Delays in Preparation of California DUI Arrest Reports Invite Objections

California DUI lawyers will be objecting to delayed California DUI police reports - not prepared or completed on the date of arrest - even before the new California Drunk Driving Law book will be released soon.

That is because Glatman v. Valverde (1995) 34 Cal. App. 4th 578, 40 Cal. Rptr. 2d 28 held that compliance with California Evidence Code § 1280 is mandatory, not discretionary.

California DUI lawyers can use the Glatman decision as it has some truly great language in it mandating compliance with Evidence Code § 1280.

The California DUI facts in Glatman disclose that a Forensic Alcohol Examination Report was prepared by the Sheriff-Coroner Department's Forensic
Science Services on August 1, 2005:

At 12:30 a.m. on July 25, one hour after Mr. Glatman's arrest, his blood was drawn for a blood-alcohol concentration (BAC) test. That same day a
forensic analyst at the Sheriff-Coroner's Department analyzed the blood sample and determined Mr. Glatman's blood alcohol concentration as
0.137%. The next day, another Sheriff-Coroner's Department analyst analyzed the sample and determined that Mr. Glatman's BAC was 0.135%. The two
analysts certified these test results by their signatures dated August 1, 2005, on the Forensic Alcohol Examination Report, one week after Mr. Glatman's
blood was drawn. From this information, the Glatman Court held that the results of Mr. Glatman's blood alcohol concentration (BAC) tests were not
timely recorded, as required to bring them within exception to hearsay rule.

"Although appellants assert the analysts promptly entered the test results into a computer database, the record contains no support for this assertion... And while appellants point out that the Forensic Report was prepared only five working days after the date of Glatman's arrest, memory is subject to erosion with every day that passes, whether working or nonworking."

California DUI lawyers can vigorously object based on the statement in the Glatman decision that 93memory is subject to erosion with every day that passes, whether working or nonworking' can be used to not only object to the admissibility of chemical test results based on Evidence Code A7 1280(b), but also of any other hearsay document, such as an Officer's Sworn Statement (DS-367), or arrest report that was prepared untimely.

California DUI lawyers' hearsay and foundational objections are based on the delay between the date of arrest and the date when the officer prepared the arrest report.

California DUI lawyers will successfully contend the officer's report is inadmissible hearsay evidence under Evidence Code section A71280 because it was not made at or near the time of the event, according to Glatman v. Valverde (2006) 146 Cal.App.4th 700: 93[M]emory is subject to erosion with every day that passes, whether working or nonworking.

California DUI lawyers point out Glatman found a 93danger of inaccuracy caused by lapse of memory' citing Martinez, supra, 22 Cal. 4th at p. 128. DMV in Glatman conceded 93that, if the analysts relied on memory, even a lapse of one day could cast serious doubt about whether such recordation was made sufficiently 'at or near' the time of testing to be 'deemed trustworthy'.

California DUI lawyers add Glatman determined the record contained no support for DMV's assertion that the analyst promptly entered the test results into a computer database. The opinion suggested DMV could not infer that policies and procedures were in place to ensure the timely recordation of results if the record is silent as to that governmental department's recording policies and procedures.

Rejecting DMV's 93trustworthy' and 93inference' arguments, California DUI lawyers easily echo Glatman's required showings: But an inference may be drawn only if the 'proposed conclusion is a reasonable, logical, and nonspeculative deduction from the facts proved. (citation omitted). Here, the record is silent as to (1) the department's recordation policies and procedures, (2) any automatic recording capability of the testing equipment used, and (3) the average number of tests performed by an analyst each day.'

If the number of days between the date of arrest and the date the arrest report was prepared shows a delay or is too long under Glatman, DMV cannot
infer that the policies and procedures were in place to ensure that the reported facts were entered in a timely fashion because the record here is silent as to that issue.

California DUI lawyers know DMV must subpoena the officer for testimony of either: a) the true report date or b) the policies and procedures of recordation in order to create an inference under Evid. C. 664.

AS TO ANY DMV POSITION THAT HEARSAY EVIDENCE CAN BE USED TO 93SUPPLEMENT' THE REPORT: THAT MAY BE TRUE AS TO 93TRUSTWORTHY' HEARSAY EVIDENCE, BUT GLATMAN HOLDS THAT 93UNTRUSTWORTHY' HEARSAY EVIDENCE CANNOT BE USED AT ALL IN AN APS HEARING BECAUSE UNTRUSTWORTHY HEARSAY IS INADMISSIBLE.

California DUI lawyers read of Glatman suggests hearsay evidence prepared even a day after the event is untrustworthy. Since it is untrustworthy, it is inadmissible. DMV cannot overcome untrustworthiness by responding that hearsay evidence can be used to 'supplement' under MacDonald v. Gutierrez (2004) 32 Cal.4th 150. That would be an unlawful application of MacDonald because the Supremes did not hold hearsay evidence that is otherwise untrustworthy is admissible anyway if it supplements the report.

An arrest report was prepared a day or more after the event. As such, it is inadmissible under Glatman because it is considered untrustworthy. MacDonald does not permit these reports simply because they could ' supplement.' Untrustworthy hearsay evidence is never admissible, point out California DUI lawyers.

California DUI lawyers query - What about DMV's policy to subpoena the officer if there is nothing in the PC narrative of the DS367 and the arrest
report is dated over one day late?

In light of California DUI lawyers' Glatman objection, if DMV moves for a continuance, Respondent's California DUI lawyer objects for lack of good cause in that there has been no new evidence presented and DMV should have initially subpoenaed the reporting officer in a timely fashion. Since DMV did not subpoena the officer, the inadmissible report cannot be relied upon.

As such, Respondent's California DUI lawyers request DMV to set aside the license suspension action.