Wildlife, Parks & Tourism

KANSAS

DEPARTMENT OF

WILDLIFE, PARKS & TOURISM

BOATING UNDER THE

INFLUENCE

PROCEDURAL MANUAL

1994/2009/2017

Major Dan Hesket (Law Enforcement Division) ACKNOWLEDGEMENTS:

Thanks to the Game Wardens of Kansas who have the primary responsibility of patrolling the waters of the state and making the environment safe and enjoyable for the citizens that recreate in Kansas.

K.S.A. 32-1101. Policy. It is the policy of this state to promote safety for persons and property in and connected with the use, operation and equipment of vessels and to promote uniformity of laws relating thereto. History: L. 1959, ch. 321, sec. 1; July l.

Source or prior law: 82a-801. INDEX

1. PURPOSE

2. DEFINITION OF TERMS

3. LEGALITY OF BUI LAWS

11. BUI MODEL CHECKPOINT POLICY

16. PROCEDURES

17. GUIDELINES

20. DETECTION AND INVESTIGATIVE TECHNIQUS

21. SOBRIETY CHECKPOINT BRIEFING GUIDE

23. BUI CHECKPOINT MECHANICS

24. PERSONNEL REQUIREMENTS

25. EQUIPMENT REQUIREMENTS

26. BIBLIOGRAPHY KANSAS DEPARTMENT OF WILDLIFE & PARKS

BOATING UNDER THE INFLUENCE

PROCEDURAL MANUAL

Purpose

Boat Inspection lanes will be utilized to inspect the boating public for required state and federal equipment. Inspection lanes will focus on required safety equipment and boat operators who are operating under the impairment of alcohol and/ or narcotics.

Objectives: 1. Remove the intoxicated operator from the water, thereby reducing the threat posed by the intoxicated operator to themselves and to others.

2. Prevent and/or minimize the possibility that the detained individual might subsequently operate a vessel or motor vehicle while remaining intoxicated.

3. Educate the recreational boating public on existing “operating while intoxicated” regulations and the requirements for safe boating.

BUI Checkpoints

Boating under the influence detection across the United States is calling for more attention from the boating public. With our lakes becoming more congested, the possibility of an accident increases with the use of alcohol.

In the State of Kansas, BUI checkpoints will be utilized to detect vessel operators who have become impaired from the consumption of alcohol or drugs and remove them from the waterways.

The issue of stopping and detaining vessels for sobriety checks revolves around the 4th amendment, citizen’s protection from unreasonable search and seizure, and the Federal Boating Safety Act of 1971, which set’s guidelines for states to follow in recreational boating.

1 Definition of Terms

Alcohol – any form or derivative of ethyl alcohol, defined by K.S.A. – 41-02.

Behavioral Standard of Intoxication – this is when, in the judgement of the boarding officer, the individual is intoxicated based on the person’s manner, disposition, appearance, muscular movement and speech.

Blood Alcohol Concentration (BAC) – Blood alcohol concentration is a legal term which describes the proportion of alcohol in a person’s blood in grams of alcohol per 100 milliliters of blood, or 210 liters of breath.

Boating Under the Influence (BUI) – an offense committed by one who operates or attempts to operate a vessel while under the influence of an intoxicating liquor or drugs.

Checkpoint – a geographic location, located on a reservoir or lake at which vessels are temporarily detained, for the purpose, of boating law enforcement actions.

Drinking – any ingestion of alcohol.

Drug – any substance that has a known mind-function altering effect on a person, including but not limited to controlled substances.

Intoxicant – any form of drugs or alcohol or combination thereof.

Operator – means the person who operates or has charge of the navigation or use of a motorboat or a vessel.

“Waters of this State” – any waters within the territorial limits of this state.

Vessel – any watercraft designed to be propelled by machinery, oars, paddles, or wind action upon a sail for navigation on the water.

2 Legality of BUI Laws

This section is designed to outline the legal aspects of detaining, boarding, and Possibly having the operator of a vessel perform field sobriety inspections.

