Motion for Writ in Katlyn Taylor Guinn vs George Valverde| Trellis.Law

On June 30, 2016 a Complaint,Petition was filed involving a dispute between Guinn, Katlyn Taylor, and Valverde, George, for 02 Unlimited - Writ of Mandate in the District Court of Fresno County.

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JeffreyT. Hammerschmidt, #131113

z/|LEDrn)
Mark A. Broughton, #079822
Christina A. Roberson, #284512
HAMMERSCHMIDT BROUGHTON LAW CORPORAT
2445 Capitol Street, Suite 150
Fresno, CA 93721
Tel: (559) 233-5333 JUN 3.0 2016
Fax: (559) 233-4333 S| UPERIOR COU! neUA
TY OF
Attorney for Petitioner, Katyln Taylor Guinn

SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO

Case Ni
LOCECE 02072
10 KATLYN TAYLOR GUINN
PETITION FOR JUDICIAL
il Petitioner, REVIEW/ADMINISTRATIVE WRIT OF
MANDATE; REQUEST FOR STAY AND
12 VS. ACCOMPANYING POINTS AND
GEORGE VALVERDE, DIRECTOR OF THE) AUTHORITIES [Code of Civ. Proc
13
DEPARTMENT OF MOTOR VEHICLES. 1085, 1094.4 & 1104; Veh. Code §13559]
14 STATE OF CALIFORNIA
Date:
i5 Respondent. Time 2255
gS2e2
Dept. SzSe5
16 F323 SS

17
wv AVY Y2>
18 TO: GEORGE VALVERDE, DIRECTOR OF THE DEPARTMENT OF MOTOR!
19 VEHICLES AND THE ABOVE ENTITLED COURT:
20 Petitioner, KATLYN TAYLOR GUINN, by and through undersigned counsel, petitions
21 this Honorable Court for a Writ of Mandate under Veh. Code § 13559, directed to Respondent,
22 George Valverde, Director of the Department of Motor Vehicles, and by this Verified Petition
23 alleges as follows.

24 1 Petitioner is now, and at all times mentioned herein, a resident of the County of
25 Fresno, State of California.

26 2 Petitioner was arrested for an alleged violation of Veh. Code §§ 23152(a)(b) b
27 the California Highway Patrol (“CHP”) of Fresno, California, on January 24, 2016.
28

° °
3 Prior to her arrest, Petitioner was the holder of a valid California Driver’s License

Number D8133893, issued by the Respondent, Department of Motor Vehicles.
4. Petitioner’s valid California Driver’s License was seized at the time of her arrest
by Officer Scott Zschau of the CHP.
5 Respondent is the Director of an agency of the State of California, empowered b
Veh. Code § 1650 to administer and enforce the provisions of the Vehicle code. See also
Government Code § 11150.
6. On May 4, 2016, the Department of Motor Vehicles conducted an Administrative
Per Se Hearing under the authority of Veh. Code §§ 13353 and 13558, which was held at thd

10 Office of the Department of Motor Vehicles, Licensing Operations Division, in the County of
11 Fresno, before Hearing Officer D. Pearce. Undersigned counsel’s office represented Petitioner at
12 the Administrative Per Se hearing.
7
13 The issues at the Administrative Per Se hearing, as specified by statute, were:
14 a) Did the peace officer have reasonable cause to believe that Ms. Guinn had been!
15 driving a motor vehicle in violation of Section 23140, 23152, or 23153?

16 Q) Was Ms. Guinn placed under lawful arrest?
17 @) Was Ms. Guinn driving a motor vehicle with .08 percent or more, by weight of
18 alcohol in her blood?
19 Veh. Code §§ 13357(b)(2), 13558(c)(2).
20 8 The Department introduced Exhibits in evidence at the hearing, including the
21 following:

22 (1) Officer’s Statement (DS367) — copy of original unsigned.
23 Q) Officer’s Statement (DS367) - signed.

24 @) Evidential Test.
25 4 DMV Driver Record Printout.

