Motion for Writ in Amardeep Singh vs Director of the Department of Motor Vehicles for the State of California| Trellis.Law

On October 08, 2015 a Complaint,Petition was filed involving a dispute between Singh, Amardeep, and Director Of The Department Of Motor Vehicles For The State Of California, for 02 Unlimited - Writ of Mandate in the District Court of Fresno County.

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SCOTT LEVY, SBN 276097.
Law Office of Scott Levy

F i\LED
2838 Mariposa Street
Fresno, CA 93721
Telephone: (559) 549-5403

Attorney for Petitioner: AMARDEEP SINGH oct - 8.20%yall ORNIA
SUPERIOR CO
iY
URYE ‘SNO

SUPERIOR COURT OF THE STATE OF RNIA
IN AND FOR THE COUNTY OF FRESNO

AMARDEEP SINGH )CASE NO.
Q5CECGO3142 y

10
V.
Petitioner, S VERIFIED PETITION FOR WRIT OF
)MANDATE/REVIEW op" Mor
a2
DIRECTOR OF THE DEPARTMENT OF )IMMEDIATE STAY REQUESTED
12
MOTOR VEHICLES FOR THE STATE OF )
CALIFORNIA DATE:
13
) TIME: nan

| Int | i ll l
Petition — Writ of Mandate
14 Respondent. DEPT: 3 7 -
15
)
)
16

17 TO DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES FOR THE STATE

18 OF CALIFORNIA AND THE ABOVE ENTITLED-COURT:
19
COMES NOW, the Petitioner AMARDEEP SINGH, by and through his attorney of
20
record, Scott Levy, and petitions this Court for a Writ of Mandate under California Vehicle Code
aL
section 13559, directed to Respondent, Director of the Department of Motor Vehicles for the
22

23 State of California; and by this Verified Petition alleges as follows:
24 1 On December 11, 2013, Petitioner, AMARDEEP SINGH, was stopped by
25
California Highway Patrol Officer Carabajal in Merced, California. The officer alleged that Mr.
26
Singh momentarily swerved over the broken white lane and corrected it immediately. He was
27

28 arrested for alleged violations of California Vehicle Code sections 223152, subdivisions (a) and

VERIFIED PETITION FOR WRIT OF MANDATE/REVIEW
1
@).
2. Prior to his arrest, Mr. Singh was the holder of a valid California Driver’s

License, Number A8838541, issued by the Respondent, California Department of Motor

Vehicles.

3 Petitioner’s valid California Driver’s License was seized at the time of his arrest

by California Highway Patrol Officer Carabajal.

4 Petitioner, at all times relevant to this action, is and has been a resident of Fresno

County,
10

11 5 Respondent is the Director of an agency of the State of California, empowered by

12 California Vehicle Code section 1650 to administer and enforce the provisions of the Vehicle
13
Code. (See also Government Code section 11150.)
14
6 On October 8, 2014, the Department of Motor Vehicles conducted an
15

Administrative Per Se Hearing under the authority of California Vehicle Code sections 13353
16

17 and 13558. The hearing was held at the Office of the Department of Motor Vehicles, Driver

18 Safety Branch, in the County of Fresno, before Hearing Officer D. DeLeon. The undersigned
19
counsel’s office represented Petitioner at the Administrative Per Se hearing.
20
7
The issues at the Administrative Per Se hearing, as specified by statute were:
21

22 (A) Did the peace officer have reasonable cause to believe that the person had

23 been driving a motor vehicle in violation of Section 23140, 23152, or

24 23153?
25
@®) Was the person placed under lawful arrest?
26

27
©) Was the person admonished that his driving privilege would be suspended

28 or revoked if he refused or failed to complete a required chemical test to

VERIFIED PETITION FOR WRIT OF MANDATE/REVIEW
2
determine the alcohol content of hit: blood?

) Did the person refuse to take or fail to complete a chemical test or tests

after being requested to do so by a peace officer? (CVC § 13353(2),

et. seq.)

