Statistics on Administrative Suspensions in 2015

April 6, 2017 – 20:59

Administrative Suspensions 2016 DHSMV Bureau of Administrative Reviews Michael G. Blain

Recent statistics from the Bureau of Administrative Review Office shows that for all of the administrative suspensions invalidated in 2015, the hearing officers gave the following reasons listed in order by percentage:

  • No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%
  • No Probable Cause Under 21 – .17%
  • Refusal Affidavit Not Attested To -.98%
  • No or Improper Implied Consent Warnings – 4.4%
  • The Driver Did Not Refuse – 4.4%
  • Missing or Illegible Documents – 4.9%
  • No Physical Control – 4.9%
  • The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
  • No Valid Breath Test – 5.6%
  • Conflicting Evidence – 6.3%
  • Invalid Stop – 6.4%
  • The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
  • No DUI Packet Received by the BAR before the Review Hearing – 10.8%
  • The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%

I ended up getting this information after reading an article in the FACDL’s Florida Defender Publication.

The article was about seminars being conducted by the DHSMV to train DUI enforcement officers on ways to avoid the invalidation of the administrative suspension. I wanted to know if these training sessions were occurring in Hillsborough County, FL.

For those of us who regularly attend these hearings – what could be better than reading the training material?

After making the public record request from the BAR in Tampa, I learned the local HSMV Field Supervisor conducted “The Administrative Suspension 2016” training at the HCSO Falkenburg Jail location on September 28, 2016.

More than 40 officers with the Hillsborough County Sheriff’s Office attended the training. Many of them were DUI enforcement officers.

The material promoting the “Administrative Suspension Training for Law Enforcement Officers” promised to cover the following topic:

  • administrative suspensions under Florida Statute Section 322.2616
  • administrative suspensions under Florida Statute Section 322.2616 (zero tolerance)
  • probable cause affidavits
  • refusals
  • invalidations
  • case law

The handout promoting the training promised to provide “statistics for your area and agency.” This handout indicates to me that the DHSMV keeps statistics for each area, agency, and hearing officer.

I’ve made another public record request to see the statistics they keep for the number or type of notice of suspension issued under 322.2615 and 322.1615 (hereinafter referred to as “administrative suspension”) for 2015.

I’d also like to see the statistics for the administrative suspensions for each area, agency and hearing officer including a breakdown of the reason for the invalidation. How many of those sustained suspensions involved a formal review hearing vs. an informal review hearing vs. a waiver review hearing?

It looks like the purpose of the training sessions is to help law enforcement officers, breath test operators, and agency inspectors avoid the most common reason for suspensions being invalidated.

In fact, the training materials even disclose a 95.3% sustain rate for administrative suspensions under Section 322.2615 (for adults requested to submit to testing) and a 90.3% percent rate for administrative suspensions under Section 322.2616 (related to individuals under age 21 years old).

Those numbers are really skewed because most of those people requested a hearing without an attorney or any plan to contest the suspension. For experienced DUI defense attorneys in Florida, the rate of getting an administrative suspension invalidated is much higher.

How the Training Material Can Help DUI Defense Attorneys

What can DUI defense attorneys learn from the training material? The material actually shows you what to look for and what arguments to make during the formal review hearing. The hearing officer is given a number of choices for their reason to invalidate.

It looks like they are receiving the same type of training as the officers – find a way to uphold the suspension so the sustain rate is even higher. Knowing those reasons used by the hearing officer and how frequently they occur is extremely informative for DUI defense attorneys.

If you have never done a formal review hearing before, this material is a MUST read because it contains the best issues to look for and the best arguments to make when you find those issues.

The Statistics on 2015 Administrative Suspensions – Sustained Rates

The statistics in 2015 show there were 34,449 administrative suspensions in 2015. That number seems a little high since other statistics show there were 31,783 DUI arrests in Florida in 2015 (see FDLE Annual 2015 Florida uniform crime report).

Out of those, 32,848 administrative suspensions were sustained. Therefore the percentage of sustained suspensions was 95.3%. These statistics are really misleading because most of these “sustained” suspensions were completely uncontested by an attorney.

In 2015, there were only 393 administrative suspensions under §322.2616 for drivers under the age of 21. Of those, 355 were sustained. That is a 90.3% suspension rate. Keep in mind that the vast majority of those suspensions went uncontested by an attorney.

In 2015, the DHSMV reported 468 administrative disqualifications under §322.64 for commercial drivers. Out of those, 438 disqualifications were sustained which equals a 93.5% rate of sustained suspensions. Most of those disqualifications were uncontested.

For my clients, I always recommend filing for a formal review hearing within the first 10 days of the arrest and contesting the suspension or disqualification.

The training materials then ask:

While sustain rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?…. Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.

Reasons Suspensions are Invalidated

The following “reasons for invalidation” are in descending order by percentage:

  1. The Arresting Officers Fails to Appear at the Formal Review Hearing
    • The arresting officer not showing up to the formal review hearing is the main reason that the suspension is invalidated.
    • In fact, 32.7% of the invalidations occurred for this reason.
    • Additionally, if you combine the number of invalidations for the failure to appear of either the arresting officer or the breath test operator, that number jumps to 40.6%.
    • The BAR suggested the following remedies for this problem:
      • Show up
      • Properly served subpoena – Designated departmental recipient (Court Liaison)
      • Find the BAR email address and telephone number on a subpoena to request a continuance
      • Understand the difference between the request for continuance vs. the failure to appear
        • Requests to continue must be made prior to closing the hearing
        • Just cause
          • Not childcare, tired, or going fishing
  2. No DUI Packet
    • The BAR not receiving the DUI packet in time accounts for 187 suspensions being invalidated which is 10.8%.
    • To avoid this problem the BAR suggested to officers and their agencies:
      • The agency should deliver the packet to the Department within 5 days following the issuance of the notice of suspension
      • Deliver ASAP – See Florida Statute Section 322.26151
  3. The Breath Test Operator Fails to Appear at the Formal Review Hearing
    • The breath test operator’s failure to appear accounted for 138 invalidations or 7.9%
    • Skewed – only applies to DUBALS
    • The DHSMV suggested the following ways to avoid a suspension for this reasons:
      • Show up
      • Properly served subpoena – Designated departmental recipient (Court Liaison)
      • Do not list the breath test operator on the probable cause affidavit if they played no role in the case
      • Use the BAR email address to request a continuance
  4. Invalid Stop
    • An invalid stop accounted for 111 or 6.4% of the invalidated suspensions
    • The DHSMV suggests the following ways to avoid that result:
      • Ensure reason for stop by listing how you came into contact with the driver on the probable cause affidavit
      • Explain the driving pattern, concern for well being, speeding….
      • How determined Roberts case law
  5. Conflicting Evidence
    • Conflicting evidence accounts for 109 of the suspensions or 6.3%
    • Ways to avoid a suspension being invalidated for this reason include:
      • Review documentation prior to testimony
  6. No Valid Breath Test
    • Not having a valid breath test accounted for 97 or 5.6% of the invalidated suspensions
    • The DMV suggested ways to avoid invalidating the suspension including:
      • Comply with Rule 11D-8
      • Two samples within fifteen minutes within a .02 tolerance
      • 20 minute observation
        • List who conducted the observation (entirely?)
  7. The Officer Didn’t Attest to the Probable Cause Statement
      • The DMV suggests that the probable cause affidavit not being attested to accounted for 96 or 5.5% of the suspensions invalidated
      • The DMV suggested the following ways to avoid the suspension being invalidated including:
        • Ensure copies are made after attestation
        • Ensure legible copies
        • Ensure all sides are copied
      • [[Note from the author – Always look at the criminal report affidavit or any other document being used to show probable cause to make sure it is actually attested to by a notary or signed by another officer that indicates that he or she personally knows the person making the report.  I can’t tell you how many times we see this issue, especially when the arresting officer is a trooper with the Florida Highway Patrol. See Johnston, 553 So. 2d 730 (discussing the requirement for “strict compliance” with the affidavit requirement)]]
  8. No Physical Control
    • The DMV statistics show that 86 or 4.9% suspensions were invalidated because of a lack of evidence of driving or actual physical control
    • The DMV suggested was to avoid the suspension being invalidated for these reasons:
      • How were they placed behind the wheel
      • Fellow Officer Rule
      • Supplemental reports
      • Crash investigation/report
  9. Missing or Illegible Documents
    • The DMV shows that 85 or 4.9% of the suspensions were invalidated because of missing or illegible documents:
      1. Ensure copies are legible
      2. Ensure both sides are copied
  10. Did Not Refuse
    • The 2015 statistics show that 76 or 4.4% suspensions were invalidated because the subject did not refuse
    • The DMV suggested the following ways to avoid a suspension on this basis:
      • How was refusal determined?
        • Stated?
        • Manipulated the system/equipment
        • “Could” not provide a sample
      • Recanted Reasons For Invalidations
  11. No or Improper Implied Consent Warnings
    • 76 of the invalidated suspensions of  4.4% were because of no implied consent warning or an improper implied consent warning
    • The DMV suggested the following ways to avoid an invalidated suspension for this reason:
      • Include the Implied Consent Warning in the packet
      • Include the Refusal Affidavit
      • Include the Disqualification Warning in the packet
  12. Refusal Affidavit Not Attested To
    • The statistics show that 17 or .98% of the suspensions are invalidated because the refusal affidavit are not attested to
    • The DMV suggested these ways to avoid that problem:
      • Ensure copies are made after attestation
      • Ensure legible copies
      • Ensure all sides are copied
  13. No Probable Cause Under 21
    • Three (3) of the suspensions or .17% of the suspensions were invalidated because no probable cause existed that the person was under 21
    • The DMV suggested ways to avoid this type of suspension including:
      • Scope for Section 322.2616
      • Including probable cause about how the officer knew the person was under 21
      • Ensure probable cause affidavit states how you knew
      • Zero Tolerance Notice of Suspension includes checkbox
  14. No .02 Agreement on the Intoxilyzer Breathalyzer Test
    • The statistics show that only 1 or .05% of the suspensions were invalidated because the breath test didn’t show a .02 agreement
    • Ways to avoid this type of suspension included:
      • Ensure reading is documented –If Intoxilizer is used Rule 11D-8 applies

Zero Tolerance Administrative Suspensions Under §322.2616

The training material asks: “Why so few? Let’s Compare and contrast 322.2615 with 322.2616.”

