Reported times are extremely important in California DMV hearings. San Diego DUI attorneys often request DMV to set aside an administrative license action if the sworn Officer’s Statement and/or DUI arrest report times do not make sense or are are not shown.
Times are important to invoke California’ presumptions in drunk driving cases. Generally, the DS 367 presented in a San Diego DMV hearing has spaces for 4 times: Driving, Arrest/Detention, Observation of Symptoms, and Test(s).
Many times defense lawyers argue the facts and times do not support positive DMV findings on the APS issues.
So how does DMV teach its Hearing Officers how to establish relative times of driving/stop/contact, detention/arrest and test?
“12.095 ESTABLISHING TIME FRAMES
12.096 Time of Driving
The officer indicates the date and time driving was observed on the DS 367 / DS 367M in the area designated. If not indicated, the information can be obtained from supporting documentation, i.e. accident report, arrest report, etc.
It is a rebuttable presumption that a person had a .08% BAC while operating a motor vehicle or 0.04% BAC while operating a commercial motor vehicle at the time of driving if the person had a 0.08% or 0.04% BAC at the time of the performance of a chemical test within three hours after the driving per §23152(b) vc.
In McKinney v. DMV, 1992 5 Cal.App.4th 519 the officer did not indicate on the form the time the driving was observed because the information was not required on previous revisions of the DS 367/DS 367M. The court upheld the suspension on the basis that the officer had indicated the time of arrest and because the time of the stop was indicated in the officer’s report, there was no indication there was any other intervening event from the time of observation, which might have created a lengthy interval between the officer’s observation and the stop. The hearing officer could rationally infer the time of driving.
If the hearing officer cannot infer the time of driving from any of the documentation, the officer must be subpoenaed to provide information necessary to meet the statutory requirements that the chemical test was administered within three hours after driving.
12.097 Time of Detention
The law enforcement officer will indicate on the DS 367/DS 367M the time the driver was lawfully detained if under Age 21 or while on DUI probation.
12.098 Time of Arrest
The record will reflect when the investigation ended and the officer decided to take the driver into custody. The DS 367 / DS 367M has a space for the officer to enter the time the driver was lawfully arrested. If the officer failed to report a time of arrest on the form, the information may be obtained from supplemental reports.
Sometimes a lawful arrest can be a confusing area. For example, if the arrest was following a collision, how long afterwards did the arrest occur? Other examples are:
Was the arrest at the time:
• of the initial stop or contact?
• of the field sobriety tests?
• the handcuffs were used?
• of booking?
12.099 Time of Test
The DS 367 / DS 367M forms contain areas for the law enforcement officer to indicate the type of test, PAS or other chemical test, that was administered. The officer also· notes the date and time of the test and if PAS or breath test administered, and the BAC level. If the information is not present, the information can be obtained from supporting documents. If the time of the test(s) cannot be established, the officer’s testimony is essential.
In two cases, Santos v. DMV, 1992 5 Cal.App.4th 537 and Yordamlis v. Zolin, 1992 11 Cal.App.d” 655 the courts found excessive BAC suspensions could not be upheld without knowing the time the officer conducted the chemical test. When there is no evidence to establish that the respondent gave the chemical test sample within three hours of driving, the presumptions do not apply.”
[California DMV Driver Safety Manual, Chapter 12, pages 12-45 to 12-46]