Read And Understand Your DMV Discovery Packet
As a matter of course, the Department of Motor Vehicles (DMV) sends a basic “discovery package” to every motorist who requests a hearing to challenge an action against a driver’s license. For drinking/driving hearings, this discovery package usually consists of a cover page (form DS 2044-R), the officer’s sworn statement (DS 367 or Ds 367M for motorists under 21), any unsworn arrest/incident report required by the officer’s agency (like the California Highway Patrol 202 form), a driving record printout, and any chemical breath test or blood test results intended to be used at the hearing.
The first thing to examine is the cover page. It contains a list of check boxes that identify the documents enclosed and, perhaps more importantly, a list of witnesses that DMV intends to call at the hearing. The DMV hearing process is designed to rely only on the documents listed; the vast majority of hearings are done without any witnesses. In fact, experienced DMV attorneys know that if DMV lists an officer on the cover page, that is probably a signal that the paper evidence is lacking something necessary to sustain a suspension. If the cover page in your case lists a witness, an experienced DMV attorney could help you exploit this weakness and beat DMV.
Sworn Statement (DS 367)
The DS 367 form is the meat and potatoes of the DMV case against a motorist in a drinking/driving case. If it is prepared properly, it should suffice to suspend a license and be upheld by a court. Fortunately, law enforcement officers rarely complete the form perfectly, often resulting in defects fatal to DMV’s case. If your DS 367 contains any of the following problems, contact us immediately and we can help. is a major focus at the Law Office of Rodney Gould in Sherman Oaks. If you prefer to call, our number is 818-570-6989.
- More than a week before DMV received the form. An officer has only five days to complete the form and send it to DMV. If the “DMV Received” date stamped on the top of the form is more than, say, a week from the arrest date, it suggests that the officer failed to satisfy this five-day deadline. While that alone will not win a hearing, coupled with other problems, it can suggest the document is not reliable and can void the hearsay exception DMV uses to rely on the document instead of live testimony.
- Wrong box checked. This part of the form is meant to give the driver notice of the type of hearing to be held, e.g., a DUI probation case, a commercial driver case, a case involving blood alcohol content (BAC) of .08 percent or more, or a refusal case. The type of hearing is important because it puts the driver on notice of the penalties he or she is facing. If the wrong box is checked, it can be a denial of due process to suspend a license — at least without granting a continuance to prepare for the right kind of hearing.
- Improper timeline. The officer must record the times of three events on the DS 367’s first page: the time of driving, the time of the arrest and the time objective symptoms of intoxication were observed. Use common sense here to make sure the timeline is even possible, e.g., did the officer say the arrest happened before the observed driving?
- Is the breath test recorded? If the officer failed to record the results in a breath test case, it is unlikely DMV can suspend your license.
- Unsigned. It is not a sworn statement if it is not signed under penalty of perjury.
- Refusal questions blank. It is astounding how many times officers fail to complete these questions in a refusal case. On the back side of the DS 367’s first page, the officer is supposed to detail the admonishment given the motorist and the motorist’s response. If this section is blank or incomplete, DMV will have a hard time sustaining a refusal suspension without the officer’s live testimony.
- Officer statement (“probable cause statement”) blank or insufficient. Did the officer skip page 2? If so, DMV will be hard-pressed to prove the lawful arrest element of its case. Similarly, did the officer just write down legal conclusions (“subject was speeding”) instead of facts that support the stop (“subject was travelling 45mph in a 30mph zone”)? Is the sole evidence of the reason for the stop a statement by a civilian? If so, it is hearsay and DMV needs to subpoena that witness to show that the stop was legal.
Unsworn Police Report
The hearing process is built around the DS 367 and is designed to make the unsworn police report irrelevant. However, the motorist is well-advised to read the report carefully, as there are often inconsistencies between it and the DS 367 that can be exploited. Common examples are inconsistent timelines between the two documents, improper cut and paste techniques from previous arrests and even a write-up that suggests the motorist was completely sober.
Often, a motorist can use the unsworn police report to create a strategy that discredits the DS 367 and either wins the hearing outright or requires DMV to reconvene the hearing illegally, setting up for a writ and attorney’s fees.
Driving Record Printout
Because the printout is just a paper copy of DMV’s computer record, there is usually little to be used by the motorist at the hearing. However, the motorist should review the list of convictions and accidents carefully for accuracy, as prior convictions will increase the period of any suspension imposed after the hearing.
Chemical Test Results
In breath test cases, the officer knows the test results at the time of the detention, and there is no reason not to record them in the DS 367. Often, the officer will include a copy of those results with the DS 367; in such cases, the motorist should compare the times and BACs on the breath strip with those written in the DS 367. Inconsistent numbers may cast doubt on DMV’s entire case, and at a minimum may suggest the DS 367 is unreliable and inadmissible.
A blood test report may offer more ammunition for the motorist; because the results are not known until the blood is analyzed later, the officer does not know the BAC at the time he or she completes the police reports. Thus, the blood test report is the only evidence of BAC in the case. Things to look for are whether it was prepared “at or near the time” of the test on the date of the analysis, whether it was signed by a Title 17 employee and, in cases where the motorist did a preliminary alcohol screening (PAS) test as well, whether it might support a rising blood alcohol defense.
The Fine Print
Prior to conducting an administrative hearing, DMV must provide “discovery” to any motorist who requests it. Government Code section 11507.6 allows a broad scope of discoverable items: not only names and statements of witnesses, but also any “thing which is relevant and would be admissible in evidence.” Because of the shortened deadlines for driver’s license hearings, the longer discovery deadlines of Government Code section 11507.6 do not apply. Instead, California Code of Regulations Title 13 section 115.05 requires at least 10 days’ advance notice of requested discovery prior to the hearing.
One of the most common areas of success is the identification of hearsay evidence that doesn’t qualify for a hearsay exception under the Evidence Code. While hearsay evidence is admissible at a DMV hearing, Government Code section 11513(c) says DMV must find a hearsay exception to use it as the sole evidence to support a finding necessary for a suspension.
Usually DMV uses the Public Employee Records Exception of Evidence Code Section 1280 because the documents are all created by public employees. To use the public employee records hearsay exception, DMV must show three things: (1) that the record was made by and within the scope of duty of a public employee, (2) it was made at or near the time of the event (usually within a few days) and (3) that the source is trustworthy.
It is this last element that provides the most hope, as all the mistakes an officer makes in a report can be used to show that the source of the report (the officer) is not trustworthy. If it’s untrustworthy, the exception doesn’t apply, and DMV cannot legally suspend a license.
EC 1280, GC 11507.6, GC 11513(c)