322.2615 Compared to 322.2616

  • Both are administrative actions
  • Both are roadside suspensions
  • Both are DUBAL or Refusal – .08 and .02 respectively
  • Both also allow for criminal charges
  • Florida Statue 322.2616 only applies to under 21
  • Florida Statue 322.2615 “Adult” applies to anyone
  • Florida Statue 322.2616 may use PBT
  • FDLE rules do not apply unless an Intoxilyzer is used
  • Florida Statue 322.2615 requires an evidentiary device so FDLE rules do apply

Florida Statute 322.2615 Contrasted with 322.2616

  • Florida Statue 322.2615 remains on the record for 75+ years
  • Florida Statue 322.2616 remains until 21
  • Florida Statue 322.2615 requires an arrest
  • Florida Statue 322.2616 is not considered an arrest – the driver may be  released to family

Driver’s Choices Within Ten Days of the Issuance of the Notice of Suspension

  • Formal Review – Evidentiary
  • Informal Review – Non-evidentiary
  • Review Waiver

Probable Cause Affidavit

  • What should be there:
    • Place the driver behind the wheel
    • Reasonable suspicion indicia provides probable cause
    • What should not:
      • Do not list the BTO if they played no role –possible subpoena/invalidation

Testimony at the Formal Review Hearing

  • BTO needs to know their certification dates
  • Agency Inspectors need to know their certification dates
  • Hearing Officer determines if questions are within the scope

Case Law – Let’s take a look at some case law

  • DHSMV vs. Brown, Respondent, 40 Fla. Law Weekly D2651 District Court of Appeal of Florida Third District [[explains why hearing officers are upholding suspensions when the affadavit is merely signed and not notarized – they are assuming that the signature is by another law enforcement officer who is authorized to administer oaths as explained in Gupton v. Dep’t of Highway Safety, 987 So. 2d 737, 738 (Fla. 5th DCA 2008) even though there is no way to know that from the four corners of the documents presented at the hearing).]]
  • DHSMV vs. Luttrell, Respondent, 983 So.2d 1215 District Court of Appeal of Florida Fifth District
  • DHSMV v. Fernandez, Respondent, 114 So.3d 266 District Court of Appeal of Florida Third District
  • DHSMV vs. Wiggins, Respondent, 151 So.3d 457 District Court of Appeal of Florida First District

sustained rates for the administrative suspension

The Moral of the Story

The Florida Supreme Court has recently voiced concerns about due process and fairness at these administrative suspensions hearings, specifically when the hearing officer is deciding the suspension under Florida Statute Section 322.2615.

In fact, the courts have noted concerns about:

  • whether drivers are being afforded reasonable notice and meaningful review of the lawfulness of the suspension;
  • whether non-lawyers serving as hearing officers under section 322.2615 results in “constitutional infirmity”
  • whether the hearing officer are really as impartial and neutral as the members of the judiciary are required to be; and
  • whether the frequency with which conscientious trial judges in Florida issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.

This training material shows that the Florida Legislature should start over. If the driver requests a formal or informal review hearing, then judges should preside over those hearings but under no circumstances should a hearing officer be allowed to do so.

These training materials show that the hearing officers and their supervisors at the Bureau of Administrative Review (BAR) office have no intention of being impartial and neutral.

The officers at the Hillsborough County Sheriff’s Office certainly know that after receiving this training.

Learn more about the 14 ways to win a formal review hearing to challenge a DUI administrative suspension.

By lsammis | Posted in administrative suspension, Formal Review Hearing, Hillsborough County Sheriff's Office, Tampa DUI Attorney, waiver review | Tagged , | Comments (4)

Electronic Warrants in Hillsborough County, Florida

August 13, 2016 – 21:12

Update on E-Warrants on August 19, 2016: 

Hillsborough’s New Electronic Warrants Should Speed Up Justice – During the week of August 15, 2016, the Hillsborough Circuit Court launched an e-warrant pilot program. The program allows the on-call judge to log on to a secure site and view a warrant right away – the moment that it is uploaded into the system.

In a violation of probation case, it means the judge can get an arrest warrant electronically processed so the person sitting across from clerk can be served with the warrant immediately. The e-warrant system in Hillsborough County is being launched as a pilot program. Only a small group of detectives from the Hillsborough County Sheriff’s Office will be using the new system, but eventually, every agency in the county will be able to use it.

At this time, the new pilot program is not available to Traffic Homicide Investigators requesting a search warrant for blood in a DUI with death or serious injury case in Hillsborough County, FL.

The rest of this article questions why electronic warrants sent by email are not being used in traffic homicide investigations for forced blood draws until the new pilot program is expanded county-wide.

Original Article on e-Signing the e-Warrant in Hillsborough County, FL

The United States Supreme Court in Missouri v. McNeely, 569 U. S. ___ (2013), considered whether exigent circumstances would exist for a DUI-related forced blood draw because of the technological “advances in the last 47 years since Schmerber was decided that allow for more expeditious processing of warrant applications.”

electronic e-warrant in florida and hillsborough county

Even before Fla. Stat. Ann. § 933.07 was amended in 2013 to expressly allow electronic warrants and electronic signatures in Florida, police officers in Palm Bay, expedited the warrant process by emailing an affidavit to the judge and then video conferencing with the judge via Skype. See Palm Bay Florida Police, Innovative Policing Creating a Safer Community (2011).

Law enforcement officers acknowledged that the “process takes an average of less than thirty minutes in comparison to several hours it would have taken using traditional means.”

It is important to remember that the Florida legislature had already enacted the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.” Section 668.004 (Fla. Stat. 2003) indicated a clear acceptance of this alternative signature form.

668.004 Force and effect of electronic signature.—Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.

The Florida Supreme Court, in In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla. 1996), stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system.”

Most importantly, on July 1, 2013 (just a few months after the McNeely decision), legislation in Florida took effect which allowed:

  • officers in the field could e-sign the warrant application;
  • the signature could be sworn to by another officer at the scene;
  • judges could send and receive an e-warrant by any reliable electronic means (which would include e-mail); and
  • judges could e-sign the warrant;
  • the warrant became effective the moment it was e-signed by the judge.

After July 1, 2013, no jurisdiction in Florida can claim that electronic warrants don’t exist in their jurisdiction because it is expressly allowed under Florida law and much easier than the old fashion ways of getting a warrant.

Judges Can Sign an Electronic Warrant in Florida

As of July 1, 2013, the statute was amended so that Florida judges are expressly authorized to sign an electronic warrant (which includes a warrant send via e-mail or any other reliable electronic means).

As explained in 14A Fla. Jur. 2d Criminal Law – Procedure Section 717:

§ 933.07(3), Fla. Stat., as added effective July 1, 2013, provides that a judge may electronically sign a search warrant if the requirements of §§ 933.07(1), (2), Fla. Stat. are met and the judge, based on an examination of the application and proofs submitted, determines that the application: (§ 933.07(3), Fla. Stat.):

(a) Bears the affiant’s signature, or electronic signature if the application was submitted electronically. (§ 933.07(3)(a), Fla. Stat.).

(b) Is supported by an oath or affirmation administered by the judge or other person authorized by law to administer oaths. (§ 933.07(3)(b), Fla. Stat.).

(c) If submitted electronically, is submitted by reliable electronic means. (§ 933.07(3)(c), Fla. Stat.).

Florida Judges Can Attach an Electronic Signature to the Search Warrant

As of July 1, 2013, the statute was amended so that Florida Judges are expressly authorized to sign an electronic warrant with an electronic signature.  14A Fla. Jur. 2d Criminal Law – Procedure Section 717 explains that:

§ 933.07(4), Fla. Stat., as added effective July 1, 2013, provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.

The Definition of an Electronic Signature in Florida is Broad

What is an electronic signature? Well, when I file pleadings in criminal cases, instead of using a pen and ink to sign the document, I just type in “/s/____________” plus my name electronically. And that is all that is required for a judge attaching an electronic signature to an e-warrant in Florida.

The Florida Legislature created a broad definition to cover any electronic signature of a judge on a search warrant. For the electronic warrant statute in Florida, the definition of an electronic signature is set out in § 933.40, Fla. Stat., which provides:

(d) “Electronic signature” means any letters, characters, symbols, or process manifested by electronic or similar means and attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

That definition for an electronic signature includes typing into the document “/s/_____________” followed by the judge’s name.

No Legitimate Reason to Drive the Warrant to the Judge’s House

Also, on July 1, 2015, the Florida Legislature created F.S. 117.10 which authorizes the affiant to be sworn in while at the crash scene and to add an electronic signature to the warrant application while still at the scene.

It is important to note that F.S. 117.10 expressly includes “traffic accident investigation officers and traffic infraction enforcement officers” as qualified to administer oaths when engaged in the performance of official duties.

One Officer Can Get the Warrant While Another Gets the Blood Drawn

Florida law does not require that the officer seeking the warrant must be the same officer that serves the warrant for the forced blood draw, especially when the officer that will serve the warrant is actually mentioned in the warrant.

So in a traffic homicide case, one officer needs to do the following:

  1. Draft the application and proposed warrant and mention the officer designated to actually serve the warrant by taking the Defendant for a forced blood draw;
  2. Attach an electronic signature to the application to be verified by another officer under F.S. 117.10;
  3. E-mail the warrant application and warrant to the judge;
  4. Be sworn in by the other officer prior to talking to the judge on the phone if the judge has any questions about the warrant; and
  5. Wait for the judge to e-mail back the warrant with either an e-signature or with pen and ink.

At the moment the judge attaches a signature or electronic signature the warrant is valid under § 933.07(3) and can be served by the affiant or another officer mentioned in the warrant.

This process is extremely effective because it often takes some time to transport the defendant to the facility where the blood will be drawn.

Electronic Warrants Existed in Hillsborough County Since July 1, 2013

As of July 1, 2013, the proper procedure for obtaining a warrant for a forced blood draw with probable cause that a person committed a DUI with serious bodily injury or death was to either drive to the judge’s house to get the warrant signed or to send the warrant to the duty judge by a reliable electronic means which would include e-mail.

