Protective Custody

Policy & Procedures                 No. 1.24
                                  Subject:
                  Protective Custody of Incapacitated
                 Person(s)
                                  Issuing Authority:                                       Effective Date:   Review Date:
                     Chief of Police                   01/01/14   03/20/2023
                                                                                 References:

 Review
 Revision   11/10/16
 Reissued   12/12/18
 Dates:     07/26/2020

CALEA STANDARDS:  44.2.2 72.5.1 72.7.1

             GENERAL CONSIDERATIONS AND GUIDELINES

The abuse of alcohol is a serious, nationwide public health problem. The compulsive use of
alcohol has an adverse effect not only on the alcoholic but also on their families, their employers
and the community as a whole.

Excessive drinking often results in serious breaches of the public peace, damage to property,
assault and battery, and other more serious crimes. Family neglect and domestic violence
situations requiring police attention often involves alcohol abuse. The broken homes, which
often result, are considered a major factor contributing to juvenile delinquency.

In an attempt to resolve this long-standing problem, Massachusetts’s law now provides that
public intoxication is NOT a crime. It recognizes that alcoholism is a disease. By statute
M.G.L.C. 111B, detoxification facilities and related programs are provided for the treatment and
rehabilitation of persons suffering from alcoholism. The law also provides for the protective
custody of persons incapacitated from consumption of alcohol as well as consumption of a
controlled substance or toxic vapor or other substance other than alcohol.

As of July, 25, 2016 under Chapter 161, the ‘Act Relative to Protective Custody’, a person
who is incapacitated from any substance other than alcohol falls under the provisions of
this law as well. The expansion of the protective custody law now allows for transport to a
facility for those who are incapacitated due to any substance excluding alcohol.

A person who has been taken into protective custody is not considered to have been arrested or
charged with a crime.

Nothing contained in Chapter 111B shall affect any laws, ordinances, by-laws, resolutions or
regulations against driving after drinking alcohol, driving under the influence of alcohol, or other

          Canton Police Department’s Protective Custody Policy                Page 1

similar offenses that involve the operation of motor vehicles, machinery or other hazardous
equipment.

I. DEFINITIONS

A.     Alcoholism: A medically diagnosable disease characterized by chronic, habitual or
periodic consumption of alcoholic beverages resulting in the (i) substantial interference with an
individual’s social or economic functions in the community or (ii) the loss of powers of self-
control with respect to the use of such beverages.

B.      Facility: Any public or private place, or portion thereof, providing services especially for
the detoxification of intoxicated persons or alcoholics.

C.     Incapacitated: The condition of an intoxicated person who, by reason of the consumption
of intoxicating liquor or any substance other than alcohol as a result of that substance, that
person is (1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical
harm or likely to damage property, or (4) disorderly.

II. TAKING CUSTODY

A.     In the absence of an accompanying crime, an officer shall not arrest an intoxicated
person. If the situation does not warrant an arrest, but action is necessary, a police officer has the
authority to assist an incapacitated person, with or without his consent, to his/her residence, to a
treatment facility, or to the police station. While certainly not required, officers should attempt to
obtain consent where possible.

B.   A person who is incapacitated may be placed in protective custody by a police officer
without the person’s consent for the purpose of immediately transporting the person to an acute
care hospital or satellite emergency facility as defined in section 51.5 of Chapter 111 or
otherwise immediately obtaining appropriate emergency medical treatment.

C.     All persons receiving naloxone by law enforcement officers or in the presence of law
enforcement officers shall be transported to an appropriate facility by EMS. In the event that the
person wishes to refuse transportation, law enforcement officers should place the person under
protective custody where transportation will now become medically mandated. The individual is
not to be released or brought back to the police station without having been seen by a medical
professional in a hospital setting.

D.     In order to determine whether or not a person is intoxicated, an officer may request such
person to submit to standardized field sobriety tests including coordination, coherency of speech,
and breath.

E.    Any incapacitated person assisted to the police station shall have the right, after arriving
at the station, to request and be administered a breathalyzer test and shall immediately be
informed in writing of such right.

