DUII WARRANT APPLICATION PROCESS Presented by Darke Hull

DUII WARRANT APPLICATION PROCESS Presented by Darke Hull Jody Vaughan

This presentation would not be possible without the dedication and hard work of Joe Goodrich.

QUESTIONS Stop us if you have a question or need clarification.

OVERVIEW When a warrant should be obtained. What is probable cause. How to complete a DUII warrant and affidavit. Using warrant templates to save time. How to contact a D. A. and Judge. How to execute the warrant. How to return the warrant. Setting up a application process.

WHY USE WARRANTS?

WHY USE WARRANTS? Gathering all the evidence completes the case and leaves the defendant with few choices. There will be no questions later as to what the evidence could have been because the evidence has been seized and tested.

What about the exceptions? Some reasonable exceptions: – All exceptions besides consent have something to do with exigency regarding the preservations of evidence. Do not depend on exigency because courts are continuously narrowing this exception. Remember exigency is never established by lack of police manpower or resources.

What if I do not have time? It takes less time to get a warrant than it does to take a case to trial. The more often you obtain a warrant, the more proficient you will become. If you get a warrant, no one will ask you later why you did not get one.

What are the benefits? Simply… Hospital blood/L. E. sample Hospital urine/L. E. sample DNA Clothes worn by suspect Photographs of suspect’s injuries Vehicle autopsy

What is the result? We do not only want to prove our theories… but we want to disprove the defense theory. This cannot be done without all the evidence.

PROBABLE CAUSE

SEARCH AND SEIZURE MANUEL ON YOUR DISK THERE IS A COPY OF THE SEARCH AND SEIZURE MANUAL. – ITS PDF FORM SO DO A SEARCH TO SEE WHAT COMES UP

Good intentions do not always result in good outcomes. When an officer makes a mistake and the case is appealed, the officer’s name is used.

Do not be afraid to state the obvious. Duck theory Small, with feathers, swims, and has a bill and webbed feet. Good description…. It’s a darn duck…call it one.

What is probable cause? Ø “Probable cause” is simply more likely than not.

Probable cause has an objective and subjective component. Subjective probable cause – what the officer believes. Objective probable cause – what the court objectively believes is reasonable based on the testimony of the officer. Both must be present in order for the court to uphold the police action.

Subjective Probable Cause How do we know it? How do we explain it? And how does it apply to the crime we are investigating?

PROBABLE CAUSE You must understand the law as it applies to the crime you are investigating. Once you do, you can explain how all the facts that you observed, led to conclusion that the suspect was intoxicated.

What is the legal definition of intoxication? Oregon law provides that it is not unlawful for a person to drive a vehicle after having consumed intoxicating liquor. It is unlawful, however, for that person to drive a vehicle if the person is under the influence of intoxicating liquor.

What is the legal definition of intoxication? In this case, you do not have to find that the defendant was drunk or intoxicated, as those terms are commonly understood. “Under the influence of intoxicating liquor” means that the defendant’s physical or mental faculties were adversely affected by the use of intoxicating liquor to a noticeable or perceptible degree.

What is the legal definition of intoxication? “Under the influence of intoxicating liquor” includes not only the well-known and easily recognized conditions and degrees of intoxication, but also any abnormal mental or physical condition that results from consuming intoxicating liquor and that deprives the person of that clearness of intellect or control that the person would otherwise possess.

Case law examples of Probable Cause:

State v. Nagel 320 Or 24 (1994) Ø Odor of an alcoholic beverage Ø Glassy eyes Ø Fumbling to get driver’s license

State v. Forrest 174 Or App 129 (2001) Ø Erratic driving Ø Strong odor of an alcoholic beverage Ø Watery eyes Ø “halting” speech Ø Admission of drinking

State v. Barnes 172 Or App 408 (2001) Ø Two unsignaled lane changes Ø Odor of an alcoholic beverage Ø Bloodshot watery eyes Ø Balance problems Ø Admission of drinking

State v. Reddish 78 Or App 219 (1986) Ø Defendant rear-ended another vehicle on a straight road Ø Odor of an alcoholic beverage

State v. Demus 141 Or App 509 (1996) Erratic driving Odor of alcohol Admission of 7 -8 beers Admitted he should not have been driving. Probable cause not present because officer testified that defendant was only “possibly” under the influence.

