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Arrest Reports & a DMV Administrative Per Se/DUI Hearing

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What is an Arrest Report at an APS Hearing?

When a driver in California has been arrested for suspicion of DUI, they must face the possibility of criminal penalties from the Superior Court. There are, however, additional “administrative” sanctions that may be directed by the California Department of Motor Vehicles (DMV).

The administrative sanctions ordered by the DMV can include the complete suspension or revocation of a person’s privilege to drive for specified periods of time. There can also be periods of “restriction” attached to a driver license that only permit driving for specified tasks. The DMV can also order the attendance at DUI schools, the payment of re-issuance fees and the requirement for a “high-risk” form of insurance known as an SR-22 Form.

If an accused driver seeks to eliminate these sanctions, he or she must schedule, conduct and win an Administrative Hearing before the California Department of Motor Vehicles; Division of Driver Safety. Known as an APS Hearing, these are complicated evidentiary hearings where exhibits are introduced, witnesses testify, evidence is considered and experts render opinions.

When the DMV is presenting its case in support of suspending your driver license, the hearing officer will rely primarily on the arresting officer’s sworn report, known as a “DS-367.” Because the DS-367 is limited in its scope and because it provides little space for detailed reporting, the hearing officer will frequently introduce a secondary “Arrest Report” to supplement or support the DS-367. By its very nature, the arrest report provides the arresting officer greater latitude in describing the events that occurred leading up to your arrest.

How Does the DMV Use an Arrest Report at an APS Hearing?

In the presentation of its case, the DMV is permitted to introduce exhibits, evidence and witnesses to justify the suspension of your driver license. The California Government Code, the Administrative Procedures Act, the California Vehicle Code, the California Evidence Code and the California Code of Regulations, all have specific guidelines and rules controlling how evidence is introduced and accepted into an APS Hearing.

As stated above, the DMV will primarily build its case by introducing the arresting officer’s sworn report, known as a DS-367. If this document is properly prepared and executed, the information contained within the report is presumed trustworthy and the arresting officer need not testify.

In many instances, however, the DS-367 may be incomplete or untimely. There may be problems with the probable cause for stop or the lawfulness of your arrest. If any such problems arise or if the DS-367 is just weak, the hearing officer will often attempt to introduce a separate “arrest report” to supplement or to clarify the DS-367.

The construction of the Arrest Report allows much more space and opportunity for the arresting officer to include specific details leading up to your arrest. The officers will include information which describes the probable cause for stop, the initial contact with the driver, the observations of symptoms consistent with alcohol intoxication, and the administration and performance of Field Sobriety Tests. The Arrest Report will also include details regarding your arrest and the collection of any chemical samples.

In almost every instance, Arrest Reports are not sworn reports and therefore, they cannot stand on their own to support the suspension of your driver license. Current case law permits unsworn arrest reports to “clarify technical omissions” in the DS-367. The DMV hearing officer is not to use an unsworn Arrest Report as the primary basis for a driver license suspension, but hearing officers will routinely ignore the law.

The unsworn Arrest Report is potentially a damaging piece of evidence against you at an APS hearing so your DMV Defense Expert should work diligently to prevent its introduction into evidence or to limit the information that can be taken from it.

How Do We Fight the Arrest Report at an APS Hearing?

As mentioned above, an unsworn Arrest Report can be a very damaging piece of evidence at your APS Hearing. Your DMV Defense Expert must have the training and experience necessary to recognize those instances when the Arrest Report can be rejected as evidence or when certain portions of the report can be omitted from consideration.

Because Arrest Reports are commonly unsworn, they are considered hearsay and cannot be moved into evidence unless they were prepared in a timely manner and are trustworthy. If there are so many weaknesses in the Arrest Report that it cannot possibly support the weaknesses in the DS-367, then it must not be moved into evidence and must not be considered by the DMV hearing officer when making findings.

Make no mistake, the DMV hearing officer will automatically presume the accuracy of each of their documents and will seek to move them into evidence to establish their case. The hearing officers would love it if they could process APS hearings without any challenge to their process or their authority.   If the DMV were left to their own devices, a greater number of Californians would not be driving for reasons ranging from DUI to Negligent Operation.


Call Us Today. We Will Fight to Keep the Arrest Report out of Your APS Hearing.

Fortunately, the rules of Procedural Due Process require that an accused driver have the opportunity to rebut the DMV Evidence and to reverse the suspension of their driver license. That is where we come in. The DMV Defense Experts at California Drivers Advocates (CDA) have been fighting and winning APS Hearings for years.

Preventing the DMV from moving exhibits into evidence is a combination of training, experience and reputation. When the hearing officer assigned to your case recognizes that you are defended by someone who knows the process and cares enough to fight, their entire attitude changes. Call us today. We’re ready to go to work for you.

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COVID-19 Update: The California DMV is OPEN!!!The California Department of Motor Vehicles - Driver Safety Office is Open & SUSPENDING Licenses

If you received a notice from the California Department of Motor Vehicles, Driver Safety Office you must act now.

The Driver Safety Offices are still doing business as usual, which means suspending your license. 

Hearings are still being processed and you can still defend yourself. 

California Drivers Advocates is a team of expert DMV Defense advocates. We represent drivers throughout California when their driver license comes into question with the California Department of Motor Vehicles.

We are already defending drivers in their new virtual hearings at the DMV. Learn more here >

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