Florida DUI Rules for the Administrative Suspension – It’s Complicated…

This article was last updated on Friday, August 18, 2017.

After an arrest in Florida for DUI, the officer will take your license and issue you an “on the stop” administrative suspension. You only have ten (10) calendar days to protect your driver’s license and ability to drive. You have three choices:

  1. hire an attorney to request a “formal review hearing” (if your driver’s license is otherwise valid, the attorney will obtain a 42-day driving permit for you the same day so you can keep driving while your attorney fights to invalidate the administrative suspension);
  2. enroll in DUI school and go to the DHSMV to stipulate to the administrative suspension during a “waiver review hearing” in exchange for immediate reinstatement of hardship privileges to avoid a 30 or 90-day hard suspension (only available if you have no prior DUI arrest, suspension, revocation or conviction); or
  3. do nothing.

For most people facing a first DUI who can afford to hire a DUI defense attorney willing to fight the suspension, Option 1 is the best option. Option 1 involves fighting to invalidate the suspension (so it disappears from your driving record) in a formal review hearing.

Option 2 means that you are stipulating to the suspension and the finding that you were DUI for administrative purposes. If you waive all your rights to contest the suspension, then your driving record will show for the next 75 years that you received an administrative suspension for DUI even if your criminal charges are ultimately dismissed or reduced to avoid a DUI conviction.

Option 3 is the worst option.


Click here to read more about our recent case results in DUI cases in Tampa, FL, and the surrounding areas, including our recent case results in administrative hearings to invalidate a suspension.



Option 1: Demand a Formal Review Hearing

Image

As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 1 is the only option that gives the driver the ability to fight to invalidate the suspension. It is important to fight the administrative suspension because unless you get it invalidated, it will remain on your driving record for 75 years.

This notation on your driving record is an administrative finding that you were DUI. It remains on your driving record even if you win a “not guilty” verdict in a DUI refusal case or enter a plea to a lesser charge such as reckless driving. [The only exception to that rule is that if you get a “not guilty” verdict at trial in a breath test case then the administrative suspension will be removed from your driving record. See 322.2615 (14)(b) and (16).]

If the person hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. The attorney can also demand a 42-day driving permit on your behalf so that you can keep driving while the attorney fights to invalidate the suspension.

You are entitled to the 42-day permit if you request the formal review hearing (as long as your driving privileges were valid before the DUI arrest).

If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record. You can then get a duplicate driver’s license and avoid paying any reinstatement fee. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.

Even if the driver loses the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30-day hard suspension (or 90 days in a refusal case). On the 31st day, the person can still obtain a hardship license with proof of enrollment in DUI school.

Click here to read recent statistics showing all of the most common reasons why an administrative is invalidated by the hearing officer.


Option 2: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form (sometimes called the “waiver review”).

The driver must personally appear within 10 calendar days.* The driver must also enroll in and pay for DUI school during those 10 days. The registration fee for Level I DUI School in Hillsborough County is $263.00.

Although the DHSMV originally took the position that the driver could only request the waiver review within the first 10 days after the arrest, at least one circuit court level decision has found that the 10-day time limit doesn’t apply to a waiver review hearing. See Bichaci v. DHSMV (2013).

The person must also pay a $25 fee for the hearing and then pay the reinstatement fee.

The benefit to this process is avoiding the 30-day hard suspension for a DUI with a BAC over .08 (or 90-day suspension for a refusal). But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated ever (unless he obtains a “not guilty” verdict at trial in a breath test case).


Option 3: Do Nothing 

Image

Most people don’t understand the rules. As a result, they do nothing during the first 10 days after the DUI to protect their privileges to drive.

Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10-day driving permit. After the 10-day permit expires, the 30-day hard suspension begins (90 days in a refusal case). During those 30 days, the person cannot drive for any reason.

On the 31st day after the arrest for DUI involving a breath test reading over .08, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school. The hardship license remains valid for the rest of the six-month suspension.

The notation that you receive an administrative suspension for DUI will stay on your driving record for the next 75 years even if you avoid a DUI conviction in court.


The Rules are Complicated

How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these graphs to explain it. The graph used in this article applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.

