San Diego DUI Law Center

Probable Cause. Attacking Conclusionary Statements on the DMV DS 367

In San Diego DUI cases, one of the first things attorneys try to determine is whether the police had Probable Cause to stop the accused driver. DUI lawyers check the documents to see if the San Diego area police merely stated conclusions in the DMV documents.


An officer cannot arbitrarily stop a person to investigate for driving under the influence or any other crime without a valid reason. The officer observes unsafe driving, a traffic violation, or is called to the scene of a collision in most DUI arrests. An officer may also investigate any apparent criminal or unusual behavior, or a driver appearing in distress.

The initial contact need not relate to driving under the influence. For example, a driver may ask an officer for directions; the officer may discover the driver is intoxicated during the contact. A driver may encounter an officer while fleeing from harm; however, the courts have determined in Foster v. Snyder, 1999 76 Cal.App.4th 264 that the defense of necessity is not applicable in an APS hearing.

No formula can determine if an officer acted lawfully in stopping a driver for questioning. An officer may stop a motorist or pedestrian for questioning under circumstances short of probable cause for an arrest. In the case Cornforth v. DMV, 1970 3 Cal.App.3d 550 the court stated, “The generally accepted criterion for determining the validity of a temporary stopping for investigation is whether the circumstances would have indicated to a reasonable man in like position that an investigation was necessary to a proper discharge of the officer’s duties.” However, a mere hunch the person may be involved in criminal activity is insufficient. For example, driving in the early morning hours in an area of recent burglaries, by itself, is not sufficient reason for an officer to make a stop to investigate.

12.056 Probable Cause: Conclusionary Statements on the DS 367

A statement of “violated VC 22350” made by a peace officer on a DS 367IDS 367M is a conclusion and insufficient probable cause to support a finding. The officer has not provided observational facts which the hearing officer can use to independently judge whether the maneuvers of the vehicle observed by the officer constituted erratic driving. The case law Solivij v. Gourley, 200 I 87 Cal.App.4th 1229 states, “In order to justify a stop or detention the officer must have specific and articulable facts causing him to suspect that some activity relating to a crime has taken place, is occurring or is about to occur, and that the person detained is involved in that activity.”

If the probable cause is not sufficiently stated in the sworn report or other accompanying evidence, arrest or investigation report, the officer will have to be subpoenaed to describe the observations that led to the contact.

Peace officers occasionally record conclusions instead of observed facts on the DS 367. For example, instead of writing “observed subject driving a vehicle at 50 mph in a 25 mph zone,” the officer writes “observed subject speeding”. Other conclusionary statements may be weaving, illegal turn, illegal maneuver, reckless driving, improper lane use, unsafe lane change, unsafe backing or failed to stop.

The officer’s observed facts are necessary because probable cause to stop/investigate is a component of the lawful arrest issue. Section 664 of the Evidence Code specifically precludes using the official duty presumption to support the lawfulness of an arrest. This makes sense under our system of law, because without this exception, respondents would bear the initial burden to prove their innocence instead of the other way around.”

[Driver Safety Manual, pages 12-27 and 12-28]