McNary

Respondent, Michael Gray McNary, was arrested for driving with a blood-alcohol level in excess of .08 percent and received a suspension of his license. He challenged the suspension of his license at an administrative hearing, but the hearing officer upheld it.

Respondent then successfully petitioned for a writ of mandate from the Riverside Superior Court on the basis the administrative record failed to establish the officer who prepared the “Officer’s Statement,” which was admitted into evidence, personally observed respondent’s driving and had reasonable cause to believe that respondent was under the influence at the time he was driving. The court’s minute order shows the court found there was insufficient evidence of respondent’s driving or that the Officer’s Statement’s subscribing officer, S.R. Lee, actually observed the defendant driving the vehicle. The court further found that the Department of Motor Vehicles (DMV) cannot prove the defendant’s driving by “double hearsay.”

DMV now appeals contending that the record is sufficient to establish that the defendant was driving a vehicle while under the influence, that he was lawfully arrested, and that his…