OTHER WAYS TO ATTACK THE HEARING
Other ways to attack the DMV Hearing.
The DS-367 Must be SignedIn order for the DS-367 form to be used in satisfying the DMV's burden it must be signed by the Peace Officer at the bottom of the form. The document must be signed "under penalty of perjury" and without a signature the document is inadmissible. Most times, the DMV Hearing Officer will subpoena the Peace Officer in order to "clear up" the non-signed document with live testimony. A proper objection would be Evidence Code Section 1280(c), the document lacks trust worthiness. In addition, the DS-367 must be signed "at or near" the date of incident. A proper objection would be Evidence Code Section 1280(b), the document lacks timeliness under Downer v. Zolin (1995) 34 Cal. App. 4th 578. You should be looking for a gap of 5 days or more between the "date of incident" and the "date of signature."
Time FramesIn order for the DMV to comply with CVC 23152(b), they must show that the time of driving and the time of the blood or breath test were within 3 hours of each other.The time of driving and time of the test can be established by the DS-367 or by supporting documents such as a police report. If a timeline cannot be established by the documents then the DMV Hearing Officer will have to subpoena the Peace Officer for live testimony. (This problem occurs when the "time of driving" or the "time of the evidentiary test" are left "blank" on the DS-367 form.) If the timeline cannot be established by the documents or live testimony then the "3 hour presumption" cannot be satisfied and a set-aside is in order. Santos v. DMV, (1192) 5 Cal. App. 4th 537.
Breath Test Results Must be Within .02 of Each OtherTitle 17, 1221.4 (a) (1) states: "For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determination of Blood Alcohol Concentration which do not differ from each other by more the 0.02 grams per 100 milliliter."