15.7 Traffic Offenses Involving Alcohol/Drugs

Centreville Police Department Title: Traffic Offenses Involving Alcohol/Drugs Directive #: 15.7 Issued: 10.1.2016 Revised: 10.1.2016 Approved by: Charles M. Rhodes, Jr.

Chief of Police A. Purpose To provide officer with an overview the impaired driving enforcement program and procedures when making arrests for impaired driving.

B. Policy Officers will comply with the policies in this directive when enforcing impaired driving laws.

C. Definitions

DRIVING UNDER THE INFLUENCE (DUI):

• driving, attempting to drive, operating, moving or being in actual physical control of a motor vehicle, on

public property or private property used by the public in general, with a blood or breath alcohol concentration (BAC or BrAC) of 0.08 or higher.

DRIVING WHILE IMPAIRED (DWI):

• driving, attempting to drive, operating, moving or being in actual physical control of a motor vehicle, on

public property or private property used by the public in general, with a BAC or BrAC of more than 0.05 but less than 0.08, or, while impaired by any drug, controlled dangerous substances (CDS) or a combination of drugs and alcohol.

IMPAIRED DRIVING VIOLATION:

• in this directive, the term includes DUI, DUI per se, DWI, DWI by CDS, DWI by drugs and alcohol and

homicide or life-threatening injury by a motor vehicle or vessel while DUI/DWI.

STANDARDIZED FIELD SOBRIETY TEST (SFST):

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• a battery of tests developed by the National Highway Transportation Safety Administration (NHTSA) used

to determine impairment by alcohol or drugs.

D. Procedures

1. The CPD has established an impaired driving enforcement program with the primary objective of

reducing alcohol or drug related traffic offenses and crashes.

2. Supervisors will:

a. review their officer’s reports for completeness, accuracy and timely submission;

b. ensure that their officer’s PBTs are calibrated monthly and functioning properly;

c. follow all procedures dictated in Maryland’s Administrative Per Se law related to arresting and processing impaired drivers; and

3. Officers will:

a. conduct impaired driving enforcement in accordance with their training and NHTSA guidelines;

b. comply with all laws and procedures, to include timelines and notifications, related to impaired driving enforcement;

c. maintain constant supervision of the suspect until such time that he refuses or submits to an evidentiary breath test for alcohol;

d. complete all required reports and issue appropriate charging documents; and e. ensure their PBTs are functioning properly, calibrated monthly and the calibration record entered into the PBT log.

4. Initial Contact

a. Officers will ensure that reasonable articulable suspicion exists prior to stopping individuals for suspected impaired driving violations.

b. A violation of the law or evidence of impaired driving must be observed; mere suspicion is not evidence enough to justify a traffic stop.

Page 2 of 9 c. Upon making contact with an impaired driving suspect, officers will be observant for any additional evidence of impairment (e.g., odors, speech, vehicle contents).

d. In order to reduce the danger to the public and preserve evidence, officers who observe evidence of impaired driving will stop the vehicle at the earliest possible time.

e. Based upon the officer’s initial observations, a driver may be detained for further evaluation based upon suspicion of an impaired driving violation.

5. Standardized Field Sobriety Testing

a. The primary means of developing probable cause for an impaired driving arrest is SFSTs.

b. SFSTs will be conducted in accordance with officer training and NHTSA guidelines.

c. The safety of the officer, the suspect and the public is the primary consideration when determining where to conduct SFSTs.

(1) Whenever possible, officers should seek to conduct SFSTs completely off of the

roadway (e.g., on a sidewalk, in a parking lot).

(2) When tests must be conducted on the shoulder of the road, officers will conduct

the tests is in front of the suspect’s vehicle.

(3) Alternate locations may be chosen based on the circumstances, but the primary

focus should always be on safety.

6. Preliminary Breath Tests

a. Drivers detained for suspicion of an impaired driving offense may be requested to submit to a PBT based on the results of the SFSTs.

b. When used during the investigation of a suspected impaired driving offense, officers will offer the PBT only after the administration of SFSTs and prior to arrest.

c. Prior to administering the test, officers will advise the suspect of his rights using a Preliminary Breath Test Advisement of Rights.

d. The suspect does not retain the constitutional right to consult with an attorney prior to submitting to or refusing the test.

e. PBT results are inadmissible and court.

f. PBT results will only be used by the officer as a guide when developing probable cause to support the DUI charges prior to arrest. It does not replace other methods of developing probable cause for the arrest.