          Canton Police Department’s Protective Custody Policy                Page 2

NOTE: The following notice of rights is the minimum required by law. 72.7.1

                           NOTICE OF RIGHTS
                                       (Protective Custody Cases)

THIS IS TO INFORM YOU THAT PURSUANT TO CHAPTER 111B, SECTION 8 OF THE
MASSACHUSETTS GENERAL LAWS, YOU HAVE THE RIGHT TO REQUEST AND BE
ADMINISTERED A BREATHALYZER TEST. IF YOU ARE TO BE HELD IN
PROTECTIVE CUSTODY, YOU ALSO HAVE THE RIGHT TO MAKE ONE TELEPHONE
CALL AT YOUR OWN EXPENSE ON YOUR BEHALF.

F.     Breathalyzer test results shall be utilized as follows:

                1.  If the reading (which indicates the percentage of alcohol in a person’s blood)
                      is .10 or more, the person shall be presumed to be intoxicated, and shall be
                 placed in protective custody at the police station for up to 12 hours or be
                   transferred to a facility.

                2.  If the reading is .05 or less, the person shall be presumed to be NOT
                   intoxicated and shall be released from custody forthwith.

                3.  If the reading is more than .05 and less than .10, no presumption based solely
               on the breathalyzer test shall be made. In this event, a reasonable test of
                  coordination or speech coherency must be administered to determine if the
                 person is intoxicated.

G.   Any person presumed intoxicated and to be held in protective custody at a police station
shall, immediately after such presumption, be told he/she has the right to make a telephone call at
his/her own expense and on his/her own behalf.  72.7.1 D

H.    Any person presumed intoxicated who is assisted by a police officer to a facility shall
have the right to make one phone call at his/her own expense and on his/her own behalf and shall
be informed forthwith upon arriving at the facility of said right. (See above Notice of Rights.)

I.     The parent or guardian of any person under the age of eighteen being held in protective
custody at a police station shall be notified forthwith upon the juvenile’s arrival at said station or
as soon as possible thereafter. Upon the request of the parent or guardian, such person may be
released to the custody of the parent or guardian. 44.2.2 (2E)

J.       If an incapacitated person is assisted to the police station, the Shift Supervisor or his
designee shall notify forthwith the nearest treatment facility that such person is being held under
protective custody.  If suitable treatment services are available at a facility, the Shift Supervisor
shall thereupon arrange for the transportation of the person to the facility. The availability of
services and/or transportation should be documented in the log.

K.      If suitable treatment at a facility is not available, the incapacitated person may be held in
protective custody at a police station until he is no longer incapacitated or for a period of no
longer than twelve hours, whichever is shorter.

          Canton Police Department’s Protective Custody Policy                Page 3

L.    An officer may use such force as is reasonable and necessary to carry out the procedures
herein, with the exception of tests for determining intoxication. Persons may not be forced to
take a breathalyzer test or to perform sobriety tests.

III. SEARCH AND TRANSPORTATION

A.   An officer is authorized and is required to make a search of an incapacitated person and
his immediate surroundings whenever the following conditions exist:

                1. The officer reasonably believes that his/her safety or the safety of other
                 persons present requires the search;

                2. The search is limited to the extent necessary to discover any dangerous
               weapons that on that occasion may be used against the officer or other persons
                   present.

B.     Before transporting an incapacitated person, the Shift Supervisor should be notified so
that he/she may arrange for assistance, if available.

C.      If an officer comes upon, or responds to a call-in regard to an incapacitated person, the
officer shall be aware of and immediately consider the possibility of other ailments.

                1. An incoherent, unsteady or unconscious person, for example, might be
                   suffering from an epileptic seizure, insulin shock, diabetic coma, stroke, heart
                    attack, or brain injury.

                2.  If the officer, relying on his own judgment and field experience, believes the
                above or similar conditions may be present, the Canton Fire Department
                 should be notified and the person should be examined.

D.     Officers shall extend the same considerations to an incapacitated person that they would
to a person suffering from any other illness.

