DUI Enforcement. Timothy J. Dorn, Chief of Police. Effective: Approved By: Supersedes: 904, Rev

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1 -- DUI Enforcement Effective: Approved By: Supersedes: 904, Rev Timothy J. Dorn, Chief of Police A. Initial Investigation 1. Officers will use the field sobriety test (FST) work sheet on the DUI Arrest Report form. All five of the FSTs listed on the report form (HGN, walk and turn, one leg stand, Romberg modified, and finger to nose) will be completed when feasible. Any tests not performed and the reason will be documented in the report. 2. The Horizontal Gaze Nystagmus (HGN) test will only be administered by an HGN certified officer or officers in HGN training. 3. The preliminary breath test (PBT) may be used as part of the FSTs. a) Officers must use a department-qualified PBT. b) The PBT will be the last test administered and will only be used by officers trained to use them. c) A subject may refuse FSTs or the PBT. Probable cause may be based on driving behavior and other observations. 4. Other evidence of impairment will be noted in the report, i.e., alcoholic beverage containers, medicine bottles, etc. The items should be photographed and if not a storage problem, seized as evidence. 5. Suspect Vehicle a) Suspect vehicles will be towed unless there is a responsible party who: (1) Occupies the vehicle at the time of arrest. (2) Is designated by the vehicle owner/operator as the person to take control of the vehicle. (3) Is 18 years of age or older and has a valid driver s license. The vehicle shall have current registration and proof of insurance. (4) Submits to a PBT/HGN examination to ensure there are no alcohol/drugs present. If the responsible party refuses to submit to the examination, the vehicle will be towed. b) If these requirements are not met, the vehicle shall be towed. Refer to Order 1106 Search and Seizure, Section P.4, Vehicle Inventory. 6. Officers will process DUI drivers involved in traffic collisions if there is probable cause to do so, as if the officer had actually witnessed the violation. 7. Impaired suspects who commit violations causing serious injury or fatal traffic collisions will not be charged with DUI. It will be handled as an aggravated assault or homicide. B. Admin Per Se and Implied Consent 1. The Admin Per Se/Implied Consent Affidavit will be completed as required by MVD. a) If the suspect fails or refuses to submit to the specified test(s), the officer will document in detail how the suspect refused or failed to complete the test. The officer shall: (1) Seize the suspect's Arizona license, attach it to the affidavit and read the Order of Suspension to the suspect. (2) Attempt to obtain a search warrant to require submission to testing. (3) If evidence is obtained by a search warrant, the affidavit is still processed as a refusal. b) Out of state licenses/permits will not be seized. The affidavit will still be completed and the driver given the appropriate copies Gilbert Police Department Page 1 of 6

2 c) The driver will be asked to sign the affidavit and given the appropriate copies to serve as the notice/order of suspension and temporary driving permit. If the suspect declines, the word "SERVED" will be written on the signature line. d) The white copy of the affidavit must be mailed or delivered to the Motor Vehicle Division. The blue copy is attached to the DR, the remaining copies are given to the suspect. e) If the suspect's license or right to drive is already suspended, revoked, refused, etc., or the license is not seized, the officer will complete the appropriate sections of the affidavit and provide copies to the suspect. f) If the suspect changes their mind after the initial refusal or failure and later requests the test, the test will be given under the following conditions: (1) The suspect is still in custody and the officer is still present, and; (2) The required test equipment is readily available and functioning properly, or; (3) A phlebotomist is still available. g) When the suspect requests to contact an attorney prior to taking the prescribed test(s), they will be given access to a telephone and afforded privacy during the call. The officer shall note in the arrest report the time of request, period of time the conversation took place, etc. If the suspect cannot reach an attorney after a reasonable period of time the suspect must decide whether or not to take the test. h) The provisions of implied consent apply to the operation or physical control of a motor vehicle on private or public property. i) In cases where a test result is not immediately known, the following procedure will be followed: (1) The suspect's license will not be seized. (2) The affidavit will be completed except for the test operator's name and signature, the order of suspension and surrender sections. (3) The officer may choose to either issue the license suspension by marking the results not available box or await the return of the lab results. 