Hopefully, these graphs will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.

DUI Statistics in Tampa, FL

2016 Tampa Police Department DUI Arrests Summary

The Tampa Police Department gathers statistics to monitor the activities of the DUI enforcement officers. We recently obtained these summaries for 2015, 2016 and so far in 2017.

The summary distinguishes between self-initiated stops and investigations that involve the DUI enforcement officer being dispatched.

The summary keeps track of the number of people arrested for DUI each year. The summary distinguishes between self-initiated stops and investigations that involve the DUI enforcement officer being dispatched.

According to the Tampa Police Department DUI Arrests Summary for 2016, Tampa Police Department made 2,087 DUI arrests. Just over one-half of those arrests were self-initiated. The other 1,008 arrests involved the DUI enforcement officer being dispatched.

The summary also distinguishes between different types of DUI related cases including:

  • Crash (DUI related) at 13.8%;
  • Wrong way driver (DUI arrest) at 5.7%;
  • DUI checkpoint arrests at 0.5%;
  • Superior Response to Fatal / SBI Crash at 0%; or
  • Supervisor DUI Assist at 5.3%.

The summary also distinguishes between different types of DUI tests:

  • Breath above .08% BrAC 49.1%
  • Urine, Blood or Refusal 49.3%
  • .000-.079% 1.6%

Out of those DUI arrests by the Tampa Police Department with a breath test reading, the BAC Range is broken down as follows:

  • .000-.079% at 1.6%
  • .080-.149 at 21.5%
  • .150-.199 at 17.3%
  • .200-.249 at 7.4%
  • .250-.299 at 2.5%
  • .300 or over at .04%

If you were arrested by an officer with the Tampa Police Department for DUI, then contact an experienced criminal defense attorney at Sammis Law Firm. Our offices are located in downtown Tampa, just a few blocks from the courthouse.

We understand the tactics used by officers with the Tampa Police Department. Call us to discuss the facts of your case, the typical penalties imposed in DUI cases, and the best ways to fight the case for an outright dismissal or reduction to a less serious charge.

Call 813-250-0500 today.

2015 Tampa Police DUI Enforcement Unit Summary

Do you lose your driver’s license for a DUI?

During the initial consultation, one of the most frequent questions is: “Will I lose my driver’s license because of the DUI?” The short answer is that it depends. After a DUI arrest, your driver’s license is impacted in two ways.

First, the officer will often trigger an “on-the-stop” suspension when he makes the arrest. This suspension is called the “administrative” suspension because it occurs at the Florida Department of Motor Vehicles and Highway Safety (DHSMV). If you hire a DUI defense attorney at the Sammis Law Firm in Tampa, FL, we will demand a formal review hearing on your behalf to fight the administrative suspension. We can also hand you a 42-day permit so that you can keep driving during the time we are preparing for the formal review hearing. If the administrative suspension is invalidated, then you will not lose your driver’s license on an administrative basis.

Second, the court will impose another “court order” suspension if you are convicted of DUI. That court ordered suspension can be avoided by getting the DUI dropped, dismissed, or at least reduced to reckless driving (often called the “wet reckless”).

So although many people lose their license after a DUI, some people avoid it entirely. If your attorney is able to get your administrative suspension invalidated at the formal review hearing and if you avoid a DUI conviction in court, then you will not lose your driver’s license.

Call a DUI defense attorney at the Sammis Law Firm to learn more about the consequences to your driver’s license after a DUI arrest in Tampa or Hillsborough County, FL.

Call 813-250-0500 to discuss your case.

Suppressing the DUI Intoxilyzer 8000 Results for a Lack of Substantial Compliance

The goal for the attorney in a DUI case involving a breath test reading over .08 is getting the breath test result thrown out of evidence. In order to get the breath test results thrown out, the DUI defense attorney can file a motion to suppress the breath test reading when the machine used during the subject’s test was not in substantial compliance with the administrative and statutory rules.

Below you will find a summary of all of the trial court orders on Florida Law Weekly in which the trial court suppressed the breath test result because of a lack of compliance with the administrative rules. This article gives you examples of the most common problems that can arise during the monthly inspections of Florida’s Intoxilyzer 8000 breath test machine.

