Can DMV Cut, Paste & Incorporate Probable Cause from Unsworn DUI Report? (Siemen v. Valverde distinguished)

San Diego DUI defense attorneys who handle DMV hearings encounter what is known as a “cut & paste” by the police officer who cuts & pastes the PROBABLE CAUSE portion of the unsworn police report into the required sworn statement (DMV “DS 367” form).

San Diego DUI lawyers defend this optional reporting method which is attempted different ways by different officers from different San Diego county DUI police agencies.

Depending on the facts based on DMV documents, San Diego DMV attorneys must make all applicable objections to the DUI documents. Otherwise, San Diego DMV lawyers will find themselves in the same adverse position as the California attorney in the case of Siemen v. Valverde (at the bottom of this Article) which can be avoided.

Sample Cut, Paste & Incorporation Issues Presented for DMV

Is the Cut & Paste of the PROBABLE CAUSE (PC) onto PAGE 2 of the San Diego area DUI “DS 367” “OFFICER’S (sworn) STATEMENT” legally permissible under the California case of MacDonald v. Guiterrez?

Can a San Diego area DUI arresting officer evade Vehicle Code section 13380’s requirements by copying, pasting and incorporating a portion of an unprepared arrest report which:

a) was not in existence at the time of execution and service of the DS 367, and
b) impossibly refers to events that happened after the report was completed?

Do (unwritten) material and necessary PC facts – omitted at the time of preparation and service of the San Diego area DUI officer’s DS 367 – make the PC portion of the DS 367 blank and essentially “devoid” of any information relevant to the enforcement action” in violation of MacDonald v. Guiterrez?

Is the Department barred from considering this unsworn report when this San Diego area DUI DS 367 (absent a proper & physically possible PC statement) fails to comply with California Vehicle Code section 13380 & California Evidence Code section 664?

Can the arresting officer circumvent California Vehicle Code section 13380 by copying, pasting & incorporating – dated e.g. 1 day later – a portion of an unprepared San Diego area DUI arrest report which was not in existence at the time of execution and service of the DS 367 (and not completed until a day after the date of the San Diego area DUI DS 367)?

Can an unsworn San Diego area DUI report – prepared AFTER the DS 367 – legally provide the relevant information required to be sworn under VC 13380?

If barred from considering a San Diego area DUI unsworn report, is the Department further barred from relying on the unsworn report to supplement or explain a DS 367 essentially devoid of the relevant PC information (at time of execution of the DS 367)?

Without admissible, sufficient & competent evidence, must the San Diego California DMV administrative action be set aside?

Statement of Facts #1 Scenario

The PROBABLE CAUSE added to Page 2 of the DS 367 Sworn Statement was cut, pasted & incorporated from the narrative portion of a San Diego area DUI unsworn report which was obviously made after execution & service of the DS 367.

The San Diego area DUI unsworn report was not possibly in existence at the time of the DS 367.

The San Diego area DUI report incorrectly states the TIME of Arrest Report was (impossibly completed) on a date and at a time (page 1, upper left corner of a unsworn arrest report) before the chemical test was reportedly done a number of minutes later at another time. (p. 2 & DS 367).

The San Diego area DUI report inaccurately misstates the true Date/Time of Arrest Report because it impossibly contains events that purportedly happened after the Time of this unsworn Arrest Report:

  • The San Diego area DUI officer placed Respondent under arrest.
  • The officer advised Respondent of Implied Consent.
  • Respondent agreed to a chemical test.
  • The officer transported Respondent.
  • Respondent was administered the test.
  • Respondent was taken to jail and booked.

How can a San Diego area DUI officer type and prepare a report of events before those events take place? A San Diego area DUI report showing a TIME made before something happens is not physically possible!

The reporting of events which have not yet taken occurred can only be a “patent physical impossibility” which obviously fails to “reflect some relationship with the physical world we know” [Manning v. DMV (1998) 61 Cal.App.4th 273]

Statement of Facts #2 Scenario

The PROBABLE CAUSE added to Page 2 of the DS 367 Sworn Statement was cut, pasted & incorporated from the narrative portion of the unsworn report which was completed after execution of the arrest date on the DS 367. San Diego county DUI police officer’s unsworn report – containing pages were completed on or after arrest and subsequently reviewed by San Diego area DUI police officer’s supervisor – was not in existence at the time of the DS 367.

