E.P.P. 6 Non-Custodial Arrest, Discretion, & Diversion Programs
The purpose of this policy and procedure is to outline the proper utilization of procedures for non-custodial arrest, diversion programs and discretion by officers.
A. Diversion (From Arrest):
Diversion applies to those situations where an offender, adult or juvenile, who has committed a violation of law that makes the person eligible to be physically arrested, is handled in a manner that satisfies the intent of enforcing the law with the exception being that the offender is not taken into actual physical custody.
B. Notice to Appear:
A Notice to Appear summons may be used by officers for field release of eligible violators. Issuance of a Notice to Appear summons constitutes a non—custodial arrest.
C. Field Release:
A field release is the procedure whereby an eligible offender is released at the scene; upon an officer completing a Notice to Appear summons or traffic citation and the violator signing such document promising to appear at a later time to answer to the charges specified. A field release may also be defined as a release with no action taken by the officer.
D. Non-Custodial Arrest:
When an officer places a person under arrest and when the purpose of law enforcement is satisfied, but without taking an individual into actual physical custody. Reference is made to such diversion methods as simple release at the scene and the use of Notice to Appear summonses and traffic citations.
III. CRIMINAL JUSTICE AND SOCIAL SERVICE DIVERSION RESPONSIBILITY:
A. The Police Department, as a public service agency, plays a specific role in the criminal justice and social service diversion of certain offenders. It is the intention of the Police Department to use diversion programs and procedures as alternatives to arrest when practicable recognizing that such programs are not applicable to all offenses. Diversion programs described in this directive include the use of citations and summonses to divert both adult and juvenile offenders from actual custodial arrest.
B. The Police Department involvement in providing diversion services also extends to referring persons in need of assistance to appropriate community service agencies in lieu of taking them into actual physical custody. Such services assist with the non—arrest detention of persons for medical or mental health reasons, and for the detention of persons for purposes of their own safety and for the safety of others.
C. Department personnel may routinely refer persons in need of assistance, when not related to criminal matters, to a social service agency best able to provide requisite aid. Enforcement personnel shall remain knowledgeable as to available social service organizations that provide aid. Employees may refer individuals to the Sheriff’s Office Victim Advocate Unit when unable to refer them directly to a particular social service agency.
A. The proper use of discretion by officers is encouraged. The use of discretion must be within the limits of legal, ethical and moral behavior.
B. Officers are cautioned that discretion may be severely limited in the presence of any constitutional, statutory or court ordered mandates.
C. Officers should rely upon their experience, training, compassion, good judgment and advice of their supervisors in order to be guided toward making morally justified and lawful decisions.
D. Officers shall act reasonably and within the limits of their authority.
E. The use of discretion is not limited to arrests, and may include traffic offenses, handling calls for service, or settling disputes.
F. When in doubt as to how discretion should be exercised, officers shall consult their supervisors for guidance.
G. Refer to the policy and procedure addressing “Juvenile Enforcement Considerations” for special considerations in officers’ use of discretion when handling juvenile offenders.
V. NON-CUSTODIAL ARREST AND DIVERSION CONSIDERATIONS:
Officers are given the authority and discretion to consider alternatives to arrest. Adults and juveniles should be diverted from actual physical arrest if the purpose of law enforcement can be satisfied through other methods. Diversion methods that may be considered, and the guidelines and circumstances that govern the use of such methods, include:
A. Notice to Appear Summonses:
1. A Notice to Appear summons may be issued in lieu of placing an offender under actual physical arrest in situations involving misdemeanor and city ordinance violations. Officers are encouraged to utilize such summonses in appropriate non—violent offenses.
2. A Notice to Appear summons requires an offender to answer a charge specified by the officer on a certain date and at a certain time (according to a schedule established by the court).
3. A Notice to Appear summons may be issued to offenders unless:
a. The offender does not reside locally (within Seminole County or within immediate adjoining counties), or is unable to provide sufficient identification;
b. The offender is known to be a habitual offender;
c. The offense was violent in nature;
d. The officer has reason to believe the offender will repeat the offense if left at liberty;
e. The offender exhibits violent or disorderly behavior;
f. The offender is a juvenile (with no parent or guardian present to sign the notice on behalf of the child, or none that can be reached that have a reasonable response time to the scene);
g. The offender has outstanding warrants pending;
h. The offender has previously failed to respond to a notice or summons;
i. The offender fails or refuses to sign the Notice to Appear; or,
j. The offender is charged with any misdemeanor relating to domestic violence or violation of injunction for protection, or driving under the influence of alcohol or other controlled substance.
