Top 5 Officer Mistake Defenses
A Good Place to Look for Mistakes
Top 5 Officer Mistake Defenses
Police officer mistakes are a fruitful place to look for ways to beat DMV at a hearing. Because DMV must prove that an arrest was lawful, any police conduct which violates the motorist’s rights should provide a defense to the DMV action because it should mean the arrest was illegal. Moreover, because the rules of evidence at DMV hearings require properly completed police reports, often an officer’s sloppy paperwork provides a defense to the action. If the reports aren’t prepared properly, they cannot be admitted into evidence, and the hearing officer must set aside the suspension and return a motorist’s license.
Officer Mistake Defense #1
ILLEGAL STOP BECAUSE NO LAW BROKEN
Law enforcement officers actually stop motorists when they think a law has been broken that hasn’t. For example, it is illegal to impede traffic by stopping in the middle of the road, but it is not illegal to stop in the middle of the road if no traffic is behind you. Similarly, weaving within a lane is also not illegal unless it goes on for a pronounced distance. These kinds of stops are common late at night in areas populated with bars, as officers are just looking for reasons to pull people over. In all alcohol-related administrative hearings, DMV has the burden of proving that the underlying arrest was lawful, and this includes any traffic stop that preceded it. If you were stopped for conduct that was actually legal, point out that the arrest was unlawful and be prepared to file a writ and seek your attorney’s fees.
Officer Mistake Defense #2
ILLEGAL SOBRIETY CHECKPOINT
Many administrative hearings follow a DUI arrest at a sobriety checkpoint. These checkpoints are legal only if police follow certain procedures dictated by California and U.S. Supreme Court case law. A motorist can often show these procedures were not followed by obtaining the police agency’s “checkpoint packet” through discovery and introducing it as evidence. In all alcohol-related administrative hearings, DMV has the burden of proving that the underlying arrest was lawful, and this includes any sobriety checkpoint that trapped the motorist. If you were stopped at a sobriety checkpoint, get the “checkpoint packet” through discovery and compare the procedures followed to the requirements in the California Supreme Court decision in Ingersol v. Palmer (1987) 43 Cal.3d 1321.
Officer Mistake Defense #3
POLICE REPORT UNSIGNED/UNSWORN
This defense does not present itself nearly so often as it used to, as now the police reports are checked by both the officer’s supervisor and a DMV employee before the hearing ever begins. But it does happen. The Vehicle Code requires the DS367 form to be signed by the officer under penalty of perjury if DMV is going to use it as evidence against a motorist. If the form is unsigned, it violates the statute and may not be used.
Officer Mistake Defense #4
NO DRIVING/TIME OF DRIVING
In alcohol-related administrative hearings, DMV must show that a motorist was driving with a prohibited BAC. If the DS367 police report form does not contain evidence of driving or time of driving, then it will be very difficult for DMV to establish this element. The one exception is that in accident cases the hearing officer is permitted to draw an inference (if it is reasonable) that an accident in a highly-trafficked area was called in shortly after it happened.
Officer Mistake Defense #5
REPORT CHANGED AFTER DRIVING
This defense is similar to Procedural Hearing Defense #4: Use of Hearsay as Sole Evidence. Because a police report is hearsay, it must be created “at or near the time” of the encounter with the motorist to qualify for the hearsay exception necessary to use it. Later changes in the report (especially more than a few days later) may not be considered “at or near the time” of the encounter and may not qualify for the hearsay exception.