1. Federal Boat Safety Act of 1971 – this act provided authority for the secretary of transportation to establish minimum safety standards for boats and a associated equipment, authorized financial assistance to the state, directed a Boating Safety Advisory Council be established, provided for numbering all undocumented vessels equipped with propulsion machinery, repealed most of the Federal Boating Act of 1958, and amended the Motorboat Act of 1940.

2. Coast Guard Authorization Act of 1984 (Public Law 98-577) –

a. This act amended 46 U.S.C. 2302, and required the Coast Guard to set standards for determining whether a person is intoxicated while operating a vessel and provides penalties for violation. Intoxicant is defined, chemical tests have been established with subjective behavioral standards as independent evidence of intoxication.

b. Federal BAC level standard is .10% for recreational vessels, except in states with enacted BAC levels, and provides for an independent behavioral standard. The BAC level enforced in Kansas is .08% and .02% for minors.

c. The states will perform primary enforcement efforts for recreational vessels

3. Kansas Statute number 32-1101. Policy. It is the policy of this state to promote safety for persons and property in and connected with the use, operation, and equipment of vessels and to promote uniformity of laws relating thereto.

4. Kansas Statute number 32-1131. Operating a Vessel Under the Influence of Alcohol or Drugs; crime.

a. no person shall operate or attempt to operate a vessel within the state while:

1. The alcohol concentration in the person’s blood or breath at the time or within two hours after the person operated or attempted to operate the vessel, is .08% or more;

2. under the influence of alcohol;

3. under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely operating a vessel;

4. under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely operating a vessel.

b. No person shall operate or attempt to operate any vessel within this state if the person is a habitual user of any narcotic, hypnotic, somniferous, or stimulating drug.

c. If a person is charged with a violation of this section involving drugs, the fact that the person is, or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

d. No person shall operate or attempt to operate any vessel within the state for three months after the date of refusal of submitting to a test if such person refuses to submit to a test pursuant to K.S.A. 32-1132 and amendments thereto.

e. Violation of this section is a misdemeanor punishable;

1. On the first conviction, by imprisonment of not more than one year or a fine of not less than $100 nor more than $500, or both; and;

2. on the second or subsequent conviction, by imprisonment for not less than 90 days nor more than one year and, in the court’s discretion, a fine not exceeding $500.

f. In addition to any other penalties prescribed by law or rule and regulation, any person convicted of a violation of this section shall be required to satisfactorily complete a boater education course of instruction approved by the secretary before such person subsequently operates or attempts to operate any vessel.

4 5. Kansas Statute number 32-1132. Test of alcohol or drugs; procedures.

a. Any person who operates or attempts to operate a vessel within this state is deemed to have given consent, subject to the provisions of this act, to submit one or more test of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person’s consent to such test or tests, which shall be administered in the manner provided by this section.

b. A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vessel under the influence of alcohol of drugs, or both, and one of the following conditions exists:

1. The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or

2. The person has been involved in a vessel accident or collision resulting in property damage, personal injury or death. The law enforcement officer directing administration of the test or tests may act on personal knowledge or, on the basis, of the collective information available to law enforcement officers involved in the accident investigation or arrest.

c. If a law enforcement officer requests a person to submit to a test of blood at the direction of the officer, it may be performed only by:

1. A person licensed to practice medicine and surgery or a person acting under the supervision of any licensed person;

2. A registered nurse, or a licensed practical nurse; or

3. Any qualified medical technician.

When presented with a written statement by a law enforcement officer directing blood to be withdrawn from a person who has tentatively agreed to allow the withdrawal of blood under this section, the person authorized herein to withdraw blood and the medical care facility where blood is withdrawn may reply on such a statement as evidence that the person has consented to the medical procedure used and shall 5 not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent. No person authorized by this subsection to withdraw blood, nor any person assisting in the performance of blood test not any medical care facility where blood is withdrawn or tested that has been directed by any law enforcement officer to withdraw or test blood, shall be liable in any civil or criminal action when the act is performed in a reasonable manner following generally accepted medical practices in the community where performed. d. If there are reasonable grounds to believe that there is impairment by a drug which is not subject to detection by the blood or breath test used, a urine test may be required. If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by a person of the same sex as the person being tested and shall be conducted out of the view of any person other than the person being tested, unless the right to privacy is waived by the person being tested. The results of qualitative testing for drug presence shall be admissible in evidence and questions in accuracy or reliability shall go to the weight rather than the admissibility of the evidence.

