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What is Documentary Evidence at an APS Hearing?
When I driver enters an Administrative Per Se (APS) hearing before the California Department of Motor Vehicles, they should be prepared to conduct a full-blown evidentiary hearing. Conducted under the guidelines of California Administrative Law, these hearings offer opportunities to introduce evidence, attack evidence, interview witnesses and present the testimony of experts. A properly conducted APS hearing is a “mini-trial.”
One of the most common and prominent forms of evidence presented at a DMV Administrative Per Se Hearing is Documentary Evidence. Documentary Evidence can come from a variety of sources and can be introduced at the hearing by both the DMV Hearing Officer and the accused driver’s DMV Defense Expert.
Some of the most common Documentary Evidence presented by the DMV is:
- The arresting officer’s sworn report, also known as a DS-367.
- The arresting officer’s unsworn report. Frequently referred as arrest reports or incident reports.
- Supplemental Reports. Often prepared by other officers regarding witness statements or other observations.
- Traffic Collision Reports.
- Forensic Alcohol Examination Reports (FAER), which are the reports prepared by forensic laboratories to document the blood/alcohol concentration.
- Breath test strips. The small “cash-register” type receipts that are printed by an Evidential Breath Test device.
- The driving record. This is a print-out of the accused driver’s history of driving.
Some of the most common Documentary Evidence presented by the accused driver is:
- Subpoenas issued for items of evidence. The driver may be required to present the subpoenas issued for evidence to demonstrate their accuracy and timeliness.
- Audio/Video Evidence. The driver may present audio CDs or Video DVDs which depict visual or audio evidence of the probable cause for stop or the contact between the officer and the driver. Occasionally, a driver may produce video or audio footage from other sources like cell-phone recordings.
- Dispatch Logs. The driver may present written dispatch logs that can establish important time elements in a case.
- Blood Records. The driver may present blood records to demonstrate the accuracy of the blood analysis, or the calibration and maintenance of the gas chromatograph used in the test of the blood sample. This may also reveal issues such as a blood sample not being thoroughly mixed with the preservative, an expired blood vial, or evidence of clotting.
- Breath Records. The driver may present breath records to attack the accuracy and reliability of any breath device. Calibration, maintenance, accuracy and performance are all important issues.
- Sworn Declarations. The driver may present the sworn declaration of any witness who offers relevant information. The introduction of a sworn statement may trigger the DMV’s request that the declarant actually testify.
- Photographs or video footage. Photos or video footage of vehicles, roadway surfaces, intersections, or other prominent items.
- Booking photos. Received by subpoena from a police agency, a booking photo may clearly depict a person’s appearance at or near the time of the arrest.
- Receipts of purchases can establish a time of drinking.
- Medical Records may establish pre-existing medical problems or injuries that may cause a person to appear intoxicated when they are not; or that may affect the accuracy of a chemical test.
How is Documentary Evidence Used by the DMV at an APS Hearing?
At any DMV Administrative Per Se hearing, the DMV has the burden of proving all issues in order to justify an order of suspension, Burge v. DMV (1992) 5 Cal.App4th 384, Daniels v. DMV (1983) 33 Cal.3d 532. To prove its case the DMV will rely most prominently on the introduction of Documentary Evidence to justify the suspension of your driver license.
The “Flagship” of the DMV’s Documentary Evidence is the arresting officer’s sworn report, also known as a DS-367. Because this document is a sworn report that is supposedly executed under the penalty of perjury, it can be used to prove the DMV’s case without the appearance or testimony of the arresting officer. It is the DMV’s preference to use the DS-367 and supporting documents to prove the entire case, but the DMV does have the power to call the arresting officer, back-up officers, civilian witnesses or experts to testify in order to win their case. The Documentary Evidence, however, is the cornerstone of the DMV’s case.
How Can I Use Documentary Evidence to Protect Myself at an APS Hearing?
When the DMV Hearing Officer presents their case at an APS Hearing, they automatically presume that everything contained within their Documentary Evidence is true, correct and accurate. This is a “rebuttable” presumption that permits the accused driver to demonstrate why the DMV’s evidence is not correct.
While the accused driver may introduce his or her own testimony or the testimony of others, it is frequently through Documentary Evidence that the driver is able to rebut the DMV’s case.
The introduction of dash-cam audio or video. The introduction of blood or breath records or the introduction of photos or medical records can all establish inaccuracies or elements of untrustworthiness in the DMV’s case.
The proper use of Documentary Evidence is essentially a three step process:
- Locating and identifying the evidence.
- Collecting and evaluating the evidence.
- Preparing and presenting the evidence.
As discussed in other chapters of this site, simply knowing that the DMV’s evidence is wrong is not the same as proving that it is wrong. Knowing that your evidence supports your case is not the same as getting your evidence admitted into the APS Hearing.
Because the DMV wants to presume the accuracy of its evidence, the Hearing Officer will fight any attempt to introduce Documentary Evidence that attacks their case. Because of this, the accused driver should employ the services of a DMV Defense Expert who knows the steps necessary to getting your information admitted into evidence. If an item of Documentary Evidence is admitted into evidence, the hearing officer is mandated to consider its value. If an item of Documentary Evidence is rejected, the hearing officer can and will ignore it all together.
Call the DMV Defense Experts at CDA. We can get your Documentary Evidence admitted into your APS Hearing.
The DMV Defense Experts from California Drivers Advocates have been fighting and winning APS Hearings before the California Department of Motor Vehicles. We understand that the successful introduction of Documentary Evidence is a key element to rebutting the DMV’s case.
Our DMV Defense Team is comprised of former police officers, former DMV hearing officers, investigators and Forensic Alcohol Experts. We have a proven history of locating, preparing and introducing Documentary Evidence at our client’s hearings that win the day.
When a driver walks into an APS Hearing alone, the DMV hearing officer looks at them as an “easy target.” The DMV hearing officer presumes from the beginning that he or she will suspend the driver’s privilege to drive. If that same driver walks into their APS Hearing standing next to a DMV Defense Expert from California Drivers Advocates, the DMV hearing officer’s attitude changes on the spot. They know they are in for a fight and all bets are off for them winning. We are standing by and ready to begin collecting your Documentary Evidence. Call us today.