CITY OF MARYLAND HEIGHTS OFFICE OF THE CHIEF OF POLICE

CITY OF MARYLAND HEIGHTS OFFICE OF THE CHIEF OF POLICE GENERAL ORDER 452.00 Cancels: 452.00 Rev 2 Index as: October 31, 2013 Blood Test, DWI Breath Test, DWI DWI Evidence, DWI Traffic Accidents, DWI Urine Test, DWI 452.00 PURPOSE DRIVING WHILE INTOXICATED (DWI) The purpose of this General Order is to establish procedures for the arrest and processing of persons charged with Driving While Intoxicated. 452.01 POLICY In all DWI arrests, Miranda Rights must be given to the suspect prior to asking incriminating questions. Miranda Rights are not required prior to sobriety testing. 452.02 RIGHT TO COUNSEL AND ADMINISTERING THE BREATH TEST A. Right to counsel 1. The arrested subject may call his lawyer from the station, or, if his lawyer is at the station, he/she may consult with him before taking the breath test, but the defendant need not be advised of this. If a person, when requested to submit to any test allowed under Section 577.020 RSMo, requests to speak to an attorney, they will be granted twenty (20) minutes in which to ATTEMPT to contact an attorney. The arrested subject may waive the 20 minute time period at any time during the 20 minutes. The police report should document how they waived it. (i.e. I am done, let s get this over with. ) The subject may also decide to refuse during the 20 minute time period. The officer must then ask if they are waiving the 20 minute time period to contact an attorney and document their responses in the police report. If upon the completion of the twenty-minute period the person continues to refuse to submit to the test, it will be deemed a REFUSAL. 2. The arrested subject may call his lawyer from the station, or, if his lawyer is at the station, he/she may consult with him before taking the breath test. 3. The officer cannot place the call. It must be made by the arrested subject. 1

4. Recent case law has indicated that any request to call an attorney, even prior to reading of the Implied Consent is a valid request and the subject should be allowed the 20 minutes after the reading of the Implied Consent. 5. The arrested subject does not have a constitutional right to have his/her counsel present when they take the breath test; therefore, the police officer does not have to wait until counsel arrives before administering the test. However, if counsel is present, counsel may not be excluded. B. Unequivocal Refusal A refusal to take the breath test (or any requested test) must be EXPRESS and UNEQUIVOCAL for it to warrant a license revocation. 1. When it is time for the test to be given, and a person refuses to submit a valid breath sample, it is a refusal. 2. If the person says he/she will submit, but will not do so, it is a refusal. C. Self-Incrimination The use of the breath test does not violate a person's privilege against self-incrimination. 452.03 IMPLIED CONSENT Prior to administering a Breathalyzer test, the subject must be advised of the Implied Consent Law. This law is located on the Alcohol Influence Report. 452.04 TESTING A. A person has NO right to have any intoxication test administered, other than the test requested by the officer. B. A refusal to take the breathalyzer test is sufficient to warrant the revocation of a driver's license, even though the arrestee requests that another type of test be administered. (The test is chosen by the officer and not the arrestee.) C. An officer may not administer any Breathalyzer test unless he/she possesses a valid permit issued by the appropriate state agency for this purpose. D. Blood tests may be administered to any person who is dead, unconscious, or is in a condition rendering him/her incapable of refusing to take a test without that person's express consent. E. An officer may request no more than TWO valid, complete tests. A refusal of EITHER of these two tests is grounds for a license revocation even if the subject submits to one of the tests. 2

