Form DS-367 is a form prepared by the DMV that must be filled out by a police officer who serves a driver with a notice of license suspension. This is the document that the DMV primarily relies on at a driver’s APS hearing, and that a San Diego DUI attorney must try to exclude. The document is hearsay, however the DMV generally considers the document under the “record by public employee” exception, established by evidence code section 1280. Under evidence code section 1280(c), a record by a public employee is admissible only if the sources of information and method and time of preparation indicate its trustworthiness.
California vehicle code section 13380 says that “if a peace officer serves a notice of an order of suspension pursuant to section 13388, or arrests any person for a violation of section 23140, 23152, or 23153, the peace officer shall immediately forward to the Department a sworn report of all information relevant to the enforcement action…” The DMV officer relies on the presumption established by California evidence code section 664, which provides that it is presumed that an official duty has regularly been performed. The DMV officer will reason that police have an official duty to accurately complete the DS-367 form; an official duty is regularly performed; therefore the DS-367 is trustworthy.
The way to win a DMV hearing is to rebut the presumption that an official duty was regularly performed under California evidence code section 664. To rebut this presumption, it must be shown that an officer failed to perform his official duty in some respect, calling into question whether he actually performed his official duty in other respects, there by rebutting the presumption.
For example, suppose that the officer records on the DS 367 that he observed a defendant driving at 2:00 AM, but also records that he administered a breath test to the subject at 1:00 AM. The officer as a duty under vehicle code section 13380 to accurately complete the DS 367 form. If the officer did not observe the defendant driving until 2 AM, then it is not possible that he administered a breath test at 1 AM. Therefore, the officer did not completely and accurately record all the relevant information. A good San Diego DUI defense attorney will argue that the presumption that the officer regularly performed his official duty is rebutted.
Once the 664 presumption (named for evidence code section 664) is rebutted, the DMV officer no longer can rely on evidence code section 664 to satisfy the trustworthiness requirement of evidence code section 1280, and the DS-367 is not admissible.
Although this argument is logical and correct, it does not usually succeed because the DMV officers have an agenda to sustain as many license suspensions as they can, and the hearing officer plays judge, jury and executioner. Some hearing Officers are worse than others and will sustain a suspension almost no matter what. Others will generally sustain the suspension but may cancel the suspension if it is a clear cut case in favor of the driver.
It is possible to appeal the DMV’s finding within the DMV by asking for a “departmental review.” When you request a departmental review, supervisory personnel review the hearing officer’s findings. 99% of the time the departmental review doesn’t change anything.
The best chance for success in “appealing” a finding against you by the DMV hearing officer is to file a