DUII WARRANT DUII WARRANT APPLICATION PROCESSAPPLICATION PROCESS

Presented byPresented by

Darke HullDarke Hull

Jody VaughanJody Vaughan

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

QUESTIONSQUESTIONS

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

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

WHY USE WARRANTS?WHY USE WARRANTS?

WHY USE WARRANTS?WHY USE WARRANTS?

Gathering all the evidence completes Gathering all the evidence completes the case and leaves the defendant the case and leaves the defendant with few choices. with few choices.

There will be no questions later as to There will be no questions later as to what the evidence could have been what the evidence could have been because the evidence has been because the evidence has been seized and tested.seized and tested.

What about the exceptions? What about the exceptions? Some reasonable exceptions:Some reasonable exceptions:– All exceptions besides consent have something All exceptions besides consent have something

to do with exigency regarding the to do with exigency regarding the preservations of evidence.preservations of evidence.

Do not depend on exigency because Do not depend on exigency because courts are continuously narrowing this courts are continuously narrowing this exception. exception.

Remember exigency is never established Remember exigency is never established by lack of police manpower or resources.by lack of police manpower or resources.

What if I do not have time?What if I do not have time?

It takes less time to get a warrant It takes less time to get a warrant than it does to take a case to trial.than it does to take a case to trial.

The more often you obtain a warrant, The more often you obtain a warrant, the more proficient you will become. the more proficient you will become.

If you get a warrant, no one will ask If you get a warrant, no one will ask you later why you did not get one. you later why you did not get one.

What are the benefits?What are the benefits?

Simply…Simply…

Hospital blood/L.E. sampleHospital blood/L.E. sample

Hospital urine/L.E. sampleHospital urine/L.E. sample

DNADNA

Clothes worn by suspectClothes worn by suspect

Photographs of suspect’s injuriesPhotographs of suspect’s injuries

Vehicle autopsyVehicle autopsy

What is the result?What is the result?

We do not only want to prove our We do not only want to prove our theories… but we want to disprove theories… but we want to disprove the defense theory.the defense theory.

This cannot be done without all the This cannot be done without all the evidence. evidence.

PROBABLE CAUSEPROBABLE CAUSE

SEARCH AND SEIZURE SEARCH AND SEIZURE MANUELMANUEL

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

WHAT COMES UPWHAT COMES UP

Good intentions do not always Good intentions do not always result in good outcomes.result in good outcomes.

When an officer makes a mistake When an officer makes a mistake and the case is appealed, the and the case is appealed, the officer’s name is used. officer’s name is used.

Do not be afraid to state the Do not be afraid to state the obvious.obvious.

Duck theory - Duck theory -

Small, with feathers, swims, and has Small, with feathers, swims, and has a bill and webbed feet. Good a bill and webbed feet. Good description….description….

It’s a darn duck…call it one.It’s a darn duck…call it one.

What is probable cause?What is probable cause?““Probable cause” is simply more Probable cause” is simply more

likely than not. likely than not.

Probable cause has an objective Probable cause has an objective and subjective component.and subjective component.

Subjective probable cause – what the Subjective probable cause – what the officer believes.officer believes.

Objective probable cause – what the Objective probable cause – what the court objectively believes is court objectively believes is reasonable based on the testimony reasonable based on the testimony of the officer.of the officer.

Both must be present in order for the Both must be present in order for the court to uphold the police action.court to uphold the police action.

Subjective Probable CauseSubjective Probable Cause

How do we know it?How do we know it?

How do we explain it?How do we explain it?

And how does it apply to the crime And how does it apply to the crime we are investigating?we are investigating?

PROBABLE CAUSEPROBABLE CAUSE

You must understand the law as it You must understand the law as it applies to the crime you are applies to the crime you are investigating. investigating.

Once you do, you can explain how all Once you do, you can explain how all the facts that you observed, led to the facts that you observed, led to conclusion that the suspect was conclusion that the suspect was intoxicated. intoxicated.

What is the legal definition of What is the legal definition of intoxication?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 What is the legal definition of intoxication?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 What is the legal definition of intoxication?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 Case law examples of Probable Cause:Probable Cause:

State v. NagelState v. Nagel320 Or 24 (1994)320 Or 24 (1994)

Odor of an alcoholic beverageOdor of an alcoholic beverageGlassy eyesGlassy eyesFumbling to get driver’s licenseFumbling to get driver’s license

State v. ForrestState v. Forrest174 Or App 129 (2001)174 Or App 129 (2001)

Erratic drivingErratic drivingStrong odor of an alcoholic beverageStrong odor of an alcoholic beverageWatery eyesWatery eyes““halting” speechhalting” speechAdmission of drinkingAdmission of drinking

State v. BarnesState v. Barnes172 Or App 408 (2001)172 Or App 408 (2001)