4. Procedures for Issuing a Notice to Appear Summons:
a. Advise the person that an offense is being charged, and advise the person of the nature of the offense;
b. Advise the person that a summons is being issued and that, while it is the same as an arrest, which he/she is not being taken into actual physical custody;
c. Advise the person that the summons must be signed indicating knowledge of the charge and court appearance information, but that by so signing he/she is not admitting to guilt;
d. Advise the person that the summons is a promise to appear and if he/she fails to appear the court may take action up to and including issuing an arrest warrant;
e. The officer will fill out the Notice to Appear Form as completely as possible, including court dates, taking into consideration any additional court appearance data that may be relative to juveniles only;
f. Ensure that the offender understands the document;
g. Record information as pertains to all witnesses, victims or complainants;
h. Secure all evidence and submit it to the Evidence Section if appropriate;
i. Issue the offender a copy of the court appearance information and release the person at the scene;
j. Disseminate any court appearance information that is requested to all witnesses, victims or complainants; and,
k. Submit all completed paperwork to a supervisor for review and agency dissemination.
B. Traffic Citations:
Officers should, when possible, consider releasing an offender at the scene under summons or a traffic citation, rather than placing the offender under actual physical arrest. In considering releasing an offender on a citation rather then placing under physical arrest, the following criteria should be taken into consideration:
1. Prior record of the offender;
2. Seriousness of the offense charged;
3. Attitude of the offender.
C. Informal Resolution:
In responding to calls where minor and resolvable disturbances are being created and an officer believes that such disturbances may be resolved or defused through counsel or negotiation with the involved parties; Officers are encouraged to attempt to resolve the disturbance so as to avoid arrest action.
D. Warnings and Referral Notices:
1. When appropriate, officers may use verbal and/or written warnings for traffic infractions and trespass warnings.
2. When appropriate, officers may issue a victim a Referral Notice in lieu of the immediate arrest of a suspect.
E. Refer to the Enforcement Policy and Procedure “Juvenile Enforcement Considerations” for additional procedures and diversion programs applicable to juveniles.
VI. DIVERSION PROGRAMS FOR REASONS OF HEALTH AND SAFETY:
The following are guidelines to be used when dealing with adults and juveniles who have committed no criminal offense, but where Police Department action needs to be taken due to alcohol, drug abuse or mental health conditions.
If a person taken into custody shows any sign of injury regardless of origin or bodily location, or is under the apparent influence of drugs or alcohol, he/she shall be medically cleared through an emergency room at the nearest hospital prior to being transported to the receiving facility (if the receiving facility is not already a hospital, such as Florida Hospital - Altamonte).
Once a person has been admitted by a receiving facility; the Police Department is not responsible for providing later transport from the receiving facility to the county’s mental health facility (Bay Avenue Crisis Center).
A. Involuntary Examination:
1. Officer initiated involuntary protective custody action may be affected under the Baker Act when an Officer has reason to believe the person to be mentally ill and because of this mental illness:
a. Has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or,
b. Is unable to determine for himself/herself whether examination is necessary; and without care or treatment, the person is likely to suffer from neglect for refuse to care for himself/herself; such neglect or refusal poses a real and present threat of substantial harm to the person’s well-being; and it is apparent that such harm may be avoided through the help of willing family members or friends or the provisions of other services; or,
c. There is a substantial likelihood that without care or treatment the individual will cause serious bodily harm to himself/herself or others in the near future, as evidenced by recent behavior.
2. When an Officer determines a need to detain a person for involuntary admission pursuant to this statute, the Officer shall adhere to the following procedures:
a. Inform the person that he/she is being taken into protective custody, but that by so doing does not constitute an arrest;
b. Without using unreasonable force, the Officer shall handcuff and search the person before transporting.
3. If the person is not injured or does not appear to be in need of medical service, the Officer should first contact the Seminole County Mental Health Department (Bay Avenue Crisis Center) to determine if they will accept the person. If the Crisis Center requests the person be delivered to a receiving hospital for admission, the person will be transported to the appropriate receiving hospital instead.
4. If the person displays violent behavior, an ambulance will be summoned to provide transport.
5. Execute an Involuntary Admissions Form (52 Form).
6. Prior to leaving the hospital ensure that the person in custody is as secure as is reasonable and that a security guard is standing by (unless otherwise instructed by hospital staff).