26 Ms. Guinn entered the Mobile Video and Audio Recording System (MVARS) disc as
27 Licensee Exhibit A.

28 The Department called Officer Scott Zschau to testify.

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This application is made on the ground that Respondent’s decision to suspend Petitioner’s
license is invalid under California Code of Civil Procedure § 1094.5. Respondent’s findings are
not supported by the weight of evidence, thus constituting a prejudicial abuse of discretion. Thd
evidence did not establish that Officer Zschau had reasonable cause to detain Petitioner, as thig

detention does not constitute a “welfare check” and he did not observe the violation of any|
Vehicle Code section or other law. The evidence did not establish that Officer Zschau had|
probable cause to arrest Petitioner, as the misdemeanor did not occur in his presence and none off
the exceptions to the presence requirement apply.
9 On June 21, 2016, 48 days after the hearing occurred, the Hearing Officer issued a
10 decision suspending Petitioner’s driving privilege. In the Decision, the Hearing Officer made a
11 finding that “the peace officer had reasonable cause to believe [Petitioner was] driving a motor
12 vehicle,” and that she was “placed under lawful arrest.” These findings are unsupported b:
13 evidence as no reasonable cause existed to detain Petitioner, she was not driving, and her arrest
14 was illegal as no misdemeanor occurred in the officer’s presence.
15 10. Petitioner has been employed as a Medical Assistant at Peachwood Medical
16 Group for almost two years. If her license is suspended, she does not have any other form off
17 transportation that will reliably get her to work. She lives approximately 12 miles from her plac
18 of employment, and there are no bus stops close to her home.
19 11. Petitioner is beneficially interested in this action in that Petitioner is a party|
20 directly affected by the Department’s supsension of her driving privilege. Petitioner was denied|
21 her right to a fair hearing when the Hearing Officer acted in an arbitrary and capricious manner]
22 in rendering a decision in violation of Veh. Code § 13357. The Hearing Officer’s Findings and

23 Decision are arbitrary and capricious as the evidence did not establish that Petitioner was
24 driving.

25 12. Petitioner does not have a speedy and adequate remedy at law in that there is no
26 adequate appeal process available for Petitioner from Respondent’s June 21, 2016 Notice off

27 Decision. Petitioners only method of review is by Writ of Mandate to this Court, as provided b
28 Veh. Code § 13559.

° °
WHEREFORE, Petitioner prays that:
1 This Court review the Order of the Department of Motor Vehicles, set aside the
suspension abritrarily entered against her, and order Petitioner’s Driver’s License reinstated andj
returned to her;

2 Pending final Judgment of the Court in this matter, Respondent be Ordered to stay|
the operation of the Order suspending Petitioner’s privilege to drive an automobile in the State of
California until final judgment on the merits of the instant Petiton has been entered;
3 This Court order Respondent to pay attorney’s fees pursuant to Government Code
§ 800 and costs pursuant to Code of Civil Procedure § 1095.5(a); and
10 4 For such other and further relief as this honorable Court may deem just and

11 proper.
12 Dated: June d 1 2016 Respectfully Submitted,

13
te—
14 Jeffrey T. Hammersc! dt
Attorney ‘for Petitioner,
15 Katlyn Taylor Guinn
16

°
I, the undersigned, declare the following:
1 I am the Petitioner in the above-entitled action.
2 I have read the foregoing Writ of Mandate and Petition for Alternative Writ of
Mandate and know the contents thereof; the same is true of my knowledge, except as to thosq
matters which are therein stated on my information and belief as to those matters I believe them]
to be true.

3 I have been employed as a Medical Assistant at Peachwood Medical Group for]
almost two years. If my license is suspended, I do not have any other form of transportation that
will reliably get me to work. I live approximately 12 miles from my place of employment, and|
10 there are no bus stops close to my home.
11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct.

