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Traffic Collision Report and DMV Administrative Per Se/DUI Hearings

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What is a Traffic Collision Report at an APS Hearing?

Any driver in the State of California who is accused of DUI faces the potential suspension or revocation of his or her driving privilege by the California Department of Motor Vehicles (DMV). California’s Administrative Per Se (APS) laws direct that the DMV automatically suspend the driving privilege of any driver, even an out of state driver, who operates a motor vehicle with a blood alcohol concentration above the legal limit. For the accused driver to defend himself, he or she must schedule, conduct and win an APS hearing before the California DMV.

During any APS hearing, the DMV Hearing Officer has an obligation to make certain “findings.” If these findings cannot be established, the suspension action must be terminated and the driver’s privilege to operate a motor vehicle is restored. The DMV Hearing Officer must find:

  • That the law enforcement officer lawfully came into contact with the driver and upon doing so had a lawful reason to believe that he or she had been driving in violation of the Vehicle Code.
  • That the driver was lawfully arrested.
  • That the driver was operating a motor vehicle with a blood alcohol concentration (BAC) above the legal limit.

 Whenever a driver is defended by a DMV Defense Expert at an APS Hearing, two of the most common questions are?

  • Is there evidence to prove that the accused driver actually drove a motor vehicle?
  • Is there evidence which establishes the time of driving?

Many APS hearings involve cases where a law enforcement officer has originally come into contact with the driver while investigating a traffic collision. In many of these cases, the law enforcement officer does not witness driving. In fact, there are many cases where no one witnesses the accused driver actually operate a motor vehicle.

When this occurs, the DMV will use several different documents to establish sufficient “circumstantial” evidence to suggest that the accused driver operated a motor vehicle. One of the most common documents introduced at an APS hearing is a traffic collision report. Although a law enforcement agency is permitted to use whatever traffic collision report format they wish, nearly all agencies in the State of California have adopted the form developed by the California Highway Patrol. Known as the CHP Form 555 (Traffic Collision Report), this report format is a multi-page document that includes information regarding all drivers and vehicles involved in a traffic collision. It also includes lists of witnesses and injured parties, diagrams and measurements, and the statements of involved parties and witnesses.

How Does the DMV Use a Traffic Collision 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. While the DMV hearing officers are required to obey these guidelines, they often overstep their bounds and will ignore the law unless they are held accountable.

In every APS hearing, the DMV will first seek to establish its case with the introduction of a sworn report, known as the “Officer’s Statement” or DMV Form DS-367. Because the DS-367 is a “sworn report” the DMV considers it to have the same weight and value as an officer’s personal testimony.

In many instances, however, the DS-367 may be incomplete or untimely. In the case of a traffic collision, the DS-367 may not establish the element of driving or the time of driving. If any such problems arise or if the DS-367 is just weak, the hearing officer will often attempt to introduce a separate traffic collision report to supplement or to clarify the DS-367.

The traffic collision report is by its very design, a much more comprehensive document than the DS-367. The DMV will use the traffic collision report to establish:

  • How and when the traffic collision occurred.
  • How and when the traffic collision was discovered.
  • How and when the traffic collision was reported.
  • How and when the law enforcement officer arrived at the scene.
  • Any witnesses who can identify the driver of the motor vehicle at the time of crash.
  • Any admissions made by the accused driver that he or she drove the motor vehicle.
  • Any physical evidence that demonstrates the driver operated the motor vehicle.

In almost every instance, traffic collision reports are not sworn reports and therefore, they cannot be used as the primary means to support a driver license suspension. Current case law does permit hearing officers to use the information in unsworn traffic collision reports to “clarify technical omissions” in the DS-367. The unsworn traffic collision report can be used to damage your defense 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 Traffic Collision Report at an APS Hearing?

As mentioned above, an unsworn traffic collision report can be a very damaging piece of evidence at your APS Hearing. The DMV Defense Experts from California Drivers Advocates have the training and experience necessary to recognize those instances when the traffic collision report can be rejected as evidence or when certain portions of the report can be omitted from consideration.

Traffic collision reports are almost always “unsworn” documents and therefore should fall under the “hearsay” rule within the Evidence Code. There is, however, an exception in the Evidence Code that does permit the introduction of hearsay documents if they are “official records.” To use the Official Records Exception in the Evidence Code, the DMV must establish that certain rules of timeliness and trustworthiness apply. If your DMV Expert is well trained, he should be able to locate any weaknesses that exist in the traffic collision report and work to exploit it in your defense.

It is an absolute certainty that the DMV hearing officer will move every possible document into evidence that they can. The hearing officer will presume the accuracy and truthfulness of the information in those documents Fortunately, the Hearing Officer’s presumptions are rebuttable presumptions so you do have a chance to demonstrate why the information in the traffic collision report is inaccurate or untrustworthy.

By conducting an investigation of our own; by introducing witness statements or other affirmative evidence; or by demonstrating that the traffic collision report was not prepared in a timely manner, we are often able to have it excluded from evidence. If a traffic collision report is excluded from an APS hearing, all the information contained within that report must not be considered.


Call Us Today. We Will Fight to Omit the Traffic Collision Report from Your APS Hearing.

Even though the Administrative Per Se (APS) hearing process is a terribly lop-sided, adversarial process where the accused driver is presumed guilty, the rules of Procedural Due Process demand that the accused driver be given the chance to disprove the case against him or her.    The DMV Defense Experts at California Drivers Advocates (CDA) have been fighting and winning APS Hearings for years.

Successfully preventing the DMV from moving exhibits into evidence requires extensive training, experience and reputation, but it is one of the most basic elements of a good DMV defense. The moment your representative from CDA enters your hearing, the DMV Hearing Officer knows you have selected a DMV Defense Team that is up to the task of winning. They know they are in for a fight on many levels. 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.

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