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How is a DS-367 Used by the DMV at an Administrative Per Se/DUI Hearing?

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What is a DMV Form DS-367?

When a driver in California has been arrested for DUI, they face the very real possibility of having their driver license suspended or revoked as a result. The only viable solution is for the accused driver to schedule and conduct an administrative hearing before the California Department of Motor Vehicles (DMV). Known as an Administrative Per Se or “APS” Hearing, these hearings are complicated, legal proceedings that are conducted similar to a “mini trial.” Exhibits are introduced, evidence is presented, witnesses may testify and experts can render opinions.

When the DMV hearing officer opens the hearing, he or she is responsible for introducing the department’s case. This means the hearing officer will identify documents and other items the department intends to use as evidence to support the suspension of the accused person’s driving privilege.

Chief among these documents is the DMV Form DS-367. Also known as the “Officer’s Statement,” this is normally a 3-page exhibit that essentially establishes the DMV’s jurisdiction and the case itself. Documents are often attacked by a DMV Defense Expert in an attempt to keep them out of evidence, however, the DS-367 is presented as a “sworn report” that the arresting law enforcement officer executes under the penalty of perjury. Assuming the DS-367 is properly prepared, properly executed and meets other standards for admittance, the DMV hearing officer will rely upon this document as the chief source of evidence against the accused driver. If the DS-367 is properly presented, it can take the place of the officer and can preclude him from being present to testify unless subpoenaed for appearance. Basically, the DS-367 stands to represent the officer without him being present.

The DS-367 is a 3-page document that is carried by police officers in the field. The document is comprised of:

  • The face page is where the arresting officer documents vital information such as the date, time and location of contact. It includes information on observations the officer may have made prior to arrest. It also includes space to document the time of arrest as well as the time and dates that chemical tests were administered. The bottom of the DS-367 is the affidavit where the officer will sign under the penalty of perjury that his report is correct.
  • The second page is “The Officer’s Statement-Page 2.” Often referred to as the Probable Cause Statement, this page permits the officer to document detailed facts which authorized him to make initial contact with the driver. There is also space available to identify witnesses who may have seen the accused person drive, if the officer did not.
  • The final page is a copy of the “Notice of Suspension/Temporary Driver License.” This is a copy of the page that should be provided to the driver at the time they are released from police custody. This informs the driver that the DMV intends to suspend their driver license. It also advises the driver they may drive for 30 days; and that if they wish to contest the suspension of their driver license, they must contact the DMV within 10-days.

How Does the DMV Use the DS-367 at an APS Hearing?

In the vast majority of Administrative Per Se Hearings, the DMV has the burden of establishing three issues:

  • Did the arresting officer have probable cause to come into contact with the driver, and upon doing so, have probable cause to believe they had been driving in violation of the Vehicle Code.
  • Was the driver lawfully arrested?
  • Was the driver operating a motor vehicle with a blood/alcohol concentration of .08% or greater.

(There may be additional issues in the case of an underage driver, a driver on probation or in a Chemical Test Refusal Case).

The legal department for the California Department of Motor Vehicles has designed the DS-367 to establish all three issues that must be decided at an APS Hearing. The DMV will presume that the arresting officer performed his or her official duty correctly and will presume all of the information presented on the DS-367 to be accurate. In a perfect world, the DMV would hope to process each and every APS hearing based solely upon the information contained in the DS-367.

When the DMV hearing officer introduces the DS-367 at an APS Hearing, your DMV Defense Expert should be working diligently to prevent the document from moving into evidence. Without a valid DS-367 in evidence, the DMV loses its jurisdiction and an APS hearing cannot proceed. Your DMV Defense Expert should work to establish that the DS-367 is not admissible because it is hearsay or that it does not meet the minimum requirements established by certain provisions of the Evidence Code or the Vehicle Code. The hearing officer will be working in the opposite direction in an attempt to find the document trustworthy and to move it into evidence. It can become a real point of battle.

If the DS-367 is weak in any area, or if the hearing officer decides that he or she needs more information, they may seek to move additional documents into evidence to support or clarify the DS-367. This may include such items as unsworn incident/arrest reports, traffic collision reports, supplemental reports from partner officers, and perhaps laboratory analysis reports.

Can a DMV Form DS-367 be Defeated?

Emphatically, the answer is yes; but it is difficult and requires a DMV Defense Expert to do so.

Remember, under the “Official Records Exception” in the California Evidence Code, the DMV Hearing Officer is permitted to presume that everything contained within the DS-367 is accurate and true. This is considered a rebuttable presumption, which mean that the accused driver is permitted to present evidence or witnesses to prove why the DS-367 is not reliable.

There are Government Codes, Evidence Codes, and Administrative Codes with sections which specify how an official document is moved into evidence and whether or not it is trustworthy.

Some issues that can make a DS-367 untrustworthy are:

  • The DS-367 is not signed or dated at the bottom by the arresting officer.
  • Times of driving, arrest, or chemical testing are missing.
  • There is no information regarding chemical testing.
  • The probable cause statement is insufficient to justify the original contact.
  • The DS-367 is not prepared in a timely manner following the arrest.

Remember, knowing that the information contained within a DS-367 is incorrect is not the same as proving it. Rebutting the DMV’s presumption of accuracy and trustworthiness requires a DMV Defense Expert who has knowledge of the applicable laws and a commanding knowledge of DMV procedure.

 

Call Us Today. We Can Begin the Work of Attacking the DS-367 in Your Case.

California Drivers Advocates is a group of DMV Defense Experts devoted exclusively to the defense of drivers at Administrative Hearings before the California Department of Motor Vehicles. Our team is comprised of former police officers, former DMV hearing officers, private investigators and forensic alcohol experts. By combining our training, experience and years of winning DMV administrative hearings, we know what it takes to defeat the DS-367 in any APS Hearing.  Remember, everything the DMV does is time sensitive so don’t delay. Call CDA now and we’ll go to work defeating the DS-367 in your case.

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