It doesn’t matter whether the Thirteenth Judicial Circuit has an updated warrant procedure for all other types of warrants. Nothing prohibits a judge from reviewing an electronic warrant after hours via email in a case seeking a forced blood draw after a DUI death or serious bodily injury investigation.

After the McNeely decision, law enforcement agencies across the county quickly started using these simple technologies that required no technological competence on the part of the recipient beyond being able to open an email, and typing “/s/________.” It is also easy to use a program like DocuSign or Adobe to attach an e-signature.

Judges have the Technological Competence to E-Sign

The Bar Board of Governors, at its July 24 meeting in Coral Gables, approved an amendment to a comment in the Florida Bar Rules to explain that lawyers should have technological competence necessary to protect clients’ interests and necessary for their areas of practice. See Propose Bar Rule on Technological Competence.

Since electronic warrants are expressly authorized under Florida law, traffic homicide investigators, prosecutors who handle traffic homicide cases, and judges who are on jury duty after hours, should all have the technological competence necessary to send or receive an email and attach an electronic signature to a document since it is necessary for their area of practice.

For years, judges in Hillsborough County have been routinely attaching their electronic signature to all kinds of orders issued every day. No one can deny that judges possess the technical competence necessary to simply open the warrant in a Word document, type in “/s/_____________” followed by their name electronically to the document, save the document, and email it back to the sender.

Judges can also just print out a search warrant emailed to them, sign it with pen and ink, take a picture of it with their cell phone, and send the picture electronically back to the officer in the field.

If you think about it for a few minutes, it is easy to imagine a dozen different ways to use modern technologies to send a warrant electronically from one place to another with e-signatures attached to the final version.

Prosecutors Knew that Electronic Warrants Existed in Hillsborough County in 2013

The State Attorney’s Office in Hillsborough County (as well as the other State Attorney’s Offices throughout Florida) were certainly aware of these statutes and provisions and the Florida Legislature’s efforts to make electronic warrants available after Missouri v. McNeely.

Through several public record request, we have learned that on October 1, 2013, an Assistant State Attorney in the Thirteenth Judicial Circuit sent an email to the General Counsel for the Thirteenth Judicial Circuit, requesting that court administration officially set up formal procedures to recognize the new requirement that electronic warrants via email should be used in forced blood draws in DUI death or serious bodily injury case.

The email from the Assistant State Attorney provided:

Dave,

We would like to establish procedures that give law enforcement and judges the ability to electronically sign a search warrant. This will be helpful when a search warrant is needed quickly, and when the circumstances make it difficult for law enforcement to meet with the judge in a timely manner. We think that that revision to F.S. 933.07 would allow a procedure where the affiant could email the affidavit and search warrant to the judge, and the judge could question the affiant over the phone. The affiant could be placed under oath by a notary or, pursuant to F.S. 117.10, by another law enforcement officer. After being sworn by a qualified person, the judge could question the affiant to verify the affidavit and ask any questions the judge might have.

If we set up a procedure that everyone is comfortable with, we might be able to handle search warrants more quickly, efficiently and conveniently. My suggestion to law enforcement is that we initially try this on the DUI cases where they have been advised to seek search warrants in light of Missouri v. McNeely. If it works well and nobody has any legal concerns, we could expand it to the other cases.

We would need to iron out the details to comply with the statutory requirements, such as the method of providing an electronic signature, both by the affiant and the judge. One suggestion that has been made is that the duty judge have a secure laptop for this purpose. Please let me know what you think, and we are open to any suggestions.

Thanks,

Mike (Assistant State Attorney in Hillsborough County)

Although this email was sent on October 1, 2013, instead of just “ironing out the details,” the State Attorney’s Office now argues in court that electronic warrants do exist in Hillsborough County, FL. The State has to argue e-warrants don’t exist.  Otherwise, their claim of exigent circumstances would be even more absurd.

The only solution to this problem is for the State Attorney’s Office to help train law enforcement officers in the field to secure an e-warrant in a timely manner. Florida Highway Patrol will need the most help. The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.

The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.

When warrants aren’t used in forced blood taking in Florida, the exclusionary rule will often lead to the suppression of the blood. The exclusionary rule is the only thing that encourages law enforcement officers in Traffic Homicide cases to use the tools available to them. Traffic Homicide Investigator need to draft a template that they know how to use and have it ready for their next shift.

Are Judges in Your County in Florida e-Signing the e-Warrants?

So what about your jurisdiction?

Are traffic homicide investigators getting a search warrant the old-fashioned way by driving to the judge’s house after hours, getting an e-warrant, or manufacturing their best “exigent circumstances” argument?

By lsammis | Posted in Blood Test DUI | Comments (1)

The Problem with USF DUI Checkpoints

July 12, 2016 – 12:24

DUI Checkpoint by USF Police Department Picture

DUI Checkpoints are highly ineffective. On February 27, 2016, the University of South Florida Police Department conducted a DUI checkpoint on 50th Street near the USF Catholic Student Center.

According to Cpl. Scott Parker’s after-action report / critique, there were 441 vehicles stopped at the checkpoint. Out of all of those people delayed in the checkpoint, no one was arrested for DUI. Only one arrest was made for misdemeanor possession of marijuana. Today, that case was dropped by the prosecutor after a motion to suppress was filed in the case showing that the checkpoint did not pass constitutional muster.

In preparation for the motion hearing, we were provided with a copy of the 9 page operation plan, the checkpoint assignment and sign in sheet for the 12 officers that participated, a diagram of the set up of the checkpoint, and an after-action report / critique.

We were able to cut and paste the operational plan and after-action report below.

The report claims that “there were no delays during the checkpoint” which doesn’t seem plausible since 441 vehicles went through the checkpoint and supposedly all of them were stopped.

The report also explains that one citizen became so aggravated by the checkpoint that she actually called 911 to report the officers for illegally detaining her. The report says that “[p]ost de-escalation” the citizen was given advice on not misusing the 911 system and potential consequences before she was finally released.

What is the point of the checkpoints? It is my understanding that the officers are required to conduct the checkpoints in order to receive federal grant money.

Read the operation plan and after-action report to let us know what you think. Feel free to leave your own critique.

If you get arrested in a checkpoint, be sure that your attorney files and litigates a motion to suppress the evidence because of inevitable problems with the operational plan and the officer’s failure to comply with the plan during the operation.

In many of these cases, the prosecutors have little choice but to drop the charges after the appropriate motions are filed.

You can also read more about a recent checkpoint conducted by the Tampa Police Department. The TPD plan had even bigger problems. Although the officers were required to stop every 5th vehicle, TPD reported the officers pulled over 48% of the 66 vehicles that were diverted through the checkpoint.

_______________________________________________________

University of South Florida

Police Department

2016-07

Comprehensive Roadside Safety & Sobriety

Checkpoint – Saturation Patrol to follow

Date: 2/27/16

Checkpoint Location: 50th Street / USF Catholic Student Center

Between the hours of 2100 and 2300 hrs

Saturation Patrol:

Campus Wide / Full Jurisdiction

Operations Command Officer: Scott Parker #51

OPERATION OBJECTIVES

The University of South Florida Police Department will be conducting a Comprehensive Traffic Safety Checkpoint.

The primary focus of this operation will be on driver’s who choose to drive under the influence of alcohol and /or other impairing substances and to promote awareness of safe driving. The goal of this operation is to adopt zero tolerance for the possession of any quantity of alcohol, chemical or controlled substance found in the possession of any such person as prohibited by law; to identify, apprehend and incarcerate any person who is operating a vehicle impaired and to deter those who might otherwise attempt to drive while under the influence.

Secondly, this operation will also focus on the detection of improper or unsafe vehicle violations, seat belt and child restraint violations, driving while license suspended or revoked, and any other violation under Florida State law in accordance with Florida State Statutes Chapters 316, 320, and 322.

Lastly, the detection and enforcement of any other criminal violations committed in violation of Florida Statute.

MANPOWER

University of South Florida Police Department

Other Agency’s Invited Personnel (Mutual Aid Agreements)

SITE LOCATION:

Checkpoint location: 50th Street at the USF Catholic Student Center (13005 50th Street, Tampa FL 33613)

The location for this checkpoint will be on 50th Street at the Catholic Student Center (North of USF Elm Drive). This checkpoint will focus on North Bound Traffic Only.

This location was chosen due to its high visibility to the students, faculty, staff and visitors on the University of South Florida Campus. In addition, this location is also a frequent point of DUI investigations and dangerous traffic infractions on the University of South Florida property.

It is also important to note that Hillsborough County is annually in the top percentages in DUI related crashes and incidents.
An exit point is provided at USF Elm Drive which is adjacent to 50th Street and allows traffic to move to the South and West of the checkpoint. Vehicles choosing to utilize this exit point will not be stopped based solely on using this roadway to avoid the checkpoint, and will only be stopped based upon articulable reasonable suspicion and probable cause to include independent traffic violations.

Final site determination takes into consideration the site distance, roadway configuration, and traffic volume, proximity to operating businesses, lighting conditions, field sobriety task administration, and motorist safety.

Primary consideration is officer safety. The checkpoint will not operate during periods of dense fog, visibility of less than 600 feet, or during rainstorms.

The decision to conduct or cancel the checkpoint operation shall be made by the Operations Supervisor. The Operations Supervisor may call for an early termination of the checkpoint due to weather conditions, a decrease of traffic volume and / or a decrease of manpower.

The checkpoint(s) will occur within the time frame as outlined in the guidelines, but they do not have to start at exactly the given time or end at exactly the given time.

  1. SITE LAYOUT:

 

The selected location is a 2 lane road. The checkpoint will be set for North Bound traffic.

The traffic cones will be DOT approved 36” tall with double reflective collars; they will be spaced approximately 25 to 40 feet part, but no greater than 50 feet apart. Marked patrol cars and / or other selected law enforcement will be utilized to warn the oncoming motorist of the checkpoint.

The Secondary Contact Area which encompasses issuance of citations, vehicles for tow, field sobriety task, and Command Center will be located in the north end of the USF Catholic Center Parking Lot, which is adjacent to 50th Street.

A reflective sign advising “CHECKPOINT AHEAD” will be posted a greater than 200 feet prior to the checkpoint line officers to allow motorists ample time to choose an alternate route.