e. No law enforcement officer who is acting in accordance with section shall be liable in any civil or criminal proceedings involving the action.

f. Before a test or tests are administered under this section, the person shall be given oral and written notice that:

1. there is no right to consult with an attorney regarding whether to submit to testing;

2. refusal to submit to testing may be used against the person at any trial on charge arising out of the operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both; and

3. the results of the testing may be used against the person at any trial on a charge arising out of the operation of a vessel while under the influence of alcohol or drugs, or both; and

4. after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, 6 which, if desired should be done as soon as possible and is customarily available from medical care facilities and physicians.

After giving the foregoing information; a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given. The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vessel while under the influence of alcohol or drugs, or both.

Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

It shall not be a defense that the person did not understand the written or oral notice required by this section.

g. Nothing on this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

h. Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

i. In addition to any other penalties prescribed by law or rule and regulation, any person refusing to take a test or tests when requested to do so by a law enforcement officer pursuant to this section shall be required to satisfactorily complete a boater education course of instruction approved by the secretary before such person subsequently operates or attempts to operate any vessel.

6. Kansas Statute number 32-1179 – Peace Officer’s powers. Every peace officer of this state and its subdivisions or caretakers at federally impounded waters shall have this authority to enforce the provisions of this act and, in the exercise thereof shall have the authority to stop and board any vessel subject to this act.

7 7. Other state statutes that may pertain to B.U.I. checkpoints, in summation:

a. K.S.A. 22-2501. Search without search warrant.

1. Protecting the officer from attack.

2. Preventing the person from escaping; or evidence of the crime.

3. Discovering the fruits, instrumentalities, or evidence of the crime.

b. K.S.A. 22-2502. Search warrants; issuance; proceedings authorized; availability of affidavits, and testimony in support of probable cause requirements.

c. K.S.A. 22-2506. Execution of search warrants. A search warrant shall be executed within ninety-six hours from the time of issuance. If the warrant is executed the duplicate copy shall be left with any person from whom any items are seized, or, if no person is available, the copy shall be left at the place from which the items were seized. Any warrant not executed within such time shall be void and shall be returned to the court of the magistrate issuing the same as “not executed”.

c. K.S.A 22-209. Detention and search of persons on premises. In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:

1. To protect himself from attack, or

2. to prevent the disposal and concealment of any items particularly described in the warrant.

d. K.S.A. 22-2512. Custody and disposition of property seized.

1. Property seized under a search warrant or validly seized without a warrant, shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate, and shall be so kept, as long as necessary for the purpose of being produced as evidence on any trial. The property seized may not be taken from the officer having it in custody so long as it is, or may be required

8 as evidence in any trial. The officer seizing the property shall give a receipt to the person detained or arrested particularly describing each article of property being held and shall file a copy of such receipt with the magistrate before whom the person detained or arrested is taken. Where seized property is no longer required as evidence in the prosecution of any indictment or information, the court which has jurisdiction of any other court.

2. When property seized is no longer required as evidence, it shall be disposed of in accordance to Kansas Department of wildlife & Parks policy.

Survey of Court Decisions

Carroll Doctrine; The “automobile exception” to the fourth Amendment, which permits searches of vehicles, without consent or warrant, based upon probable cause and mobility. Carrol V. U.S., 267 U.S. 132 (1925).

