Does the Police Officer who wrote the “DUI Arrest Report” have to come to the DMV hearing to testify about what happened?

May 29, 2011

After being arrested for a DUI in Los Angeles, a police officer will issue a temporary driver’s license, write a DUI arrest report, write a citation to appear in court, and fill out a DS 367 DMV form. The DMV will rely on the DS 357 to prosecute the driver at the DMV hearing. Most of the time, if the officer fills out the DS 357 form correctly, the DMV will not need officer’s testimony and will not subpoena him or her for the Admin Per Se hearing.

Davenport: The primary reason DS 367 is the main evidence in the Admin Per Se hearing is a 1992 case of Alfred Davenport who sued the DMV in the Court of Appeals to challenge the DMV reliance on DS 367. Davenport was arrested for a DUI and had a .15 percent BAC in his breath test. At the hearing, Davenport objected to DS 367 use because (1) DS 357 is hearsay, (2) DS 357 did not establish foundation. Here, Davenport argued that foundation was lacking because: there is no evidence that (1) breathalyser was operated correctly, (2) breathalyser was operating correctly, (3) officer who operated the breathalyser was trained properly to operate the breathalyser.

The court brushed off Davenport’s arguments and held that:

(1) DS 357 is admissible under EV 1280 – official record exception to the Hearsay Rule. That is, since police officer is performing official duties, DS 367 is admissible even though it is hearsay.

(2) But, the court emphasized, each statement in the DS 367 must have sufficient foundation of personal knowledge by the police officer or some other guarantee of reliability.

(3) Further the court hid behind EV 664 – presumption of official duty regularly performed and adopted Imachi v. DMV reasoning – a 1st district opinion from 1992. Basically, unless there is evidence to overcome the presumption, it would be presumed that officer administered the alcohol test correctly.

(4) DS 367 is admissible under EV 1280 when there is an “indicia of trustworthiness” as required by EV1280 (c). However, 1280(c) is complied with when the DS 357 statement is based on direct observation of the police officer. By extension, when any matter in DS 367 are not direct observation of the police officer or not withing his personal knowledge, it does not constitutes sufficient evidence to support finding justifying suspension in violation of Davenport. ***Many exceptions to Davenport ruling exists: (see Lake v. Reed Discussion and MacDonald v. Gutierrez)

(5) The court held that “sworn DS 367 is presumed trustworthy”. By extension, an unsigned DS 367, violated Davenport and is inadmissible.

CAVEAT: Davenport decision did not change absolute right to have the arresting officer present at the DMV hearing. If the driver wants the arresting officer present, he can compel his live testimony if statutory fee is paid and the officer is properly served with the subpoena (GC 11510, Snelgrove v. DMV).

For in depth DUI defense – call Los Angeles DUI Attorneys at 323-464-6424.

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