Friday, August 10, 2007

New California DUI / DMV Case re: Public Safety Activities

California DUI / DMV Defense Lawyer case law update

DMV Hearsay from a fireman

In this California DMV case, the trial court denied the Writ Petition upholding the HO’s decision. There was evidence to support the four issues of this refusal case. Petitioner contended that the evidence did not support a finding that there was PC to detain nor driving because the fire chief’s comments and report to the officers on the sworn and unsworn reports, were inadmissible, and the witnesses status as a non-peace officer, does not comply with the cases that allow officer to officer transfer of information.

The key issue was proof of driving. The fireman attended to the emergency of getting the vehicle off railroad tracks. In dicta, the court stated: “In reporting his personal observations to the reporting officer, (Fire) Captain Uzdarines was acting pursuant to his duty as a fire captain to observe facts and report them correctly…this was a classic public safety activity”.

Since there was no evidence presented to the contrary, the public records introduced (DS367 and supplemental reports – Evidence Code section 1280) were adequate proof of the issue of PC to stop and driving. The court mainly found that the statements would also be admissible to supplement and explain the admissions made by the Petitioner pursuant to GC section 11513.

When DMV has statements given to a peace officer by a non-peace officer upon an arrest made for a California DUI, and the witness does not testify at the DMV hearing, DMV has the burden of proof to establish the person was acting within his or her job duties, in a capacity that would reflect a “public safety activity”.

If not, DMV cannot then use those statements within the DS367 and supplemental reports to establish PC to stop and driving.

This point is dicta since there were admissions of driving used by DMV to supplement and explain the vague admission of driving. See e.g. Government Code section 11513.

This case may be mischaracterized or analogized by DMV when the first responder to an incident or the stop is a Border patrol or INS agent, homeland security officer, park ranger or forest ranger, or military personnel on duty at the gates. DMV's key issue will likely be whether the reporting person is acting in their capacity as a public employee doing their duties which can be classified as public safety activities.

DMV will not be able to use this case for private security personnel or public employees who are not on duty or who do not perform public safety activities.

Hildebrand v. DMV Docket D048540 (July 9, 2007)

Note: Driving need not be proven in a California DMV APS Refusal case, a point not yet ruled on by the California Supreme Court while Hildebrand was pending.