A reflective sign advising “BE PREPARED TO STOP” will be placed at the entrance to the checkpoint. Once a vehicle enters into this area they will be subject to contact.

  1. JOB DESCRIPTIONS:

 

OPERATIONS SUPERVISOR: The lead member of checkpoint, regardless of rank, designated to coordinate all checkpoint operations and activities including briefing, debriefing, staffing, operations and overall supervision.

The operations supervisor is additionally responsible for ensuring the safety of motorists and member’s participation in the checkpoint operation. This officer shall be responsible for preparing the primary and alternate site and all required paperwork and documentation for each checkpoint.

They will ensure that the line is staffed and properly equipped with the necessary processing paperwork. They will ensure the appropriate set-up of a video camera system; violator processing area and vehicle impoundment area. The assistant Operations Supervisor may at the request of the Operations Supervisor take over the Operations Supervisor duties at any time during the operation.

ASSISTANT OPERATIONS SUPERVISOR: The Assistant to the Operations Supervisor is designated to assist with personnel during the Sobriety Checkpoint. The Assistant Operations Supervisor can delegate any of the aforementioned actions of the Operations Supervisor during the Sobriety Checkpoint operation.

PUBLIC INFORMATION OFFICER (PIO): This person shall be responsible for the dissemination of information pertaining to the checkpoint of accredited news agencies and their representatives. They do not need to be onsite at the time of the checkpoint.

CHECKPOINT LINE OFFICER (CLO): These officers will be responsible for stopping all vehicles at the designated stopping area, making contacts with the driver, requesting drivers’ licenses, registrations, and insurance documentations, checking for signs of intoxication and other violations.

The CLO may take enforcement action on any violation of the law that they observe. If an impaired driver is detected, the CLO will be responsible for the arrest procedures and paperwork. When a minor infraction is detected, the CLO will direct the violator’s vehicle to the secondary contact area. In the case of a suspected DUI, driver’s license violation or custodial arrest offense when probable cause exists, the driver will not be allowed to continue operating the vehicle. The driver will be detained and processed in accordance with Florida State Statute and the officer’s departmental Standard Operating Procedures.

CHASE VEHICLE OFFICERS (CVO): Chase Vehicle Officers will be assigned to the perimeter of the Sobriety Checkpoint and are to stop vehicles based upon articulable reasonable suspicion and probable cause. In addition, they will follow agency procedure and state law in respect to pursuing any driver of a motor vehicle who comes to their lawful attention as part of the Sobriety Checkpoint. Avoiding the Sobriety Checkpoint alone is not sufficient cause to stop the vehicle, driver, and / or occupants; however, any vehicle avoiding the Sobriety Checkpoint may be followed to determine if there are articulable reasons to lawfully stop the vehicle.

TRANSPORTATION / BOOKING OFFICERS: In the event the Hillsborough County Sheriff’s Office does not provide a joint operation, on-site, satellite booking procedure in conjunction with this Sobriety Checkpoint, then each assigned officer will be responsible for transporting their own arrestee(s) to central intake, unless otherwise specified by the Operations Supervisor.

VEHICLE INVENTORY OFFICERS (VIO): If the operation size dictates, Vehicle Inventory Officers will be responsible for moving vehicles out of the checkpoint lanes in the event the driver is removed and detained for further investigation. Additionally, Vehicle Inventory Officers will process all vehicles for impound during the assignment at the Sobriety Checkpoint. They will also be responsible for releasing the vehicle in conjunction with agency policy should the opportunity arise. Vehicle Inventory Officers will handle any animals, weapons, etc., found inside the vehicles as part of the investigation.

DATA COLLECTION SCRIBE (DCS): The Data Collection Scribe is responsible for recording the number of vehicles which pass through the checkpoint, the number of vehicles stopped and the average length of delay. The DCS also documents any traffic deviations.

DRUG RECOGNITION EXPERT (DRE): Whenever possible the Drug Recognition Expert (DRE) will be assigned as a Checkpoint Line Officer at the Sobriety / Safety Checkpoint. The Officer will assist in the Secondary Contact Area as needed.

CANINE DEPUTY (K-9): The Canine Deputy, if available, will be responsible for conducting narcotics searches upon the request of Contact Officers who have a reasonable suspicion that narcotics are in a vehicle stopped in the secondary contact area. The canine will not be utilized to examine vehicles in any other manner during this detail. The canine deputy will document all deployments of the canine whether or not narcotics are located in the stopped vehicle.

INTOXILYZER OPERATOR: A certified Intoxilyzer Operator, if available, will obtain all breath or urine samples and/or secure any blood evidence. They will also complete the required forms and give them to the arresting officer prior to transport and booking.

3. CHECKPOINT STAFFING REQUIREMENTS:

  • Safety and Sobriety Checkpoints minimum staffing requirements will be composed of one operations supervisor, assistant operations supervisor, checkpoint line officers, and one scriber. Other assigned duties may be assigned by the Operations Supervisor and documented on the sign in sheet. The operations supervisor will have the authority to combine job descriptions and / or to assign more than one person to a job assignment. It is not a requirement that all jobs listed in section 2 be filled.
  • All checkpoint members will be in a department issued uniform and wearing traffic safety vests or reflective uniform at all times while in public view. Officers working the checkpoint at night will use a flashlight and use a traffic cone, if needed.
  • Checkpoint members not actively involved in traffic control, log duties, or screening should be positioned to observe traffic in a safe area and be immediately available to provide assistance as needed. Duties should be rotated periodically to prevent undue fatigue.

4. CONTINGENCY PLAN 


  • Primary Count – every 3rd vehicle
  • Alternate Count – every 5th vehicle
  • Alternate Count – every 10th vehicle
  • Two considerations to determine the sequence of screening at this location are traffic volume and the experience of the members of the checkpoint team. The operations supervisor shall monitor traffic to ensure that a backup of vehicles does not occur. If delays of more than five (5) to seven (7) minutes occur, but no more than ten (10), the operations supervisor may order alternate vehicles as specific in the operational plan. If the traffic conditions cause an unnecessary delay that cannot be easily alleviated by alternate vehicles, the operations supervisor may temporarily suspend the checkpoint until the unnecessary delay has been cleared. The method used to clear the traffic will be to allow 5 , 10 or 15 cars to pass through and then begin with either the primary or alternate count as deemed necessary by the operations supervisor and dictated by traffic volume and number of line personnel.
  • As deemed necessary, a vehicle shall be selected and timed through the checkpoint lanes and the time documented in the operations record of the checkpoint. If delays of more than ten minutes occur, the Operations Supervisor may order alternate vehicles checked as specified in the contingency plan. Any suspension or deviation from the established operational plan shall be documented in the operations record of the checkpoint.
  • In the event a motor vehicle operator does not comply with the lawful direction of Sobriety Checkpoint personnel, then any officer working the Sobriety Checkpoint can follow the associated laws, policies, and procedures to gain compliance, detain, or arrest the violator.

5. VEHICLE AND DRIVER SCREENING

  • After initial contact, a driver that does not show signs of impairment or who do not have any other violations will be directed to move forward and past the checkpoint without further delay. Drivers who pass through the checkpoint with noted violations will be directed to the Secondary Contact Area.
  • All vehicles, regardless of type, that enter into the checkpoint shall be subject to screening. This shall include commercial vehicles such as buses and large trucks. Emergency vehicles operating in the scope of their duties shall be exempt from the screening. Fire Rescue and Ambulance services shall be notified in advance of the location and time of the checkpoint. Should an emergency vehicle approach and or enter into the DUI / Safety checkpoint with their emergency lights and / or siren operating; they shall be moved through the DUI / Safety Checkpoint with no or minimal delay.
  • Vehicles shall not be stopped on a discretionary basis (i.e. profiling). However, this does not preclude stopping a vehicle when the driver exhibits obvious signs of impairment.
  • It is recommended but not mandated that a minimum of two checkpoint line officers (CLO) will approach each contact vehicle. One will act as the contact officer and the other will be the cover officer. The CLO’s can alternate positions to prevent fatigue. When approaching a vehicle, CLO’s shall scan the interior and occupants with a flashlight, if needed, for weapons and / or contraband such as open containers of alcoholic beverages. Upon determining that no hazards exist, the contact officer shall greet the driver of the vehicle in a courteous manner, advise the driver of our reason for stopping them and request the required documentation. 
Standardized Greeting: All Checkpoint Line Officers will say, “Good evening/morning, I am (Rank) (Name) with the (Agency), and we are conducting a Safety & Sobriety Checkpoint. May I see your driver’s license please?”
  • While waiting for the driver to produce the required documents, the CLO should be looking and/or smelling for indicators of DUI. If the driver does not appear to be under the influence the contact officer with the assistance of the cover officer will inspect the required equipment on the vehicle. After completing contact with the vehicle the officer will then provide the driver with handout material, if available, and allow him / her to proceed. If equipment violation(s) are discovered, the cover officer will note these violation(s). The driver will then be directed to pull the vehicle into the secondary contact staging area where an officer will address the violation(s).
  • If the driver appears to be under the influence, the officer should wait until he / she has obtained the license from the driver so that he / she can observe the driver’s manual dexterity. The contact officer will then ask the driver to walk to the field sobriety tasks area for evaluation. The results of the evaluation will dictate the course of action taken by the contact officer.
  • NOTE: UNDER NO CIRCUMSTANCES IS A SUSPECTED DUI DRIVER OR A DRIVER SUSPECTED OF DRIVING WHILE LICENSE SUSPENDED BE ALLOWED TO MOVE HIS / HER VEHICLE FROM THE ROADWAY. THE VEHICLE WILL BE MOVED FROM THE ROADWAY BY AN OFFICER.
  • If the driver is under 21 years of age and probable cause does not exist for the arrest of the underage driver for DUI, but there are indicators that the driver has been drinking, the on scene Intoxilyzer 8000 and/or handheld portable breath tester (PBT) can be used to determine if the driver is in violation of the Zero Tolerance Statue.

