DMV DUI Arrest or Blood Report Not Admissible unless “made at or near time of event”

DMV/ DUI Arrest

An unsworn report not made at or near the time of the drunk driving event – whether blood test report or DUI arrest report – is not admissible, based on California Glatman case referenced in DMV’s Manual and under the below, logical analysis of San Diego County DUI Law Center’s attorney Rick Mueller.

An unsworn San Diego DUI arrest report which is not admissible also cannot be used to supplement or explain the sworn Officer’s Statement DS 367, lawyers remind based on DMV Manual’s cite of MacDonald case.

“12.101 Driving With Excessive BAC

A person, 21 years of age and older, cannot operate a commercial motor vehicle with a blood alcohol level of 0.04% or greater, or drive a motor vehicle with a blood alcohol level 0.08% or greater.

Drivers under the age of 21 or drivers in violation of DUI probation for a conviction of §23l52 or §23153 VC, cannot operate a motor vehicle with a BAC level of 0.01% or greater.

12.102 Chemical Tests

Any person operating a motor vehicle has given consent to chemical testing to determine the BAC level if arrested for an offense allegedly committed in violation of §23140, §23152 or §23153 VC. The driver has a choice of a blood or breath test. If the driver is incapable, or states that he or she is incapable of completing the chosen test, the person shall submit to the remaining test. If a blood or breath, or both, are unavailable, the driver shall submit to a urine test.

Any person operating a motor vehicle for an offense allegedly committed in violation of §23136 or §23l54 and has been lawfully detained has given consent to a preliminary alcohol screen test (PAS) or other chemical test.

If the officer has reasonable cause to believe the driver was under the influence of a drug or the combined influence of an alcoholic beverage and a drug, the driver has the choice of submitting to a blood or urine test. (§23l62 VC)

If the driver submitted to a blood or urine test, the law enforcement officer shall submit the results immediately to the appropriate forensic laboratory.

Requirements for the forensic alcohol laboratories that analyze the blood and urine test samples and for breath alcohol equipment and analysis and are provided in Title 17 of the California Code of Regulations (CCR).

12.103 Blood Test

The blood test sample requirement according to Title 17, CCR, §1219.1 details the following:

‘Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and only by persons authorized by §23l58 Vc. Sufficient blood shall be collected to permit duplicate determinations.’

12.104 Exemption from the Blood Test

A driver with a heart condition requiring a prescribed anticoagulant (which prevents the blood from clotting properly, i.e. Heparin, Coumadin, etc.), or a driver with hemophilia, is exempt from taking the blood test. The driver must inform the officer of the condition and complete the breath test. If the breath test is not available or the driver is not able to complete the test, the driver must take and complete the urine test.

12.105 Who is Qualified to Draw Blood

The chemical test procedure and the individuals authorized to draw blood for the blood sample to determine its alcoholic content is specified in §23158 Vc.

Only a licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory scientist or clinical laboratory bioanalyst, a person who has been issued a “certified phlebotomy technician” certificate pursuant to §1246 of the Business and Professions Code, unlicensed laboratory personnel regulated pursuant to § 1242, §1242.5, and §1246 of the Business and Professions Code, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of breath specimens. An emergency call for paramedic services takes precedence over a peace officer’s request for a paramedic to withdraw blood for determining its alcoholic content. A certified paramedic shall not withdraw blood for this purpose unless authorized by his or her employer to do so.

12.106 Blood/Urine Laboratory Reports

A Forensic Alcohol Analysis Report used by the lab analyst to report the results of blood or urine tests must have a certification statement and comply with statutory and case law requirements. Applicable statutes do not require the lab report to be sworn. The report falls within the public employee record exception to the hearsay rule, § 1280 of the Evidence Code.

The report requires the following:

• date sample collected
• date analyzed
• reference to the date the analysis of the sample was recorded
• date the form reporting the results was completed
• name of analyst and title
• signature of the analyst

Hearing officers can resolve objections based upon Glatman v. Valverde, 2006 146 Cal.App.4th 700 and MacDonald v. Gutierrez, 2004 32 Cal.4th 150, S111253.

In the Glatman case, the driver’s blood was drawn one hour after his arrest, the sample was analyzed the same day as his arrest, and retested by another analyst a day later. The analysts certified the blood test results by their signatures on the Forensic Report, which was dated one week after Glatman’s blood was drawn. The court found that the Forensic Report was not prepared at or near the time of the event, a necessary requirement for admission as an exception to the hearsay rule under §1280 of the Evidence Code. As such, it could not be used as evidence to establish Glatman’s BAC.

In the MacDonald case, the court decided that in addition to the arresting officer’s sworn report, the DMV could consider other accompanying unsworn reports, as long as they meet the conditions for admissibility.”

[California DMV Driver Safety Manual, APS Hearings, Ch. 12, pages 12-47 through 12-49]

An unsworn report which is not admissible cannot be used to supplement or explain the sworn Officer’s Statement DS 367.

An unsworn report not made at or near the time of the event – whether blood test report or DUI arrest report – is not admissible, based on the following objections.

Glatman Hearsay and Foundational Objections to Arrest Report:

Respondent driver’s hearsay and foundational objections are based on the delay between the date of arrest and the date when the officer prepared the arrest report.

The 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 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 AN 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.

An 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 DMV’s policy to subpoena the officer if there is nothing in the PC narrative of the DS367 and the arrest report is dated over one 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 DMV did not subpoena the officer, the inadmissible report cannot be relied upon.