In any DUI arrest, the San Diego area DUI cop should prepare and deliver to the driver the pink DMV form of paper called a “DS 367.” A San Diego DUI Attorney can interpret what it means. San Diego DMV Lawyers emphasis there are only ten days from that DS 367 for the driver’s attorney to contact DMV and request a hearing.
The Pink DMV Order of Suspension is essentially a carbon of the the Officer’s sworn Statement DS 367.
According to the California DMV Administrative Per Se (APS) Hearing Officer Manual, this is where the critical DUI documents begin. Lawyers note that in San Diego DMV APS hearings, the issue of admissibility of documents is far more complicated than the California DMV Manual suggests. Here’s the oversimplified DMV Manual:
“12.033 Hearing Documents
Documents presented as evidence must be relevant and have a bearing on one or more of the issues. Determine whether the documents are direct evidence or hearsay evidence and establish the proper foundation. Hearsay and direct evidence are always admissible in an administrative hearing. Although admissible, hearsay evidence cannot stand alone to support a finding or prove a fact unless it is an exception to the hearsay rule. See Section 19.115, NATURE OF HEARSAY, in DS Manual Chapter 19, RULES OF EVIDENCE.
Official records, the DS 367 or DS 367M or other approved agency form, is the basic document supporting the suspension or revocation. When a public employee, within the scope of duty, prepares the document, it is admissible as an exception to the hearsay rule and given the same weight as oral testimony (EC §1280). Under the Official Records section, note the report is prepared timely and appears reliable.
If the DS 367 or DS 367M appears to have different sets of handwriting, corrections, crossouts, or whiteouts, the document may not be an exception to the hearsay rule, because it does not appear to be reliable. Therefore, the officer’s testimony may be necessary to support the written statement (EC § 1280).
12.034 Supporting Documents
The DS 367 or DS 367M may mention other supporting documents, such as an arrest report, collision report, supplemental report, etc. Introduce the DS 367 or DS 367M, supporting documents, and any other relevant documents. Mark them as individual exhibits and receive them into evidence.
A synopsis of the supplemental report may be cut and pasted to the OS 367/0S 367M form to provide the probable cause statement and must contain the officer’s original signature and date.”
[It is noted that San Diego DUI Lawyers point out that DMV is limited in its use of cut and paste documents. Frequently, San Diego DUI officers do not follow instructions. See this Article by the San Diego County DUI Law Center.]
12.035 Driver’s Record
The driver’s record is marked for identification and entered into evidence at all APS hearings. This is especially important when the record reveals a prior APS action or conviction for DUI or DUI reduced to wet reckless driving showing an alcohol disposition code) within ten years of the arrest date. This evidence supports a longer period of suspension or revocation. The hearing officer must state the information regarding the prior on record.
12.040 APS ISSUES
The hearing officer will need to ensure the issues for the type of APS case can be established.
Explore the issues to guarantee the issues are supported and determine whether an action can be upheld based upon the evidence or if the action must be set aside for lack of evidence. (also refer to Section 12.049, Sub Issues that Require Consideration).”