6. SATURATION PATROL

  • {X} Included with this operation
  • { } Not included with this operation
  • The primary focus of this operation will be on driver’s who choose to drive under the influence of alcohol and / or other harmful substances and to promote awareness of safe driving. The goal of this operation is to proactively enforce the possession of any quantity of alcohol, chemical, and/or controlled substance found in the possession of any such person as prohibited by law; to identify, apprehend and incarcerate any person who is operating a vehicle impaired and to deter those who might otherwise attempt to drive impaired.
  • There will also be a focus seat belt and child restraint violations, driving while license suspended or revoked, and any other violation under Florida State law in accordance with Florida State Law Chapters 316, 320 and 322. 
Lastly, officers involved in the saturation patrol will appropriately enforce of any other criminal violations committed in violation of Florida Statutes.

7. GENERAL CHECKPOINT INFORMATION AND ISSUANCE OF CITATIONS OR ARRESTS PROCEDURES.

  • All officers are to submit their traffic citation and arrest paperwork to their respective agencies.
  • Personnel will use their agency case number for any arrest made in accordance to their agency policy.
  • All statistics for the operation will be reported to the Operation Supervisor and/or Assistant Operation Supervisor prior to leaving the checkpoint.
  • There will be a pre-operation briefing prior to starting the checkpoint.
  • A detailed after-action report will be completed and turned in by the Operation Supervisor and/or the Assistant Operation Supervisor.

8. EQUIPMENT:

TRAFFIC CONES / CHECKPOINT LIGHTING TO INCLUDE FLARES: Along the center of 50th Street as established by M.O.T work plan.

CHECKPOINT SIGNS (“CHECKPOINT AHEAD”/ “BE PREPARED TO STOP”): Along 50th Street at USF Elm Drive and prior to the entrance of the checkpoint as established by M.O.T work zone plan.

STOP SIGN: N/A – Stop Sign not needed as the contact area is a controlled lot

9. OPERATIONAL BRIEFINGS:

  • All personnel selected to participate in the enforcement detail will attend the pre-operation briefing. A pre-operation briefing attendance will be signed by all participants stating that they have received either a hard copy or an email copy of the plan and understand their assigned duties.
  • BRIEFING LOCATION(S): All personnel will report to the University of South Florida Police Department at 2000 hours for briefing.
  • At the pre-designated or spontaneous (reason) OC Discretion conclusion of (Weather, inactivity, other)
  • This specific Sobriety Checkpoint, there will be a de-briefing for all involved personnel. All personnel will address any deviations from the plan and allow documentation on the After- Action Report. All personnel will sign out at the conclusion of the Sobriety Checkpoint at this time. Any personnel who must leave the Sobriety Checkpoint while under operation will sign out on the assignment sheet/roster with the Operations Supervisor or his/her approved designee.

10. EDUCATION AND AWARENESS:

Any non-sworn personnel, i.e., MADD, SADD, etc., who wish to provide educational and/or awareness literature regarding a component of the Sobriety Checkpoint, will be located in a designated area of the operation and for safety purposes will not be permitted inside the checkpoint lanes.

11. INCIDENT REPORTING:

All personnel will follow their respective agency guidelines regarding incident and offense reporting, as well as use of force, etc. An advanced copy of this Sobriety Checkpoint plan will be forwarded to the Hillsborough County State Attorney’s Office and the Hillsborough County Driver’s License Hearing Office. This will be the responsibility of the affected Operations Supervisor.

12. NOTIFICATIONS:

Advanced administrative notification of this specific Sobriety Checkpoint was done by Lieutenant Charlotte Domingo of the University of South Florida Police Department by means of a News Release provided a minimum of 24 hours before the commencement of this Sobriety Checkpoint. In addition, this checkpoint has been advertised on the USF Police website as well as utilizing social media (USFPD Facebook).

13. DIAGRAM ATTACHED TO THIS OPERATION PLAN

Attached.

AFTER-ACTION REPORT/CRITIQUE

Upon completion of the Checkpoint, a written report will be forwarded to the Enforcement Operations Bureau Commander containing statistics, an evaluation of the operation, and recommendations for future operations. At a minimum, the following information will be gathered during the Checkpoint operation:

1  Date/location of Checkpoint

2  Checkpoint evaluation

3  Recommendation(s) regarding future operations

4  Delay Periods (number of occurrences and delay time)

5  Number of motorists stopped

6  Number of vehicles waived through Checkpoint

7  Number of arrests, by offense

8  Number of citations written

9  Number of faulty equipment citations

10  Copy of press release

———————————————-

University of South Florida

Police Department

Memorandum

To: Lt. Marckese

From: Cpl. Scott Parker

Date: 2/27/16

Subject: Checkpoint No. 2016-07

After-Action Report/Critique

  1. Date/location of Checkpoint:

The checkpoint was conducted at the prescribed location on the prescribed date and time.

  1. Checkpoint Evaluation:

There was one (1) arrest during this checkpoint for misdemeanor possession of marijuana. That offense number is 16-000423.

One vehicle that was stopped required supervisor assistance (Parker) after the driver became irate and called 911 when she was not allowed to leave. Post de-escalation, advice was given to the driver in regards to misuse of 911 systems and potential consequences.

It should be noted that this checkpoint was conducted with a multi-agency presence to include TTPD. TTPD provided a total of 7 additional officers to supplement USFPD

  1. Recommendation(s) regarding future operations:

Pending

  1. Delay Periods (number of occurrences and delay time):

There were no delays during this checkpoint

  1. Number of motorists stopped:


There were 441 vehicles stopped in this checkpoint.

  1. Number of vehicles waived through Checkpoint:

There were no vehicles waived through this checkpoint

  1. Number of arrests, by offense:

1 arrest for misdemeanor possession of marijuana with an offense # of 16-000XXX. The subject was released with a court date.

  1. Number of citations written:

There was 1 UTT issued during this checkpoint.
There were 1 WW issued during this checkpoint.
There was 2 stops with no action taken during this checkpoint

  1. Number of faulty equipment citations:

None.

  1. Copy of Press Release/List of Media outlets notified prior to Checkpoint:

Advanced administrative notification of this specific Sobriety Checkpoint was provided by Lt. D. Marckese of the University of South Florida Police Department by means of a News Release and Facebook post provided 24 hours before the commencement of this Sobriety Checkpoint. This Checkpoint was also advertised on social media through the USFPD Facebook page.

  1. Totals:

Number of Vehicles Checked:
441

Number of DUI Arrests/Officer’s Name: 0

Number of Felony Arrests/Officer’s Name: 0

Number of Other Arrests/Officer’s Name: 1, Vickers

Number of Citations Issued/Officer’s Name: 1, Hobson

The following information is related to the scheduled saturation patrol that followed the checkpoint:

USFPD conducted 15 traffic stops with 7 UTT issued and 9 WW issued. There were no arrests by USFPD officers during this saturation patrol.

Temple Terrace officers conducted a total number of 25 traffic stops with 1 UTT issued and 22 WW issued. There was 1 arrest for misdemeanor possession of marijuana and DUI by TTPD. Cpl. Parker from USFPD conducted a DRE evaluation on the arrestee after breath samples of .000 / .000 were provided.

By lsammis | Posted in checkpoint, Tampa DUI Attorney | Comments (2)

Tampa Police DUI Checkpoints

July 11, 2016 – 23:00

Summary: This blog article is about major problems with the Tampa Police Department’s recent DUI checkpoint. Although the operational plan clearly required the officers to only stop every 5th car, for some reason not allowed by the plan, the officers on the scene decided to start stopping every 3rd car, then every car, then back to every 3rd car before terminating the checkpoint early.

So stopping every 5th vehicle would mean that only 20% of the vehicle were stopped. According to their own report, TPD actually stopped 48% of the 66 vehicles that went through the checkpoint. That was just the most obvious problem. How does that happen?

I mean – how does that happen? The ops plan clearly says: “Every 5th vehicle traveling Eastbound will be stopped.” It gives no reason and does not provide for stopping every 3rd vehicle or every vehicle.

How do we know this? We recently obtained the operational plan to the low manpower DUI sobriety checkpoint hosted by the Tampa Police Department DUI Enforcement Unit on May 22, 2016, at 2002 N. 17th Street on May 22, 2016 to May 23, 2016. We also received:

  • a “Comprehensive Roadside Safety Checkpoint Data Collection” form completed by Cpl S. Cragg showing that 66 vehicles passed through the checkpoint and 32 vehicles stopped and diverted into the checkpoint area;
  • an “Officer Activity Log” showing that the checkpoint resulted in three arrests for DUI and one misdemeanor arrest for possession of marijuana;
  • an after report explaining “a few changes in car patterns.”

We cut-and-paste the operational plan and after report below. In order to make the operational plan easier to read online, we added additional paragraph breaks.

 

The After Action Report for D.U.I. safety checkpoint on 5/22/2016 at 17th St N & Palm Av E showed several deviations from the operational plan. The report provided:

 

On the listed date as part of the FDOT DUI grant, a safety checkpoint was conducted in the area of Palm Av E & 17th St N. Six members of the DUI unit set up the checkpoint for a period of 1 1/2 hours to check the safety of vehicles traveling on the roadway and to ensure the drivers have a license, registration & insurance.

 

While conducted the checkpoint a total of 66 vehicles went through the area and 32 vehicles were diverted into the checkpoint. Out of the 32 vehicles that entered the checkpoint, there were arrested for DUI, and one for possession of marijuana. The operation was suspended at the end of one and half hours due all of the line officers had someone under arrest. The overall operation was a success due to most drivers being in compliance. The checkpoint was properly publicized through the PIO’s office.

 

The checkpoint had a few changes in car patterns, which were documents on the data collection form. At 2251 hours the sequence was changed from every 5th car to every 3rd car until 2312 due to volume of traffic. At 2313 the sequence was again changed from every 3rd car to every car until 2327 due to the traffic volume. At 2328 hours the traffic sequence was changed from every car to every 3rd car until 2358 due the increase in traffic and manpower being minimized to having subjects in custody. At 2359 until 0006 the checkpoint was suspended due to no personnel to conduct a safety checks. The operation was then canceled at 0007 hours.

This is the operation plan for this particular checkpoint:

 

Overview

 

Tampa Police Department is committed to the protection and safety of the citizens within and surrounding the City of Tampa. This function is achieved, foremost, through education of the public and enforcement action.

 

A goal of Tampa Police Department is to ensure everyone use the highways and roadways may do so securely, free from harm and personal danger. Enforcement is a tool to facilitate this goal.

