Related Information MARICOPA COUNTY SHERIFF S OFFICE POLICY AND PROCEDURES Subject OPERATING UNDER THE INFLUENCE (OUI) Supersedes EB-9 (03-08-96) Policy Number EB-9 Effective Date 09-29-07 PURPOSE This Policy establishes guidelines for handling persons suspected of operating a motorized watercraft under the influence (OUI). Although this offense is referred to by several acronyms, such as BWI (boating while intoxicated), and BUI (boating under the influence), OUI will be used throughout this Policy. POLICY It is the Policy of the Office to support comprehensive alcohol and/or drug traffic enforcement programs to remove impaired operators from the waterways and to deter them from operating a motorized watercraft while under the influence if the person is impaired to the slightest degree. DEFINITIONS Operating under the Influence (OUI): The act of operating or being in actual physical control of a motorized watercraft that is underway, while under the influence of intoxicating liquor, drug or its metabolite, vapor releasing substance, or combination thereof if the person is impaired to the slightest degree, as specified in Arizona Revised Statutes (ARS). Motorized Watercraft: Any boat, jet-ski, or other personal craft propelled by machinery, whether or not the machinery is the principal source of propulsion. Operator: A person who operates, or is in actual physical control of, a motorized watercraft. PROCEDURES 1. Observations at the Time of Contact: Officers should standardize their investigative procedures and provide detailed documentation of OUI investigations. At the time of contact, at a minimum, officers should note the following: A. Water, weather, lighting, and boat traffic conditions at the time of the initial observation. B. The description and general condition of the suspect s watercraft. C. The suspect s reaction to outside stimuli, such as water conditions, other traffic, and the patrol boat s emergency lights and siren or horn. D. The operator s ability to bring his motorized watercraft to a stop, and to follow instructions. E. The time the suspect stopped operating the motorized watercraft.
F. Whether the suspect was actually operating, or in actual physical control of, the watercraft at the time of the stop. G. The presence and location of any other occupants of the suspect s watercraft, including skiers and swimmers. 2. Suspect Observations: Officers shall approach the suspect s motorized watercraft in a cautious manner, being cognizant of the suspect s actions and behavior. Officers should note the suspect s general appearance, attitude, level of understanding, demeanor, speech, coordination, and any evidence of intoxicating beverages or drugs on or about the operator, including drug paraphernalia. After requesting that the suspect produce identification, preferably verifiable, particular attention should be paid to the amount of time it takes the suspect to fulfill the request and the manner in which it is accomplished. 3. Occupant Interviews: All occupants of the suspect s watercraft, including swimmers, should be identified and interviewed. Their names and any relevant comments should be documented in the Incident Report (IR) as an aid to any further investigation or prosecution. 4. Standardized Field Sobriety Tests: A. Standardized Field Sobriety Tests (SFSTs) administered on the water are not among the customary and traditional SFSTs provided on the Office Alcohol Influence Report Form. Care should be used in choosing and scoring any SFSTs administered on the water. The most reliable, and the least affected by being on the water, is the Horizontal Gaze Nystagmus (HGN) Field Sobriety Test. 1. Only officers training or certified in HGN can perform the HGN test. If the officer is in training, he should make an effort to have a certified HGN officer verify his findings for court. 2. After any SFSTs, the officer should administer a Preliminary Breath Test (PBT), if available, while still on the water and prior to moving the balance of the investigation to shore. B. When administering SFSTs ashore, the officer shall use the Standardized Field Sobriety Worksheet found on the Alcoholic Influence Report Form. It is preferable that the officer administer these SFSTs ashore to minimize any challenge to the results on the basis of an unstable platform, or the issue of on the water stressors. C. If the suspect fails to satisfactorily complete the SFSTs he will be placed under arrest and transported to a substation to complete an Intoxilyzer Test to determine the level of alcohol impairment. If at that time the alcohol level, if any, is not consistent with the level of impairment, other possibilities such as physical, mental, or drug related impairment should be considered. 1. If the officer determines that the impairment is the result of the suspect being physically or mentally challenged, he shall attempt to arrange alternative transportation, avoiding undue embarrassment to the person. 2. If the officer believes drugs are the cause of the impairment, a Drug Recognition Expert (DRE) should be requested to respond to the district or substation to assist. a. Supervisory approval should be sought prior to contacting a DRE. A DRE can be requested through Communications if one is on duty, if not, the agency coordinator, or his designee, will be contacted by radio. 2