13 Dated: June 24, 2016
14

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MEMORANDUM OF POINTS AND AUTHORITIES
I.
SUMMARY OF ARGUMENT
This Court has the authority to review decisions of the Department of Motor Vehicles
under an “independent review” standard. These decisions are reviewed when the findings o1
order are not supported by the evidence, or when the order is not supported by the findings. In)
the present case, the evidence received at the hearing does not support the Department’s order off

suspension of Petitioner’s license.
In order to support a suspension of Petitioner’s license, the Department must prove that,
10 Petitioner drove with a blood alcohol concentration of 0.08 or greater. When defining “drive,”

11 California courts have consistently held that driving requires a volitional movement. Further, in
12 order to effectuate a lawful arrest, the officer must observe the misdemeanor violation. In DU]

13 cases, there are exceptions to the presence requirement.
14 In the present case, no driving was observed. Therefore, the officer did not observe aj
15 misdemeanor in his presence. None of the exceptions to the presence requirement apply as

16 Petitioner was not involved in an accident and the vehicle did not create an obstruction.
17 Therefore, Petitioner’s arrest was illegal, and this writ of mandate should be granted.

18 Il.

19 FACTUAL SUMMARY

20 On January 24, 2016, Officer Scott Zschau of the California Highway Patrol approached|
21 Ms. Guinn’s vehicle parked on the right shoulder of American Avenue near SR-41.' Officer
22 Zschau stated in his report that his “attention was drawn to the suspect vehicle (SV) a white Kia
23 Optima” and that this vehicle was parked “directly in front of a white Chevy Cobalt with tha
24 hood raised.” (Report of Officer Zschau, p. 3 of 5.) According to his report, Officer Zschau
25 initially approached the parties that were with the vehicle with its hood raised “to see if the
26

27
> The transcript and record from the hearing on May 4, 2016 have been ordered by Petitioner, but not yet received.
28 Factual assertions are taken from the recollection of counsel for Petitioner and from Department’s Decision, and
Petitioner reserves the right to clarify these assertions upon receipt of the record.

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needed assistance.” (Id.) After determining that the Chevy had overheated, but the occupants
were not in need of assistance, Officer Zschau approached the occupant of the Kia, Ms. Guinn.
Ms. Guinn’s vehicle was simply parked on the shoulder, and did not display any signs off
distress. Her vehicle was not obstructing any roadway, and it was parked so far over on thd

shoulder that Officer Zschau felt safe approaching from the driver’s side. After an investigation.
Officer Zschau arrested Ms. Guinn for a violation of Vehicle Code section 23152(a)/(b).
ill.

LAW AND ARGUMENT

A WRIT OF MANDATE IS THE PROPER REMEDY FOR JUDICIAL REVIEW OF,
10 AN ADMINISTRATIVE ACTION.
11 Vehicle Code §§ 1359 and 14401 vest jurisdiction for judicial review of any order of the
12 Department suspending the privilege of a person to operate a motor vehicle in the court off
13 competent jurisdiction in the person’s county of residence. California Code of Civil Procedure §
14 1094.5 provides a method through administrative mandamus by application to the superior court.
15 Under either code section, the superior court must apply the “independent judgment” standard
16 for its review of “whether the DMV’s determination standard is supported by the evidence in the
17 record.” (Coomps v. Pierce (1991) 1 Cal.App.4"*, 568, 576.)

18 Mandamus is a remedial writ used to correct those acts and decisions of administrative
19 agencies which are in violation of law, but also to annul or restrain administrative action alread

20 taken which is in violation of law. (Wilson v. Los Angeles County Civil Service Commission
21 (1951) 103 Cal.App.2d 426.)
22 In the instant case, Petitioner requested and was granted a formal hearing before the
23 Department. Subsequent to the hearing, and pursuant to Vehicle Code Section 13353.3
24 subdivision (b)(2), the Department suspended Petitioner’s driving privilege for a period of fouy

25 months. This suspension will take effect on June 30, 2016.
26
Code of Civil Procedure § 1094.5, subdivision (b), provides:
27
The inquiry in such a case shall extend to the questions whether respondent has
28 proceeded without, or in excess of jurisdiction; whether there was a fair trial; and

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whether there was any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner required by law, the
order of decision is not supported by the findings, or the findings are not
supported by the evidence.
(emphasis added)

