Material and necessary PC facts may not be omitted at the time of preparation and service of the DS 367. Unsigned and undated PC portion inadmissible!
AN UNSWORN REPORT CANNOT EVEN BE USED IN 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 officer." [MacDonald v. Gutierrez (2004) 32 Cal.4th 150]
Is DMV barred from using unsworn report?
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
Violation of Evidence Code Section 1280(b) (undated) & CCP 2015.5 (requiring a SIGNATURE for all sworn statements) when officer did NOT SIGN/DATE p.2!
The unsigned and undated PROBABLE CAUSE added to Page 2 of the DS 367 Sworn Statement was cut, pasted & incorporated from a narrative portion of an unsworn report had to have been made after execution & service of the DS 367. Respondent was served with the DS 367 order of suspension.
Any unsworn report was not in existence at the time of the DS 367.
Yet p. 2 of the DS 367 has a NARRATIVE portion of the later prepared unsworn report cut, pasted & incorporated into the Probable Cause portion.
A cut/paste/incorporation of a portion of an unsworn report which has not yet been prepared is a "patent physical impossibility" and obviously fails to "reflect some relationship with the physical world we know" [Manning v. DMV (1998) 61 Cal.App.4th 273]
The cut pasted & incorporated portion cut covers a number of the 16 available PC lines in the DMV DS 367 form.
The form mandates the cut & paste synopsis "MUST BE DATED AND CONTAIN AN ORIGINAL SIGNATURE." The officer failed to date & sign.
Improper cut, paste & incorporation does not cut it.
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 adds 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 indicates the PC portion was cut, pasted & 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; &
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 "the method of making one document of any kind become a part of another document by referring to the former in the latter."
No Evidence Code 664 presumption available as to issue of lawfulness of arrest!
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."
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