b. If a DRE responds, the officer shall stay with him and assist as required during the administration of the examination. c. When obtaining urine samples for DRE testing, only officers of the same sex as the suspect will witness the specimen collection. D. If SFSTs are not administered, the circumstances shall be thoroughly documented in the IR. 5. Arrest Procedures: When a suspect is arrested, he will be advised of the specific charges, advised of his rights, searched, restrained, and secured in a patrol vehicle for transport to the nearest MCSO booking facility or location where blood or breath testing is available. Officers should attempt to obtain Alcohol Concentration (AC) test samples within two hours of the time the suspect was last observed operating the watercraft. A. Care should be taken to prevent injury to the suspect, whose reduced stability increases his risk of injury. B. When a full custody arrest has been made, a search of those parts of the suspect s motorized watercraft which were immediately accessible to him while under the officer s observation is permitted. Contraband or evidence may be seized and placed into evidence. C. At the discretion of the officer, the suspect s watercraft shall be turned over to an appropriate, responsible person of the suspect s choosing, towed, or secured. A vehicle Impound and Inventory Report (Tow Sheet) shall be completed if the watercraft is impounded or towed. The officer shall make a reasonable effort to identify and locate the watercraft s trailer to facilitate towing and impoundment. 6. Tests to Determine Impairment: When an officer has probable cause to believe that a suspect is impaired by or under the influence of alcohol, any drug, or any other substance the officer shall ensure that appropriate tests are administered to the suspect. A. Operators of motorized watercraft are not presumed to have given implied consent to tests to determine AC, or the presence of drugs or other substances. However, ARS provides that the operator submit to and successfully complete such tests when arrested for a violation of OUI. 1. A person who refuses or fails to successfully complete such tests shall be informed that he is subject to a civil penalty as specified in ARS. If the suspect continues to refuse the test or tests, a search warrant for blood, urine, or other bodily substance may be requested. With supervisor approval, it is recommended that a search warrant be requested for all refusals. If assistance is needed with a search warrant, the Motors Unit or the DRE Unit should be contacted. If a search warrant is not obtained: a. No tests may be given, but the person shall be cited with a civil violation pursuant to ARS for refusal to submit to breath/blood test(s). b. Officers should document the evidence necessary to ensure a successful prosecution for OUI and the refusal. 2. A suspect who formerly refused to be tested, but who reconsiders, will be permitted to take the test if all of the following conditions are met: A. The suspect is still in the custody of the arresting officer. 3
4 B. The request is made within two hours of the time the suspect stopped operating a motorized watercraft. C. The officer and suspect are still at the location of the testing instrument. D. The instrument is both operational and available. 3. The manner of conducting tests, and the presumptions drawn from the results are specified in EB-3, Driving under the Influence (DUI). If the results from only one breath test can be obtained, admissibility may depend on documentation, which includes body weight and composition, food and beverage consumption, sleep times and duration, and any other physical factors. 4. In cases where blood is to be taken, an Office phlebotomist or paramedic is qualified to draw blood from the suspect, even if he is the arresting officer. B. The arresting officer shall inform the suspect of his right to have an independent test. The suspect may have a physician, registered nurse, or other qualified person of his own choosing administer a test or tests in addition to any tests administered at the direction of the officer. Such tests, requested and completed by the suspect, do not relieve him of the civil consequences of refusal to submit to the tests required by the officer. Independent blood or urine tests, requested by a suspect booked into an MCSO jail, will be conducted in accordance with Policy DO-4, Independent Testing Procedures for BUI and DUI Arrests. If the suspect is to be cited and released, and desires an independent blood test, he must make his own arrangements for the test after his release. The arresting officer shall not unduly detain the suspect. 