Accordingly, this court may exercise jurisdiction to determine whether the decision
rendered is supported by the evidence presented at the hearing and whether the Department, in
rendering its decision, acted arbitrarily, capriciously, exceeded its constitutional and statutory
authority, or made an erroneous interpretation of the law.
In the instant case, the Order of Decision does not support the evidence. Hearing Officer
Pearce found that there was reasonable cause for the detention of Petitioner and probable caus¢
10
for her arrest. Hearing Officer Pearce supports the reasonable cause for detention with the
11
concept of a “welfare check,” but there was no indication that Petitioner or her vehicle were in
12
distress when he approached. In fact, Officer Zschau had already determined the reason that the
13
vehicles were stopped on the side of the road when he approached Petitioner’s vehicle.
14
Furthermore, no violation of any law occurred in the officer’s presence, as required for aj
15
misdemeanor arrest under Penal Code section 836. Likewise, none of the exceptions for DU]}
16
arrests contained in Vehicle Code section 40300.5 apply. Therefore, the findings of Hearing
17
Officer Pearce are not supported by the evidence presented in the hearing.
18
Since the order of the decision contradicts the evidence presented, the Department’
19
decision is arbitrary and capricious. Therefore, this decision should be examined under an
20
independent judicial review.
21

22 B. THE RIGHT TO DRIVE IS FUNDAMENTAL AND SUBJECT TO THE
PROTECTION OF INDEPENDENT JUDICIAL REVIEW OF THE RECORD, AS
23 WELL AS THE ADMISSION OF ADDITIONAL EVIDENCE.
24 When an administrative decision affects a right which has been legitimately acquired o7
25 is otherwise vested, and when that is right of a fundamental nature from the standpoint of its
26 economic aspect or its effect in terms of the importance to the individual in his life situation, 4
27 full and independent judicial review of that decision is indicated because the abrogation of the
28 tight is too important to the individual to relegate it to the exclusive administrative extinction.

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(Bisby v. Pierno (1971) 4 Cal.3d 130.) Once an agency has exercised its expertise and issued a
license, the agency’s subsequent revocation or suspension of that license generally calls for an
independent review of the facts, because the revocation or suspension affects a vested right
(Fink _v. Prod (1982) 31 Cal.3d 166.) Once issued, retention of a driver’s license has been

considered to be vested. (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70.)
The court may consider additional evidence if, in the exercise of reasonable diligence, the

court finds that such evidence was both relevant and improperly excluded at the hearing before
respondent. (Code of Civ. Proc., § 1094.5(e).)

In the instant matter, the Department is seeking to impose a license suspension in
10 violation of Vehicle Code § 13353.3(c).

il Therefore, this Court should intervene to ensure Petitioner’s vested right to drive is not

12 further infringed upon.
13
c THE HEARING OFFICER ACTED IN_AN ARBITRARY AND CAPRICIOUS
14 MANNER __BY _SUSPENDING _ PETITIONER’S _ LICENSE WHEN _ THE
EVIDENCE PRESENTED DURING THE HEARING FAILED TO ESTABLISH
15 BY A PREPONDERANCE OF THE EVIDENCE, THAT REASONABLE CAUSE
EXISTED TO DETAIN PETITIONER.
16

17
The Hearing Officer justified Officer Zschau’s approach and detention of Petitioner as a
18
“welfare check,” implying that it did not trigger the protections of the Fourth Amendment]
19
California courts, however, have narrowed the applicability of a welfare check significantly.
20
(People v. Madrid (2008) 168 Cal.App.4" 1050.)
21
In Madrid, a man was walking along a road with an “unsteady” gait and sweating. As he
22
walked, he stumbled and almost fell to the ground. He walked approximately 50 feet before
23
getting into the passenger side of a vehicle. When the vehicle began to move, Officers positioned|
24 their patrol car in front of the vehicle, and approached the passenger side. A search wag
25
conducted of the vehicle and the occupants, and the driver and passenger were arrested. (People
26
vy. Madrid, supra, 168 Cal.App.4” at p. 1053-1054. In following a four-part test to determine the
27
reasonableness of the officer’s “community caretaking” actions, the Appellate court held that the
28
actions were not reasonable and violated the Fourth Amendment. (Id. at p. 1060.)