8 The Department introduced the following exhibits into evidence during the

October 8, 2014 hearing to support its findings:

Department’s Evidence:

Exhibit 1 Officer’s Statement (DS367);
10

11 Exhibit 2 Arrest Report;

12 Exhibit 3 Petitioner’s California Driver’s License Record; and
13
Exhibit 4 Petitioner’s Chemical Test Results.
14
California Highway Patrol Officer Carabajal was present and testified at the hearing.
15

Licensee’s Evidence:
16

17 Mr. Singh challenged the legality of the stop.

18 9 This application is made on the ground that Respondent’s decision to suspend
19
Petitioner’s license is invalid under California Code of Civil Procedure section 1094.5.
20
Respondent’s findings are not supported by the weight of the evidence; Mr. Singh was denied the
21

22
opportunity to adequately cross examine Officer Carabajal and the hearing officer failed to issue

23 “order to show cause” for subpoenaed California Highway Patrol Officer Zamarripa, who
24 repeatedlyfailed to appear to testify; thus constituting a prejudicial abuse of discretion. (True
25
and correct copies of Officer Zamarripa’s subpoenas are attached hereto as Exhibit “A” and is
26
incorporated by reference herein.)
27

VERIFIED PETITION FOR writ OF MANDATE/REVIEW
nN

10. On January 26, 2015, the Department of Motor Vehicles mailed its notice of

Findings and Decision to Petitioner. The notice indicated that the suspension of Petitioner’s

Driver’s License was proper and ordered that the suspension take effect on February 4, 2015 and

end on June 3, 2015; however his commercial driver’s license is suspended until January 26,

2016. The Department’s decision to uphold the suspension entered against Petitioner is “arbitrar

and capricious” as it is not supported by law. (A true and correct copy is attached hereto as

Exhibit “B” and is incorporated by reference herein.)

11. On April 13, 2015, Petitioner received the Administrative Transcript. (A true and
10

11 correct copy is attached hereto as Exhibit “C” and is incorporated by reference herein.)

12 12. Petitioner is beneficially interested in this action as Petitioner is a party directly
13
affected by the action of Respondent in the suspension of his license to operate a motor vehicle.
14
Petitioner was denied due process of law when the Department entered an Order suspending his
15
license to drive without any lawful authority to do so. As more fully argued in the Points and
16

17 Authorities contemporaneously filed herewith.

18 13. Petitioner’s license to drive is not suspended or revoked for any reason other than
19
the action complained of herein. (A true and correct copy of Petitioner’s DMV record is attached
20
hereto as Exhibit “D” and is incorporated by reference herein.)
21

22
14. Petitioner has been a truck driver since 1995. He is self-employed and owns

23 “Valley Trucking” in Fresno, California. Due to the nature of his employment, he is out of state
24
three to four days per week. Without his driver’s license, Petitioner will not be able to perform
25
the duties of his employment as a truck driver and he will lose his employment and/or business.
26
Petitioner will be unable to find alternate employment because his experience and education is
27

28 limited to truck driving and all trucking companies will require the same work schedule, as noted|

VERIFIED PETITION FOR WRIT OF MANDATE/REVIEW
4
above and a valid driver’s license. Unless the Order of the Department is stayed, Petitioner will

suffer irreparable damage and injury since he will be unable to continue his employment and

unable to financially support himself, his family, or his home; thus resulting in severe economic

loss and distress. Petitioner’s license is not suspended or revoked for any other reason than

stated herein. (See Mackey v. Montrym (1979) 433 U.S. 1, 10-11. (“The driver’s interest in

continued possession and use of his license pending the outcome of the hearing due him... is a

substantial one, for the Commonwealth will not be able to make a driver whole for any personal

inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous|
10

121 suspension. . .”); Dixon v. Love (1977) 431 U.S. 105, 113 (“a licensee is not made entirely whole

12 if his suspension or revocation is later vacated.”); Berlinghieri v. Department of Motor Vehicles
13
(1983) 33 Cal.3d 392, 397 (“We .. . emphasize that we view the “right to drive” herein as
14
important, indeed “fundamental” for purposes of selecting the standard of judicial review of the
15

administrative decisions to suspend the driver’s license.”). (See Declaration of Amardeep Singh,
16

17 contemporaneously filed herewith.)

18 15. As the result of Respondent’s action, Petitioner was required to employ an
19
attorney to prosecute this Petition and is personally obligated to pay attorney’s fees and costs
20
incurred herein. Respondent’s action was without legal authority, lacked any basis in law or fact,
21

22
was not supported by the evidence, and was arbitrary and capricious as more fully argued in the

23 Points and Authorities contemporaneously filed herewith. The action was therefore, both
24
arbitrary and capricious under the provisions of Government Code section 800, and Petitioner
25
requests this Court to award attorney’s fees and costs for prosecuting this Petition.
26
Counsel for Petitioner has extensive experience appealing Administrative Findings with
27

28 the Superior Court, and anticipates the total time expensed in preparation and prosecution of the

VERIFIED PETITION FOR WRIT OF MANDATE/REVIEW
5
vy @
instant Petition will be between thirty (30) and fifty (50) hours. The costs associated with the

Petition are expected to range from $600.00 to $800.00.