2. When the results of the test are received and recorded, the affidavit will be completed and sent to MVD with please serve written in the Licensee Signature field. MVD will serve the suspect with the suspension, temporary license, and right to appeal paperwork. 3. When subpoenaed for an Admin Per Se or Implied Consent hearing: a) The officer will bring the lab report (for blood testing). b) The officer will obtain a copy of the breath testing instrument calibration sheet showing it was functioning properly before and after the suspect s test (for breath testing). C. Blood Testing to Determine Alcohol Concentration (See Order 907 Phlebotomy Protocols): The blood test should be conducted within two hours of a person's driving. If this two-hour target cannot be met, the officer will still obtain the sample and include reasons for the delay in the DR. The department uses blood testing as the primary means for determining a suspect s BAC. 1. A Phlebotomy Blood Draw Report will be submitted with the DR or completed within the DUI packet if the arresting officer is also the phlebotomist. 2. The officer shall request restitution for lab costs and blood or urine kits in the DR or supplementary report. 3. The blood evidence will be forwarded to Mesa PD lab for determining BAC results. 4. The officer will impound the vials of blood per Order 702 Collection and Preservation of Evidence. D. Breath Testing to Determine Alcohol Concentration: The breath test should be conducted within two hours of a person's driving. If this two-hour target cannot be met, the officer will still obtain the sample and include reasons for the delay in the DR Gilbert Police Department Page 2 of 6

3 1. Breath testing may be utilized for determining a suspect s BAC in the event a phlebotomist is unavailable. 2. The location of the test and the transporting employee will be identified in the DR. 3. Only officers certified by the Arizona Department of Health Services shall conduct breath tests, and only on the particular instruments they are certified to operate. 4. An officer will observe the 15-minute deprivation period prior to starting the first of two consecutive breath tests. During the deprivation period, and through the completion of the second consecutive test, the operator must ensure that nothing is placed in the suspect s mouth and that there is no vomit around or inside the suspect s mouth. 5. Officers will advise the suspect of their right to schedule and pay for an independent chemical test to determine blood alcohol concentration. This right exists whether or not the suspect successfully completed the specified test offered by the department. 6. The test operator will use the approved operational checklists for the breath test. 7. Force will not be used to obtain a breath sample. 8. The officer shall attach all printed results from the Intoxilyzer to the DR. 9. The officer shall advise the suspect of the results of the breath test at the end of the examination. 10. The Quality Assurance Specialist (QAS) is responsible for calibration checks on the Intoxilyzer instrument(s). The QAS officer shall be given duty time to coordinate repair work and order Intoxilyzer supplies. E. Charging DUI Suspects 1. Misdemeanor suspects will be cited for violations and released on their written promise to appear unless one or more of the following circumstances exists: a) The suspect is uncooperative, e.g., refuses to be photographed or fingerprinted. Suspects will not be presumed uncooperative if they refuse to take the breath test. b) The suspect is not an Arizona resident, who has no local business interests and a supervisor approves booking. c) The suspect has a record of failing to appear or has been arrested for DUI within the previous 24- hour period. d) Suspects are unable to get a responsible person to take them home. They may take a taxicab if they have sufficient money to pay the fare and circumstances indicate they will not attempt to return to their vehicle. 2. Officers may release a suspect on written promise to appear, even though the criteria set forth in this section for release are not met, when the result would be in the best interest of the Town, e.g., for health reasons. 3. When officers have collected blood the driver may be cited at that time for ARS A.1. Additionally, if the officer observed at least 4 clues of HGN and has a corresponding BAC determined by a PBT, officers may cite for ARS A.2 and/or ARS When alcohol concentration is.30 or greater, the officer will request paramedics regardless of the suspect s physical status. A doctor's examination and release will be completed prior to booking, or in a case of cite and release, the responsible person picking up the suspect will be advised they should seek medical attention Gilbert Police Department Page 3 of 6