Narrative portions of San Diego DUI police officer’s unsworn report have no known or visible date as the copy is cut off at the bottom left but the actual date of the unsworn report cannot be the “same” date – it is the day AFTER the arrest.

The cut & pasted PROBABLE CAUSE portion of a San Diego area DUI DS 367 contains “information relevant to the enforcement action” required by California Vehicle Code section 13380 to be sworn.

The cut, pasted & incorporated portion covers much of the available PC lines in the DMV DS 367 form.

The San Diego area DUI officer had ample opportunity to provide a foundation for the relevant PC information by writing or printing PC information on Page 2. The San Diego area DUI officer clearly wrote or printed the relevant enforcement action on Page 1.

Instead of timely printing the Probable Cause on Page 2, the San Diego area DUI officer later cut, pasted & incorporated the same typed or word processor-generated PC portion found in the subsequently prepared unsworn report which was not finalized & completed until later, and most likely not reviewed & completed until even later, in violation of Glatman v. Valverde.

Examples of Contentions

Both the San Diego area DUI DS 367 and the unsworn report are not admissible, based on the following objections.

Glatman Hearsay and Foundational Objections:

Respondent’s hearsay and foundational objections are based on a delay between the date of arrest and the date when the San Diego area DUI officer prepared the arrest report and DS 367 page 2.

The San Diego area DUI officer’s report is inadmissible hearsay evidence under Evidence Code section §1280 because it was not made at or near the time of the event, according to Glatman v. Valverde (2006) 146 Cal.App.4th 700:

“[M]emory is subject to erosion with every day that passes, whether working or nonworking.”

Glatman found a “danger of inaccuracy caused by lapse of memory” citing Martinez, supra, 22 Cal. 4th at p. 128. DMV in Glatman conceded “that, if the analysts relied on memory, ‘even a lapse of one day could cast serious doubt about whether such recordation was made sufficiently ‘at or near’ the time of testing to be deemed trustworthy.’”

Glatman determined the record contained no support for DMV’s assertion that the analyst promptly entered the test results into a computer database. The opinion suggested DMV could not infer that policies and procedures were in place to ensure the timely recordation of results if the record is silent as to that governmental department’s recording policies and procedures.

Rejecting DMV’s “trustworthy” and “inference” arguments, Glatman explained the length of time between the date of arrest and the date the arrest report was prepared is too long under Glatman. DMV must subpoena the officer for testimony of either a) the true report date or b) the policies and procedures of recordation in order to create an inference under Evid. C. 664.

AS TO ANY SAN DIEGO CALIFORNIA DMV POSITION THAT HEARSAY EVIDENCE CAN BE USED TO “SUPPLEMENT” THE REPORT:
THAT MAY BE TRUE AS TO “TRUSTWORTHY” HEARSAY EVIDENCE, BUT GLATMAN HOLDS THAT “UNTRUSTWORTHY” HEARSAY EVIDENCE
CANNOT BE USED AT ALL IN A CALIFORNIA APS HEARING BECAUSE UNTRUSTWORTHY HEARSAY IS INADMISSIBLE

Glatman suggests hearsay evidence prepared even a day after the event is untrustworthy. Since it is untrustworthy, it is inadmissible. DMV cannot overcome untrustworthiness by responding that hearsay evidence can be used to “supplement” under MacDonald v. Gutierrez (2004) 32 Cal.4th 150. That would be an unlawful application of MacDonald because the Supremes did not hold hearsay evidence that is otherwise untrustworthy is admissible anyway if it supplements the report.

A San Diego area DUI arrest report prepared a day or more after the event is inadmissible under Glatman because it is considered untrustworthy. MacDonald does not permit these reports simply because they could “supplement.” Untrustworthy hearsay evidence is never admissible.

What about California DMV’s policy to subpoena the officer if there is nothing in the PC narrative of the San Diego area DUI DS367 and the San Diego area DUI arrest report is dated one (1) day late? In light of the Glatman objection, if DMV moves for a continuance, Respondent objects for lack of “good cause” in that there has been no new evidence presented and DMV should have initially subpoenaed the reporting officer in a timely fashion. If San Diego California DMV did not subpoena the San Diego area DUI officer, the inadmissible report cannot be relied upon.