16. Petitioner does not have a speedy and adequate remedy at law in that there is no

appeal from Respondent’s Order suspending his privilege to operate a motor vehicle and

Petitioner’s only method of review of that Order is by Petition for Review in this Court as

provided in Vehicle Code section 13559.

WHEREFORE, Petitioner Prays that:

1 This Court review the Order of the Department of Motor Vehicles, set
10

121 aside the suspension arbitrarily entered against him, and order Petitioner’s

12 Driver’s License reinstated and returned to him;
13
Pending final Judgment of the Court in this matter, Respondent be ordered
14
to stay the operation of the Order suspending Petitioner’s privilege to
15
drive an automobile in the State of California until final judgment on the
16

17 merits of the instant Petition has been entered;

18 This Court order Respondent to pay attorney’s fees pursuant to
19
Government Code section 800 and costs pursuant to Code of Civil
20
Procedure section 1095.5(a); and
21

22
For such other and further relief as this Honorable Court may deem just

23 and proper.

24 DATED: Oct. 1, 2015 Respectfully Submitted,
25
LAW OFFICE OF SCOTTD, LEVY
26

27 ‘orney for Petitioner
Scoj
28 ardet ‘ingh

VERIFIED PETITION FOR wait OF MANDATE/REVIEW
VERIFICATION

I, Amardeep Singh, declare under the penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed on October 1, 2015 at Fresno, C: ifornia

Amardee| ingh, Petitioner

VERIFIED PETITION FOR, WRIT OF MANDATE/REVIEW
SCOTT LEVY, SBN 276097
Law Office of Scott Levy
2838 Mariposa Street
Fresno, CA 93721
Telephone: (559) 549-5403

Attorney for Petitioner: AMARDEEP SINGH

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF FRESNO

AMARDEEP SINGH )CASE NO.
Petitioner, JMEMORANDUM OF POINTS AND
10
AUTHORITIES IN SUPPORT OF WRIT OF
) MANDATE/REVIEW
1 d
12 )IMMEDIATE STAY REQUESTED
CALIFORNIA DEPARTMENT OF MOTOR
13
Spare:
VEHICLES
14 TIME:
Respondent. SDEPT.:
is )
16
I.
17

18
STATEMENT OF THE CASE

19 On December 11, 2013, Petitioner, AMARDEEP SINGH, was stopped by California
20 Highway Patrol Officer Carabajal in Merced, California. The officer alleged that Mr. Singh
21
momentarily swerved over the broken white lane and corrected it immediately. He was arrested
22
for alleged violations of California Vehicle Code sections 223152, subdivisions (a) and
23

24
(d); and an “Administrative per se Order of Suspension/Revocation Temporary License

25 Endorsement” was given to Petitioner. Following the administrative hearing, a one-year
26
suspension was imposed. Petitioner filed a timely petition for writ of mandate with the court.
27
Ml
28
Ml
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
1
oN
sa

‘Th

STATEMENT OF FACTS

According to the police report, on December 11, 2013, at approximately 0113 hours,

California Highway Patrol Officer Carabajal observed a vehicle momentarily drifted to the left

side and cross over the broken white lines: The vehicle was immediately corrected. The officer

initiated an enforcement stop and the vehicle yielded.

Officer Carabajal contacted the driver, who was identified as Amardeep Singh

(“Defendant”). The officer alleged that he smelled an odor of alcohol emitting from the vehicle
10

ii and Defendant’s eyes were red and watery.

i2 The officer asked Mr. Singh a series of field sobriety questions and administered field
13
sobriety tests. Mr. Singh complied with the officer’s requests, answered the questions and
14
performed the tests. The officer advised Mr. Singh of the chemical admonishment, and he chose
15

a breath test. The officer administered a PAS test and the alleged results were .07% and .08%.
16

17 Mr. Singh was arrested and charged as follows:

18 e Count one: Vehicle Code Section 23152(a): driving under the influence of
19
alcohol or drugs; and
e Count two: Vehicle Code Section 23152(d): DUI, Commercial Vehicle.
20
On October 8, 2014, Respondent, Department of Motor Vehicles (“DMV”) conducted an
21

22
administrative hearing. Hearing officer D. DeLeon admitted the following into evidence: (1) the

23 arresting officer’s statement (DS367); (2) the arrest report; (3) Petitioner’s California driver’s
24
license record; and (4) Petitioner’s chemical test results.
25
Petitioner attempted to cross examine California Highway Patrol Officer Carabajal;
26
however, hearing officer DeLeon (“Officer”) required an “offer of proof” and refused to allow
27

28 Petitioner to question the officer.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
~
2
1 Additionally, Petitioner subpoenaed California Highway Patrol Officer Zamarripa on

several occasions; however he refused to appear and testify. The hearing officer refused to

require his appearance and issue an “order to show cause.”