4 F. Telephonic/Fax Search Warrants (also see Order 1106 Search and Seizure) 1. Nothing in this section precludes an officer from using standard warrant procedures in which they directly present the warrant to a judge. 2. If the suspect indicates a willingness to test, a Consent to Search form will be signed by the suspect, the officer, and a witness. A blood test may then be administered. The Admin Per Se/Implied Consent Affidavit will be changed to reflect consent. 3. If the suspect refuses to provide blood, breath or urine evidence as requested by the officer, the officer must be able to articulate: a) Who witnessed the suspect driving or in actual physical control of the vehicle. b) Probable cause, such as: improper driving, odor of intoxicating liquor on suspect s breath, divided attention impairment, HGN, etc. c) The Admin Per Se was read and the suspect refused. 4. If a suspect refuses to comply with testing, the officer will ensure the suspect understands the consequences of refusing the test(s) and then complete the Admin Per Se/Implied Consent form as a refusal. a) An Affidavit In Support of Telephonic or Facsimile Search Warrant will be completed in compliance with ARS D and/or E. b) A Duplicate Original Search Warrant will be completed. Do not complete the Warrant Service portion until the warrant is served to the suspect. (1) With a telephonic search warrant, the officer will telephone a judge using a speakerphone and record the conversation. There must be another officer standing by as a witness to the conversation. The officer will read verbatim the Affidavit of Support and the Duplicate Original Search Warrant. Upon permission from the judge, the officer will sign their name and the judge s name. The witnessing officer must also sign the warrant. Document the date and time. (2) With a facsimile (fax) search warrant, the document will be faxed to the appropriate court. There must be another officer standing by as a witness that the affiant was sworn in by the judge. Upon receipt of the signed warrant, the officer will provide a copy to the suspect prior to the blood draw. c) Serve the warrant to the suspect, recording the date and time of service. Do not give the warrant to the suspect; show them the warrant. (1) In compelling a suspect to give a blood sample, officers will ensure that only reasonable force is used. (a) If a suspect is unwilling to comply with the search warrant, an officer will use only the amount of force reasonably necessary to execute the warrant. The suspect may be restrained by several officers or placed in a restraint chair. Use of the restraint chair must be documented in the DR and on the Use of Force/Pursuit Review form. (b) Blood will not be drawn from suspects with known blood diseases such as HIV, hemophilia, or hepatitis. Default to breath testing in these circumstances. (2) Upon completion of the blood draw, the officer will complete the receipt for the property taken on both copies of the warrant. It will document the number of tubes of blood drawn. The officer will give a copy of the Duplicate Original to the suspect that includes the items seized. d) All blood will be refrigerated as soon as possible. e) Return of Search Warrant Gilbert Police Department Page 4 of 6

5 (1) The tape used to record the Telephonic Search Warrant will be impounded as evidence. The original tape shall be copied and forwarded to the Patrol secretary for transcribing (only at the request of the court or either party). (2) The officer will return the following items to a magistrate within three court business days (excluding weekends and holidays) of the date the warrant was executed: (a) The Affidavit in Support of Telephonic Warrant. (b) The Standard Arizona Duplicate Original Search Warrant. (c) The Standard Arizona Inventory, Affidavit and Return of Search Warrant. (3) The officer will verify that copies of all the documents are included in the DR. G. Testing Injured DUI Suspects 1. Whenever possible, officers should obtain a search warrant or ad min per se consent (search warrant being preferred) for blood draws administered at a hospital when the suspect is under hospital care. 2. When the officer arrives at the hospital where an injured suspect is being treated, they shall advise the emergency room charge nurse of the following: a) That probable cause exists to believe that the suspect was operating a motor vehicle while under the influence of intoxicating liquor, drugs, or vapor releasing substances; and b) That the officer wants a portion of the blood if blood or urine is taken for medical purposes. 3. If the officer is delayed getting to the hospital and there is probable cause to arrest, the officer shall have Communications contact to: a) Advise the emergency room charge nurse that probable cause exists to believe the suspect was operating a motor vehicle while under the influence of alcohol, drugs, or vapor releasing substances. b) Advise that if blood is going to be drawn from the suspect for hospital tests, two additional tubes shall be drawn for law enforcement purposes. c) Advise that the officer is en route. 