A California DUI usually means a California DUI lawyer will handle the DMV hearing to try and save your license. Issues arise as to what DUI evidence can be used at this hearing:
AN UNSWORN CALIFORNIA DUI ARREST REPORT CANNOT EVEN BE USED IN CALIFORNIA DMV APS ACTIONS UNLESS THE SWORN STATEMENT CONTAINS ALL OR NEARLY ALL INFORMATION NECESSARY TO REMOVE A LICENSE AND AS LONG AS THE SWORN STATEMENT’S PC IS NOT TANTAMOUNT TO BLANK OR WHOLLY DEVOID OF RELEVANT INFORMATION
“To summarize: (Vehicle Code) Section 13380 provides the arresting officer’s sworn report will contain ‘all information relevant to the enforcement action.’ Therefore, the Legislature clearly anticipates the sworn report will contain all or nearly all of the information necessary to remove the offender’s license. In light of this legislative intent, the sworn report cannot be wholly devoid of relevant information. However, so long as a sworn report is filed, it is consistent with the relaxed evidentiary standards of an administrative per se hearing that technical omissions of proof can be corrected by an unsworn report filed by the arrest officer.” [MacDonald v. Gutierrez (2004) 32 Cal.4th 150]
Generally, unsworn statements by public employees admissible under Evidence Code section 1280 may be used to correct “immaterial” or insubstantial (“technical”) omissions of proof as long as the omitted fact or proof does “not affect substantial rights.” [Black’s Law Dictionary, Englebretson v. Industrial Accident Commission 170 Cal. 793]
Unsworn statements cannot be considered unless the arresting officer also submitted a sworn statement in substantial compliance with Vehicle Code section 13380 [MacDonald v. Guiterrez, supra]
A sworn statement absent a probable cause (PC) statement fails to comply with Vehicle Code section 13380 and bars the Department from considering the unsworn report as it is not supplementing or explaining the sworn report.
Both sworn and unsworn reports must first be admissible by meeting all of Evidence Code section 1280’s requirements (for the Official Record exception to the hearsay rule):
(b) The writing was made at or near the time of the act, condition or event.
(c) The sources of information and method and time of preparation must indicate
How can a sworn report be shown to be made at or near the time of the act, condition or event when after it was executed and served, the sworn report added a Probable Cause section from a subsequent, separate unsworn report’s narrative portion?
How can a sworn statement’s time of preparation indicate trustworthiness when the sources of information and method indicate that the PC portion was cut, pasted and incorporated from and after the preparation of another unsworn report?
California law limits the use of “incorporation by reference” and “cutting and pasting”. Requirements for a valid “incorporation by reference” are:
a) The incorporated document must be clearly identified; and
b) The incorporated document must be in existence at the time the document makes reference to it. [In re McNamara’s Estate (1953) 119 Cal.App. 2d 744]
“Incorporated by reference” is defined as “the method of making one document of any kind become a part of another document by referring to the former in the latter.” [Black’s Law Dictionary]
Before the officer references a cut, pasted & incorporated PC narrative portion of the unsworn report, the unsworn report must first be in existence at the time the DS 367 makes reference to that portion by cutting, pasting & incorporating it.
Before the officer references a cut, pasted & incorporated PC narrative portion of the unsworn report, the unsworn report must also be clearly identified.
The unsworn report was obviously prepared before the sworn statement since the sworn statement contains the identical narrative PC portion of the detailed, unsworn report. The cut & pasted portion appears over the 18 available or blank lines provided on Page 2.
The cut, paste & incorporation method of the officer, by Black’s Law Dictionary’s definition, is the officer’s “making one document of any kind (narrative PC portion of unsworn report) become a part of another document (DS 367, p. 2) by referring to the former (unsworn report’s PC) in the latter (DS 367).”
The obvious problem is, in order to logically incorporate into a latter DS 367, a cut & pasted PC portion of a former unsworn report must first be in existence.
One cannot refer to a document unless it formerly exists. Per Black’s Law Dictionary, the “latter” document is the DS 367 since that is where it refers to a “former” narrative PC portion of the unsworn report.
Here, it appears the cut & pasted PC portion of the unsworn report was not even in existence at the time of execution of the DS 367.
Since the DS 367 was prepared before the unsworn report, the unsworn report was not in existence at the time of execution.
This was an improper cutting, pasting and incorporation because this unsworn report was apparently typed and finished AFTER the DS 367 was served.
The DS 367 is prepared upon the officer taking a license, shortly after the arrest or chemical test. The extensive unsworn report was logically finished later, not at the time of the arrest or the test. The officer then copied, pasted & incorporated the PC narrative portion from the unsworn report to the preexisting DS 367. Therefore, there lacks foundation to establish the unsworn report was prepared BEFORE the DS 367.
Additionally, most unsworn reports provide for a Supervisor or Reviewer to review the unsworn report before approving or signing off on it at a later time. This unsworn report was not completed until the review/sign-off process was completed after the DS 367. First, there is no valid cut, paste & incorporation in this case because this unsworn report was apparently prepared and reviewed AFTER the DS 367 (which refers to the PC narrative portion of the unsworn report).
Second, no clearly identifiable document was in existence at the time of execution and service of the DS 367, so there could be no valid cut, paste & incorporation.
Because the officer improperly cut, pasted & incorporated the unsworn report’s PC narrative – in contravention of Vehicle Code section 13380 – the DS 367 Sworn Statement is not in compliance with MacDonald v. Guiterrez. The officer’s invalid cutting, pasting & incorporating essentially creates a situation where the Sworn Statement’s Probable Cause is blank and “devoid of any information relevant to the enforcement action.”
This is tantamount to the PC portion being blank. The Department may be tempted to attempt to use the unsworn report. However, the unsworn report may not be considered because the officer failed to submit a Sworn Statement in substantial compliance with Vehicle Code section 13380. This DS 367 Sworn Statement fails to comply with 13380 because of the absence of a PC statement, caused when the officer improperly cut, pasted & incorporated information from an unsworn report prepared after the preparation & service of the DS 367. As such, DMV is barred from considering the unsworn report as it is not supplementing or explaining the DS 367.
Any 13380 violation bars application of Evidence Code section 664’s presumption that “official duty has been regularly performed.”
“This presumption (also) does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.”
Here, (1) the officer’s failure to print or write the Probable Cause information into the DS 367 when it was prepared, (2) the officer’s impossible / improper cutting, pasting & incorporation tantamount to creating a blank & devoid PC both violate 13380, barring any 664 presumption, and/or (3) the officer’s failure to possibly & accurately report events.
Since Probable Cause concerns the issue of the lawfulness of this arrest, this 664 presumption could not apply.
In sum, there may lack admissible, foundational, sufficient and competent evidence to factually and lawfully prove the issues in the DMV action.
August 1, 2009 is the Mexican American Bar Association day that San Diego California DUI defense attorneyRick Mueller will discuss DUI & DMV -related issues at Loyola Law School's annual DUI seminar.