 

The Florida Department of Transportation has paid significant attention due to the increase in underage drinking and underage DUI arrests. Alcohol related traffic fatality rates have risen consistently during the past years, and the reduction of death and injury associated with impaired driving mandates out unwavering attention.

 

The State of Florida, Hillsborough County, and the City of Tampa provide the roadway as a benefit to the public at large. Accordingly, this department seeks to safeguard all drivers through the use of a non-intrusive checkpoint to detect and remove impaired drivers from the road.

 

The members of all participating agencies recognize and need to remain focused on DUI enforcement and education. Tampa Police Department is committed to maintaining the effort to further reduce DUI deaths.

 

It is of note that Florida maintains the effort to further reduce DUI deaths. It is of note that Florida figures overall show an increase in DUI deaths across the state.

 

It is clear to Tampa Police Department that a strong stance on DUI and alcohol enforcement is paramount to present any more fatalities, and the educational impact of high-profile checkpoints on our roadways can do much to deter poor decision making and enhance good decision making, such as designating a sober driver.

 

The roadside safety checkpoint, public education, and enforcement activities are combined to achieve the desired reduction in deaths and injuries caused by impaired vehicle operators.

 

The Tampa Police Department is dedicated to aggressive DUI law enforcement. Zero tolerance of DUI continues to be a top priority in traffic law enforcement.

 

Florida State Statutes and Department Policy are critical considerations to a successful Roadside Safety Checkpoint Program. The goals of the roadside safety checkpoint are:

 

  • Deter the DUI driver and reduce death, injury, and property damage directly caused by alcohol and drug impaired drivers.
  • Circumvent traffic crashes by detecting the impaired driver.
  • Conduct checkpoints with the minimum amount of intrusion and motorist inconvenience.
  • Ensure the safety of the affected motorists and officers at the checkpoint.
  • Increase public awareness of the issues concerning impaired motorists to encourage community members not to drink and drive.

 

OBJECTIVES

 

Goals will be accomplished through the implementation of specific working objectives. The checkpoint will be non-discretionary in stopping of vehicles. These objectives will be strictly followed to ensure a safe and a professional project. The following objectives are paramount:

 

  • Written uniform procedures will be issued prior to the establishment of the checkpoint.
  • The stopping of vehicles will be specifically random and not selective.
  • Sufficient lighting and warning will be established for safety of participants and motorists.
  • Participants will wear a uniform to identify themselves as law enforcement authorities.

 

SITE SELECTION

 

Understanding the importance of removing impaired drivers from the roadways of Florida makes selection of suitable sites for roadside safety checkpoints fundamental. Generally, site selection is predicated on two factors: officer safety and need.

 

At each site considered, safety is of paramount importance for all persons involved. With officer safety in mind, the following factors must be weighed: the traffic density of the roadway, roadway characteristics, lighting, and other environmental factors.

 

Finally, the prospective site must be examined to determine if a typical roadside safety checkpoint configuration can be adapted to the location; for example, it is important to have a suitable area available to pull cars off the roadway to minimize danger to motorists and officers.

 

Therefore, the site of the DUI Sobriety Checkpoint will be located at the intersection of Palm Av E and 17th St. N.

 

WARNING DEVICES AND LIGHTING

 

Special care must be taken to provide adequate warning to approaching motorists that a checkpoint has been established. This notice will be accomplished with warning signs and marked law enforcement vehicles with emergency lights and outboard lights activated.

 

Warning signs will be placed along the roadside in advance of the checkpoint site to reduce subjective intrusion and safety.

 

UNIFORM TRAFFIC CONTROL DEVICES

 

Officers will have and use the following equipment for safety:

 

  • The use of portable reflective safety signs with legends stating “DUI Checkpoint”.
  • Use of traffic barricades and minimum __ cones …nighttime cone requirements for low speed roads at night) to delineate lane assignments and channel traffic.
  • Use of flashlights with orange traffic wants or LED traffic wands for directing motorists.
  • The use of marked patrol cars to heighten visibility.

 

VISIBILITY OF LAW ENFORCEMENT AUTHORITY

 

The visibility of uniformed law enforcement officers and their marked vehicles will make the presence of legal authorities obvious. This serves to reassure motorists of the legitimate nature of the project.

 

This is an important aspect in reducing the intrusion to passing motorists who will be affected by the checkpoint surveillance. Signs will be posted at the site location and all officers working the checkpoint will be wearing departmental uniforms and reflective traffic vests.

 

CLOTHING AND SPECIAL EQUIPMENT

 

Uniform of the day: All officers working the checkpoint shall wear their standard issued work uniform (short or long sleeve). Each officer will also have a safety vest, flashlight with orange code (or LED traffic wand), gun belt, and radio. No bike uniform or shorts are permitted.

 

WEAPON

 

The only authorized firearm will be the issued service weapon.

Other intermediate weapons shall be available as necessary.

 

BREATH ALCOHOL TESTING EQUIPMENT

 

For this operation, an Intoxilyzer 8000 device will be located at the Orient Road Jail and a Portable Breath Test will be at the location of the checkpoint to enforce the .02 (zero tolerance) law. The PBT will be used in .02 BAC violations only and will not be used in DUI investigations.

 

MARKED PATROL UNITS

 

Marked and unmarked patrol vehicles will be on site, dedicated for arrestee transports to the Orient Road Jail. Arrestees will be seated in the back seat (caged section) of the patrol unit.

 

If an arrest is made, the arrestee will stay in the custody of the arresting officer until turned over to the County Jail.

 

OTHER EQUIPMENT

 

Each participating Officer will be responsible for having the appropriate items and forms on hand to facilitate the checkpoint. Officers will have the items needed to conduct the check point.

 

BREAKS & RELIEF

 

Line officers and staging area officers will rotate with an opportunity to take breaks. If at any time during the tour of duty relief is needed, one of the appropriate supervisors should be notified.

 

LOGISTICS

 

Every 5th vehicle traveling Eastbound will be stopped. Should the traffic volume prohibit this procedure, the site commander may cease operations until and significant delay in movement by motorists has diminished. All changes will be noted by the data collection officer, with the specific times and circumstances being noted.

 

RESPONSIBILITY OF SITE PROJECT OFFICERS

 

Command Officer: Sgt. Womack, The “lead officer” will coordinate all checkpoint activities including briefing, debriefing staffing, operations and overall supervisions. The responsibility of the command officer will be to ensure adherence to established safety procedures and compliance to all Florida Statutes, laws and regulations.

 

Staging Area Supervisor: Sgt. Womack will ensure smooth operations of the staging area. He will work with the Checkpoint supervisor to ensure a smooth transition from the checkpoint to staging area.

 

Checkpoint Area Supervisor: Sgt. Womack will ensure smooth operations of the checkpoint area. He will work with the Staging Area Supervisor to coordinate safety procedures and vehicle movements.

 

Safety Supervisor: Sgt. Womack will observe operations and ensure that all safety standards are strictly followed. The safety supervisor must correct all hazards immediately or suspend the operation until the hazard is corrected. The senior officer assigned at the SASO (Staging Area Safety Officer) shall be designated Safety Supervisor.

 

Lane Safety Officer: This officer is responsible for ensuring all fuses remain lit and cones remain in place. This officer is also responsible for the cleanup of any debris which may have been left on the roadway or the immediate vicinity.

 

Data Collection Officer: The process of data collection is imperative to compliance with the applicable case law, and to determine the effectiveness of Roadside Safety Checkpoints. Data collection takes the form of both short term and long term collection. This officer will be responsible for recording the number of vehicles that pass through the checkpoint, the number of vehicles stopped and the average delay of each vehicle. Sgt. Womack will be responsible for the number of violations detected, including arrests, written warnings and faulty equipment notices.

 

Checkpoint Line Officers: Checkpoint line officers will be responsible for stopping all vehicles as designated with the stop area. They will observe for signs of intoxication and other traffic violations. The officer may check for driver’s license, vehicle registration and proof of insurance on the scene. It is suggested that each Checkpoint Line Officer provide the following introduction:

 

“Good evening, I’m officer (officer’s name) of the (Tampa Police Department). This is a safety checkpoint. May I see your driver’s license, registration and proof of insurance please?”

 

When a violation is detected, the Checkpoint Line Officer will direct the vehicle to the parking spaces located at the staging areas. The Checkpoint Line Officer will need to assist the vehicle by removing the traffic cones and then setting them back up. When the Checkpoint Line Officer is finished with the vehicle, he/she will need to assist the vehicle again by removing the traffic cones and then setting them back up. If an impaired driver is detected, the driver will not be allowed to continue operating the vehicle.

 

One officer will escort the driver to the staging area (parking lot) and a second Officer will drive the vehicle to the staging area. Further investigation consisting of the standardized processing requirements for the appropriate offense shall be conducted at the staging area (all standardized processing requirements will be conducting/performed on video).

 

When probable cause exists to believe that a driver is committing the offense of DUI, the driver will be secured and processed in accordance with Florida State Statutes and local procedures.

 

VEHICLE INVENTORY AND TOW

 

For the purposes of this checkpoint, the arresting officer will conduct a vehicle inventory and have the vehicle towed by the rotation wrecker company.

 

Roving Patrol Officer (RPO)

 

These members will patrol the roadways adjacent to the checkpoint concentrating on DUI enforcement. The RPO will stop only those persons who commit a violation while attempting to avoid the checkpoint. The RPO will have probable cause to believe that a violation has been committed or a reasonable suspicion of criminal activity, such as driving under the influence, before the RPO makes the traffic stop.

 

MEDIA RELATIONS

 

Cpl. Portman will coordinate all media relations prior to the checkpoint. If representatives from the local media arrive on scene, all questions will be referred to Sgt. Womack. M.A.D.D., HCADA, and TAC will be notified of the operation and may attend.

 

COMMUNICATIONS

 

The safety checkpoint will operate on Tampa Police Frequency F. Tampa Police Department case numbers will also be obtained from TPD Dispatch. If portable radios are needed, they will be provided and must be returned during debriefing.

 

HANDLING OF ARRESTEES AND/OR EVIDENCE

 

It will be the responsibility of the arresting officer to maintain custody of the arrestee at all times. The SASO will perform duties as the backup officer to all officers making an arrest.