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In its analysis, the Madrid court stressed: “In engaging in this weighing process, courts
must act as vigilant gatekeepers to ensure that the community caretaking exception does not
consume the warrant requirement.” (People v. Madrid, supra, 168 Cal.App.4" at p. 1058.) Tha

test was adapted from Wright v. State (Tex.Crim.App.1999) 7 S.W.3d 148, and consisted of the
following non-exclusive factors: “(1) the nature and level of the distress exhibited by the
individual; (2) the location of the individual; (3) whether or not the individual was alone and/oy

had access to assistance independent of that offered by the officer; and (4) to what extent thd
individual—if not assisted—presented a danger to himself or others.” (Id. at p. 1059.) When
these factors are applied in the present case, it is clear that a welfare check was not reasonabld
10 under the circumstances.

11 1, The nature and level of the distress exhibited by the individual.
12 The court in Madrid, citing another Texas case, Corbin v. State (Tex.Crim.App.2002) 85
13 S.W.3d 272., clarified the factors and added emphasis to the first factor:
Because the purpose of the community caretaking exception is to allow an officer
14
to ‘seize’ and assist an individual whom he reasonably believes is in need of help,
15 the first factor is entitled to the greatest weight. The greater the nature and level of
distress exhibited, the more likely the police involvement will be a reasonable
16 exercise of the community caretaking function. This is not to say that the weight
of the first factor alone will always be dispositive. In fact, the remaining three
17
factors help to give more definition to the first factor. A particular level of
18 exhibited distress may be seen as more or less serious depending on the presence
or absence of the remaining three factors.
19 (People v. Madrid, supra, 168 Cal. App. 4th at p. 1059.) (citations omitted)
20
In the present case, Petitioner and her vehicle exhibited zero distress. There was no
21
indication that her vehicle had experienced any type of engine trouble, unlike the Chevy. Hey
22
hood was not open, none of her tires were flat, and her hazard lights were not on. Petitioner wag
23
not stumbling, vomiting, crying out for help, or exhibiting any other signs of distress. At the time
24
that Officer Zschau approached both vehicles, it was obvious why they were stopped on the sidq
25
of the road: the Chevy’s hood was open. Any welfare check ended when Officer Zschau
26
determined that the Chevy was not in need of assistance. In fact, Officer Zschau asked questiong
27
about Petitioner’s Kia to the people in the Chevy, and those people did not indicate that the Kia
28

2. The location of the individual.
Petitioner was located in her vehicle, which was parked on the shoulder of American
Avenue. In fact, the record reflects that the vehicle was parked so far off the road that officers
felt safe approaching from the driver’s side. The vehicle was approximately eight feet from the
roadway, and not creating any type of obstruction.

3. Whether or not the individual was alone and/or had access to assistance independen
of that offered by the officer.
Petitioner was not alone. She was accompanied by at least two others, according to
10 Officer Zschau’s reference to the “parties that were standing next to the Chevy” in his report
11 (Report, page 3 of 5.) One of these parties identified himself as Petitioner’s boyfriend. If she was
12 in distress, there were multiple others present who could assist her, provide aid, and getj
13 additional help, if necessary.
14 4. To what extent the individual—if not assisted—presented a danger to himself o
15 others.
16

17 There was no evidence of any danger to Petitioner or to any others based upon her sitting

18 in her vehicle.
19 When looking at these four factors, it is clear that Officer Zschau’s detention of Petitioney

20 was unreasonable, and therefore in violation of her Fourth Amendment rights.

21
D THE HEARING OFFICER ACTED IN AN ARBITRARY AND CAPRICIOUS
22 MANNER _BY__SUSPENDING _ PETITIONER’S__ LICENSE WHEN __ THE
EVIDENCE PRESENTED DURING THE HEARING FAILED TO ESTABLISH.
23 BY _A_ PREPONDERANCE OF THE EVIDENCE, THAT PETITIONER WAS
DRIVING _A_MOTOR_ VEHICLE WITH_.08% OR MORE BY WEIGHT OF
24
ALCOHOL IN HER BLOOD.
25

26
Vehicle Code § 13557 provides, in pertinent part, that:

27
(b)(2) If the department determines in review of a determination made under Section

28
13353.2, by the preponderance of the evidence, all of the following facts, the department shall

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sustain the order of suspension or revocation, or if the person is under 21 years of age and does
not yet have a driver’s license, the department shall delay issuance of that license for one year:

(b)(2)(A) That the peace officer had reasonable cause to believe that the person
had been driving a motor vehicle in violation of Section 23136, 23140,
23152, or 23153.

