LEGAL GUIDE
Written by attorney Kevin Jeffrey Pitts | Mar 2, 2011

Daytona Beach Police Department DUI Policies and Procedures

Daytona Beach DUI Policies

If you have been arrested for a DUI in Daytona Beach and your case does not have a video then the officer violated the policies and procedures. This is an excellent oppertunity to cross examine the officer and could also result in a dismisal of the case if the court rules that disregarding the policies and procedures is bad faith.

DRIVING UNDER THE INFLUENCE ARRESTS

All arrests for the offense of Driving under the Influence of Alcohol or Drugs shall be processed in accordance with applicable Florida State Statutes and Department Directives.

All DUI Arrests shall contain the following paperwork at a minimum:

Arrest Affidavit (SA798 and accompanying paperwork);

Uniform Traffic Citation (If applicable);

DUI Citations (if applicable);

Alcohol Influence Report (if applicable);

Intoxilyzer Results (if applicable);

Breath Test Result Affidavit (if applicable);

Operational Checklist (if applicable);

Drivers License Copy (or reason it is not attached ex. Driver did not have in possession at time of arrest);

Refusal Form (If applicable);

Implied Consent Form ( If applicable).

All DUI arrest paperwork shall be processed and distributed in accordance with directive 70.1 and Records Distribution directives.

The prisoner shall be transported to the main station for processing. While en route to the main station the officer shall advise the communications center and his/her supervisor that a breath test operator will be required to administer the breath test. If a breath test operator is unavailable the officer shall contact his/her supervisor to arrange for testing by an approved operator of another law enforcement agency. If the arresting officer is a certified Breath Test Operator then he/she may conduct his or her own test.

Field sobriety exercises shall be administered on scene. When possible those exercises will be videotaped (if an in-car camera or other video recorder is available). The subject shall be transported to the station DUI room for further processing where the officer shall place the arrestee in plain view of the DUI room camera/recording equipment in order to record any subsequent actions by the arrestee, which pertain to the charge, such as: vomiting, urination, sleeping, spontaneous statements, and any other actions that may aid the charge. NOTE: The video recording equipment is on twenty-four hours a day seven days a week. An email shall be sent to Officer Nick Fiore requesting the tape of the incident be retained as evidence.

The subject shall either submit to the breath test or a refusal shall be initiated. If the subject refuses to submit to the breath test then, the subject shall be read the Florida Implied Consent Law. In the event the subject requests the opportunity to consult with an attorney (by asking specifically to have access to a phone to consult an attorney) a phone shall be made available to him/her for no more than 30 minutes.

If the prisoner requests the phone consultation with an attorney then, the arresting officer shall record the time the phone request was made and when the 30 minute time period expires directly on the charging affidavit. The phone call will take place after the prisoner has either submitted to or refused to submit to a breath test. Case law advises that phone call requests, even for an attorney, should be given after the breath test or refusal thereof.

If the prisoner requests an independent blood test then, he/she should be given the opportunity to look through the phone book to call someone to administer the test. If the prisoner locates a person to perform the test then, the blood will be withdrawn at the main station. Once the blood is drawn the officer shall request a sample of the blood being drawn. The officer shall supply the blood kit and tag the kit as evidence. The Daytona Beach Police Department will not supply a person to draw the blood, provide a blood kit for the prisoner, or transport the prisoner to a facility to have the blood drawn. It is the sole responsibility of the prisoner to locate someone to respond to the main station in a timely manner to draw the blood. A timely manner would be within one hour from the time the call is placed.

If the prisoner submits to a breath test and the result is below .08, and there is reasonable belief that the person is under the influence of a chemical substance then, a Drug Recognition Expert shall be notified.

If a DRE is not on duty the shift supervisor shall be notified. It will be the responsibility of the supervisor to determine whether to call out a DRE or not.

The prisoner shall be evaluated by a DRE if available and called out to determine if a urine sample should be requested or not.

If the DRE determines a urine sample should be requested then, the prisoner shall submit to the urine sample or if he/she refuses a refusal shall be entered.

Any time a urine sample is obtained, the officer taking the sample shall be of the same gender as the prisoner.

In the event a prisoner’s breath test results are .30 or above then, the officer shall wait an additional 30

minutes and administer a second series of tests. If the second series of tests show a result of .30 or higher then, the prisoner shall be transported to a medical facility without delay due to possible alcohol poisoning. If the second set of tests are below .30, this indicates the prisoners BAC is lowering to non life threatening levels and may be transported to the branch jail.

ZERO TOLERANCE LAW

When encountering a driver under the age of 21 who is found to have a BAC level of .02 through .079,

the “Zero Tolerance Law 322.2116, F.S." provides for the administrative suspension of the subjects driving privileges. Violations of section 322.2116 are not a traffic offense requiring a citation or a criminal offense requiring an arrest report. Violations of .08 and above are strict DUI violations regardless of the subject’s age.

Subjects contacted who do not meet the criteria for arrest under current DUI Laws, but are less than 21 years of age and operating a motor vehicle with a BAC of .02 through .079 may be cited under the Zero Tolerance Law 322.2116 F.S. An officer who has probable cause to believe a person under 21 is under the influence of alcoholic beverages or has any breath alcohol level may detain such person and request the person submit to a roadside test for breath alcohol level.

The breath test must be performed by an officer qualified in the operation of the portable breath test device and the device must be within current calibration intervals.

The officer will offer the subject the breath test. If the subject refuses a refusal will be entered according to the Zero Tolerance Law 322.2116, F.S.

If the test result is between .02 and .079 an appropriate administrative citation will be completed and thus effecting the suspension. The citation contains instructions for hearing requests and other information from DHSMV.

If the test result is below .02 the subject cannot be given the administrative suspension. If the result is anything above .02 then the license can be suspended: however, a DUI charge will have been ruled out.

If a DUI investigation is initiated it must be done prior to use of a portable breath test instrument.

In all cases where a “Zero Tolerance Law 322.2116, F.S." subject tests results are below a .02 or are .08 or above the officer shall notify his/her supervisor and advise the supervisor of the circumstances why the subject tested outside the parameters of the Zero Tolerance Law 322.2116, F.S.

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