Winning a DMV hearing is very important for clients of experienced California DUI attorneys. People have to be able to drive as California’s public transportation system can often be less than desirable, remind DUI / DMV defense lawyers.
The question is, when DMV provides the California DUI lawyer with a blank page 2 of the sworn DMV DS 367 [Age 21 and Older Officer’s Statement], what is the defensive strategy an attorney should employ at the administrative hearing to decide whether or not the person’s driving privileges will be suspended?
This is both a legal and factual attack on DMV’s evidence.
The sworn statement statement of probable cause cannot be blank.
Why not? Because California Vehicle Code Sections 13380(a) and (b)specifically require California DUI officers to submit a sworn statement of the facts & circumstances that led to the stop or contact on forms furnished by the Department. That form is the DS 367.
A blank statement of Probable Cause on the DS 367 does not comport with Vehicle Code Section 13880 even under the case of MacDonald v. Gutierrez:
“To summarize: 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 arresting officer. In this case, the arresting officer filed a sworn report.”
In MacDonald, the California Supreme Court did not relieve DUI police officers of including ANY information relevant to the enforcement action in the DS 367.
It only relieved the California drunk driving police officer of including ALL information relevant to the enforcement action.
Specifically, MacDonald held that only “technical omissions” in a DS 367 may be “supplemented or explained by the unsworn reports,” NOT the substantive omissions in the sworn report.
DMV must set aside the suspension in this situation.
This fatal deficiency found in DMV’s own documentary evidence should lead to DMV taking no action against the person’s driving privileges if DMV did not subpoena the arresting officer or some other witness to the hearing to overcome these objections to the evidence. [See California Code of Civil Procedure Section 595.4 and Arnett v. Office of Administrative Law]