AN UNSWORN REPORT CANNOT EVEN BE USED IN APS ACTIONS UNLESS THE SWORN STATEMENT CONTAINS ALL OR NEARLY ALL INFORMATION NECESSARY TO REMOVE A LICENSE AND AS LONG AS THE SWORN STATEMENT’S PC IS NOT TANTAMOUNT TO BLANK OR WHOLLY DEVOID OF RELEVANT INFORMATION

“To summarize: (Vehicle Code) Section 13380 provides the arresting officer’s sworn report will contain ‘all information relevant to the enforcement action.’ Therefore, the Legislature clearly anticipates the sworn report will contain all or nearly all of the information necessary to remove the offender’s license. In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information. However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arrest officer.” [MacDonald v. Gutierrez (2004) 32 Cal.4th 150]

Generally, unsworn statements by public employees admissible under Evidence Code section 1280 may be used to correct “immaterial” or insubstantial (“technical”) omissions of proof as long as the omitted fact or proof does “not affect substantial rights.” [Black’s Law Dictionary, Englebretson v. Industrial Accident Commission 170 Cal. 793]

Unsworn statements cannot be considered unless the arresting officer also submitted a sworn statement in substantial compliance with Vehicle Code section 13380 [MacDonald v. Guiterrez, supra]

A sworn statement absent a probable cause (PC) statement fails to comply with Vehicle Code section 13380 and bars the Department from considering the unsworn report as it is not supplementing or explaining the sworn report.

Both sworn and unsworn reports must first be admissible by meeting all of Evidence Code section 1280’s requirements (for the Official Record exception to the hearsay rule):

(b) The writing was made at or near the time of the act, condition or event.

(c) The sources of information and method and time of preparation must indicate
trustworthiness.

How can a sworn report be shown to be made at or near the time of the act, condition or event when after it was executed and served, the sworn report added a Probable Cause section from a subsequent, separate unsworn report’s narrative portion?

How can a sworn statement’s time of preparation indicate trustworthiness when the sources of information and method indicate that the PC portion was cut, pasted and incorporated from and after the preparation of another unsworn report?

California law limits the use of “incorporation by reference” and “cutting and pasting”. Requirements for a valid “incorporation by reference” are:

a) The incorporated document must be clearly identified; and

b) The incorporated document must be in existence at the time the document makes reference to it. [In re McNamara’s Estate (1953) 119 Cal.App. 2d 744]

“Incorporated by reference” is defined as “the method of making one document of any kind become a part of another document by referring to the former in the latter.” [Black’s Law Dictionary]

Before the San Diego area DUI officer references a cut, pasted & incorporated PC narrative portion of the unsworn San Diego area DUI report, the unsworn report must first be in existence at the time the DS 367 makes reference to that portion by cutting, pasting & incorporating it.

Before the San Diego area DUI officer references a cut, pasted & incorporated PC narrative portion of the unsworn report, the unsworn report must also be clearly identified.

The San Diego area DUI unsworn report was obviously prepared before the sworn statement’s PC since the sworn statement contains the identical narrative PC portion of the detailed, unsworn report. The cut & pasted portion appears over the available (blank lines) provided on the Page 2 form.

The cut, paste & incorporation method of the San Diego area DUI officer, by Black’s Law Dictionary’s definition, is the officer’s “making one document of any kind (narrative PC portion of unsworn report) become a part of another document (DS 367, p. 2) by referring to the former (unsworn report’s PC) in the latter (DS 367).”

The obvious problem is, in order to logically incorporate into a latter DS 367, a cut & pasted PC portion of a former unsworn report must first be in existence.

One cannot refer to a document unless it formerly exists. Per Black’s Law Dictionary, the “latter” document is the DS 367 since that is where it refers to a “former” narrative PC portion of the unsworn report.

It appears the cut & pasted PC portion of the San Diego area DUI unsworn report was not even in existence at the time of execution of the DS 367.

Since the San Diego area DUI DS 367 was prepared before the unsworn report, the unsworn report was not in existence at the time of execution. This was an improper cutting, pasting and incorporation because the San Diego area DUI unsworn report was apparently typed and finished AFTER the DS 367 was served.