Kansas Attorney General ruling on boarding vessels. In the summer of 1993, a ruling was obtained from the Kansas attorney General’s office regarding the legality of law enforcement officers boarding a vessel with live-in facilities. The question was raised in the violation of the owners fourth amendment and the right to protection from an illegal search and seizure. The attorney general’s ruling took the position of the mobility of the vessel which ranked them with vehicles, thus giving the officer the right to board and inspect a vessel, following the principles of the Carroll Doctrine.

9 BUI CHECKPOINT MODEL POLICY

1. Purpose – The purpose of this policy is to provide guidelines for the physical construction and operation of B.U.I. checkpoints, in order, to inspect the boating public for required state and federal laws, focusing on safety equipment and boat operators who may be impaired by alcohol or other drugs.

2. Policy – It shall be the policy of the Kansas Department of Wildlife and Parks to promote safety for persons and property in and connected with the use, operation and equipment of vessels and to promote uniformity of laws relating thereto. This agency will implement a Boating Under the Influence program, in order, to maximize the deterrent effect and increase the perception of “risk of apprehension” of boaters who would operate a vessel while under the influence of alcohol or any other drug. To ensure standardization of this program a clear and concise set of written guidelines has been developed governing procedures on how checkpoints will be operated within this jurisdiction.

a. To implement this policy this agency must:

1. Satisfy federal, state, and local requirements;

2. Conduct checkpoints with a minimal amount of intrusion or inconvenience of the boating public;

3. Assure the safety of the general public and the law enforcement officers involved;

4. Provide for an objective site selection process based on relevant data;

5. Provide for public information and education to maximize the deterrent effect and heighten awareness of the impaired operator problem;

6. Provide a systematic approach for data collection and an impact analysis report to monitor and ensure standardization and consistency of the B.U.I. checkpoint program.

7. Officer selection should be based on experience and training. Operational procedures will be covered during a briefing period prior to each checkpoint.

10 3. Department Guidelines

a. Written guidelines consistent with existing agency policies, prepared in advance of the checkpoint program must:

1. Be approved by the regional supervisor of law enforcement for the region where the checkpoint will be conducted.

2. Specify signing, safety equipment, warning devices, barriers, etc., that will be used, their placement and proper use at the scene.

3. Specify the method for selecting boaters and making contact.

4. Provide for an operational briefing of personnel prior to each checkpoint and, at this time, designate assignments and respective duties.

5. Specify dialogue and educational material to be used by checkpoint personnel.

6. Provide for the removal of vessels to the pre-determined area when further investigation is required.

7. Public reaction to the use of the B.U.I. checkpoints can be obtained by several different methods. Recommended procedures for obtaining feedback, are:

a. Mail in surveys. b. Verbal feedback from the boating public at the checkpoint site. c. Periodic public opinion poll.

4. Procedures

a. Site Selection – This department must be able to objectively outline criteria utilized in the site selection process:

1. Alcohol/ drug related boating experience.

a. Unusual incidence of alcohol/ drug related accidents.

b. Alcohol/ drug impaired operating violations.

c. Any other documented alcohol/ drug related boating accidents.

11 b. Select locations which permit the safe flow of traffic through the checkpoint.

1. Consideration should be given to no wake areas, docking, and loading areas, boating traffic and visibility.

c. Ensure sufficient adjoining space is available for vessel to maneuver through the checkpoint.

d. Unless there is a request from the business owner, B.U.I. checkpoints will not be conducted in the immediate vicinity of a marina, or other marine businesses near the water.

e. The site should have maximum visibility from each direction and sufficient illumination. If permanent lighting is unavailable ensure that portable lighting is provided.

f. The site should obtain enough water depth for proper propulsion of the vessels into and out of the lanes. It should be clear of any obstructions which could cause damage to a vessel and should ensure a good solid footing for the officers to stand and move when working their lanes.

5. Personnel

a. a uniformed officer will be assigned to provide on-scene supervision of the checkpoint.

b. The checkpoint will be staffed by, a sufficient number, of uniformed personnel to assure a safe and efficient operation.

c. All officers conducting sobriety tests will have taken the standardized B.U.I. Detection Training and will use the standardized field sobriety testing methods when investigating a possible impaired boat operator. Only officers certified on the use of a breath analyzer will be allowed to run the instrument.

