Downer issues in DMV Hearings

Downer issues in DMV Hearings

"Downer" issues in DMV Hearings

The Downer case dealt with California Evidence Code section 1280, the official records hearsay exception. Hearsay involves any statement made outside of court, offered to prove the truth of

the matter asserted. Forensic laboratory reports are hearsay, because they deal with events and statements that took place in a place outside of the courtroom, and are used to convict the defendant of a crime. However, forensic reports can be entered into evidence under the official records hearsay exception. Section 1280, titled �??Record by public employee�?? states:

�??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 Downer case held that where a report

is not sworn and lacks information indicating its date of preparation, the report is hearsay that does not qualify for admission under the official record exception. In the Downer case, there was more than 5 days difference between analysis and the reporting/certification. In such a case, the report is insufficient, thus not trustworthy. Although the presumption that an official duty is �??regularly performed,�?? under Evidence Code section 664, where the report is not sworn and the date of preparation is not stated, Section 664 cannot apply. 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.�??

An unsworn document does not satisfy Evidence Code section 1280 subsection (a) which requires that the writing be made by and within the scope of duty of a public employee. Where the date of preparation is not clearly stated, subsection (b) cannot be satisfied indicating that the writing was made at or near the time of the act, condition, or event. The main issue in the Downer case was that the 5 days between analysis and certification did not suffice to be made �??at or near the time of preparation.�?? Where neither subsections (a) or (b) are satisfied, the report cannot satisfy subsection (c), trustworthiness. An untrustworthy document does not satisfy any hearsay exception and will not be entered into evidence.

Darren Kavinoky is the founding partner of The Kavinoky Law Firm, a
criminal defense law firm with six offices throughout California. The
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