The San Diego area DUI DS 367 is prepared upon the officer taking a license, shortly after the arrest or chemical test. The extensive unsworn report was logically finished later, not at the time of the arrest or the test. The San Diego area DUI officer then copied, pasted & incorporated the PC narrative portion from the unsworn report to the preexisting DS 367. Therefore, there lacks foundation to establish the San Diego area DUI unsworn report was prepared BEFORE the DS 367.

Additionally, most unsworn San Diego area DUI reports provide for a Supervisor or Reviewer to review the unsworn report before approving or signing off on it at a later time. The San Diego area DUI unsworn report was not completed until the review/sign-off process was completed after the DS 367. First, there is no valid cut, paste & incorporation because the San Diego area DUI unsworn report was apparently prepared and reviewed AFTER the DS 367 (which refers to the PC narrative portion of the unsworn report).

Second, no clearly identifiable document was in existence at the time of execution and service of the San Diego area DUI DS 367, so there could be no valid cut, paste & incorporation.

Because the San Diego area DUI officer improperly cut, pasted & incorporated the unsworn report’s PC narrative – in contravention of Vehicle Code section 13380 – the DS 367 Sworn Statement is not in compliance with MacDonald v. Guiterrez. The San Diego area DUI officer’s invalid cutting, pasting & incorporating essentially creates a situation where the Sworn Statement’s Probable Cause is blank and “devoid of any information relevant to the enforcement action.”

This is tantamount to the PC portion being blank. The Department may be tempted to attempt to use the unsworn report. However, the unsworn San Diego area DUI report may not be considered because the officer failed to submit a Sworn Statement in substantial compliance with Vehicle Code section 13380. The San Diego area DUI DS 367 Sworn Statement fails to comply with 13380 because of the absence of a PC statement, caused when the officer improperly cut, pasted & incorporated information from an unsworn report prepared after the preparation & service of the DS 367. As such, DMV is barred from considering the unsworn San Diego area DUI report as it is not supplementing or explaining the DS 367.

The San Diego area DUI unsworn report is not even admissible in this case, so it could not be used to supplement or explain the DS 367 even the DS 367 was in compliance with Vehicle Code Section 13380 & MacDonald (which it is not).

EVIDENCE CODE SECTION 664’S PRESUMPTION DOES NOT APPLY HERE

Lastly, any 13380 violation bars application of Evidence Code section 664’s presumption that “official duty has been regularly performed.”

“This presumption (also) does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.”

Here: (1) the San Diego area DUI officer’s failure to print or write the Probable Cause information into the DS 367 when it was prepared, (2) the San Diego area DUI officer’s improper cutting, pasting & incorporation tantamount to creating a blank & devoid PC, and (3) any officer’s failure to follow the express mandate of the DMV form or failure to correctly & timely report, all violate 13380, barring any 664 presumption. Since Probable Cause concerns the issue of the lawfulness of this arrest, this 664 presumption could not apply.

Conclusion

For the foregoing reasons, the San Diego area DUI DS 367 and unsworn report evidence is inadmissible and may not be lawfully relied on. The San Diego area DUI evidence fails to establish legal, sufficient and competent foundation to support the necessary findings. Accordingly, the suspension should be set aside by San Diego DMV.

San Diego County DUI Law Center notes these arguments were not made in the following distinguishable California case of Siemen v. Valverde which instead elementarily just focused a un-comprehensive attack on the DS 367 (rather than the underlying foundation via the problematic unsworn DUI police report) which, inter alia, had a Page 2 dated a day after Page 1 without Glatman & other legal objections timely made.

RICHARD JAMES SIEMEN, Plaintiff and Appellant,
v.
GEORGE VALVERDE, as Director, etc., Defendant and Respondent.
No. F059207.

Court of Appeals of California, Fifth District.
Filed October 18, 2010.

Glen T. Neal for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Assistant Attorney General, Barbara J. Seidman and Kristin M. Daily, Deputy Attorneys General, for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

DAWSON, J.

Richard James Siemen appeals the trial court’s order upholding the administrative decision of the Department of Motor Vehicles (DMV) to suspend his driver’s license for one year. Siemen claims that the DMV form DS 367 (rev. 10/2008), entitled “Age 21 and Older Officer’s Statement” (DS-367), and related police report should not have been admitted at the administrative hearing and, without these documents, the evidence at the administrative hearing was insufficient to support the decision to suspend his license.

