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? • 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.
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? • “Probable cause” is simply more likely than not.
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. Probable cause has an objective and subjective component.
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.
State v. Nagel320 Or 24 (1994) • Odor of an alcoholic beverage • Glassy eyes • Fumbling to get driver’s license
State v. Forrest174 Or App 129 (2001) • Erratic driving • Strong odor of an alcoholic beverage • Watery eyes • “halting” speech • Admission of drinking
State v. Barnes172 Or App 408 (2001) • Two unsignaled lane changes • Odor of an alcoholic beverage • Bloodshot watery eyes • Balance problems • Admission of drinking
State v. Reddish78 Or App 219 (1986) • Defendant rear-ended another vehicle on a straight road • Odor of an alcoholic beverage
State v. Demus141 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 PACKAGE • What will the warrants do for you. • Affidavit • Self 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
SHORT WARRANT • SHORT VERSION • Quick and easy version • One blood draw • WHEN TO USE: • All Refusals • Multi-time offender • Drug DUII • Other misdemeanor charges
Do not use abbreviations Time should be normal time (5:25 P.M.) Date should have spaces (10/08/08) INCIDENT INFO
Victim Information • If you have a victim make sure you document his or her injuries. • Remember if the injuries are serious and there is impairment notify your supervisor.
WITNESS INFO • 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 • Use your best witness as the basis for your affidavit, unless you need to use more that one witness. • 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 • 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!!!!!