(b)(2)(B) That the person was placed under arrest or, if the alleged violation was
of Section 23136, that the person was lawfully detained.

(b)(2)(C) That the person was driving a motor vehicle under any of the
following circumstances:

(b)(2)(C)Gii) When the person had .08 percent or more, by weight, of
10 alcohol in his or her blood. (Emphasis added.)

11
Courts have wrestled with an appropriate definition of “drive.” In Mercer v. Department
12
of Motor Vehicles (1991) 53 Cal.3d 753, the defendant was arrested after he was found slumped
13
over the steering wheel of his vehicle. The officer did not witness any movement of the vehicle]
14
“Any doubt about our understanding of the word “drive” is dispelled by decades of case la
15
holding that the word “drive,” when used in a drunk driving statute, requires evidence of a
16
defendant's volitional movement of a vehicle.” (Id. at pg. 764.) After a review of the plain
17
language definition of “drive,” the use of “drive” in older statutes, and the interpretation of othey
18
states, the Mercer court held that “section 23152 requires proof of volitional movement of 4
19
vehicle.” (Id. at pg. 768.)
20
Penal Code section 836 provides, in pertinent part, that an officer may arrest a person in|
21
obedience to a warrant, or when the officer has reasonable cause to believe that the person to ba
22
arrested has committed a public offense in the officer’s presence. (Pen. Code § 836 subd. (a)(1).
23
Vehicle Code section 40300.5 provides very limited scenarios where an officer may
24
arrest someone for driving under the influence without observing any driving:
25 [A] peace officer may, without a warrant, arrest a person when the officer has
reasonable cause to believe that the person had been driving while under the
26
influence of an alcoholic beverage or any drug, or under the combined influence
27 of an alcoholic beverage and any drug when any of the following exists:
(a) The person is involved in a traffic accident.
28 (b) The person is observed in or about a vehicle that is obstructing a roadway.

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(c) The person will not be apprehended unless immediately arrested.
(d) The person may cause injury to himself or herself or damage property unless
immediately arrested.
(e) The person may destroy or conceal evidence of the crime unless immediately
arrested.

Vehicle Code section 40300.6 provides “Section 40300.5 shall be liberally interpreted to

further safe roads and the control of driving while under the influence of an alcoholic beverage
or any drug in order to permit arrests to be made pursuant to that section within a reasonable time
and distance away from the scene of a traffic accident.” (emphasis added) It is clear that this
liberal interpretation section only applies to 40300.5(a), the subsection related to traffid
accidents.
10
Warrantless misdemeanor arrests and the exceptions contained in section 40300.5 were
a1
examined in People v. Music (1990) 221 Cal.App.3d 841. In Music, the defendant was parked inl
12
a parking space in front of a bar, and the “engine was running, exhaust was coming out of the
13
exhaust pipe, the yellow parking lights were on, as was the radio, and the window was halfwa'
14
open, and appellant was “slumped” over the steering wheel.” (Id. at pg. 844.) As he was
15
“concemed,” the officer approached the vehicle to “check on him.” (Id.) The defendant was
16
subsequently arrested for driving under the influence of alcohol.
17
In reversing the decision of the trial court to uphold the defendant’s suspension, the
18
appellate court found the arrest to be invalid:
19

20 In order to make a warrantless arrest for a misdemeanor the arresting officer must
have reasonable cause to believe that the person committed the offense in his
21 presence. (Pen.Code, § 836, subd. 1.) An arrest for misdemeanor drunk driving,
22
therefore, is invalid unless the police officer witnesses or perceives the act of
driving under the influence. . . Appellant's arrest was therefore illegal, unless
23 some exception to the presence requirement applies. The only exception
advanced by respondent is that contained in section 40300.5, namely, a police
24 officer may arrest without a warrant if he observes an obviously intoxicated
25
person “in or about a vehicle which is obstructing a roadway.” But here, the
uncontradicted evidence shows that appellant's truck was not obstructing a
26 roadway. Instead, it was properly parked in a parking stall, extending only a
few inches past the painted line.
27
(People v. Music, supra, 221 Cal.App.3d at pgs. 847-851.) (emphasis added)
28