6. Advance Notification

a. For, the purpose of public information and education, this agency will announce to the media that checkpoints will be conducted.

12 b. This agency will encourage media interest in the sobriety checkpoint program to enhance public perception of aggressive enforcement, to heighten the deterrent effect and to assure protection of constitutional rights

c. This agency will provide advance notification of the checkpoint to public safety agencies expected to be impacted.

7. Vessel Operator Warning/Safety Methods

a. Special care is required to warn boat operators of the sobriety checkpoint.

b. Basic equipment, include, but is not limited to:

1. Warning buoys placed in advance of the checkpoint. 2. Signs placed at the staging area. 3. Marked patrol vessels and vehicles.

8. Contingency Planning

a. Any deviation from the pre-determined guidelines must thoroughly document the reason for the deviation.

9. Data collection and Evaluation

a. After action reports, may include, but is not limited to:

1. Time, date, and location of the checkpoint. 2. Weather conditions. 3. Number of boats passing through the checkpoint. 4. Average time delay to boaters. 5. Pre-determined order of selecting the boats. 6. Number and types of arrest and warnings. 7. Number of occupants per boat. 8. Number of operators detained for field sobriety testing. 9. Number of vessels with alcohol on board. 10. Identification of unusual incidents such as safety problems.

b. To assist in determining the effectiveness of a checkpoint operation, a periodic impact analysis will include the following types of information.

1. Accident rate reduction.

13 Procedures for Kansas Wildlife, Parks and Tourism Boating Under the Influence Checkpoint

1. Checkpoints will normally be conducted and limited to Fridays, Saturday, Sundays, and holidays except for other special events.

2. Checkpoints will be operated between the hours of 12:00pm and 9:00pm with the length of the checkpoint to be determined by the regional supervisor and the officer coordinating the project, unless adequate lighting is available for nighttime operations.

3. The regional office of which the check-lane is being conducted will be notified by contacting the regional supervisor of law enforcement with the date, time, and location of the checkpoint. The regional supervisor will forward this information to the operations office in Pratt.

4. Sufficient numbers of officers and supervisors will be assigned to the sobriety checkpoint to insure a safe, efficient operation. The number of officers will be left to the discretion of the regional supervisor and the coordinating officer.

5. A letter of support from the district judge and the prosecuting attorney should accompany the checkpoint records if possible.

6. A news release will be made available to media services one week prior to the event, and a follow-up release the week after will be made. If the media and others are invited to the checkpoint site, a contact person will be provided to explain the procedure.

7. All departmental forms will be completed by the coordinating officer. A complete report will be submitted to the regional office and the operations office in Pratt.

8. All officers conducting the boat inspections will be law enforcement officers of the Department of Wildlife, Parks & Tourism, Kansas Highway Patrol, and Co. Sheriff’s office having jurisdiction. All field sobriety test will be conducted by a law enforcement officer who has been trained in standardized DUI detection training and/or the National Association of State Boating Law Administrators BUI testing and by officers who are currently certified on the instruments used.

14 GUIDELINES FOR SOBRIETY CHECKPOINTS

Ongoing Program to Deter Impaired Operations

A large percentage (10-20) of fatal aquatic accidents go undetected until the victim is noted as missing. Aquatic accidents occur in a non-stable medium, frequently in unaccessible locations, thus making the gathering of evidence at the scene difficult. Systems for gathering details of boating and swimming accidents are not as standardized or maintained as in auto related investigations. The jurisdiction or responsibility for providing reports is not well defined and the reporting process occurs either to distant in time from the event, or is not complete to be of value.

Boating Under the Influence checkpoints are a systematic enforcement program. Public information and education should be implemented into the program to maximize the deterrent effect and increase the perception of “risk of apprehension” to boaters who would operate a vessel while impaired by alcohol or other drugs.