Two unsignaled Two unsignaled lane changeslane changes

Odor of an Odor of an alcoholic beveragealcoholic beverage

Bloodshot watery Bloodshot watery eyeseyes

Balance problemsBalance problems Admission of Admission of

drinkingdrinking

State v. ReddishState v. Reddish78 Or App 219 (1986)78 Or App 219 (1986)

Defendant rear-ended another Defendant rear-ended another vehicle on a straight roadvehicle on a straight road

Odor of an alcoholic beverageOdor of an alcoholic beverage

State v. DemusState v. Demus141 Or App 509 (1996)141 Or App 509 (1996)

Erratic drivingErratic driving

Odor of alcoholOdor of alcohol

Admission of 7-8 beersAdmission of 7-8 beers

Admitted he should not have been Admitted he should not have been driving.driving.

Probable cause not present because Probable cause not present because officer testified that defendant was officer testified that defendant was only “possibly” under the influence. only “possibly” under the influence.

Warrants for Traffic CrimesWarrants for Traffic Crimes

This to be the easiest and fastest This to be the easiest and fastest way to apply for a search warrant. way to apply for a search warrant.

It is not the only way or better than It is not the only way or better than your way, it is just another way.your way, it is just another way.

If you do not have a warrant If you do not have a warrant application process in place, now is application process in place, now is the time to get started.the time to get started.

Process Process

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

CRITERIACRITERIADo not limit yourself by having a Do not limit yourself by having a general order regarding warrants.general order regarding warrants.Instead have your own personal Instead have your own personal criteria.criteria.– I will usually write warrants for double I will usually write warrants for double

refusals and felony DUIIs. refusals and felony DUIIs. – I will always write warrants for drug I will always write warrants for drug

DUIIs.DUIIs.– I will always write warrants for serious I will always write warrants for serious

injury or fatal crash cases.injury or fatal crash cases.

Agency PolicyAgency Policy

Do not write a policy for your agency Do not write a policy for your agency with specific criteria for DUIIs. with specific criteria for DUIIs. – For example make sure you do not have For example make sure you do not have

to contact a lieutenant or two sergeants to contact a lieutenant or two sergeants for warrant approval.for warrant approval.

WARRANT PACKAGESWARRANT PACKAGES

Open pdfOpen pdf

WARRANT PACKAGEWARRANT PACKAGEWhat will the warrants do for you.What will the warrants do for you.

– AffidavitAffidavitSelf fillingSelf filling

– Should only have to enter information one time Should only have to enter information one time and it will automatically fill the other section.*and it will automatically fill the other section.*

– WarrantWarrantAutomatically filled by information in the Automatically filled by information in the affidavit.affidavit.

– ChecklistChecklist

* exception on big warrant extra boxes* exception on big warrant extra boxes

PDF IssuesPDF Issues

SHORT WARRANTSHORT WARRANT

SHORT VERSIONSHORT VERSION– Quick and easy version Quick and easy version – One blood drawOne blood draw

WHEN TO USE:WHEN TO USE:– All Refusals All Refusals – Multi-time offenderMulti-time offender– Drug DUIIDrug DUII– Other misdemeanor chargesOther misdemeanor charges

Short warrantShort warrant

AFFIDAVITAFFIDAVIT

Hero paragraph Hero paragraph

HERO STATEMENT HERO STATEMENT

INCIDENT INFOINCIDENT INFO

Do not use abbreviationsDo not use abbreviations

Time should be normal time (5:25 P.M.)Time should be normal time (5:25 P.M.)

Date should have spaces (10/08/08)Date should have spaces (10/08/08)

SUSPECT INFOSUSPECT INFO

VEHICLE INFO VEHICLE INFO

VICTIM INFOVICTIM INFO

Victim InformationVictim Information If you have a victim make sure you If you have a victim make sure you

document his or her injuries. document his or her injuries. Remember if the injuries are serious Remember if the injuries are serious

and there is impairment notify your and there is impairment notify your supervisor. supervisor.

WITNESS INFOWITNESS INFO

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

Witness Information Witness Information Use your best witness as the basis Use your best witness as the basis

for your affidavit, unless you need to for your affidavit, unless you need to use more that one witness.use more that one witness.

Witness statements can place the Witness statements can place the suspect in the driver’s seat, outline suspect in the driver’s seat, outline how the crash occurred, and indicate how the crash occurred, and indicate what common indicators of what common indicators of impairment were observed. impairment were observed.

Witness Information Witness Information

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

NARRATIVENARRATIVE

NARRATIVENARRATIVENarratives should be short and Narratives should be short and

sweet.sweet.– Consider the charges and focus the Consider the charges and focus the

narrative to cover the elements of those narrative to cover the elements of those crimes.crimes.

This is not your police report!!!!!This is not your police report!!!!!