Warrants for Traffic Crimes This to be the easiest and fastest way to apply for a search warrant. It is not the only way or better than your way, it is just another way. If you do not have a warrant application process in place, now is the time to get started.

Process While establishing a search warrant application process, work with your supervisors, the District Attorney’s office and judges so that everyone’s needs are met.

CRITERIA Do not limit yourself by having a general order regarding warrants. Instead have your own personal criteria. – I will usually write warrants for double refusals and felony DUIIs. – I will always write warrants for drug DUIIs. – I will always write warrants for serious injury or fatal crash cases.

Agency Policy Do not write a policy for your agency with specific criteria for DUIIs. – For example make sure you do not have to contact a lieutenant or two sergeants for warrant approval.

WARRANT PACKAGES

Open pdf

WARRANT PACKAGE Ø What will the warrants do for you. – Affidavit ØSelf filling – Should only have to enter information one time and it will automatically fill the other section. * – Warrant Automatically filled by information in the affidavit. – Checklist * exception on big warrant extra boxes

PDF Issues

SHORT WARRANT SHORT VERSION – Quick and easy version – One blood draw WHEN TO USE: – All Refusals – Multi-time offender – Drug DUII – Other misdemeanor charges

Short warrant

AFFIDAVIT

Hero paragraph

HERO STATEMENT

INCIDENT INFO Do not use abbreviations Time should be normal time (5: 25 P. M. ) Date should have spaces (10/08/08)

SUSPECT INFO

VEHICLE INFO

VICTIM INFO

Victim Information Ø If you have a victim make sure you document his or her injuries. Ø Remember if the injuries are serious and there is impairment notify your supervisor.

WITNESS INFO Ø Additional witnesses can be added in the narrative section. Simply add witness info as you would in a police report (Name, DOB, Address, phone). Obviously you do not need to put police officers in this section.

Witness Information Ø Use your best witness as the basis for your affidavit, unless you need to use more that one witness. Ø Witness statements can place the suspect in the driver’s seat, outline how the crash occurred, and indicate what common indicators of impairment were observed.

Witness Information Explain how the witness was in his or her position to make the observations.

NARRATIVE

NARRATIVE Ø Narratives should be short and sweet. – Consider the charges and focus the narrative to cover the elements of those crimes. This is not your police report!!!!!

Narrative You have 1 ¼ pages to complete this portion. It may seem like a small amount of space but it is adequate. – If you need more space you can add a supplemental page. If you add a supplemental page you must include: – Title on the top of the page stating it is an affidavit narrative supplemental. – Place for your signature – Place for the judge’s signature

NARRATIVE

NARRATIVE

NARRATIVE Qualify each statement. . – Like passing a note. – Link all your statement… Officer Goodrich told me that he spoke to Smith, John, a witness, who told him that he observed the suspect drinking alcohol prior to the crash. Officer Goodrich told me that he spoke with Officer Hull who interviewed Smith, John, who was with the victim at the hospital and that prior to going into surgery the victim told Smith, John that he, the victim, was driving the speed limit.

SFST SECTION

SFST’S

BLOOD ALCOHOL

PROBABLE CAUSE

PRAYERS

SIGNATURE

OATH STATEMENT BOXES

GETTING IT SIGNED Ø This is the point where you proof read and spell check at least twice. Do not waste the time of your DA or Judge.

GETTING IT SIGNED

Deputy DA Approval

Delivery If you do not have a system in place, set one up before a crisis occurs.

GETTING IT SIGNED Ø Decide how you are going to deliver the warrant to the D. A. and Judge. Remember DUII warrants are very time sensitive. – Telephonically – E mail – Fax/e fax

GETTING IT SIGNED Ø Contact the D. D. A. for the appropriate charge category (if necessary).