 

  • Persons placed under arrest will be handcuffed immediately.
  • The arresting officer will be responsible for all documentation.
  • The arresting officer will be responsible for all evidence that is to be impounded.

 

DETECTION AND INVESTIGATION TECHNIQUES:

 

All officers are trained in the State of Florida’s “Standardized Field Sobriety Testing” (SFST) program. This program trains personnel to recognize the indicators most common in impaired drivers. The indicators may include odor of alcoholic beverages or other drugs, bloodshot/watery eyes, alcohol containers, drug paraphernalia, fumbling dexterity, slurred speech, admissions of drinking alcohol or drugs, and inconsistent responses.

 

D.R.E. Drug Recognition Expert

 

In the event a driver is impaired and blows under a .08 BAC, the arresting Officer will request Tampa Police Department Drug Recognition Expert. Sgt. Womack will assign a DRE to perform Drug Evaluation, to determine if the arrestee is under the influence of a chemical substance.

 

OPERATIONAL BREIFING

 

All personnel selected to participate in the enforcement detail will attend the briefing on Sunday May 22, 2016 at 2130 hrs. The operational briefing for all assigned personnel will be conducted at Tampa Police Department District II or at the checkpoint location.

 

POST EVENT PROCEDURES

 

  • All officers working the checkpoint will assist in removing barricades, traffic cones, signs, and other equipment as necessary to insure the roadway is safe for vehicular traffic.
  • All personnel will remain at the site location until properly relieved by a supervisor.
  • All officers that are in possession of evidence must properly impound the evidence prior to being released.

 

INCLEMENT WEATHER CONTINGENCIES

 

In the event weather conditions prevent the establishment of the Safety Checkpoint, officers will be assigned to a “saturation” patrol in designated areas throughout the city limits.

 

OFFICERS ATTENDING:

 

Sgt. Womack, Cpl Cragg, MPO Lyon, Officer Van-Treese, Officer Braband, and Officer Barlaug, will be participating in the Low Staffing Checkpoint.

 

ROADSIDE SAFETY CHECKPOINT REVIEW:

 

Approved                     Date: _____                            ___________

Cpl A. Portman

 

Approved                     Date: _____                            ____________

Sgt. J. Womack

 

By lsammis | Posted in Tampa DUI Attorney | Comments (2)

Is Florida Statute Section 316.1933 Unconstitutional?

May 24, 2016 – 19:06

Florida Statute Section 316.1933 is silent as to whether a warrant is required for a forced blood draw. The statute does however, say that the blood test must be “reasonable.” This reasonableness requirement expressed in Florida Statute Section 316.1933 could be read as a recognition that the forced taking of blood on a pre-arrest basis must still comply with one of the exceptions to the Fourth Amendment when a warrant is not secured.

To the extent that the courts in Florida do not read a warrant requirement into the statute, then the statute is unconstitutional on its face.

It is important to note that Section 316.1933 is not part of Florida’s implied consent law. In fact, that statute does not even mention the word consent. This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933 which was expressly part of the implied consent law.

Today, Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law. While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the new version does not.

Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being. However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test.

After July 1, 2002, the statute purported to authorize a law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966), as equating the dissipation of alcohol with exigent circumstances even through Missouri v. McNeely shows that interpretation is absolutely wrong.

Now that the McNeely decision has exposed that flaw, it is clear that Section 316.1933 is unconstitutional to the extent it is does not require a case by case determination of exigency under the traditional standard. The statute is unconstitutional by failing to require the existence of an exigency before allowing officer to order a forced blood draw.

Thus, to the extent that Florida Statute Section 316.1933 can be read to authorize a forced blood draw without exigent circumstances, then it is unconstitutional on its face. The statute is unconstitutional to the extent it purports to either be an exception to or trump the Fourth Amendment’s warrant requirement because it violates his right to be free from unreasonable search and seizures. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).

The attorneys at the Sammis Law Firm represent clients on felony DUI charges for serious bodily injury or death in the City of Tampa and throughout Hillsborough County and the surrounding areas throughout the greater Tampa Bay area of Florida.

 

By lsammis | Posted in Tampa DUI Attorney | Comments (0)

Exigent Circumstances for a Forced Blood Draw in Florida DUI Cases

May 24, 2016 – 18:49

The ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013), requires that law enforcement officers, without express and voluntary consent, obtain a search warrant prior to taking blood during a DUI-related investigation.

In Florida, law enforcement officers are also bound by the 5th D.C.A.’s decision in State v. Geiss, 70 So. 3d 642, 646 (Fla. 5th DCA 2011), which does not allow for a search warrant for blood in any misdemeanor DUI case.

Therefore, if a misdemeanor DUI case involves a non-consensual forced blood draw, the criminal defense attorney should file and litigate a motion to suppress any mention of the blood test or results at trial.

At least in misdemeanor cases, officers should no longer be taking blood from unconscious people or anyone that declines the voluntary request for blood. As a matter of public policy, this is a good result for all Floridians.

These new rules will cut down on officers entering an ambulance or emergency room and demanding that paramedics, nurses and doctors stop providing emergency care for long enough to take a “legal blood sample.” The emergency health care provider has to stop everything to use the officer’s needle and tubes from the special blood kit to take blood samples that are given to the officer to be used as evidence in a criminal case.

Health care professions will be happy with this new development.

What about Blood Draws in Felony DUI Cases with Death or Serious Bodily Injury?

In a felony case for death or serious bodily injury, Florida Statute 316.1933 purports to allow a forced and warrantless blood draw, although the constitutionality of that statute is in question after the Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013).

The issue in many of these cases is whether the prosecution can meet the heavy burden of showing exigent circumstances existed to justify not seeking a warrant and instead forcing the driver to submit to a pre-arrest, non-consensual extraction of blood.

With regard to exigency, the case of Missouri v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize warrantless searches of a person’s blood simply because a blood alcohol level declines over time.

Instead, under Schmerber, the judge must look at each case on an individual basis to determine if an exigency actually required the taking of the blood. The Court reiterated that the question of the reasonableness of a warrantless search should be answered on a case-by-case basis considering the totality of the circumstances. McNeely, 133 S. Ct. at 1563.

The Court acknowledged that blood alcohol concentration (BAC) evidence is problematic because “an individual’s alcohol level gradually declines soon after he stops drinking,” and thus, “a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561.

But the Court dismissed this concern, finding that this exigency did not warrant departure from the careful case-by-case assessment of exigency that the Fourth Amendment requires. See id. The Court’s reasoning appears to have been based on two key facts.

First, diminishing BAC is different from other destruction-of-evidence scenarios. With some types of destructible evidence, law enforcement is truly confronted with a “now or never” situation, such as when an arrestee can immediately and permanently destroy the evidence completely. Id. at 1561. By contrast, BAC evidence “naturally dissipates over time in a gradual and relatively predictable manner.” Id.

As such, experts can often work backwards from the BAC at the time the blood sample is taken to determine the BAC at the time of the alleged offense. Id. at 1563. Second, the Court noted that advances made in the forty-seven years since Schmerber allowed for more expeditious processing of warrants. Id. at 1561-62.

For instance, the Federal Rules of Criminal Procedure permit magistrates to issue warrants over the telephone. Id.

The State of Florida has also seen advances made in the last forty-seven years that allow for more expeditious processing of warrants. Obtaining a warrant in a DUI felony case is often underutilized in counties throughout the Tampa Bay area including Hillsborough County, Pinellas County, Polk County, Pasco County, Manatee County and Sarasota County.

Nevertheless it is important to remember that Florida law expressly allows for electronic search warrants. Added effective July 1, 2013, § 933.07(4), Fla. Stat., provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.

In addition, the Florida Legislature’s enactment of the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature,” § 668.004, Fla. Stat. (2003), indicates an increasing acceptance of this alternative signature form. See also In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla.1996) (the Florida Supreme Court stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system”). See also 14A Fla. Jur 2d Criminal Law—Procedure § 717.

The technology allowed by § 933.07(4), Fla. Stat., expedites the warrant procurement process so as to virtually eliminate circumstances that can truly be considered exigent. As explained in a recent law review article:

Technology is rapidly approaching the point where electronic communication between the law enforcement officers in the field and the magistrate issuing the warrant is continuously available, thereby narrowing the situations in which the exigent circumstances exception should be applied. In this modern age of high-powered laptops equipped with cellular access to the Internet, police (like the general public) have ready access to communication methods such as email, instant messaging, and even face-to-face video conferencing wherever they go.

Swearing by New Technology; Strengthening the Fourth Amendment by Utilizing Modern Warrant Technology While Satisfying the Oath or Affirmation Clause, Brigham Young University Law Review, 2014 B.Y.U. L. Rev. 927 (2014). (citations omitted).

Without a finding of exigency, the blood test in a DUI with death or serious bodily injury should be suppressed as a violation of the Fourth Amendment. The next article will explore a related issue of whether Florida Statute Section 316.1933 is unconstitutional on its face by allowing the illegal forced taking of blood prior to any arrest without exigent circumstances.

The attorneys at the Sammis Law Firm are experienced in fighting DUI case throughout the City of Tampa, all of Hillsborough County and the surrounding counties. We are particularly experienced in fighting cases that involve a request for a urine test or breath test.

By lsammis | Posted in Blood Test DUI, Tampa DUI Attorney | Tagged | Comments (0)

Is a Warrant Required for a Forced Blood Test in a DUI Fatality or Serious Bodily Injury Case in Florida?

May 24, 2016 – 18:26

For DUI cases involving death or serious bodily injury with a forced blood draw, a warrant is required. Without a warrant, the criminal defense attorney can file a motion to suppress the blood and blood test results. The only exception to the warrant requirement that might apply involves a showing of exigent circumstances.

For cases involving a forced blood draw, the criminal defense attorney in Florida will often file a motion to suppress the blood evidence in the case if the blood sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The basis for the motion to suppress is that the forced blood draw violated the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

a. The Procedural Aspects of the Warrant Requirement in Florida

The warrant requirement of the Fourth Amendment has procedural and substantive aspects. Absent prior judicial authorization for searches and seizures, law enforcement officers must be able to justify their conduct after the fact, in order to render its fruits admissible at trial, over objection.