NarrativeNarrative

You have 1 ¼ pages to complete this You have 1 ¼ pages to complete this portion. It may seem like a small portion. It may seem like a small amount of space but it is adequate.amount of space but it is adequate.– If you need more space you can add a If you need more space you can add a

supplemental page.supplemental page.If you add a supplemental page you must If you add a supplemental page you must include:include:

– Title on the top of the page stating it is an affidavit Title on the top of the page stating it is an affidavit narrative supplemental.narrative supplemental.

– Place for your signaturePlace for your signature– Place for the judge’s signaturePlace for the judge’s signature

NARRATIVENARRATIVE

NARRATIVENARRATIVE

NARRATIVENARRATIVEQualify each statement..Qualify each statement..– Like passing a note.Like passing a note.– Link all your statement…Link all your statement…

Officer Goodrich told me that he spoke to Smith, Officer Goodrich told me that he spoke to Smith, John, a witness, who told him that he observed the John, a witness, who told him that he observed the suspect drinking alcohol prior to the crash.suspect drinking alcohol prior to the crash.

Officer Goodrich told me that he spoke with Officer Officer Goodrich told me that he spoke with Officer Hull who interviewed Smith, John, who was with the Hull who interviewed Smith, John, who was with the victim at the hospital and that prior to going into victim at the hospital and that prior to going into surgery the victim told Smith, John that he, the surgery the victim told Smith, John that he, the victim, was driving the speed limit.victim, was driving the speed limit.

SFST SECTIONSFST SECTION

SFST’SSFST’S

BLOOD ALCOHOLBLOOD ALCOHOL

PROBABLE CAUSEPROBABLE CAUSE

PRAYERSPRAYERS

SIGNATURESIGNATURE

OATH STATEMENT BOXESOATH STATEMENT BOXES

GETTING IT SIGNEDGETTING IT SIGNED

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

GETTING IT GETTING IT SIGNEDSIGNED

Deputy DA ApprovalDeputy DA Approval

DeliveryDelivery

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

GETTING IT SIGNEDGETTING IT SIGNEDDecide how you are going to deliver Decide how you are going to deliver

the warrant to the D.A. and Judge. the warrant to the D.A. and Judge. Remember DUII warrants are very Remember DUII warrants are very time sensitive.time sensitive.– TelephonicallyTelephonically

– E mailE mail

– Fax/e faxFax/e fax

GETTING IT SIGNEDGETTING IT SIGNEDContact the D.D.A. for the Contact the D.D.A. for the

appropriate charge category (if appropriate charge category (if necessary).necessary).

EmailEmail

ORS 133.545(6).ORS 133.545(6).

Email Attachments Email Attachments Does anyone not know how to send Does anyone not know how to send

an attachment to an email?an attachment to an email?

FaxFax

ORS 133.545(6).ORS 133.545(6).

PersonalPersonal

Telephonically Telephonically

A telephonic warrant must be A telephonic warrant must be recorded.recorded.

If it not recorded, it did not happen.If it not recorded, it did not happen.

Consider your dispatch center to Consider your dispatch center to make the recording or use a personal make the recording or use a personal recorder with an ear piece.recorder with an ear piece.

GETTING IT SIGNEDGETTING IT SIGNEDAfter the D.D.A. approves the After the D.D.A. approves the

affidavit contact the Judge via phone.affidavit contact the Judge via phone.– Brief the judge on what has occurred.Brief the judge on what has occurred.– Notify them that a sergeant has Notify them that a sergeant has

reviewed the warrant (if required).reviewed the warrant (if required).– Notify that a D.D.A. has reviewed the Notify that a D.D.A. has reviewed the

warrant (if required).warrant (if required).

GETTING IT SIGNEDGETTING IT SIGNED Give the Judge Give the Judge

your phone your phone number so that the number so that the judge can call you judge can call you back.back.– If the judge does If the judge does

not call you within not call you within 15 minutes call 15 minutes call them back.them back.

GETTING IT SIGNEDGETTING IT SIGNED If the Judge approves your warrant If the Judge approves your warrant

they will swear you in and have you they will swear you in and have you affix the judge’s signature on the affix the judge’s signature on the warrant.warrant.

WARRANTWARRANT

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

EXECUTE THE WARRANTEXECUTE THE WARRANTRead one of the copies of the Read one of the copies of the

warrant, not the affidavit, and serve warrant, not the affidavit, and serve a copy (not the original) to the a copy (not the original) to the subject.subject.

AMR / HospitalAMR / Hospital If you are at a precinct you can call If you are at a precinct you can call

AMR and have them meet you at a AMR and have them meet you at a precinct.precinct.

If you are at the hospital, ask a nurse If you are at the hospital, ask a nurse to draw blood or have a phlebotomist to draw blood or have a phlebotomist come from the lab.come from the lab.

