How does Evidence Code Sec. 664 apply to DMV Hearings
California Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer's sworn statement, except when it is clear that the trustworthiness is not established when the officer incorrectly reports all the facts in the sworn statement.
Section 664
Section 664, titled "Official duty regularly performed," states:
"It is presumed that official duty has been regularly performed. This presumption 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."
DUI Arrest and Section 664
Upon making a DUI arrest, the police officer prepares an official form that includes the officer's written statement supporting the DMV's suspension of the defendant's driver's license. It is presumed that the officer's official duties have been performed correctly.
The officer has a duty to report the facts of an arrest, including the administration of the chemical test. The courts have regularly held that the report is trustworthy where the report is the result of the direct observations of a public employee who has a duty to observe the facts and report and record them correctly. This constitutes sufficient evidence for the DMV to support the findings justifying the suspension of the defendant's driving privileges.
Section 664 provides the presumption that the blood-alcohol analyses by the officers have been regularly performed. Chemical tests are to be performed according to established standards. Compliance with the regulations establishes both a foundation for admission of test results into evidence in any proceeding and a basis for finding such results to be legally sufficient evidence to support such findings in DUI proceedings. Because of these regulations, the presumption of reliability shifts the burden to the defendant to show the unreliability of the test and the burden of proof is shifted to the defendant to show that official standards were not observed. Where the defendant shows, through cross examination of the officer by the introduction of affirmative evidence that official standards were in any way not observed, the burden shifts back to the department to prove that the test was reliable despite the violation.
If you or a loved one was arrested for DUI, please contact a skilled defense lawyer immediately.
