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

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 form 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 the officer’s testimony and will not subpoena him or her for the Admin Per Se hearing.  Also, after a recent case of CDLA v. DMV, the DMV rarely will subpoena police officers to avoid conflict of interest perception.  In that lawsuit, the Appellate court determined that the DMV hearing set up violate the Due Process requirement of 42 USC 1983 and the California Constitution.  Initially, the DMV tried to modify the setup of the hearing by having 2 hearing officers with 1 hearing officer being the advocate for the DMV and 2nd hearing officer being the judge, but now the DMV changed this procedure and uses one hearing officer who does not utilize the power of subpoena.

Here we discuss an important case involving a DUI arrest in Orange County.

DAVENPORT V. DMV (6 Cal.App.4th 137)

The reason DS 367 DMV form is used as the substitute for live testimony at the Admin Per Se hearing is a 1992 case involving one Alfred Davenport who sued the DMV in civil court by challenging the DMV’s reliance on usage of the DS 367 form.  Mr. Davenport was arrested for a DUI in Orange County in 1991.  After Mr. Davenport was pulled over by police for a lane change in Orange County, observed Mr. Davenport having “objective signs of intoxication”, to wit, bloodshot watery eyes, an unsteady gait, slurred speech, and an odor of alcohol on his breath.   After the police arrested Mr. Davenport for a DUI in Orange County, they asked him to submit to a breath alcohol test which showed a blood alcohol level of .15 BAC.   After the arrest, Mr. Davenport requested a DMV hearing to defend his driver’s license at the DMV.  At the DMV hearing, Mr. Davenport’s attorney raised on objection to the DMV usign a DS 367 formn because:

1. DS 357 is hearsay (to wit, a document prepared outside of court to prove the truth of the matter asserted).  Althous hearsay is inadmisible in a Court of Law, the DMV is not a court of law but an administrative forum where hearsay rules fall under exceptions.
2. And because DS 357 did not establish sufficient legal foundation for its introduction.

Mr. Davenport’s attorney argued that the legal foundation to use DS 367 was not there because there is no evidence that:

1. The breathalyzer was operated correctly,
2. The breathalyzer was operating correctly,
3. The officer who operated the breathalyzer was trained properly to operate the breathalyzer.

At the hearing Mr. Davenport had a forensic toxicologies, Mr. Clardy testify that given the drinking pattern that Mr. Davenport testifeid to, the blood alchol level at the time of driving must be .02%.  The DMV suspended the driver’s license and the appeal followed.

The Appeal Court sided with the DMV and HELD:

1. DS 357 is admissible under EC 1280 – an official record exception to the Hearsay Rule. That is, because the police officer was performing his official duties when he filled out the DS 367 form after he arrested Mr. Davenport for a DUI in Orange County, the DS 367 form is admissible even though it is hearsay.
2. The court emphasized, each statement in the DS 367 must have a sufficient foundation of personal knowledge by the arresting police officer or some other guarantee of reliability to be used at the DMV hearing.
3. The court used California Evidence Code section 664 – the presumption of official duty regularly performed – and adopted Imachi v. DMV reasoning – a 1st district opinion from 1992 that held unless there is evidence to overcome the presumption, it would be presumed that the officer administered the alcohol test correctly.
4. DS 367 is admissible under Evidenc Cod 1280 when there is an “indicia of trustworthiness” as required by Evidenc Code section 1280 (c). However, EC 1280(c) is complied when the DS 357 statements are based on the direct observation by the police officer.  By extension, when any matter in DS 367 is not a direct observation of the police officer or not within his personal knowledge, it does not constitute sufficient evidence to support a finding justifying suspension in violation of Davenport. ***
5. The court held that “sworn DS 367 is presumed trustworthy”. By extension, an unsigned DS 367, violated Davenport and is inadmissible.

NOTE: There are exceptions to the Davenport ruling: (see Lake v. Reed Discussion and MacDonald v. Gutierrez)

CAVEAT: Davenport holding did not change the 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 the statutory fee is paid and the officer is properly served with the subpoena (GC 11510, Snelgrove v. DMV).

If you need to talk to an attorney about Los Angeles DUI defense or Orange County DUI defense – call Los Angeles DUI Attorneys at 323-464-6424.  Los Angles DUI Attorney also provide criminal defense inn Los Angeles and surrounding counties.   Los Angeles Criminal Defense Attorney at our office provide qualify defense at affordable price.

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