Judicial Support

When officers use sobriety checkpoints they shall contact and involve their prosecuting attorney in the planning process to determine legally acceptable procedures. They may assist in any legal requirements and inform the officers of the types of evidential information needed to prosecute BUI cases.

The jurisdiction’s presiding judge will be informed of the proposed checkpoint and procedures. The judge may provide insight on activities that would require to educate BUI cases. Prosecutors, judges, and other involved members of the criminal justice system may be invited to observe the operation of the checkpoint.

Public Information and Education

To obtain maximum benefits in terms of general deterrent, sobriety checkpoints will be publicized aggressively. Most operators will probably never encounter a sobriety checkpoint, but will learn of it through media reports or by word of mouth. These two (2) valuable forms of public communication will greatly enhance any such program and will be employed consistently. The checkpoint is an ideal opportunity to provide educational materials regarding impaired operation of a vessel and the rules and regulations concerning boating activities.

15 Site Selection

The site of the BUI checkpoint will assure the safety of the public and the officers conducting the check-lanes.

The site should, be located, in an area to minimize interference from weather conditions, mainly wind. It should include some type of boat ramp and a courtesy dock used to unload the persons of a vessel. There should be enough distance between lanes to insure an easy flow of vessels in and out of the lanes. The checkpoints should not be placed close to a marina or other business unless the owner is consulted.

The water depth should accommodate the associated equipment of a vessel but should allow the officers secure footing to assist in docking and cast-off procedures. The area of the lanes should be as clear as possible of any obstructions which could damage a vessel.

The site should be in an area which may represent the possibility of boaters who may be under the influence. Any boat entering the checkpoint zone may be subject to inspection, but if the lanes become full the contact officers will cease their activity until the lanes are free.

Warning Devices

Since most BUI checkpoints will occur during daylight hours, warning devices will consist of:

1. Buoy’s placed in the water stating; “Boat Inspection Zone”

2. Signs at the staging area informing of a Boating Inspection Area

3. All contact officers will have marked patrol vessels to assure identity.

4. All officers will be in uniform.

Visible Police Authority

The visibility of uniformed officers and their marked vessels makes the presence obvious. It also serves to reassure the boater of the legitimate nature of the activity. Each officer should carry with him/her their credentials to show the stopped vessel, as an effort to reduce the intrusion to the vessel operator affected by the checkpoint.

A uniformed officer shall be assigned to provide on-site supervision of the checkpoint station. This officer will be responsible for the overall operation and will be well versed in contingency plan for the checkpoint. The checkpoint will be staffed with sufficient numbers of uniformed personnel to assure a safe and efficient operation, based on traffic volume, reservoir size, type of location, etc.

Chemical Testing Logistics

With impaired operating arrest anticipated at the selected location, the logistics of chemical testing must also be included. If possible, a mobile breath testing unit with a qualified operator could be physically located at the checkpoint. If one is not available, a system for expeditiously transporting suspected violators to chemical test locations will be established. In applicable locations, a Drug Recognition Technician should be available to examine subjects who may be impaired by drugs other than or in combination with alcohol.

Contingency Planning

Any deviation from the predetermined plan for stopping vessels will be thoroughly documented and reasons for the deviation provided. Courts have allowed this action so long as documentation of the reason requiring the deviation from the interview sequence is kept (United State v. Prichard, 645 F2d 854). If such an event occurs, jurisdictions should have prepared an alternative plan, in advance, to handle the checkpoint.

17 DETECTION AND INVESTIGATIVE TECHNIQUES

The use of sobriety checkpoints which allow impaired operators to pass through undetected will not achieve the desired deterrence effect. Officers should look for the following indicators of impairment during initial contact with an operator at a checkpoint:

a. odor of alcoholic beverages or other drugs

b. bloodshot eyes

c. alcohol containers or drug paraphernalia

d. fumbling fingers and poor coordination

e. slurred speech

f. admission of drinking or drug use

g. inconsistent responses

h. detection of alcohol by a passive alcohol sensor

It is highly desirable that officers assigned to conduct the sobriety checkpoint receive the BUI Detection and Standardized Field Sobriety Testing (SFST) training.