4. If hospital personnel are extracting blood or urine, the officer will be present if possible to observe the extraction. The officer shall note the time of the blood draw and document that a non-ethanol swab was used to prep the suspect. The officer shall also obtain the name of the person who drew the blood. If the officer cannot be present during the extraction, the vials shall be marked and identified by the person who completed the extraction of the blood or urine. The officer shall obtain the name of the person who drew the blood and the name of the substance used to prep the suspect. 5. The blood shall be drawn using Betadine or other non-ethanol containing swabs and stored in a DUI blood kit or when unavailable, into vials supplied by the hospital. 6. If the hospital is not drawing blood for their purposes, the officer shall follow the Implied Consent guidelines. 7. When hospital personnel will not be drawing blood medical use, or have drawn only enough blood for hospital tests prior to the police request, the officer shall advise the suspect they are under arrest for DUI (if not being charged with aggravated assault or homicide) and read the Implied Consent requirements. a) If the suspect agrees to submit to a blood test, the appropriate hospital personnel or approved phlebotomist shall obtain the sample using a DUI blood draw kit or two blood vials. b) If the suspect refuses to have their blood taken the officer shall complete the appropriate sections in the DUI Affidavit. c) If a blood kit is not used and hospital, medical facility, or phlebotomist drawn vials are obtained, it shall be impounded as evidence in the refrigerated property locker Gilbert Police Department Page 5 of 6

6 8. If an injured suspect is treated and released from a hospital within a reasonable length of time, they shall be handled as any other DUI suspect. 9. If, as a result of visual observations, an officer believes that a suspect is DUI, they may be cited. 10. If citations cannot be acknowledged due to injuries, citations shall not be issued. H. Drugs, Toxic Vapors, Substance Combination Suspected: Where drugs, toxic vapors, or substance combination are suspected, an intoxilyzer test will be used to establish the absence or presence of alcohol concentration. 1. Procedures for handling DUI drugs, toxic vapors, or a combination are handled the same as DUI alcohol. 2. A DRE will be requested whenever drugs or toxic vapors appear to be impairing the suspect, and/or the intoxilyzer reading is not consistent with the impairment observed. If a DRE is not on duty, the on-call DRE will be contacted. I. Aggravated Driving While Under the Influence 1. In ARS A.1 cases, if a suspect waives their Miranda rights, the officer must interview the suspect regarding the status of their driver s license to determine if the suspect knew the status and how they became aware of it. 2. In cases of ARS A.3, obtain a photo of the children under 15 years of age for evidence of the crime. 3. No citations will be issued to the suspect. The violations will be documented in the report. 4. Officers will request certified MVD records on all Aggravated DUI suspects. J. Prior DUI convictions: If the suspect has one prior DUI conviction within 84 months, the arrest report will include: 1. The information from the previous conviction. 2. Any information that shows that the suspect had knowledge of the prior DUI conviction. K. Underage Drinking and Driving: ARS may be cited anytime a driver under 21 years of age has spirituous liquor in their body. 1. Conduct the investigation as a DUI (Admin Per Se applies). This section may be charged in addition to other DUI violations. It may also be used when a person under 21 years of age has been driving while or after consuming an alcoholic beverage but is not impaired. 2. A search warrant shall be obtained for any blood draws. L. DUI Enforcement Programs: The Traffic Unit supervisor is responsible for maintaining an alcohol enforcement program. The program shall include an analysis of alcohol/drug related accidents, training of officers in the identification and detection of impaired drivers and the assignment of personnel to areas displaying high incidence of alcohol/drug impaired drivers. The program development will consider the following counter-measures: 1. Selective assignments of personnel at the times and locations where analysis has shown a significant number of violations and/or accidents have occurred which involved impaired drivers. 2. Analysis of selected alcohol-related accident investigations. 3. Selective roadway checks for deterrent purposes. 4. Participation in DUI tasks forces Gilbert Police Department Page 6 of 6