We conclude that the statement of probable cause that was cut and pasted onto the DS-367 and then signed and dated by the officer became part of the statements certified by the officer, even though he signed the DS-367 under penalty of perjury a day earlier. Therefore, the DS-367 was admissible at the administrative hearing and the trial court properly denied the Siemen’s petition for writ of mandamus.

The judgment will be affirmed.

FACTS AND PROCEEDINGS

Early in the morning on June 13, 2009, California Highway Patrol Officer McConnell arrested Siemen for driving under the influence. After the arrest, Officer McConnell advised Siemen of the rules concerning implied consent, and Siemen chose a blood test. A blood sample was taken from Siemen at approximately 3:04 a.m. The Department of Justice Bureau of Forensic Services tested the blood sample and determined its blood-alcohol concentration was 0.25 percent.

In connection with the arrest of Siemen, Officer McConnell completed a DS-367. The form consists of three pages. The first and second pages are the officer’s statement. The third page is the “Administrative Per Se Suspension/Revocation Order and Temporary Driver License.”

The box on the bottom one-fifth of the first page of the DS-367 starts with the following sentence: “I certify under penalty of perjury, under the laws of the State of California, that the information contained on all pages of this Officer’s Statement is true and correct.”[1] Immediately after this sentence are blanks for the date and place where the form was executed. Officer McConnell handwrote “06-13-09” on the line for the date. Immediately above Officer McConnell’s signature is a line that indicates he “personally serve[d] a copy of the Order of Suspension/Revocation to the driver.” He also wrote in the issue date of the order as June 13, 2009.

The second page of the DS-367 includes a section that addresses probable cause for the vehicle stop. That section includes the following instructions preceding approximately half of a page of blank lines:

“PROBABLE CAUSE (DESCRIBE IN DETAIL THE FACTS AND CIRCUMSTANCES THAT LED TO THE STOP OR CONTACT.)

THE NARRATIVE MUST BE AN ORIGINAL. PRINT OR WRITE DIRECTLY ON THIS PAGE. (A SYNOPSIS OF THE SUPPLEMENTAL REPORT MAY BE CUT AND PASTED BELOW AND MUST BE DATED AND CONTAIN AN ORIGINAL SIGNATURE.) (FOR DUI PROBATION VIOLATIONS) ….”

Officer McConnell cut and pasted the following description of his first observations over the blank lines in the probable cause section of the DS-367:

“While traveling eastbound on Yosemite Avenue, west of `L’ Street, in a marked black and white CHP patrol vehicle (p/v) (1248337) in the #1 lane, I observed the subject vehicle (s/v) directly ahead of my p/v weaving within the #1 lane. I then observed the right tires of the s/v travel approximately 2 feet over the broken white lines into the #2 lane, straddling the lines for 3-5 seconds. The s/v then traveled back into the #1 lane and proceeded to drift toward the raised curb, coming within 2-3 inches from colliding with the curb. The s/v failed to maintain their lane per California Vehicle Code section 21658(a). I positioned the p/v to the rear of the s/v and conducted an enforcement stop by activating the p/v’s overhead forward facing red lights. The driver turned the s/v right onto southbound `L’ Street came to a complete stop at the right curb of `L’ Street, just south of Yosemite Avenue.”

On the upper right corner of the piece of paper cut and pasted onto the DS-367, Officer McConnell handwrote “06-14-09.” He wrote his signature below the date and initialed the DS-367 itself (as opposed to the paper cut and pasted onto the form) to the right of his signature.

The suspension/revocation order and temporary driver license (the third page of the DS-367) instructs the officer to give the driver a copy of the order when it is completed. The third page (1) states that the privilege to operate a motor vehicle will be suspended or revoked 30 days from the date of the order; (2) provides a temporary driver’s license that expires 30 days from the date of the order; and (3) provides information about making a timely request for an hearing.

Officer McConnell signed the third page of the DS-367 and, consistent with the information he provided on the first pages, indicated that he served the order on Siemen on June 13, 2009.