On or about January 26, 2015, the DMV sent Petitioner a Notification of Findings and

Decision. The notice indicated that the DMV determined that there was probable cause for

contact with Defendant; there were objective symptoms of intoxication; there was reasonable

cause to believe Petitioner was driving a motor vehicle while under the influence of alcohol; the

arrest was lawful; Petitioner was driving a commercial motor vehicle with a .04% or more
10

11 alcohol concentration; and Petitioner’s driver’s license was suspended from February 4, 2015 to

12 June 3, 2015. (See Notification of Findings and Decision, Exhibit “B” of Petitioner’s Verified
13
Petition for Writ of Mandate/Review.)
14
The Petitioner in this matter seeks a Writ of Mandate commanding the DMV to reverse
is

its decision in the Notification of Findings and Decision served January 26, 2015.
16

17 ii.
18 AN ADMINISTRATIVE WRIT OF MANDAMUS IS THE PROPER
19
REMEDY FOR JUDICIAL REVIEW OF A FINAL DECISION OF THE
DEPARTMENT OF MOTOR VEHICLES.
20
Mandamus is a remedial writ used to correct those acts and decisions of administrative
21

22
agencies which are in violation of law where no other adequate remedy is provided, not only to

23 compel administrative action which was refused in violation of law, but also to annul or restrain
24
administrative action already taken which is in violation of law. (Wilson v. Los Angeles County
25
Civil Service Commission (1951) 103 Cal.App.2d 426.) The aggrieved party having first sought
26
relief before the administrative agency, is entitled to court review of the final decision of the
27

28 agency. (Apte v. Regents of the University of California (1988) 198 Cal.App.3d 1084.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
3
Nee OO
Generally, a writ of mandate will lie when there is not a plain, speedy, and adequate remedy,

when the respondent has a duty to perform, and when the petitioner has a clear and beneficial

right to performance. (Payne v. Superior Court (1976) 17 Cal.3d 908, 925.)

Vehicle Code section 13559, subdivision (a), vests jurisdiction for judicial review of the

decision of the Department of Motor Vehicles sustaining an order of suspension of a person’s

driving privilege to operate a motor vehicle after hearing pursuant to Vehicle Code section 13558}

in “the court of competent jurisdiction in the person’s county of residence.” Code of Civil

Procedure section 1094.5 provides a method of review through administrative mandamus by
10

121 application to the Superior Court. Both are applicable to these proceedings. (Coombs v. Pierce

12 (1991) 1 Cal.App.4th 568, 575-576.)
13
In the instant case, Petitioner requested, and was granted, pursuant to Vehicle Code
14
section 13558, a hearing before a hearing officer appointed by Respondent. Subsequent to the
is
hearing, Respondent notified Petitioner of its administrative decision that his license to‘operate a
16

17 motor vehicle was suspended effective February 4, 2015. Respondent’s finding was based on the

18 premise that the artest was lawful and that there was probable cause for contact with Defendant.
19
As will be shown below, momentarily weaving does not constitute probable cause for the
20
contact, the hearing officer’s failure to issue an “order to show cause” prejudiced Mr. Singh, and
21

22
the hearing officer’s failure to allow Officer Carabajal to be cross examined prejudiced Mr.

23 Singh. Therefore, Petitioner respectfully requests this Writ of Mandate.
24
Iv.
25
THIS COURT HAS BROAD POWER TO STAY THE OPERATION
26 OF THE ADMINISTRATIVE ORDER REVOKING PETITIONER’S
PRIVILEGE TO DRIVE
27

28
The inherent power of an appellate court to grant a stay applies when the effect of the

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
OO-

judgment is such that a stay is necessary or proper to complete the exercise of appellate

jurisdiction and where the denial of the stay will result in depriving appeallant the fruits of his

appeal should he be successful. (Deepwell Homeowners Protection Ass’n v. City Council (1965)