Once an officer’s suspicion is raised, further investigation can take place out of the vessel lanes. If an officer believes it is necessary to move a suspect’s vessel after he or she has reasonable suspicion of impairment, it will be moved by someone other than the suspect.

The officer should continue the investigation using non-incriminating divided attention questions such as asking for personal identification and boat registration. Asking them to try on their life jacket, and then administer the SFST Afloat Test Battery. After the completion of the Afloat Test Battery, the officer may use a portable breath testing device (PBT) to determine if further Ashore SFST is warranted. If the officer determines the subject is impaired an evidential test to determine the blood alcohol concentration (BAC) should then be administered.

If the officer obtains a low BAC, a DRT should be utilized for further investigation. 18 SBORIETY CHECKPOINT BRIEFING GUIDE

1. Prior to conducting a sobriety checkpoint, routine information including time, location, personnel assignments, and the following items will be discussed to all officers and supervisors participating in the operation.

a} The goals and objectives of the BUI checkpoints will be explained

b} Location and placement of vehicles and boats will be discussed

c} The need for safety for the public and officers will be stressed

d} The checkpoint supervisor will be assigned and will remain at the checkpoint location to oversee all on-site enforcement activities.

e} Placement of personnel and marking of the checkpoint will be discussed

f} Develop and establish a systematic approach for stopping vessel traffic as they enter the checkpoint zone.

g} Instruct all participating officers to explain the purpose of the checkpoint to the vessel operator as they approach the vessel. The following uniform statement/question will address the operator: “Good afternoon. You have been stopped at a Kansas Wildlife and Parks boating inspection checkpoint. This checkpoint is being operated to inspect boating safety requirements and to detect boat operators who may be impaired. Have you consumed any alcohol, and/or controlled substance today?

2. If the vessel operator’s answer is no and there are no other boating violations, or reasons to believe otherwise, the officer will permit the boater to proceed.

a} If the boater’s operator says yes, ask how much and when. Depending on the answer and other circumstances, the officer should decide if further investigation is warranted. If so, the vessel operator will be replaced by a capable operator and escorted to the check-lane. If a driver is not available, the operator will be secured in a life jacket and the boat will be towed to the lanes.

b} Sobriety checkpoint pamphlets, questionnaires, and boating regulations will be provided to each boater stopped during the detection phase.

c} During the detection phase, the officer will check the vessel for compliance with all state boating laws and regulations. If a violation is detected the vessel will be escorted to the check-lanes.

19 d} Instruct the officers to identify the operator of the vessel, then use alcohol and drug identification techniques to inquire if there is a presence. e} If no violation exists, the boater should be permitted to proceed on their way and thanked for their cooperation. f} The person suspected of impairment will be subject to the battery of standardized Field Sobriety Tests. g} Searches of a vessel, the operator, or passengers, shall be conducted only when legally permissible. h} A vessel which avoids being stopped by the contact officer will be allowed to continue without pursuit, unless there is a clear and visible violation observed.

20 BUI CHECKPOINT MECHANICS

CONTACT AREA

Contact officers will make initial contact with the vessel. After identifying themselves and providing the information pertaining to the checkpoint they will inspect the vessel for possible violations of safety requirements and to detect impaired operators. They will identify the vessel operator and ask the operator if he/she has consumed any alcohol beverages or drugs of any kind. If the answer is no, the officer will inspect the vessel for equipment requirements and registration. If no violation is found the operator will be thanked for his cooperation and allowed to proceed. If the operator answers yes or if a boating violation is detected, the vessel will either be escorted or taken to the check-lane for further investigation.

STAGING AREA

1) The staging area may consist of two lanes formed to inspect vessels for compliance of state and federal boating laws and to detect impaired boat operators.

2) Each lane will have a team of two (2) officers consisting of an arresting officer and a documentation/search officer.