BLOOD SAMPLESBLOOD SAMPLES

Gray stopper blood vialGray stopper blood vial

Betadine or similar non-alcohol swabBetadine or similar non-alcohol swab

Taken from the vein or artery but not Taken from the vein or artery but not from the IV line.from the IV line.

RETURNRETURN You must make a return of this warrant You must make a return of this warrant

within 10 days. Best practice is to shoot within 10 days. Best practice is to shoot between 5-7 days.between 5-7 days.

If a telephonic warrant was obtained, the If a telephonic warrant was obtained, the court requires that the recording of the court requires that the recording of the sworn statement be transcribed and sworn statement be transcribed and returned with the original tape of the returned with the original tape of the recording. ORS 133.545(5).recording. ORS 133.545(5).

EXICUTION TIMEEXICUTION TIME

RETURNRETURN

RETURNRETURN

CHECKLISTCHECKLIST

CHECKLISTCHECKLIST

FINAL SPECIALFINAL SPECIALComplete a special report to explain:Complete a special report to explain:

– How the blood was drawn and what How the blood was drawn and what happened at the hospital.happened at the hospital.

– What you did with the blood once you What you did with the blood once you received it.received it.

– To who and when you returned the To who and when you returned the warrant.warrant.

– Attach all signed copies to the special Attach all signed copies to the special and submit to records.and submit to records.

BIG WARRANTBIG WARRANTINDEPT WARRANTINDEPT WARRANT– BLOOD X 2BLOOD X 2– BLOOD FOR CONTROLLED SUBSTANCEBLOOD FOR CONTROLLED SUBSTANCE– URINE FOR CONTROLLED SUBSTANCEURINE FOR CONTROLLED SUBSTANCE– ELECTRONIC DEVICESELECTRONIC DEVICES– DNADNA– VEHICLE AUTOPSYVEHICLE AUTOPSY– TEST OF CONSENSUAL EVIDENCETEST OF CONSENSUAL EVIDENCE– WHAT ELSE?WHAT ELSE?

BIG WARRANTBIG WARRANT

TIMES TO USE:TIMES TO USE:– STRANGE CIRCUMSTANCESSTRANGE CIRCUMSTANCES– FELONY ASSAULTSFELONY ASSAULTS– EVIDENCE OF CRIME IN VEHICLEEVIDENCE OF CRIME IN VEHICLE– DNA EVIDENCEDNA EVIDENCE– ELECTRONIC EVIDENCEELECTRONIC EVIDENCE

EXIGENT CIRCUMSTANCESEXIGENT CIRCUMSTANCESThe exigent circumstances that are The exigent circumstances that are

assoicated with a DUII are simply assoicated with a DUII are simply alcohol disipation. The accepted and alcohol disipation. The accepted and average disipation rate is .015% per average disipation rate is .015% per hour.hour.– .015 X 5 = 0.075.015 X 5 = 0.075– Start with a .10 DUII, 5 hours later Start with a .10 DUII, 5 hours later

( at .015% per hour= .075)( at .015% per hour= .075)– .10-.075=.025 .10-.075=.025

Does not DUII constituteDoes not DUII constitutereckless driving?reckless driving?

Operating a vehicle while impaired Operating a vehicle while impaired does endanger the safety of persons does endanger the safety of persons or property.or property.– But you must explain why.But you must explain why.– We always like to add reckless to the list We always like to add reckless to the list

of offenses when we have good of offenses when we have good statements of driving.statements of driving.

SIGNATURESIGNATUREAn electronic signature will be An electronic signature will be

needed if the warrant is sent via needed if the warrant is sent via email.email.

If the fax data conversion is used, an If the fax data conversion is used, an electronic signature is not needed.electronic signature is not needed.– We recommend that you use email. We recommend that you use email.

Data transfers fax to email are very slow Data transfers fax to email are very slow and can delay your execution by 15-30 and can delay your execution by 15-30 minutes.minutes.

CREATING AN ELECTRONIC CREATING AN ELECTRONIC SIGNATURESIGNATURE

Does everyone have an electronic Does everyone have an electronic signature?signature?– Sign a blank piece of paper.Sign a blank piece of paper.– Scan the paper.Scan the paper.– Open the document with a graphic file.Open the document with a graphic file.– Select the signatureSelect the signature– Copy and paste the signature to the Copy and paste the signature to the

warrantwarrant– Resize and move to the proper location.Resize and move to the proper location.

ELECTRONIC TRANSMISSIONELECTRONIC TRANSMISSION

CONTACT INFOCONTACT INFO

Joe GoodrichJoe Goodrich– 503-793-4573503-793-4573– joegoodrich@comcast.netjoegoodrich@comcast.net

Darke HullDarke Hull– 503-793-6046503-793-6046– darkehull@gmail.comdarkehull@gmail.com

ELECTRONIC TRANSMISSIONELECTRONIC TRANSMISSION