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Although no definition exists for “obstructing a roadway” in section 40300.5, Vehicle
Code section 22400 provides some guidance: “No person shall bring a vehicle to a complete stop,
upon a highway so as to impede or block the normal and reasonable movement of traffic,
unless the stop is necessary for safe operation or in compliance with law.” (emphasis added)
The only way that Petitioner’s vehicle was “obstructing a roadway” is if the vehicle was|
impeding or blocking the normal and reasonable movement of traffic. The evidence presented at]
hearing demonstrated that the vehicle was safely parked on the right shoulder. Officer Zschauj
was able to approach from the driver’s side, instead of the passenger side, indicating that he felt
there was a safe distance between himself and the traffic on the roadway. In fact, the entire cay
10 was parked approximately eight feet from the roadway, and it appeared that another vehicle
11 could safely drive between Petitioner’s vehicle and the roadway. Even in Music, where the court
12 found that there was no obstruction of the roadway, the defendant’s truck extended past the
13 painted line.
14 The other exceptions listed in section 40300.5 are each ambiguous and rarely used|
15 Officer Zschau had no reason to believe that Petitioner would not be apprehended unless
16 arrested, that she was a danger to herself or property, or that she would destroy or conceal
17 evidence. These poorly worded and infrequently applied exceptions do not justify Petitioner’s
18 arrest. In fact, if these exceptions were used in the present case, the exceptions would swallo
19 the rule. In any DUI case, blood alcohol dissipates over time, but this does not justify al
20 warrantless arrest in violation of Penal Code section 836 in every case. If it did, Vehicle Code
21 section 40300.5 would have been amended to allow a warrantless arrest in violation of the
22 presence requirement in any DUI case.

23 Therefore, none of the exceptions discussed in section 40300.5 apply, and the arrest was|
24 illegal. The evidence at hearing does not support a conclusion that Petitioner drove any vehicle,

25 and therefore her suspension is invalid.
26 M
27 MH
28 i

THIS COURT __MAY_ LAWFULLY __STAY___RESPONDENT’S _ ORDER)
SUSPENDING _PETITIONER’S PRIVILEGE TO OPERATE A MOTOR)
VEHICLE PENDING THE JUDGMENT OF THE COURT ON PETITIONER’S
WRIT OF MANDATE.
Vehicle Code §§ 13559 and 14401 preserve the right to court review of Respondent’s
order to suspend a driver’s license after a hearing pursuant to Vehicle Code sections 13558 oy
14105.5. The filing of a petition for judicial review will not automatically stay the administrative
decision pending the judgment of the court pursuant to Code of Civil Procedure §§ 1094.5 and}
1104. No stay shall be ordered if the court is satisfied that it is against the public interest. (Codd
of Civ. Proc., § 1094.5(g).)
10
In the instant case, the formal hearing resulted in an administrative decision to suspend}
11
Petitioner’s privilege to operate a motor vehicle from June 30, 2016 through October 29, 2016]
12
It is believed that the requested stay is not against the public interest.
13
Petitioner has been employed as a Medical Assistant at Peachwood Medical Group for]
14
almost two years. If her license is suspended, she does not have any other form of transportation]
15
that will reliably get her to work. She lives approximately 12 miles from her place off
16
employment, and there are no bus stops close to her home.
17
The loss of a driver’s license does implicate interests sufficiently important to the
18
individual in the life situation. (Hernandez v. Department of Motor Vehicles, supra, 30 Cal.3d at,
19
p. 80.) It is therefore in the interests of the public to ensure that the hearing was conducted, and
20
the decision rendered, according to those rules set out for such formal hearings in the Vehicle
21
Code § 14100 et se., and Government Code § 11500 et seq.
22
Accordingly, the reviewing court has the inherent power to grant a stay where the effect,
23
of judgment is such that a stay is necessary or proper to complete exercise of its jurisdiction and
24
where denial of the stay will result in depriving the individual bringing suit the fruits of hey
25
appeal should she be successful in procuring reversal of the judgment. (Deepwell Homeowners
26
Protective Association v. City Council of Palm Springs (1965) 239 Cal.App.2d 63, 65.)
27

0 °
Here, Petitioner would be denied the fruits of her appeal due to the irreparable harm she
will suffer were this Court to allow the suspension to remain in effect pending the ultimate
resolution of this matter in Petitioner’s favor.