Page 3 of 9 g. A driver placed under arrest will not be given the result of his PBT until he either submits to or refuses an evidentiary breath test, or the two-hour limit for an evidentiary test has passed.

h. PBTs will only be administered by officers who are certified by the State Toxicologist.

i. All PBTs must be issued by CPD.

j. Only PBTs that have undergone monthly accuracy checks will be used.

k. Whether or not the suspect submitted to a PBT or an arrest was made, the officer will record the results in the barrack PBT log (Form 104).

l. Each officer will check the accuracy of his assigned PBT during each calendar month and record the results in the PBT log; defective PBTs will be sent to CTAU for repair or replacement.

m. PBT calibration tests will be conducted by any approved operator in the following manner:

(1) Each unit will be checked using an approved 0.080 ethanol standard.

(2) The operator will record the results in the PBT Log.

(3) The results of this test must be between 0.072 and 0.088 (inclusive).

(4) If the test results do not fall between 0.072 and 0.088 (inclusive), the PBT must be

removed from service and sent away for re-calibration.

(5) After re-calibration, the unit will be re-tested and the results will be recorded in

the PBT Log.

n. Supervisors will conduct periodic inspections of their officer’s equipment and the PBT log to ensure compliance.

o. PBTs may also be used in other appropriate circumstances (e.g., to determine if a passenger may be permitted to drive a vehicle after the original operator has been arrested).

p. PBT results will be included in the Incident Report, and the "Reasonable Grounds" section of MVA form DR-15A.

7. Arrest Procedures and Processing

a. If the officer has developed sufficient probable cause to support an impaired driving charge, the suspect will be arrested.

Page 4 of 9 b. Generally, the suspect will not be asked questions beyond what is required for arrest processing until after the evidentiary breath test is completed.

c. The advice of Miranda rights is not necessary until the suspect is in custody and information beyond what is required for arrest processing is requested.

d. The suspect will remain under constant supervision prior to the test.

e. The person to be tested must have had nothing to eat or drink, must not have placed any foreign substance in his mouth or respiratory tract and must not have smoked for 20 minutes before a breath sample is taken.

f. Prior to administering an evidentiary breath test, officers will read the MVA Form DR-15 – Advice of Rights, in its entirety, to the driver.

g. If the driver does not speak English, an interpreter will be used.

h. Once the DR-15 has been read aloud, the driver may choose to:

(1) submit to an evidentiary chemical test for alcohol which must be administered

within two hours of the arrest; or

(2) refuse to submit to a test.

i. Drivers who refuse to decide within the two-hour window will be processed as a refusal.

j. Advice of Administrative Sanctions

(1) If a suspect who is arrested for an impaired driving violation refuses to submit to

a test to determine the alcohol concentration in his blood, or consents to take a test and the results indicate an alcohol concentration of 0.08 or more:

(a) the officer may confiscate his Maryland driver's license at the time of

arrest; and

(b) certain expanded mandatory and automatic license suspensions will be

imposed by the Motor Vehicle Administration (MVA).

(2) The MVA DR-15A, Officer’s Certification and Order of Suspension, and procedures

contained therein, will be adhered to and read to the suspect, verbatim, in its entirety.

(3) The MVA DR-15A will be used for all drivers who refuse a chemical test, or submit

to a test of breath or blood resulting in .08 or more regardless of where the driver is licensed or if his license is valid; out-of-state licenses will not be confiscated.

8. Alcohol Violations Committed by Underage Drivers

Page 5 of 9 a. Anytime a driver under age 21 is suspected of operating a motor vehicle after consuming an alcoholic beverage, a test for alcohol concentration will be requested.

b. If the underage driver refuses the test, or takes the test with a result of 0.08 or more, the license will be confiscated in accordance with Administrative Per Se procedures.

c. In cases where the underage driver is charged with a violation of TRANSP. §21-902 and there is a test result of 0.02 or higher, the suspect will also be charged with an alcohol restriction.