When an officer who orders the extraction of blood does not act pursuant to judicial warrant, the prosecution has the burden to show at the suppression hearing that the challenged evidence had been obtained lawfully.

All an accused need do is make an “initial showing,” State v. Lyons, 293 So.2d 391, 393 (Fla.App.2nd 1974) of standing to challenge the legality of a search, and the “ultimate burden of proof as to the validity of a warrant-less search is on the State.” Mann v. State, 292 So.2d 432, 433 (Fla.App.2nd 1974).

When the prosecution seeks to introduce evidence extracted from the body of the accused, in order to prove its case, the accused necessarily has standing to raise the question of the legality of the extraction. Schmerber v. California, supra; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); State v. Mitchell, 245 So.2d 618 (Fla.1971); Wilson v. State, 225 So.2d 321 (Fla.1969).

b. The Substantive Aspects of the Warrant Requirement in Florida

Aside from the procedural consequences of a search without warrant, there is a substantive warrant requirement which stands as an absolute bar to the use of evidence taken in certain warrantless searches.

Warrantless searches are presumptively unreasonable unless they fall within a recognized exception to the warrant requirement. See e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).

The warrant requirement ensures that “inferences to support the search ‘[are] drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).

Warrants are generally necessary for searches of the human body and the extraction of blood using a needle from the subject’s vein. Id. at 770.

The exceptions to the requirement, that searches of persons and dwellings be judicially authorized beforehand, fall under four general headings:

  1. stop and frisk searches;
  2. consensual searches;
  3. searches incident to a lawful arrest; and
  4. searches where probable cause to search is coupled with exigent circumstances.

Exceptions to the warrant requirement are not strengthened because this search involves an intrusion into an individual’s body, instead of merely into his home.

Warrantless searches are disfavored and, with limited exceptions “per se unreasonable.” Mincey v. Arizona, 437 U.S. 385, 390 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559 (2004).

“[T]he police bear a heavy burden… when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740, 749-750 (1984); Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006).

Exceptions to the warrant requirement are “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318 (1972). See also Kyllo v. United States, 533 U.S. 27, 31 (2001).

In many cases involving a forced blood draw without a warrant, the state has the burden to prove that an exception to the warrant requirement applies. In most of these cases, the only possible exception is exigent circumstances. In the next article we will explore why exigent circumstances should be rare in felony DUI cases including those involving death or serious bodily injury.

The attorneys at the Sammis Law Firm in Tampa, FL, are experienced in fighting DUI case throughout Hillsborough County including cases that involve a warrantless, non-consensual, pre-arrest blood test. Call to speak to an attorney about the facts of your case.

By lsammis | Posted in Tampa DUI Attorney | Tagged , | Comments (2)

Forced Blood Test after Missouri v. McNeely, 133 S. Ct. 1552 (2013) in Florida

May 19, 2016 – 21:18

blood test

Prior to Missouri v. McNeely, 133 S. Ct. 1552 (2013), law enforcement officers in Florida would ask for a voluntary blood draw of a driver suspected of DUI if the case involved a crash with serious bodily injury or death.

 

If the suspect refused, the officers would use Florida Statute 316.1933 as a basis to conduct a forced blood draw either at the scene in an ambulance or at the hospital. In most cases, the officers would not obtain a warrant prior to the forced blood draw and the taking would occur prior to any arrest.

Such takings were usually considered to be constitutional under the theory that the case involved an exception to the warrant requirement because the dissipation of alcohol is an exigent circumstance.

That assumption changed with the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Now, criminal defense attorneys throughout Florida are filing motions to suppress in forced blood cases without a warrant.

The motions allege that the blood test evidence must be suppressed or excluded at trial when the sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The motions allege that the taking of blood without a warrant is in violation of the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

DUI defense attorneys in these cases are also filing motions alleging that Florida Statute Section 316.1933 is unconstitutional, on its face and as applied, since it purports to permit a warrant-less forced blood draw before an arrest and without any exigent circumstances or consent.

In the alternative, it is often alleged that Florida Statute Section 316.1933 doesn’t apply because the officer that ordered the forced blood draw didn’t have probable that the person was actually driving, was involved in the crash, or was impaired by alcohol or any chemical or controlled substance.

In many of these cases, the DUI defense attorney will also argue that the blood test violated the provision in Florida 316.1933 that requires that the blood test “shall be performed in a reasonable manner.”

Cases involving a forced blood draw without a warrant are also problematic because once the sample is taken, no exigency exists. At that point, officers could obtain a warrant before taking the sample from the scene and performing testing on the sample to determine its alcohol or drug content.

Furthermore, without consent, the person tested has not waived patient record confidentiality with respect to the results of any blood test for purposes of determining its alcoholic content.

In a series of blog posts, we will explore each of these issues in more detail.

The attorneys at Sammis Law Firm in Tampa, FL, are experienced in fighting felony DUI blood test cases throughout Hillsborough County and the surrounding areas in Tampa Bay.

By lsammis | Posted in Tampa DUI Attorney | Comments (1)

Can an Officer Ask for Breath or Urine Test Prior to the Arrest?

May 19, 2016 – 20:48

photoWhat happens if the officer asks for a breath or urine test prior to the arrest? If the suspect is 21 years of age or older, then requesting a breath or urine test before the arrest is a clear violation of Florida’s implied consent law.

The request itself, the refusal to submit, or the test results should be suppressed at trial because of the violation.

Also, if the officer submits paperwork to the DMV to trigger an administrative suspension for either refusing the breath or urine test or having a BAC over .08 before the arrest, then the driver should demand a formal review hearing to invalidate the administrative suspension within 10 days of the arrest.

Provisions of Florida Statute Section 316.1932

Florida Statute Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances:

  • the arresting officer has reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances;
  • the person appears for treatment at a medical facility; and
  • the administration of a breath or urine test is impractical or impossible.

On the other hand, Florida Statute Section 316.1932(1)(a)1.a. allows for the request of a breath test but only if:

Any person who accepts the privilege…of operating a motor vehicle within this state is… deemed to have given his or her consent to submit to an approved …test of his or her breath…if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages…

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

Thus, the plain language of the statute provides that a request for a breath or urine test can only be made after an arrest and not before.

Suppressing Breath or Urine Evidence Requested Before Arrest

In State v. Serrago, 875 So. 2d 815, 819 (Fla. 2d DCA 2004), the defendant was charged in Pinellas County with numerous offenses arising out of a fatal traffic accident. One issue in the case was whether the trial court erred by not suppressing urine test results taken prior to an arrest.

The appellate court determined that a pre-arrest urine test is not authorized by section 316.1932(1)(c) and therefore the urine test results were not admissible at trial since it was taken in violation of Florida’s implied consent law.

The Serrago Court noted:

“Our reading of section 316.1932(1)(c) leads us to conclude that it cannot reasonably be read to allow a urine test because it simply does not provide for same. Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances.

Section 316.1932(1)(a) allows for breath and urine testing but does so only pursuant to a lawful arrest. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances:

(1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances;

(2) where the person appears for treatment at a medical facility; and

(3) where the administration of a breath or urine test is impractical or impossible.

The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests.

Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here.

This analysis is supported by case law, which has historically treated blood tests differently than breath and urine tests.

In State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982), the Fifth District, in considering a breath test that was taken from an individual who was not under arrest, found that the legislative intent to treat blood tests differently from breath and urine tests was revealed in the legislature’s failure to change the law as it relates to breath and urine when it changed the law regarding blood tests. Id. at 758.

In State v. Hilton, 498 So.2d 698, 700 n. 4 (Fla. 5th DCA 1986), the court observed: “We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest.”

In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), as follows: “ ‘[T]he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.’ ”

The court also reasoned that since Barrett, the legislature had not substantially amended the statute, indicating its intent that pre-arrest breath tests should remain inadmissible.

The Serrago court then concluded that the urine test was inadmissible because:

Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it found the urine test to be admissible because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest. Since the defendant was not under arrest at the time that the urine test was taken, the urine test here was not admissible.

Suppression or exclusion of the evidence is required because in order for the refusal to be admissible in the civil or criminal case, the DUI officer must show that he complied with Florida’s Implied Consent Statute, Section 316.1932(1)(a)1.a.

The remedy for failing to comply with the Implied Consent Warning is exclusion or suppression of any evidence of the alleged refusal to submit. Id. Therefore, for any case in which the suspect is asked for, submits to, or refuses a breath test prior to an arrest, that evidence should be suppressed at trial.

The attorneys at the Sammis Law Firm, P.A., in Tampa, FL, are experienced in fighting DUI cases throughout Hillsborough County, and the surrounding areas of Tampa Bay, including cases that involve a pre-arrest request for a urine test or breath test. 

By lsammis | Posted in Tampa DUI Attorney | Comments (0)

Tampa DUI Checkpoint on Friday the 13th

May 15, 2016 – 12:32

Tampa Police Department Picture of Checkpoint

The Tampa Police Department conducted a DUI checkpoint on Friday, May 13, 2016.

The press release, issued by Janelle McGregor, TPD Spokesperson, went out the same day. The press release disclosed that the Tampa Police Department DUI unit would conduct a DUI checkpoint on Friday, May 13 to Saturday, May 14.

The officers with TPD were stationed near East Waters Avenue and I-275 from 10 p.m. – 1 a.m.  According to the press release, the TPD checkpoint is part of a $191,000 Florida Department of Transportation grant to ensure motorists are safe.

You can read the press release here: Tampa Police Department Conducting DUI Checkpoint

In addition to the last minute press release, TPD also issued a breaking tweet:

May 13

NEWS ALERT: Tampa Police Officers Conducting DUI Checkpoint: The Tampa Police Department DUI unit w…

Checkpoints are not allowed in many states. In Florida, they are highly ineffective at catching drunk drivers. Because officers often make mistakes in drafting the operation plan and following it in the field, many of the people arrested are later exonerated in court.

In many of these cases, the person arrested later has their case dismissed entirely after their criminal defense attorney files a motion to contest the legality of the stop and suppress any evidence gathered thereafter.

Read more about the problems with DUI Checkpoints in Florida.

If you witnessed the checkpoint, leave a message below. We will update the post with information about how many citations and arrests were made as soon as the information is released.

By lsammis | Posted in Tampa DUI Attorney | Comments (0)