If you find a case we missed, please let us know and we will be happy to add it to this list.

 

State v. Larkin, 23 Fla. L. Weekly Supp. 271b (Hillsborough Cty. Ct. 2015) – The defendant was arrested for DUI and filed a motion to suppress “because unapproved alcohol reference solutions were used in both the September 2013 department inspection as well as the monthly agency inspections” of the breath test machine. The court granted the motion, stating:

The State argues that FDLE was permitted to reanalyze the solution per the FDLE alcohol testing program procedures manual, the defense on the other hand argues that the promulgated rule (11D-8.0035) prohibits re-analysis. The issue is resolved by the FDLE procedures manual. On page 2 of the FDLE alcohol testing program manual, it states that the purpose of the manual “is to document the procedures of the Florida Department of Law Enforcement alcohol testing program. It is not intended to supersede, and when in conflict, is subordinate to, information and processes in the Florida Statutes, Florida Administrative Code, or FDLE policies and procedures”. Since FDLE 11D-8.0035 requires all results to fall within acceptable range, this court finds that the promulgated rule and section 2.14 of the FDLE alcohol testing program procedures manual to be in conflict and therefore section 2.14 is subordinate to the promulgated rule (11D-8.0035) and therefore, retesting is not permitted since 11D-8.0035 requires all of the results must fall within acceptable range.

The lot at issue was not properly approved, and the use of the non-approved solutions during the department inspections rendered the results inadmissible.

The court further stated that “[s]ince the State made no argument for substantial compliance, this court need not make any ultimate legal findings on this point of law. But, since the State is seeking further appellate review, it should be noted that (Thirteenth Circuit courts) found that the doctrine of substantial compliance did not apply to FDLE or rule 11D-8.0035. Had the State argued this point during the hearing, the court would have rejected the State’s position.”

The court also stated that a Brady violation had probably occurred, but “by granting the motion to suppress for violating FDLE Rule 11D-8.0035, the court does not have to go any further on this issue as it has been rendered moot.”

State v. Brink, 20 Fla. L. Weekly Supp. 772a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence. See also State of Florida v. Medina, Case No. 09-78AC10A [18 Fla. L. Weekly Supp. 170a].

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Ikramelahai, 20 Fla. L. Weekly Supp. 772b (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Viera, 20 Fla. L. Weekly Supp. 773a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Osorio, 19 Fla. L. Weekly Supp. 734 (May 18, 2012, 7th Judicial Circuit) – During the first inspection the Agency Inspector performed on this Intoxilyzer 8000 breath test machine, he testified he took too long and the intoxilyzer timed out. A second inspection was done and during this attempt, the Inspector believes he used too much mouth alcohol causing the machine to reflect “slope not met” causing the Inspector to abort this second test and start a third one. During the third test, that was aborted by the inspector due to the possibility that a radio frequency interferent would be detected in the room. Finally, a fourth inspection was started which resulted in a successful inspection. During these four attempts, the inspector did not contact the FDLE Department Inspector or record the reasons for the non-compliant rest results in the remark section of Form 40 as required. The Court ruled that since the machine was never taken out of service as required by Form 39, the department inspector was never contacted as required by the rules, and the remarks were not recorded on Form 40 as required by the rules the machine was not in substantial compliance. As this cases show, multiple compounded deviations from the procedures set forth by the Administrative Rules cause the Intoxilyzer 8000 machine to not be in substantial compliance.

Bruns v. State, 15 Fla. L. Weekly Supp. 958b (August 14, 2008, 8th Judicial Circuit). The machine in question was inspected on January 23 and did not pass the simulator test. During the retest, the machine failed again. The Intoxilyzer 8000 breath test machine was not removed from service according to Form 39 and was instead tested again on January 24. During this test, the intoxilyzer failed both the initial and retest. The machine was again left in service. Two days later, the testing procedure was performed again and the test completed successfully. The machine was never removed from service before the subject provided a breath sample and the Court ruled that because the agency deviated from the requirements of Form 39 the breath machine was not in substantial compliance.

