Fitzpatrick

Mark Fitzpatrick appeals from the denial of his petition to set aside an order by the Department of Motor Vehicles (DMV) suspending his driving privilege for one year for failure to submit to or complete a chemical test of his breath, urine or blood to determine his blood-alcohol level. (Veh. Code, §§ 23157, 13353.) We find Fitzgerald was improperly denied the opportunity to confront and cross-examine the police officer who accused him of failing to take the tests. Therefore, we reverse and remand the matter to the trial court for further proceedings.

Facts and Proceedings Below

The facts relating to Fitzpatrick’s alleged failure to comply with the testing requirements are contained in a sworn statement accompanied by an arrest report and breathalyzer test results submitted to the DMV by Los Angeles Police Officer Mario Cruz in accordance with Vehicle Code section 23158.2.

Officer Cruz stated that at approximately 9 p.m. he observed Fitzpatrick exit from a private driveway without yielding to oncoming traffic. Fitzpatrick then ran a red light and drove 60 m.p.h. in a 35 m.p.h. zone. When stopped, Cruz observed Fitzpatrick had bloodshot, watery eyes, an unsteady gait,…