The DMV held an administrative per se review hearing on August 12, 2009. The next day, the DMV hearing officer issued a written decision on a four-page DMV form titled “Administrative Per Se -.08% BAC notification of findings and decision.” The decision ended the stay of the suspension of Siemen’s driver’s license and reimposed a suspension for one year, beginning August 22, 2009, and ending August 21, 2010.

The hearing officer addressed Siemen’s objection to the admission of the DS-367 on the second page of the decision. Siemen asserted that the signature and date on the cut-and-paste alteration to the probable cause section of the DS-367 was June 14, 2009, and the signature on the DS-367 itself was dated June 13, 2009. Under these facts, Siemen argued that the officer did not swear to the probable cause statement, which was not complete when the officer signed the certificate. The DMV hearing officer overruled the objection, stating:

“The narrative report is dated as authorized on 6/13/09 by the arresting officer McConnell. The fact that he did not actually paste the cut out portion of the report to the DS367 page 2 until the next day does not discount the fact that the report was made at or near the time of the event. The facts recorded to the front of the DS367 form on page one are the timelier and technical details and they are sworn to in the body of the DS367.”

The hearing officer found probable cause for Officer McConnell’s stop and detention of Siemen and listed the evidentiary basis for the finding as the arrest report[2] and the DS-367.

On August 24, 2009, Siemen filed a petition for alternative writ of mandamus that alleged that the DS-367 was erroneously admitted into evidence at the administrative hearing. Siemen alleged the form was inadmissible because it was altered by Officer McConnell after it was executed.

The trial court held a hearing on the petition on October 16, 2009. At the end of the hearing, the trial court orally informed the parties of its rationale for denying the petition. The court referenced MacDonald v. Gutierrez (2004) 32 Cal.4th 150 and the requirement in Vehicle Code section 13380 that the arresting officer send the DMV a sworn report of “`all information relevant to the enforcement action.'” The court stated that “the question really becomes, if a person signs [the DS-367] one day and before it’s turned in to the [DMV] adds information and initials and dates it, whether” the added information can be considered in determining whether the sworn report contains the information required by statute. The court concluded it would be erroneously hypertechnical not to treat the information added the day after the report was signed as part of the report.

A judgment was entered and Siemen filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

When a trial court considers a petition for writ of mandate that challenges an administrative order suspending someone’s driver’s license, the court must exercise its independent judgment and determine whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456.)

In some cases involving petitions for a writ of mandate, the trial court and the appellate courts are considered courts of review and, as such, each independently reviews the record to determine if the administrative findings of fact are supported by substantial evidence. (E.g., Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151.) In those cases, the appellate courts conduct an independent (de novo) review, and the determinations of the trial court are not given any deference. (Ibid.)

Because the independent judgment standard of review applies in this appeal, we need only review the record to determine if the trial court’s findings are supported by substantial evidence. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) In applying this standard of review, we must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision.[3] (Ibid.) Consequently, we must uphold the trial court’s findings of fact unless the evidence before the trial court was insufficient as a matter of law to sustain those findings. (Ibid.)

II. Scope of the Officer’s Certification

A. Issue and Contentions

The critical question in this appeal is whether the paragraph cut and pasted into the probable cause section of the DS-367 is part of Officer McConnell’s certified statement.

Siemen contends that a subsequent addition to an already sworn statement must be sworn separately. In contrast, the Attorney General’s Office contends that Officer McConnell’s entire report on DS-367 was sworn, arguing that there is no indication on the face of the document or any extrinsic evidence that the officer intended not to swear to the cut-and-paste portion of the DS-367.

The appellate briefs of the parties do not identify any rules of law that address when an addition made after a document is signed under penalty of perjury is considered to be sworn.

B. Statutory Provisions

Vehicle Code section 13380 provides in pertinent part:

“(a) If a peace officer … arrests any person for [driving under the influence], the peace officer shall immediately forward to the department a sworn report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officer’s grounds for belief that the person [was driving under the influence], a report of the results of any chemical tests that were conducted on the person …, a copy of any notice to appear under which the person was released from custody, and, if immediately available, a copy of the complaint filed with the court. For the purposes of this section …, `immediately’ means on or before the end of the fifth ordinary business day following the arrest …. [¶] (b) The peace officer’s sworn report shall be made on forms furnished or approved by the department.” (Italics added.)