State v. Reich, 13 Fla. L. Weekly Supp 631a (January 9, 2006, 16th Judicial Circuit). During the hearing, the Defendant presented evidence that the reading during the February 2004 agency inspection was out of the acceptable range. This was not noticed by the maintenance witness and no corrective action was taken—the machine was not removed from service. The State argued that even with this out of tolerance on the .08 test, the machine was in range on the .05 and .20 test. The State also argued that subsequent inspections were within tolerance. The Court disagreed and stated that substantial compliance means unequivocally that instrument passes all of the tests which it did not. Additionally, the following problems were found:

  • the mouth alcohol test run in December 2004 produced an incorrect result—giving an actual reading instead of detecting alcohol presence;
  • the January 2005 alcohol free acetone test provided an error of “unable to obtain stable reference” with no credible explanation from the technician;
  • the radio frequency interference tests were conducted improperly.

As a result, the Court ruled that the State could not meet its burden of demonstrating substantial compliance and the breath test results were excluded from the trial.

State v. Stephenson, 13 Fla. L. Weekly Supp. 797c (April 28, 2006, 16th Judicial Circuit). The Intoxilyzer 8000 machine in this case presented an “out of tolerance” reading of .086 during the February 2004 agency inspection. The agency inspector did not take any corrective action and FDLE later discovered error and informed the inspector. The Court ruled that this reading is per se failure. The State attempted to argue that the other tests performed on that inspection were within range and the inspections in subsequent months were within tolerance so there was substantial compliance. The Court disagreed and found that Deputy’s inability to remember possible explanations for the results and any steps he took to correction the problems show a lack of substantial compliance. So in that case, the breath test reading was suppressed because the State did not meet their burden of demonstrating substantial compliance given the number of irregularities and the lack of correction or maintenance of the machine.

State v. Wright, 14 Fla. L. Weekly Supp. 167c (December 15, 2006, 7th Judicial Circuit). During the April monthly inspection, the Intoxilyzer 8000 used in that case did not detect acetone in any of the test solutions, even after the inspector submitted the solution a second time (thereby doing two tests). The inspector did not include any comments in the remarks portion of Form 40 to explain any reasoning for this abnormality. The inspector informed the State Attorney’s office that he did not know why the machine did not detect the acetone, and immediately began another test—which was normal. Another test was done a month later which was also normal. The Court pointed out that the substantial compliance rules dictate that if a check or test is repeated, the reason for that repeat must be entered when prompted and recorded on the Form 40-which was not done on the first or second test. The Court also pointed out that if the machine does not comply, the inspector is required to remove the instrument from service and notify the Department inspector, which was not done in this case. The Court found the machine not to be in substantial compliance based on the April test being repeated and then restarted (in violation of the rule that the test can only be repeated once), the fact that the machine was not taken out of service after it failed to comply, and the fact that the inspector did not know why the machine was malfunctioning and failed to indicate a reason on Form 40.

State v. McGrath, 9 Fla. L. Weekly Supp. 631b (July 17, 2002, 14th Judicial Circuit) The Intoxilyzer 8000 in that case emitted high and low tones during breath test of the subject. The defense expert testified this was an indication of a malfunction of the instrument. Inspections were done in August 2001, September 2001, October 2001, November 2001, and December 2001. During each inspection, the printer was not functioning properly and the print cards had numerous errors. According to FDLE Form 16, print cards must be legible. Experts testified that printer problems may result from malfunction of the test instrument’s microprocessor or computer functions. The prosecution argued that because the instrument’s test results fell within acceptable ranges, this problem went to the weight rather than admissibility of the breath test reading. The court disagreed and found that numerous problems render the test results in the case unreliable.

 

Statistics on Administrative Suspensions in 2015

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. Most 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 and agency (and possibility each hearing officer).

I’ve made another public record request to see the statistics they keep for the number or type of notices 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 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
    • Convicting 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
  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.

Electronic Warrants in Hillsborough County, Florida

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 extreme 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 technological 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 image 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 a 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 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?

The Problem with USF DUI Checkpoints

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.

Tampa Police DUI Checkpoints

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

 

Is Florida Statute Section 316.1933 Unconstitutional?

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.

 

Exigent Circumstances for a Forced Blood Draw in Florida DUI Cases

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.

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

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.