Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver’s license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver’s license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer’s report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court’s ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn’t make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana’s case that set the stage for the Supremes to decide the legislature didn’t mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer’s report wasn’t necessary as the administrative law judge had the officer’s sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called “paper case”), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

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