9. Refusal of Test or Test Results of 0.08 or Greater

a. If the suspect refuses to submit to a test or the suspect submits to a test and the results indicate an alcohol concentration of 0.08 or greater the officer will:

(1) confiscate the driver's license only if issued by the State of Maryland;

(2) personally serve an order of suspension on the person;

(3) issue a temporary license to drive if permitted;

(4) inform the driver that he has ten days to request a hearing to show cause why his

driver's license should not be suspended;

(5) advise the suspect of the administrative sanctions that will be imposed if he fails

to request a hearing, or upon an adverse finding by the hearing officer; and

(6) complete the DR-15A and send any confiscated driver's license, copy the DR-15A,

and a sworn statement to the Motor Vehicle Administration within 72 hours after the issuance of the order.

b. Suspects who do not possess a valid license or possess a valid out-of-state license will not be issued a temporary license.

10. Impaired Driving Resulting in Death or Life-Threatening Injury

a. If a person is involved in a motor vehicle crash that results in the death or a life threatening injury to another person and the officer has reasonable grounds to believe that the suspect committed an impaired driving violation, the suspect will be:

(1) advised of the charges being placed, or which may be placed;

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(2) advised that a test of breath or blood, as appropriate, is mandatory, and the

person does not have a right to refuse a requested test, and that reasonable force may be used, if necessary, to obtain the test; and

(3) granted an opportunity to communicate with an attorney if requested by the

suspect.

b. Officers will:

(1) consult with the State's Attorney for advice in obtaining the required test;

(2) in the case of a refusal, employ reasonable force to obtain the test required in

TRANSP. §16-205.1(c);

(3) complete a DR-15A and forward it to MVA within 72 hours of the arrest if he is

unable to obtain the required test;

(4) place appropriate charges on the suspect only after consulting with the State's

Attorney's office; and c. In all cases where death or life-threatening injury have occurred, officers will not charge the suspect until a thorough investigation and/or reconstruction is completed and he has consulted with the State’s Attorney.

11. Right to Counsel

a. If requested, suspects will be permitted a reasonable opportunity to communicate with counsel before submitting to a test for alcohol concentration, as long as such communication will not substantially interfere with the timely administration of the test.

b. Suspects must be given a "reasonable time" in which to contact and consult counsel.

c. Courts have not defined a time period that constitutes an unreasonable delay; however, the statute mandates that the test must be administered no longer than two hours after the suspect’s arrest.

d. There is no requirement to wait the entire two hours before requiring the suspect to decide whether or not to take the test.

e. DUI suspects requesting to communication an attorney or another individual when deciding whether or not to submit to an evidentiary test for alcohol concentration may be permitted in- person or telephone contact.

f. Personal contact is permitted if the attorney is:

(1) present at the time the test is offered; or

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(2) able of respond to the test location and completes the contact in sufficient time

to permit testing within a reasonable time.

g. If an attorney requests to administer a preliminary breath test (PBT) to the suspect:

(1) he will be afforded the right to administer a PBT to the suspect prior to a decision

to take or refuse a test;

(2) CPD equipment will not be used;

(3) the test may not interfere with the two-hour time limit;

(4) the suspect may not be given anything to eat, drink, smoke, or take orally or

intravenously; if prescription medications must be administered, the officer will note the time and type administered in the Incident Report; and

(5) an additional twenty minute observation period must elapse after the PBT before

an evidentiary breath test is administered.

h. If an attorney requests to administer a PBT and the additional twenty minute observation period will result in the evidential breath test being administered more than two hours after the initial arrest, the evidentiary breath test will not be administered and the suspect will be processed as a refusal.

i. After consultation with an attorney or after the suspect has been given a reasonable time to contact and consult with an attorney, the suspect will be afforded the opportunity to either submit or refuse an evidentiary breath test.

j. If the suspect fails to make a decision as to whether or not to take the evidentiary test, it will be treated as a refusal.

k. Suspects will be permitted to have an attorney or a physician of his choosing administer an additional test using privately-owned equipment only after submitting to an evidentiary test administered at the direction of the arresting officer.

l. There is no requirement to advise the suspect that his attorney or physician may administer an additional test and under no circumstances will it interfere with the arrest procedures.

m. The option to refuse only applies to arrests that did not involve death or life-threatening injury.

12. Alcohol Influence Reports

Page 8 of 9 a. Incident Reports and the Alcohol Influence Form will be completed and submitted for approval prior to the end of an officer’s shift unless an exception is granted by his supervisor.

b. When an individual is charged with a violation of TRANSP. §21-902 while transporting a minor:

(1) the officer will clearly document this fact in his report;

(2) include the name, address, age and description of the minor; and

(3) write "Transporting a Minor" on the top of the report.

c. If it is known that the driver is a repeat offender, write “Repeat Offender” on top of the report.

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