IV. SAFEGUARDING AT STATION

A.   An incapacitated person held in protective custody at the police station shall have the
following property taken from him for safe keeping and returned upon release in accordance with
departmental procedures: (see policy and procedure “detainee property inventory”)

                1.  Belts, shoe laces, neckties, neck chains, string to a sweatshirt or a pair of
                  sweatpants, matches, and cigarette lighters;

                2.  All other articles which may pose a danger or harm to such person or to
                   others;

                3.  Personal property and other valuables.

          Canton Police Department’s Protective Custody Policy                Page 4

NOTE: Such property shall be kept in a secure/locked detainee locker and an
                 itemized inventory shall be maintained. 72.5.1 A, B

B.   An unconscious person should never be placed in a cell unattended at any time. In such
cases, immediate medical care should be provided in accordance with departmental procedures.

C.   The Shift Supervisor or his designee shall take every reasonable precaution to ensure that
all persons held in protective custody are prevented from harming themselves in any way by
carefully observing them at intervals of not more than fifteen minutes. The officer assigned to
check the incapacitated person will utilize the swipe-card reader in the cell block area.

V. RELEASE

A.   Persons to be released from protective custody prior to the expiration of the maximum
statutory twelve-hour holding period, who will be released into their own care and custody, will
be done so at the direction of a supervisor. A breathalyzer test may be administered to determine
that their level of intoxication is below the legal limit of .10. A thorough log entry will be made.

B.    If another person is taking responsibility for the individual under protective custody, he/she
must be over 18 and must be sober. When possible, a copy of their driver’s license shall be
made. This shall be stapled to a copy of the Protective Custody Release Form that the
responsible person must sign.

VI. REPORTS

A.   A report of protective custody shall be made indicating the date, time, place of custody,
the name of the assisting officer, the name of the Officer-in-Charge, whether the person held in
custody exercised his right to make a phone call, whether the person held in custody exercised
his right to take a breathalyzer test, and the results of the breathalyzer test if taken. Such record
shall not be treated, for any purposes, as an arrest or criminal record.

B.   A patrol officer shall file a report indicating the nature of the incident which gave rise to
police involvement, the method of handling the problem, and any injuries observed on the
incapacitated person including their cause and medical treatment, if any.

C.     Police should be aware that Massachusetts Law authorizes police officers (and certain
other persons) to file a petition for a Warrant of Apprehension in an appropriate district court
requesting that a person who is an alcoholic (or drug dependent person) be committed for a
period not to exceed fifteen days to an inpatient public or private facility approved by the
Department of Public Health. Where appropriate, police officers should advise the family and
friends of a problem alcoholic of the procedures available under this law.

NOTE: Police officers are immune from civil suits for damages for restraining, transporting,
applying for the admission or admitting any person to a facility if the officer acts pursuant to the
provisions of Chapter 123.

          Canton Police Department’s Protective Custody Policy                Page 5

TESTS FOR DETERMINING INTOXICATION

A police officer may request the person to submit to reasonable tests of coordination, coherency
of speech, & breath. These tests may include but are not limited to the standardized field
sobriety tests as outlined in Canton Police Department policy 1.27 Operating Under the Influence
Arrests.

                INDICATIONS OF ALCOHOL CONSUMPTION

Persons who are incapacitated by consumption of intoxicating liquor or other incapacitating
substances may be taken into protective custody. In addition to conducting tests to determine
intoxication, officers must be careful to observe and to make note of all other indicators that the
intoxication is due to the consumption of alcohol. The odor of alcoholic beverage on the
subject’s breath; the presence of open alcoholic containers on his person or in his car when
stopped; any admission by the subject that he/she has been drinking or is drunk; any statements
to the same effect by his companions and any other indications of alcohol use should be so noted.

If officers or EMS administer naloxone to a subject, the party must be transported to the hospital.
Transportation is now medically mandated. The subject can either go voluntarily or if they
refuse, they will be placed into protective custody and transported.

          Canton Police Department’s Protective Custody Policy                Page 6