California statute provides that a sworn statement requirement may be satisfied by providing an unsworn statement with a written certification or declaration under penalty of perjury. The details of the certification or declaration are set forth in Code of Civil Procedure section 2015.5, which provides in part:

“Whenever, under any law of this state …, any matter is required or permitted to be … established … by the sworn statement … in writing of the person making the same …, such matter may with like force and effect be … established … by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and …, if executed within this state, states the date and place of execution ….”

The verb “subscribed” is used in Code of Civil Procedure section 2015.5 to mean signed with one’s own hand. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222.)

C. Analysis

The parties have presented no authority that addresses how this court should approach the question whether the cut-and-paste addition to the DS-367 was part of the sworn statement presented to the DMV. The argument presented by the Attorney General’s Office suggests that it is a matter of the officer’s intent and that the trial court’s implied finding of fact regarding that intent is supported by substantial evidence.

Because of the absence of argument or authority to the contrary, we will adopt a two-prong test for determining whether the subsequent addition is deemed part of the statement certified under penalty of perjury.

The first prong is objective. It asks whether an objectively reasonable person reviewing the DS-367 would conclude that the inclusion of a willfully false statement of material fact in the subsequent addition constituted perjury under California law. In other words, how would a reasonable person interpret the document and apply the law of perjury?

The second prong is subjective. It addresses the actual intent of the officer who provided the DS-367 to the DMV. The specific inquiry is whether the officer intended the addition to be covered by his prior certification under penalty of perjury.

1. Interpreting the DS-367

The preprinted portions of the DS-367 relevant to the interpretation of the form are (1) the language of the certification, (2) the instructions to the probable cause section, and (3) the delivery instructions on the form.

The certification provides: “I certify under penalty of perjury, under the laws of the State of California, that the information contained on all pages of this Officer’s Statement is true and correct.”

The instructions to the probable cause section specifically address completing the form with cut-and-paste material. That instruction states: “(A SYNOPSIS OF THE SUPPLEMENTAL REPORT MAY BE CUT AND PASTED BELOW AND MUST BE DATED AND CONTAIN AN ORIGINAL SIGNATURE.)”

The delivery instructions in the upper right hand corner of the first page of the DS-367 direct the officer to forward the form within five business days to the local driver safety office listed on the back of the second page.

In this case, Officer McConnell followed the instructions regarding the use of cut-and-paste material. Specifically, he (1) cut and pasted the portion of his arrest/investigation report that gave the reasons for his stop of Siemen’s vehicle onto the DS-367 and (2) dated and signed the cut and pasted paper. In addition, Officer McConnell went beyond the instructions and initialed the margin of the DS-367 to the right of the cut and pasted paper, presumably to indicate that he was the person who cut and pasted the paper into the probable cause section of the DS-367.

We conclude that an objectively reasonable person reviewing the DS-367 would conclude that Officer McConnell followed the directions for completing the probable cause section with cut-and-paste material. We further conclude that an objectively reasonable person would interpret the language of the certification as including an addition that was done (1) in accordance with the instructions and (2) prior to the delivery of the form for processing.

The certification refers to “the information included on all pages of this Officer’s Statement,” and the phrase “all pages” is broad enough to include a page that contains cut-and-paste material.

The act of delivery is important to our conclusion because of the role that delivery plays in the way perjury is defined by California law. Penal Code section 118, subdivision (a) provides: “[E]very person who … declares … or certifies under penalty of perjury … and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” Section 124 states: “The making of a … certificate is deemed to be complete … from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.” Thus, in accordance with section 124, Officer McConnell’s certificate on the DS-367 was not complete until he delivered the form to his local driver safety office. By the time his certificate was deemed complete, the cut-and-paste addition was part of “the information included on all pages” of the DS-367.

Based on the preprinted language of the DS-367, the way in which Officer McConnell filled out that form, and the rule of law regarding the delivery of a certificate, we conclude that an objectively reasonable person would regard the cut-and-paste addition to the DS-367 as covered by the officer’s certificate and, thus, as part of the sworn report for purposes of Vehicle Code section 13380.

