How does Evidence Code Sec. 1280 apply to DMV Hearings
By: Darren Kavinoky | Posted: 07th June 2006
How does Evidence Code Sec. 1280 apply to DMV Hearings
A police officer's statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280, titled "Record by public employee" reads:
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
The California Supreme Court ruled in Lake v. Reed that the unsworn report of the non-arresting officer was admissible under the public employee record exception to the hearsay rule. The DMV may rely on the unsworn report of an arresting officer because it is a public employee record. According to the case Arconti v. Zolin, a writing is admissible under the official record exception to the hearsay rule if it was made:
1. As a record of an act, condition, or event,
2. By and within the scope of a public employee's duty,
3. At or near the time of the act, condition, or event, and
4. The sources of information and method and time of preparation were such as to indicate trustworthiness…
In order to be deemed a trustworthy official record, it must be dated and signed in the proper places, in order for the court to deduce its date of preparation thus evidencing the that the report was made at or near the time of the event. The absence of evidence showing that a report was made at or near the time of the reported event renders the report inadmissible hearsay under Evidence Code Section 1280. An unsworn report that merely listing the test results-whether by the arresting officer or the analyst who conducted the test-would be inadmissible hearsay and therefore incompetent evidence.
An argument that has been made in reference to Evidence Code Section 1280 is that trustworthiness can be inferred based on Evidence Code Section 664 (the official duty presumption). The courts have held that Section 664 does not make up for the qualities lacking in an official record. In order for an official record to be deemed an exception to the hearsay rule, all 3 elements of Section 1280 must be met.
About the Author
Occupation: Lawyer
Darren Kavinoky is a Los Angeles-based criminal defense lawyer who practices throughout California. He is the Managing Shareholder of The Kavinoky Law Firm, an 11-lawyer criminal defense firm that handles criminal defense matters exclusively. Darren has provided legal commentary on Larry King Live, the Today Show, Celebrity Justice and many other TV and radio programs. He is a nationally-renowned lecturer and author who delights in sharing his experience with others. More information about Darren and The Kavinoky Law Firm can be found at http://www.nocuffs.com or www.Californiaduihelp.com and www.gotadui.com.
This article is free for republishing
Printed From: http://www.articlealley.com/article_60525_18.html
Back to the original article
Tags: scope, test results, absence, police report, trustworthiness, sources of information, police officer, reed