F. If the person who is tested requests; full information concerning the test will be made available to him. (See RSMo 577.020 section 6) If a breath test was given and valid results were obtained, you must tell the subject the BAC test result. 452.05 DETERMINING PROPER COURT A. Definitions used to determine proper court: 1. Criminal prior / intoxicated related traffic offense (IRTO) is described as a conviction (jail, fine or MDC), SES or SIS. Use DWITS, REJIS, TAS, III to determine criminal priors/intoxicated related traffic offenses (IRTO) (RSMo 577.023) For questions on conviction status contact the St. Louis County Prosecuting Attorney s Office at 314-615-4750. After hours, contact the St. Louis County Police at 314-889-2341 and ask for the on-call prosecuting attorney. 2. An alcohol related enforcement contact is described as an administrative alcohol suspension, chemical refusal/revocation or conviction (not SIS). Use DOR checks to determine alcohol related contacts (RSMo 302.525). 3. A prior arrest, by itself, is not an alcohol related enforcement contact or criminal prior/intoxicated related traffic offense (IRTO). B. Municipal Cases Any driving while intoxicated case that meets the following criteria will be considered by the Maryland Heights Municipal Prosecuting Attorney s Office. 1. The arrested subject has no previous criminal priors/intoxicated related traffic offenses (IRTO) OR prior alcohol related enforcement contacts. 2. The arrested subject has one criminal prior/intoxicated related traffic offense (IRTO) AND/OR one prior alcohol related enforcement contact. 3. The only testing used for the current charge was the breathalyzer. (Lab technicians will not honor municipal court subpoenas.) 4. If a case is forwarded to the Maryland Heights Municipal Court and it is determined that the criteria is met in regards to a state violation, then the case will be either dismissed or refused and returned to the arresting officer to file the case in State Court. C. State cases 1. DWI cases regardless of priors, wherein a blood, urine or saliva sample was obtained. (Lab technicians will not honor municipal court subpoenas.) 3

2. Misdemeanor - If the arrested subject has two or more lifetime prior alcohol related enforcement contacts (with different offense dates) the current charge would be a state court misdemeanor. These cases can be submitted on a hand written MUCS using RSMo 577.010. Refusals are allowed in these cases. Include two copies of the report and place two copies of the MUCS on TOP of the report. 3. Felony - If the arrested subject has two or more criminal priors/intoxicated related traffic offenses (IRTO) OR one prior serious intoxication related traffic offense (i.e. Involuntary Manslaughter, Assault Second Degree) the current charge would be a felony. 4. Refusals are not allowed in felony cases. A search warrant must be sought to obtain blood samples if the arrested subject refuses the requested test(s). When obtaining blood samples, the first sample will be taken upon issuance of the search warrant. A second sample must be taken 60 minutes later. 5. A supervisor may decide not to have an officer apply for a search warrant on a routine Felony DWI (no accidents) due to extreme weather conditions or manpower shortage. 6. Do not issue any MUCS on a felony DWI. Warrant application must be made on the case. 452.06 REFUSAL TO TAKE THE TEST A. Document the number of times the subject refuses the test and if there are witness(s) are to the refusals; documentation should be in the police report. B. Mark the REFUSAL box on the Alcohol Influence Report.. Failure to mark the refusal box can result in the loss of the refusal case. C. Complete Department of Revenue (DOR) Form 4323 marking YES if a valid license is surrendered and NO if the license is from another state; no license in possession; or if the license is expired, suspended or revoked. The original should be issued to the arrestee and the canary colored form should be forwarded to DOR. 452.07 ZERO TOLERANCE LAW A. Any person under the age of 21 that has been stopped or arrested by a law enforcement officer must take the test if requested. The original stop of a minor must be based upon reasonable grounds to believe a violation of state or municipal traffic offense occurred. Action must be based upon evidentiary chemical test which was requested and administered subsequent to the subject having been arrested for operating a motor vehicle while intoxicated, and the chemical test shows a blood alcohol level of.02% BAC or more, but less than 08% BAC. 4