After, a vessel has been escorted or towed into the staging area, the contact officer will identify to the arresting officer the vessel operator and provide information pertaining to the violation(s). This information exchange will be taped and documented by the documentation officer. The arresting officer will then complete a vessel safety examination and issue the appropriate citations or warnings. If there is a suspected alcohol or drug violation the search officer will obtain evidence. The vessel will be escorted to the field testing area and the operator will be placed under arrest for BUI and a breath test will be administered at the predesignated location. All evidence will be secured and marked by the evidence officer and placed in the evidence locker along with appropriate documentation.

All arrest or BUI apprehensions will be reported directed to the checkpoint supervisor prior to investigation.

21 PERSONNEL REQUIRED

CONTACT OFFICERS (2) Make initial contact with vessels

ARRESTING OFFICER (2) Designated team leader. Will issue all citations and Warnings, conduct vessel examination and SFST.

DOCUMENTATION/ SEARCH OFFICER (2) Documents all necessary information, including vessel registration number, number of people on board and their seat location, time in and out, number of citations/warnings issued, if alcohol was on board, if SFST wad administered. Will also search, diagram, record and mark all evidence/contraband.

EVIDENCE OFFICER (2) Secures and records all evidence obtained from vessels. Maintains the chain of custody for all evidence. Also, provides video-taping of searches, SFST, and evidence.

TRANSPORT OFFICER (2) Transports arrested subjects to the pre-designated facility.

PURSUIT OFFICER (1) Renders back-up assistance to the contact officers and tows vessels into the staging area

MATRON (1) Assist with female searches and escorts

K-9 OFFICER (If available) (1) Conducts profiles and searches in check lanes including narcotics, wildlife and evidence.

CHECKPOINT SUPERVISOR (1) In charge of the checkpoint. Establishes command post and designates media and complaint contact.

22 Equipment Needed

PATROL BOATS (4) CAMCORDER (1)

HAND-HELD RADIOS (8) DIGITAL CAMERA (2)

TAPE RECORDERS (4) CLIPBOARDS (12)

COUNTERS (5) STOP WATCHES (3)

LANE BUOYS (16) PBT (4)

WHISTLES (5) CHECKPOINT BUOYS (3)

CHECKPOINT SIGN (1) NARCOTICS FIELD TEST KIT (1)

Evidence tags, small and large bags, evidence tape, coolers & ice, permanent markers, rubber bands, paper sacks, ticket books, mag lights, rope & weights, cellular phone, protective clothing.

FORMS:

Vessel Inspection BUI Check lane

Field Sobriety Chain of Custody

Consent to Search Consent to Test (Implied Consent)

Inventory Alcohol Incident

23 BIBLIOGRAPHY

1. Stiehl, Christian. Alcohol and Pleasure Boat Operators, Report No. CG-D-75. Springfield, Va: National Technical Information Service. 1975

2. U.S. Department of Transportation U.S. Coast Guard, Boating Safety Manual, Sate Edition. Washington, D.C.: U.S. Coast Guard 1988

3. U.S. Department of Transportation, U.S. Coast Guard. Boating Statistics Report. Washington, D.C.: U.S. Coast Guard, 1992

4. U.S. Department of Transportation, U.S. Coast Guard. Boating While Intoxicated Handout, Maritime Law Enforcement School. Yorktown, VA. U.S. Coast Guard Reserve Training Center, 1991

5. Ray, Oakley. Drugs, Society and Human Behavior. St. Louis: C.V. Mosley Company, 1983, P. 28.

6. Zauner, Phyllis. “Drunk Driving: How Bad Is It?” Elks Magazine, December, 1982/ January 1983, P. 28

7 Kansas Peace Officers Association. Kansas Criminal Code & Procedure Handbook. Wichita, KS, 1992

8. Kansas Department of Transportation. Kansas Sobriety Checkpoints. Topeka, KS, 1990.

9. Smith, Smith. Water Wise. Smith Aquatic Safety Service, St. Charles, MO, 1984