Email ORS 133. 545(6).

Email Attachments Ø Does anyone not know how to send an attachment to an email?

Fax ORS 133. 545(6).

Personal

Telephonically A telephonic warrant must be recorded. If it not recorded, it did not happen. Consider your dispatch center to make the recording or use a personal recorder with an ear piece.

GETTING IT SIGNED Ø After the D. D. A. approves the affidavit contact the Judge via phone. – Brief the judge on what has occurred. – Notify them that a sergeant has reviewed the warrant (if required). – Notify that a D. D. A. has reviewed the warrant (if required).

GETTING IT SIGNED Ø Give the Judge your phone number so that the judge can call you back. – If the judge does not call you within 15 minutes call them back.

GETTING IT SIGNED Ø If the Judge approves your warrant they will swear you in and have you affix the judge’s signature on the warrant.

WARRANT Make two additional copies of the warrant, not the affidavit but the warrant: – one copy for the suspect; and hospital or AMR.

EXECUTE THE WARRANT Ø Read one of the copies of the warrant, not the affidavit, and serve a copy (not the original) to the subject.

AMR / Hospital Ø If you are at a precinct you can call AMR and have them meet you at a precinct. Ø If you are at the hospital, ask a nurse to draw blood or have a phlebotomist come from the lab.

BLOOD SAMPLES Gray stopper blood vial Betadine or similar non-alcohol swab Taken from the vein or artery but not from the IV line.

RETURN Ø You must make a return of this warrant within 10 days. Best practice is to shoot between 5 -7 days. Ø If a telephonic warrant was obtained, the court requires that the recording of the sworn statement be transcribed and returned with the original tape of the recording. ORS 133. 545(5).

EXICUTION TIME

RETURN

RETURN

CHECKLIST

CHECKLIST

FINAL SPECIAL Ø Complete a special report to explain: – How the blood was drawn and what happened at the hospital. – What you did with the blood once you received it. – To who and when you returned the warrant. – Attach all signed copies to the special and submit to records.

BIG WARRANT INDEPT WARRANT – BLOOD X 2 – BLOOD FOR CONTROLLED SUBSTANCE – URINE FOR CONTROLLED SUBSTANCE – ELECTRONIC DEVICES – DNA – VEHICLE AUTOPSY – TEST OF CONSENSUAL EVIDENCE – WHAT ELSE?

BIG WARRANT TIMES TO USE: – STRANGE CIRCUMSTANCES – FELONY ASSAULTS – EVIDENCE OF CRIME IN VEHICLE – DNA EVIDENCE – ELECTRONIC EVIDENCE

EXIGENT CIRCUMSTANCES Ø The exigent circumstances that are assoicated with a DUII are simply alcohol disipation. The accepted and average disipation rate is. 015% per hour. –. 015 X 5 = 0. 075 – Start with a. 10 DUII, 5 hours later ( at. 015% per hour=. 075) –. 10 -. 075=. 025

Does not DUII constitute reckless driving? Ø Operating a vehicle while impaired does endanger the safety of persons or property. – But you must explain why. – We always like to add reckless to the list of offenses when we have good statements of driving.

SIGNATURE Ø An electronic signature will be needed if the warrant is sent via email. Ø If the fax data conversion is used, an electronic signature is not needed. – We recommend that you use email. Data transfers fax to email are very slow and can delay your execution by 15 -30 minutes.

CREATING AN ELECTRONIC SIGNATURE Does everyone have an electronic signature? – Sign a blank piece of paper. – Scan the paper. – Open the document with a graphic file. – Select the signature – Copy and paste the signature to the warrant – Resize and move to the proper location.

ELECTRONIC TRANSMISSION

CONTACT INFO Joe Goodrich – 503 -793 -4573 – joegoodrich@comcast. net Darke Hull – 503 -793 -6046 – darkehull@gmail. com

ELECTRONIC TRANSMISSION