2. Subjective prong

In this case, the appellate record contains no direct evidence regarding Officer McConnell’s state of mind when he submitted the DS-367 to the DMV. For instance, the officer did not testify or submit a declaration stating that, when he cut and pasted the addition into the probable cause section of the DS-367, he believed the addition would be covered by his prior certification. Consequently, the officer’s intent must be determined based on inferences drawn from circumstantial evidence.

Here, the circumstantial evidence is the same evidence that we discussed in applying the objective standard. That evidence provided a sufficient basis for the trial court to impliedly find that Officer McConnell intended his addition to the DS-367 to be covered by his certification.

Because both prongs of our inquiry have been satisfied, we conclude that the record supports the trial court’s decision to deny the petition for writ of mandamus.

DISPOSITION

The judgment is affirmed. Each party shall bear its own costs on appeal.

WE CONCUR:

CORNELL, Acting P.J.

HILL, J.

[1] Code of Civil Procedure section 2015.5 sets forth language for certifications or declarations used to establish matters that may be proven by sworn statements. The wording of the certification in DS-367 tracks the statutory language, which provides: “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” (Code Civ. Proc., § 2015.5, subd. (b).)

[2] This report was made on the Department of California Highway Patrol form titled “Driving Under the Influence, Arrest—Investigation Report.” Three of the report’s five pages were devoted to a narrative of the stop, field sobriety tests, arrest and booking.

[3] It is “legitimate and reasonable” to infer a trial court made an implied finding of fact when that finding is (1) favorable to the trial court’s decision and (2) supported by substantial evidence.

Critical Legal Distinctions

San Diego DUI / DMV attorney Rick Mueller points out the specific objections and above contentions at the beginning of this Article were not made in Siemen v. Valverde. The California lawyer in Siemen limited his objection. He only objected to the the DS 367 as set forth below. According to the above decision, it appears the California attorney did not make the detailed objections contained in this article. That California lawyer did not object to the underlying foundational facts cut, pasted and incorporated from an impossibly dated/defectively prepared San Diego DUI arrest report.

Siemen’s Page 2 was dated 1 day after Page 1 and was admitted without Glatman & other legal objections timely made by the California lawyer in that case.

The Siemen DMV hearing officer reportedly considered Siemen’s sole objection to the admission of the DS-367. According to the above limited facts and decision, Siemen’s lawyer only asserted that the signature and date on the cut-and-paste alteration to the probable cause section of the DS-367 was June 14, 2009, and the signature on the DS-367 itself was dated June 13, 2009. Siemen’s attorney understated his objection(s). Siemen’s lawyer only argued that the officer did not swear to the probable cause statement, which was not complete when the officer signed the certificate.

The Siemen DMV hearing officer overruled the limited objection. Siemen waived other available objections not made. Once waived, available objections and contentions can not later be made by an attorney.

Obviously each San Diego DUI / DMV case has its own unique facts, circumstances, documents, hearing officer, and day of the week. Accordingly, a San Diego DUI / DMV lawyer should make all applicable objections at the time DMV offers the exhibits as evidence.
A number of competent San Diego DUI / DMV attorneys make their specific & detailed objections in writing and in advance.

San Diego DUI Attorney Rick Mueller has personally prepared numerous written objections, specific to the facts of each case. (That is why the above objections and contentions are not intended to be relied upon by any driver or his/her attorney reviewing the above contents.)

New reporting options and variations continue to be seen by local San Diego DUI lawyers. A DS 367 Page 2 may or may not have a date and/or signature. It may have a different date or contain no signature of the arresting officer. Another officer’s initials may appear. An unsworn report may be prepared days after the arrest. The cut & pasted portion may be backdated when incorporated onto page 2.

Page 2 may be blank with only the words: SEE ATTACHED REPORT. The upper right portion of Page 1 had a date received by DMV; the unsworn report date may be AFTER the date the DMV purportedly received the cut & pasted portion of the DS 367 taken from a report done after DMV stamped date of receipt. These are just several examples of various scenarios revealed by San Diego county/area DUI police documents.

Knowing what objections to make based on each possible scenario is a talent not all San Diego DUI / DMV defense attorneys possess.

For obvious reasons, a driver should never try to be his or her own attorney at a DMV hearing. If you would like an online DUI / DMV Attorney Evaluation by San Diego County DUI Law Center’s Rick Mueller, please click here.