7. Intent to Secure a Sample: Although the principles of Implied Consent and Administrative Per Se do not apply to OUI violations, ARS provides for the following: When a blood, urine, or other bodily substance sample is taken from a suspect by hospital medical personnel for any reason, a portion of that sample sufficient for analysis, shall be provided to the officer, if requested, whether or not the suspect has given his consent. Officers must have probable cause to believe the suspect was OUI and should make every effort to notify the hospital, in as timely a manner as possible, of the intent to secure a portion of the sample. A. If a hospital employee refuses to provide the requested portion of the sample, the officer will make the request to the hospital supervisor or administrator. If the request is still denied, the officer shall document the refusal in the IR. Additional information to be documented in the IR includes the names and dates of birth of the hospital employees who refused to provide the requested blood sample, the date and time of the refusal, and the addresses and business telephone numbers of the hospital and the involved employees. This information shall also be documented in a separate IR and submitted to the County Attorney s Office requesting the issuance of a complaint. This does not apply in a federal facility such as the Veterans Administration Hospital. B. Any blood, urine, or other bodily substance drawn for testing will be placed into evidence by completing the MCSO Property Invoice Form and a Department of Public Safety (DPS) Analysis Request Form. These forms shall accompany the blood collection kit or the vial containing the sample. The sample shall be considered bio-hazardous, and as such, shall be packaged and transported to the Property and Evidence Section for refrigeration, in accordance with Policy CP-6, Bloodborne Pathogens. The IR number will be clearly written on the vial or blood collection kit and the Property Invoice Form. The Property and Evidence Section is responsible for transporting the sample to the DPS laboratory for analysis. If the officer has not witnessed the drawing of the blood, he shall ensure that documentation from the hospital, sufficient to establish the chain of custody, is attached to the IR.
8. Misdemeanor OUI: When probable cause exists that an operator has committed misdemeanor OUI, he should be cited and either released or booked. In no event shall an impaired operator be permitted to resume operation of a motorized watercraft or any motor vehicle. The appropriate statutes will be listed on the citation form or arrest record. A. A noncommercial operator whose AC is 0.05 or less will not be charged without the existence of other competent evidence, unless drugs are suspected and a DRE evaluation was completed. Any evidence of impairment which may be due to drug use shall be documented fully in the IR and submitted to the County Attorney for a complaint. B. A suspect whose AC is more than 0.05, but less than 0.08, may be charged when the evidence gathered clearly indicates that the person is under the influence or impaired to the slightest degree. Any evidence of additional impairment, not reflected in the AC results, which is due to drug abuse in combination with, or instead of, alcohol, shall be documented fully in the IR. C. An operator whose AC is 0.08 or higher should be cited and either released or booked. D. The operator of a commercial motorized watercraft, as defined in ARS, being operated in furtherance of a commercial enterprise, whose AC is 0.04 or higher, should be cited and either released or booked. E. When possible, misdemeanor OUI suspects should be cited and released if they have a safe means of transportation available and it is in the best interests of the County or the public to release the suspect. F. The officer shall exercise his own judgment in determining when to incarcerate an OUI suspect. Factors which may determine whether the suspect is to be incarcerated after arrest include, but are not limited to, the following: 1. The suspect is uncooperative or combative in ways other than refusing an AC test. 2. The suspect is not a local resident or has no responsible party to assist him. 3. The suspect has a history of previous OUI arrests or convictions. 4. A records check on the suspect indicates the current OUI violation is a felony. 5. The officer determines that the suspect is unlikely to return for his court appearance. G. In instances where the suspect s impairment is greater than what is indicated by the AC, a DRE should be considered. A DRE exam can develop probable cause for a drug screening test. 9. Aggravated OUI: A suspect should be charged with aggravated OUI, in accordance with ARS, if he has previously been convicted of two or more OUI violations committed within the past 60 months. This includes any combination of convictions for OUI, or acts committed in another state for OUI which, if committed in this state, would be an OUI violation. 10. Investigation Procedures: When investigating OUI charges, the following procedures will be used: A. When a suspect is arrested for aggravated OUI, the officer shall forward the original IR to the district detectives for processing. 5