7. If the person is to be accepted by the Seminole County Mental Health Department facility, they may request that the person first be medically cleared. If medical clearance is requested, the Officer will stand by at the hospital until the person is medically cleared. Upon receiving medical clearance paperwork from the hospital, the Officer will transport the person to the county mental health facility.
8. If the person is to be admitted to the county’s mental health facility, but must first be admitted to the hospital for injuries, a copy of the Involuntary Admissions Form will be delivered to the county mental health facility in order for future transportation arrangements to be made.
9. The Officer will complete an “Information Report” utilizing a CJIS case #. The offense page shall be titled, “Baker Act” and attach a copy of the Involuntary Admissions Form.
10. Should a person who displays behavior which would constitute a reasonable belief that they are in need of involuntary admission to a facility, the Officer will deliver that person to the appropriate facility and complete the proper paperwork for admission.
B. Impaired Persons (Hal Marchman Act):
1. Upon contact with an impaired person, first determine if the person is injured. If it appears that the person is injured, or is unconscious, medical attention will be sought immediately.
2. If injuries are non-existent, assess the person’s sobriety. Certain medical conditions may cause a person to act, even smell, as if they are intoxicated. Determine if the person is wearing a medical alert identification bracelet or necklace.
3. Ascertain whether a crime has occurred or the person has an outstanding warrant.
4. If the impaired person is an adult, and Officer believes the person presents a danger to himself or others, the Officer may:
a. Transport to person to their place of residence if nearby and a family member or friend is present to care for the person;
b. Call a taxi if the person has the funds and agrees to payment and a friend or family member is present at the destination to care for the person.
5. Pursuant to Chapter 397, Part V, Florida State Statutes, an Officer may initiate involuntary protective custody under the Hal Marchman Act (former Meyers Act) if the Officer believes the impaired person (adult or juvenile) has lost the power of self-control with respect to substance use; and either:
a. Has inflicted or threatened to attempted to inflict, or unless admitted is likely to inflict, physical harm on himself/herself or another; or
b. Is in need of substance abuse services and, by reason of substance abuse impairment, judgment has been so impaired that the individual is incapable of appreciating the need for such services and of making a rational decision in regard thereto; however, his or her mere refusal to receive such services does not constitute evidence of lack of judgment with respect to the need for such services.
C. Involuntary Protective Custody:
1. Seminole County provides no licensed detoxification or addictions facilities for adults or juveniles.
2. In the case of adults only, if the person’s words or actions do not constitute an involuntary admission under the Baker Act, the Officer may detain the person at the correctional facility under the Hal Marchman Act by adhering to the following procedures:
a. Inform the person that he/she is being taken into protective custody, but that by doing so does not constitute an arrest;
b. Without using unreasonable force, handcuff and search the person before transporting;
c. Transport the person to the nearest hospital emergency room for medical clearance;
d. Once the person has been medically cleared by the hospital and the Officer has obtained a copy of the clearance paperwork; the person will be transported to the correctional facility;
e. An “Information Report” will be completed utilizing a CJIS case #. The offense page shall be titled “Hal Marchman Act”. All biographical data of the person in custody will be recorded in the report on the appropriate persons page. The narrative portion of the report will detail how the individual met the criteria for Involuntary Protective Custody.
3. Juveniles who are suffering from substance abuse may not be detained at a detention facility. When an Officer comes in contact with a juvenile who is suffering from substance abuse:
a. Every attempt shall be made to contact the juvenile’s parent or nearest adult relative.
b. If the juvenile is released to a parent or adult relative at the scene, the Officer will complete a CJIS Report.
c. The Officer should have fire department rescue personnel respond to evaluate the juvenile if the level of influence appears severe.
d. If rescue personnel determine that the juvenile’s level of influence is severe or life-threatening, the juvenile shall be transported to the nearest hospital emergency room for treatment and admission. The Officer is responsible for notifying the juvenile’s parent or nearest adult relative. Prior to leaving the hospital the Officer will ensure that the juvenile is as secure as reasonable and that a hospital security guard is standing by (unless otherwise instructed by hospital staff).
e. When a juvenile is admitted to the hospital as a result of substance abuse, the Officer will complete an “Information Report” under a CJIS case #, with the offense page titled, “Hal Marchman Act’.
brief synopsis will be completed explaining how the juvenile met the criteria in accordance with Chapter 397.675.
f. Juveniles not admitted to a hospital for treatment MUST be turned over to the custody of a parent or adult relative.
4. If any person (adult or juvenile) displays violent behavior, an ambulance will be summoned to provide transport.