E. THIS COURT SHOULD AWARD PETITIONER HER ATTORNEY’S FEES IN
BRINGING THE PENDING MOTION BASED UP: IN_THE DEPARTMENT’S
ARBITRARY AND CAPRICIOUS ACTIONS.
This Court has the authority to impose a monetary sanction against Respondent for]
imposing an arbitrary and capricious additional suspension in clear violation of Vehicle code

13353.3(c). (Govt. Code § 800; Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4"
537, 551.)
10
Petitioner is entitled to recover her attorneys’ fees because the Department acted in an)
11
arbitrary and capricious manner when it deprived Petitioner of her right to a fair hearing b
12
sustaining an order of suspension in disregard of Vehicle Code § 13557. As described
13
hereinabove, The Department’s order was completely unsupported by the evidence produced aff
14
the hearing. The suspension is so arbitrary that an award of attorney’s fees is necessary to
15
prohibit the Department, and the Hearing Officer, from engaging in this conduct in the future.
16
Iv.
17
CONCLUSION
18
Based upon the forgoing law and argument, it is clear that Respondent abused its
19
discretion, and deprived Petitioner of her right to a fair hearing. Therefore, Petitioner
20
respectfully requests that this Court exercise its jurisdiction and order Respondent to rescind tha
21
order of suspension and return, or reissue a new driver’s license to Petitioner.
22
Dated: June? , 2016 Respectfully Submitted,
23

25 Jeffrey T. Hammersc! dt
Attorney for Petitioner,
26 Katlyn Taylor Guinn

STATE OF CALIFORNIA, COUNTY OF FRESNO

I am employed in the County of Fresno, State of California. I am over the age of 18 years and
not a party to the within action. My business address is 2445 Capitol Street, Suite 150, Fresno,
CA 93721. Iam employed in the office of a member of the Bar of this Court, at whose
direction I made this service.

In the matter of Katlyn Guinn vs. DMV

On June 30, 2016, I served the foregoing documents described as PETITION FOR
JUDICIAL REVIEW/ADMINISTRATIVE WRIT OF MANDATE; REQUEST FOR
STAY AND ACCOMPANYING POINTS AND AUTHORITIES, by placing true copies
thereof as follows:

10 Mr. George Valverde
Director of the Department of Motor Vehicles
11 2415 First Avenue
Mail Station C128
12 Sacramento, CA 95815
Department of Motor Vehicles
13 Legal Department
2415 First Avenue
14 Mail Station F101
Sacramento, CA 95815
15
O BY HAND DELIVERY TO COURTHOUSE INBOX(ES): I caused said true copies to
16 be placed in the corresponding inboxes at the Fresno Superior Court.
17 x BY MAIL AS FOLLOWS: | am “readily familiar” with the firm’s practice of collection
and processing correspondence for mailing. Under that practice it would be deposited with the
18
USS. Postal Service on that same day with postage thereon fully prepaid at Fresno, California
19 in the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if post cancellation date or postage meter date is more than one day after date
20 of deposit for mailing on affidavit.
21 (BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the
22
offices of the addressee listed above.

23 (1 _ BY FACSIMILE: In addition to the above service by mail, hand delivery or Federal
Express, I caused said document(s) to be transmitted by facsimile at approximately
24 a.m./p.m. to the addressee(s) marked with a’.
25 Executed on June 30, 2016 at Fresno, California.

26 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. .
27

28
Sylvi una

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Ikeda, Dale Track Judge’s New Case

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Complaint,Petition: Katlyn Taylor Guinn vs George Valverde

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