exigent circumstances would allow for a blood draw, but must be documented fully.

In a serious bodily injury or death case, a forced blood draw without a warrant based on exigent circumstances should only be done as a last resort. Exigent circumstances might be found in a case where, despite strenuous efforts, no judge is available to approve the warrant or perhaps in a case where it takes hours to extricate the suspect from his vehicle and all evidence of intoxication is in danger of being lost. Detailed documentation of the exigent circumstances is critical.

611.48 A separate FDLE refusal form shall be completed. In either case, all charges and citations relating to a crash shall be completed at one time, either when the blood is drawn, or when the blood results return.

611.49 Blood drawn from the subject requires a “Certification of Blood Withdrawal” to be signed by the person drawing the blood and shall be submitted with the report.

611.50 A toxicology services “Work Request Form” shall be completed by the evidence custodian and submitted with the blood to FDLE.

611.51 The work request form should not be sealed in the blood container.

611.52 A copy of the form should be made and submitted with the report.

611.53 Should the subject be arrested for DUI, transported to the hospital due to illness or injury and admitted, arrangements will be made for a first appearance hearing. Present the suspect with appropriate citations and copies. (CFA 30.12M)

611.54 In a case where a breath test is impossible or impractical and blood has been drawn or requested, the following procedure shall be followed:

  • If the DUI charges are to be filed when the blood results are returned from the crime lab and the blood results reveal a .08%BAC or higher, a UTC  is to be completed and submitted with the charging document.
  • The officer is to write “unable to sign” in the area of the citation requiring the subjects signature.

611.55 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 door locked after placement. (See Policy and Procedure Directive 704, Evidence) (CFA 23.01-C)

URINE TESTING (CFA 22.06M)

611.56 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.

611.57 Whenever possible, the arresting officer shall witness collection of the urine, using due regard for the privacy and sex of the subject.  When the subject is the opposite sex of the arresting officer, an officer of the same sex as the subject shall witness the 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.

611.58 Sterile plastic containers, which are available in each patrol vehicle, shall be used to collect urine samples. The officer shall make every attempt to ensure that the sample contains 50 milliliters of urine, as indicated on the container.

611.59 The officer shall seal the container with evidence tape and affix a label containing the required information.  The container shall be tagged as Evidence and an Evidence Sheet completed. (See Policy and Procedure Directive 704, Evidence).

SEIZURE OF VEHICLES IN DUI CASES

(CFA 22.06M)

611.60 Under certain circumstances, a vehicle may be seized and forfeited should the driver meet the following criteria:

  • The person driving the vehicle must have a suspended driver’s license for a previous DUI.
  • The person driving the vehicle must be the registered owner of the vehicle.
  • The person driving the vehicle must be arrested for DUI.

611.61 If all the above criteria are met, the shift supervisor and Lieutenant must then decide if the vehicle is worth seizing.

611.62 A lien check can be conducted through teletype to determine if money is owed on the vehicle.

611.63 The vehicle shall be moved to the Town impound once the decision has been made to seize the vehicle.

611.64 The officer shall complete the required seizure paperwork and forward to CIU for follow-up.

611.65 The original seizure paperwork shall be forwarded to the Chief of Police or designee for final approval of the seizure. The supervisor shall, also ensure that a copy of the incident report is forwarded to the Chief of Police or designee prior to the completion of shift.

DRIVING UNDER THE INFLUENCE (DUI) CRASHES

611.66 See Policy and Procedure Directive 610, Traffic Crash Investigation.

INTOXILYZER MAINTENANCE

611.67 It shall be the responsibility of a the Department breath testing equipment inspector to ensure that the Intoxilyzer 8000 series breath testing instrument used by this Department is kept clean and in good working order.

611.68 An 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.

611.69 An The Agency inspector shall ensure that proper records are maintained regarding breath tests and Department inspection tests that are conducted and shall 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.

611.70 It will be the responsibility of a the Department inspector to be aware of the current supply of inventory and the safe storage and disposal of same.

611.71 A The Department Agency inspector shall submit an annual budget to the Administrative Supervisor regarding the maintenance and supply costs of the breath testing equipment.

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


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.


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.

DCIM100MEDIA

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.

Daytona Beach Second DUI Within 5 Years With A BAC Over .15%

If you are arrested for a second DUI within 5 years in Daytona Beach or the surrounding areas you are exposed to certain minimum and maximum penalties. The penalties for a second Daytona Beach DUI within 5 years with a BAC above .15% Florida Statute 316.193(6)(b) include: $2,000 fine plus court cost, 12 months of probation, 60 month driver’s license revocation,  10-364 days jail, 30 day vehicle impound, 24 month ignition interlock with P restriction on the driver’s license, Advanced Alcohol Safety and Education Class or the out of town equivalent, MADD Victims Awareness Panel and 50 hours of community service with the option to buy out at $10 per hour. If you are accused of a Second DUI in Volusia County contact Daytona Beach DUI attorney Kevin J. Pitts.


Daytona Beach Second DUI Within 5 Years BAC Below .15%

If you are arrested for a DUI in Daytona Beach or the surrounding areas you are exposed to certain minimum and maximum penalties. The penalties for a second Daytona Beach DUI within 5 years with a BAC below .15% Florida Statute 316.193(6)(b) include: $1,000 fine plus court cost, 12 months of probation, 60 month driver’s license revocation, 10-270 days jail, 30 day vehicle impound, 12 month ignition interlock with P restriction on the driver’s license, Advanced Alcohol Safety and Education Class or the out of town equivalent, MADD Victims Awareness Panel and 50 hours of community service with the option to buy out at $10 per hour. If you are accused of a Second DUI in Volusia County contact Daytona Beach DUI attorney Kevin J. Pitts.


First Daytona Beach DUI Penalties BAC Over .15% Or Minor In The Vehicle

If you are arrested for a DUI in Daytona Beach or the surrounding areas you are exposed to certain minimum and maximum penalties. The penalties for a first Daytona Beach DUI with a minor in the car or Daytona Beach DUI BAC over .15 Florida Statute 316.193(4)(a) include: $1,000 fine plus court cost, 6-12 months of probation, 6-12 month driver’s license revocation,  0-270 days jail, 10 day vehicle impound, 6 month ignition interlock with P restriction on the driver’s license, Alcohol Safety and Education Class or the out of town equivalent, MADD Victims Awareness Panel and 50 hours of community service with the option to buy out at $10 per hour. If you are accused of a DUI in Volusia County contact Daytona Beach DUI attorney Kevin J. Pitts.