Can The DMV Suspend A License When They Lack A Sworn Report (DS367)

 

In California, a driver may compel the 

set aside of an administrative license suspension if the DMV fails to provide a sworn statement in compliance with Vehicle Code (VC) § 13380. Under this section, an arresting officer must "immediately forward to the department a sworn report of all information relevant to the enforcement action".

The following legal arguments are typically used to contest a suspension based on this violation:

1. Violation of Mandatory Statutory Duty

Under VC § 13380, the requirement for a sworn report (typically the DS 367 form) is a mandatory duty imposed upon law enforcement.

• The Argument: The DMV lacks jurisdiction to sustain a suspension if the foundational document—the officer's sworn statement—is missing, unsworn, or fails to contain the "grounds for belief" that the driver was in violation of DUI laws.
• Basis for Set Aside: A "Set Aside" signifies that the Hearing Officer found no factual or legal basis for the original suspension. Without a sworn statement, there is no competent evidence to meet the DMV’s burden of proof.

2. Inadmissibility of Unsworn Evidence

While the DMV can use unsworn reports (like a standard narrative police report) to supplementor explain a sworn statement, they cannot rely solely on them if the sworn statement is fundamentally flawed or absent.

• MacDonald v. Gutierrez (2004): The California Supreme Court held that while "technical omissions" in a sworn report can be corrected by an unsworn one, the sworn report cannot be "wholly devoid of relevant information".
• The Argument: If the DMV provides no sworn statement, any other evidence (e.g., unsworn arrest reports) is inadmissible hearsay under Evidence Code § 1280 (the public records exception), because the specific foundational requirements of VC § 13380 have not been met.

3. Failure to Satisfy the Burden of Proof

In an Administrative Per Se (APS) hearing, the DMV must prove three specific issues: (1) the officer had reasonable cause to believe the person was driving under the influence; (2) the person was placed under lawful arrest; and (3) the person was driving with a BAC of 0.08% or higher.

• The Argument: VC § 13380 requires the sworn report to include the officer’s "grounds for belief" and chemical test results. If this sworn statement is missing, the DMV has failed to provide "competent evidence" to support any of the three required findings