B. If the minor refuses the test or if the person s BAC is two-hundredths of one percent or more by weight, the officer shall forward to the Department of Revenue a verified report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated any statute related to driving while intoxicated or was less than twenty-one years of age and was driving with two-hundredths of one percent, a report of the results of any chemical tests which were conducted, and a copy of the citation and complaint filed with the court. C. The report required shall be made on the Department of Revenue Alcohol Influence Report Form 2389 in the same manner as all DWI arrests. 452.08 DWI - BAC OF.08% OR HIGHER A. Under the Administrative Suspension Law wherein the blood alcohol content is.08% or higher, the Missouri Operator's license, receipt for license or permit will be seized and forwarded to the Department of Revenue. An out-of-state license will not be seized. The arresting officer will upon seizing the driver license or receipts issued by the State of Missouri complete the appropriate sections of the Notice of Suspension / Revocation of your Driving Privilege form. The driver license or receipt will be taped to the DOR copy of the Notice of Suspension or Revocation of your Driving Privilege form. DO NOT STAPLE OR DEFACE THE LICENSE IN ANY MANNER. B. Issue the appropriate hand written MUCS to the arrested subject. In addition a copy of the most recent Monthly Maintenance Check Report prepared by a Type II Permit Holder prior to the current breath test will be included with the Alcohol Influence Report and then forwarded to DOR. 452.09 BAC READING LOWER THAN.08 PERCENT BY WEIGHT A. If the BAC reading is lower than.08 percent by weight, the prisoner should not be charged with DWI. (Unless the suspect has been tested for narcotics; or the suspect is under the age of 21 and in violation of the Zero Tolerance Law) Instead, the arrested subject should be charged with the original traffic violation for which he was stopped. The subject can then be processed on the traffic charge at the discretion of the officer. B. If the BAC is below.08 percent by weight and the suspect tests positive for narcotics, then warrants should be sought through the state court for DWI when the test results are made available. A state citation could be issued on misdemeanor cases and mailed as an alternative to warrant application. 5

452.10 DWI ACCIDENTS A. Suspect Driver - Seriously Injured. Serious injuries require hospitalization. If the driver is suspected of DWI, place the subject under arrest at the scene and allow paramedics to take charge of the driver. At the hospital, the officer should read the driver the Implied Consent Law and request a blood test. If the driver refuses, and it is a felony case, follow proper procedure for seeking a search warrant. Under State law, if the driver is unconscious, he/she is presumed to have NOT revoked permission for testing and medical personnel should be directed to take a blood sample. If the driver is released from the hospital and a "Fit for Confinement" is obtained, the prisoner should be conveyed back to the station for booking and incarceration. B. Suspect Driver - Minor Injuries. If injuries to a suspected intoxicated driver are minor, paramedics should be summoned to render first aid. The driver may then refuse treatment or may request to go to the hospital. If driver requests to be taken to the hospital, a blood sample should be obtained. C. Other persons injured. If serious or life threatening injuries are apparent, the suspect driver should be taken to the hospital and a blood sample requested. If the driver refuses and the injuries to other person(s) are serious a determination by the Watch Commander on duty should be made as to seeking a search warrant for the blood sample. 452.11 FATAL DWI ACCIDENTS A. If the DWI involves victim death or victim with physical injury, the officer should apply for a blood search warrant. For manslaughter cases, DO NOT USE BREATH TESTING EQUIPMENT. Per RSMo section 577.021 (2) Officers should make all reasonable efforts to administer a chemical test to any person suspected of driving a motor vehicle involved in a collision which resulted in a fatality or serious physical injury as defined in RSMo section 565.020. You must ask the driver to submit to a chemical test even if you do not suspect intoxication. B. If a fatality occurs and there is a potential for a manslaughter case or any type of criminal charges, the Watch Commander and CRU Supervisor should be contacted immediately. The Watch Commander and CRU Supervisor will begin a call out for the investigation of the accident. C. Since the case is a homicide case, the on-duty detective supervisor will be notified. A detective will confer with the accident investigator in charge to determine what kind of manpower will be required for the investigation. Since time is essential in manslaughter DWI case to collect evidence, a warrant may be required and sought in 6

