Arrested? Call or Text Matt 310-686-1533

Just this week Matt saved another driver’s license from a mandatory 1 year suspension in a refusal case in Los Angeles County (See Actual Written Decision Below).

In this case, the client was stopped by a Deputy Sheriff after a 911 call reported a “drunk driver”. The officer claimed he pulled along side the driver and he observed the driver “almost hit a curb” and appeared “disoriented” and a traffic stop was made. Matthew argued the stop of his client was a violation of the 4th Amendment of the Constitution because it lacked reasonable suspicion, the DMV agreed and set aside the suspension action.

When defending a client in a DMV hearing involving a DUI the officer must provide the basis of the initial stop and detention in a form called a DS367 Officer Statement. This form is essentially a pre-printed form with a section that allows the officer to state the reason why the vehicle was pulled over. The purpose of this information is to establish that the arrest was lawful under state and federal constitutional standards. The officer is instructed to give detailed facts of the reason for the stop and arrest. However, in many cases the officer will simply provide nothing more than conclusions such as “observed the vehicle speeding“, or “vehicle made an unsafe lane change”, or in this case “driver appeared disoriented” and was a “drunk driver”. The question becomes: Is this acceptable to base a finding that the arrest was lawful? The answer is no, and in this case the DMV agreed.

Probable cause to stop and investigate is an essential component to the legality of the arrest. Conclusory statements by officers are not sufficient. An affidavit that recites only opinions or conclusions is insufficient. See, Illinois v Gates (1983) 462 US 213, 239, People v Smith (1986) 180 CA3d 72, 86. (The [finder of fact] “must be presented facts and not conclusory statements if he is to perform his detached function and not become a rubber stamp for the police”). People v Pellegrin (1977) 78 CA3d 913, 916. Moreover, An officer’s subjective opinion that an individual’s driving is unusual, does not justify a detention in the absence of objective probable cause that there was a violation of the vehicle code. Taylor v. Department of Motor Vehicles, (1995) 36 Cal. App. 4th 812.

Arrested? Call Matt 310-686-1533

Probable cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. (See Dibble vs. Gourley (2002) 103 Cal.App.4th 496). A sub-issue of the lawfulness of arrest is whether there was reasonable suspicion to stop and detain in the first place. The case law, Solivij v. Gourley, (2001) 87 Cal.App.4th 1229 states, “In order to justify a stop or detention the officer must have specific and articulable facts causing him to suspect that some activity relating to a crime has taken place, is occurring or is about to occur, and that the person detained is involved in that activity.”

A conclusionary statement made by a peace officer on a DS 367, 367M is insufficient probable cause to support a finding. The reason is simple, the officer has not provided observational facts which the hearing officer can use to independently judge whether the maneuvers of the vehicle observed by the officer constituted erratic driving or a violation of the law. A conclusion in the officer statement substitutes the officer’s opinion for that of the hearing officer and by accepting that opinion without sufficient facts is nothing more than a “rubber stamp” of the officer’s opinions and takes away the role of the hearing officer as a neutral finder of fact. When nothing but conclusions are presented in the DS367 the officer is saying, believe what I say, because I say it. The law requires the officer to state observations and facts, not conclusions.

In this case the officer reported the driver “appeared disoriented” and “almost hit a curb”. But in the absence of any underlying facts as to why the officer believed the driver was disoriented or why he believed he almost hit a curb, these statements are entitled to little, if any, weight in the probable cause analysis

As observed by the Court in United States vs. Cervantes (9th Cir 2012) 703 F. 3d 1135: “One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice. 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See also Illinois vs. Gates, 462 U.S at 239, (noting that “wholly conclusory” statements of officers are insufficient to establish probable cause); United States v. Ventresca (1965) 380 U.S 102, 108-109 (noting that “purely conclusory” statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States (1933) 290 U.S 41, 47 noting that an officer’s “mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances” is insufficient to establish probable cause”.

Arrested? Call Matt Now 310-686-1533

Indeed, the DMV Driver Safety Manual specifically states: “If the probable cause is not sufficiently stated in the sworn report or other accompanying evidence, arrest or investigation report, the officer will have to be subpoenaed to describe the observations that led to the contact.”

The DMV Driver Safety Manual further provides: “Peace officers occasionally record conclusions instead of observed facts on the DS 367. For example, instead of writing “observed subject driving a vehicle at 50 mph in a 25 mph zone,” the officer writes “observed subject speeding”. Other conclusionary statements may be weaving, illegal turn, illegal maneuver, reckless driving, improper lane use, unsafe lane change, unsafe backing or failed to stop. The officer’s observed facts are necessary because probable cause to stop/investigate is a component of the lawful arrest issue. Section 664 of the Evidence Code specifically precludes using the official duty presumption to support the lawfulness of an arrest. This makes sense under our system of law, because without this exception, respondents would bear the initial burden to prove their innocence instead of the other way around.” (DMV Driver Safety Manual, pages 12-27 and 12-28).

Following the decision in Solovij, the DMV issued a memo to all law enforcement agencies. The memo goes on to state, in clear terms, that “probable cause must be articulated in as much detail as possible”. It mentions that the relevant facts necessary to support the initial stop must be contained in the DS-367 form.

Matthew is a Top Tier DUI Attorney in Torrance California with 30 years experience fighting and winning for clients in tough cases. Exposing police misconduct and false arrests are some of the many ways Matthew wins driving under the influence cases in Southern California.

With dozens of jury trials and hundreds of DMV victories, Matt enjoys the reputation of being the best refusal attorney in Los Angeles and throughout Southern California.