B. When charging the suspect with an aggravated OUI, the officer may issue nonmoving civil citations which are not related to elements of the OUI charge, such as expired registration. Offenses which are elements of the OUI shall be made a part of the IR. C. The arresting officer may issue citations for all violations observed in a misdemeanor OUI. However, as in aggravated OUI, moving violations which are elements of the OUI should be made a part of the IR. 11. Report Detail and Completion: Various reports and forms are required to successfully prosecute OUI suspects. Successful prosecution depends not only on a complete investigation, but also on the detail included in the IR. Both aggravated and misdemeanor OUIs require an IR to be written. A. An aggravated OUI report shall include a Jail Management System (JMS) computer printout containing the suspect s previous OUI bookings; the suspect s current driver s license status; details which led to the apprehension; and any information such as voluntary statements, suspect s refusal of test or tests, or admissions which indicate the suspect had knowledge of his previous OUI convictions. B. Every OUI IR shall contain details of the actions which led to the apprehension, including substantiation for all alleged violations committed by the suspect. C. The Alcohol Influence Report Form shall include the breath test results, times and date, the officer s observations, and suspect interview information. Space is also available for copies of the breath testing device printout, a copy of the operator s breath testing device certification, and the right thumb print and fingerprints of the suspect. The SFST Worksheet shall also be attached to the IR. D. Breath testing device documentation shall consist of the completed breath testing device checklists, which will be attached to the IR. One copy of the record of each successful test shall be furnished to the suspect if cited and released or placed in his property if booked. One copy of the record of each successful test shall be taped to an Alcohol Influence Report Form. E. Fingerprint cards may be used as an alternative to collecting the right hand fingerprints on the Alcohol Influence Report Form. The fingerprint card, if used, will include a complete set of fingerprints and will then be taped to a continuation sheet and included in the IR. F. A photograph should be taken of the suspect with his name, date of birth, the charges, and the IR number on the back of the photo and forwarded to the Scientific Analysis Section (ID). The officer shall note in the IR that a photograph has been filed in ID. G. An SFST Worksheet documenting performance shall be included in the IR for the SFSTs administered ashore. SFSTs administered on the water must also be documented using a separate worksheet with modifications as necessary. H. In an aggravated OUI investigation, JMS computer printouts of the suspect s OUI bookings will be attached to a continuation sheet. I. The Arrest/Booking Record Form will be completed if the subject is booked. If a citation is the complaint upon which the suspect is being booked, it shall be recorded in the charge block. Additional citations will not be documented on this form. In those cases where a subject is arrested for aggravated OUI, the following procedures will be completed: 6
1. The IR will be treated as in-custody, with a copy of the report being forwarded to the County Attorney s Office for the issuance of a complaint. 2. If the suspect is being charged with aggravated OUI, the officer shall request from each appropriate court that a certified copy of the subject s prior record be forwarded to the County Attorney s Office. The request will be made in a letter on Sheriff s Office letterhead stationery. J. A Final Disposition Form is required. K. A Release Questionnaire is required if booked. L. Any other information, evidence, or exhibits appropriate for prosecution shall be included in the IR. 12. Accident OUI Reports: Accidents which are OUI related require the following forms to be completed: A. Accident-misdemeanor OUI cases require the completion of the MCSO Watercraft Accident and Casualty Report, including all aspects of the accident and OUI violations. The officer must also complete an IR face sheet and the Alcohol Influence Report Forms. However, only one narrative is required, and it shall begin on the back of the Watercraft Accident Report and continue on Office Continuation Forms. B. Accident-aggravated OUI cases require two separate IR numbers. One IR number is assigned to the Watercraft Accident and Casualty Report, and the other IR number is assigned to the aggravated OUI IR. Both reports should be cross-referenced, and the aggravated OUI report should contain copies of all pages of the accident report. 7