a timely fashion. NOTE: If the case is potentially a manslaughter case do not issue a DWI MUCS, apply for warrants. 452.12 DWI ARREST AND VEHICLE TOW POLICY In any DWI arrest, the vehicle being driven by the arrested subject must be towed if there is not a sober individual that can take custody of the vehicle within one hour of notification. The officer should ensure that the vehicle is parked in a safe location if it is not towed. The officer will obtain a liability waiver signed by the suspect indicating that the vehicle was released and to whom it was released. 452.13 RELEASE OF PRISONER The prisoner may be released on bond, citation or Pending Application of Warrant. The officer should not release the prisoner if the prisoner has no mode of transportation other than walking. If the prisoner has no other means of transport, hold the subject for up to 24 hours, until he regains sobriety or until a bond is posted. If the prisoner wishes to post his/her own bond and has no mode of transport, wait until the prisoner becomes more sober prior to accepting the bond. If the prisoner is still intoxicated, he/she should be released to a responsible person or to a cab. When a responsible person has responded to this department to pick up the arrested subject, have them sign a DWI Liability Release Form (MHPD form 38) indicating that they accept full and complete responsibility for the subject and that they will not allow him/her to drive while in an intoxicated condition. 452.14 DWI and DUI OFFENSES RECOUPMENT OF FUNDS A. Section 488.5334 RSMo. authorizes the recoupment of costs, resulting in the conviction for violating the provisions of Section 577.010 or 577.012, or violation of a county or municipal ordinance(s) involving alcohol or drug related traffic offenses. B. Maryland Heights Ordinance # 92-724 authorizes the City of Maryland Heights Municipal Court to recoup such costs relating to alcohol and/or drug arrests for traffic violations. C. When an officer makes an arrest for DWI, DUI offenses, they are to prepare a "REQUEST FOR RECOUPMENT OF FUNDS" FORM (MHPD FORM 021). D. The officer will prepare form MHPD 021, boxes #1 through #29, and submit it to his supervisor along with the original report. The Supervisor will review the form for accuracy. The supervisor after approval will sign and date the form, attach it to the original report and forward to the record room. Instructions for the completion of form MHPD 021 are included on the form. 7

452.15 DWI REPORT PACKET PROCEDURES A. The DWI report packet will be submitted to the supervisor in a large white envelope with the arrested subject name and CN on the outside of envelope. The envelope will contain the following items in this order: 1. Original A.I.R. Form completed and signed no longer need the 2 nd copy 2. Printed ITI Narrative page no other page(s) of the ITI report 3. Photocopy of Datamaster checklist do not use the checklist on A.I.R. form, draw diagonal line through it not needed for refusal, unless you actually set Datamaster up for them original placed in small manila envelope (name and CN on outside) 4. Photocopy of original Datamaster printout not needed for refusal, unless you actually set it up for them to blow original printout placed in small manila envelope with original checklist 5. Carbon copy of Notice of suspension/revocation form OR Refusal Form EVERYONE gets this issued (even out of state, suspended, revoked etc.) If MO driver s license is seized-tape it to this form DO NOT seize out of state driver s license 6. Datamaster Maintenance report packet make sure it is the correct one, since we have 2 Datamasters not needed for refusal 7. Photocopy of all traffic tickets issued Original tickets turned in through normal procedure 8. Photocopy of Tow sheet 9. Owner notification form both white and yellow copy if owner was not notified yellow copy if white copy given to owner 10. DWI Liability release form (MHPD 038) 11. Any other form(s) pertaining to the report 12. Recoupment form (MHPD 021) 8

452.16 RECORD ROOM PROCEDURES Upon receipt of approved DWI or DUI report, record room personnel will forward the report to the city court clerk for distribution. Record room personnel will forward one copy to the court clerk involving DWI cases that will be presented to the prosecuting attorney of Maryland Heights. For any DWI warrant application made to State Court, Record room personnel will forward two copies of everything, including booking sheets, tow sheets and permits. By order of: COLONEL WILLIAM CARSON Chief of Police MPCCF Certification: 21.1, 25.5, 33.1, 33.2, 33.6 Distribution: All Department Personnel 9