239 Cal.App.2d 63, 65-66.) In the analogous context presented by Vehicle Code section

13353.2(a)(2), a trial court possesses the discretion to grant a stay of an order of suspension for

driving with a blood alcohol level of .01% or greater as a minor. (Robertson v. Department of

Motor Vehicles (1992) 7 Cal.App.4th 938, 944; see also Zink v. Gourley (2000) 77 Cal.App.4th

774, 716-777.)
10

11 If this Court declines to grant’a stay of the order of revocation pending judicial review, a

12 significant portion of the suspension could run before review is granted. If this should occur, the
13
purpose and protection afforded by judicial review is made moot. A stay of suspension is
14
necessary to avoid irreparable harm to Petitioner, as noted in Petitioner’s declaration, filed
15
herewith. Should this Court decide that the Department of Motor Vehicles action was improper,
16

17 Petitioner would be not be made entirely whole if the stay is not granted. (See Mackey v.

18 Montrym (1979) 443 U.S. 1, 10-11 (“[The driver’s interest in] continued possession and use of
19
his license pending the outcome of the hearing due him . . . is a substantial one, for the
20
Commonwealth will not be able to make a driver whole for any personal inconvenience and
21

22
economic hardship suffered by reason of any delay in redressing an erroneous suspension. . . .”);

23 Dixon y. Love (1977) 431 U.S. 105, 113 (“a licensee is not made entirely whole if his suspension
24
or revocation is later vacated.”); Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d
25
392, 397 (“We .. . emphasize that we view the “right to drive” herein as important, indeed
26
“fundamental” for purposes of selecting the standard of judicial review of the administrative
27

28 decision to suspend the driver’s license”).

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
The continued impairment of Petitioner’s personal and work-related obligations and the

extraordinary inconvenience caused by Respondent’s actions, as well as the likelihood of

reversal of Respondent’s decision strongly support a stay order.

Vv.

PEITITIONER HAS PROVIDED A COPY OF THE ADMINISTRATIVE RECORD

The licensee has the responsibility of making “available to the trial court an adequate

record of the administrative proceeding; otherwise the presumption of regularity will prevail,

since the burden falls on the petitioner attacking the administrative decision to demonstrate to the|
10

12 trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or

12 showed ‘prejudicial abuse of discretion.’ [citations omitted.]” (Foster v. Civil Service
13
Commission (1983) 142 Cal.App.3d 444, 453.)
14
Petitioner has promptly filed this writ in order to stop the imposition of the unjust and
is

unlawful suspension of his driving privilege. Additionally, Petitioner has submitted a true and
16

17 correct copy of the administrative record. (See Recorder’s Transcripts, Exhibit “C” of

18 Petitioner’s Verified Petition for Writ of Mandate/Review.)
19
VI.
20
STANDARD OF REVIEW
21

22
The trial court exercises its “independent judgment” in the “judicial review of

23 administrative decisions of the [DMV] which suspend a driver’s license ... .” (Berlinghieri v.
24
Department of Motor Vehicles (1983) 33 Cal.3d 392, 394.) “In exercising its independent
25
judgment, a trial court must afford a strong presumption of correctness concerning the
26
administrative findings, and the party challenging the administrative decision bears the burden of|
27

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
convincing the court that the administrative findings are contrary to the weight of the evidence.

(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
VIL.

THE DEPARTMENT OF MOTOR VEHICLES ABUSED ITS POWER WHEN IT
REFUSED TO ALLOW PETITIONER TO CROSS EXAMINE OFFICER CARABAJAL

“It is now well settled, at least in the Courts of Appeal, a driver’s license suspension may

be upheld solely on the basis of the officer’s sworn statement pursuant to Vehicle Code section

23158.2.” (Fitzpatrick v. DMV (1993) 13 Cal.App.4th 1771, 1776.) “However, these Courts of
10
Appeal decisions are all premised on the driver’s.right to confront and cross-examine the officer
a1.
at the administrative hearing. . . Ibid.) “The right to confront and cross-examine Officer Cruz
12
was critical to Fitzpatrick’s defense to the charge. . .”(/bid.) “Impeaching or undermining
13

14 through cross-examination . . .provided Fitzpatrick’s only realistic hope of defeating the license

1s suspension.” (Id, at p. 1777.)
16
Here, Petitioner was denied the opportunity to thoroughly and effectively cross-examine
17
and impeach Officer Carabajal regarding Title 17 and the fifteen minute observation
18

requirement. This line of questioning was crucial to Petitioner’s defense and his only chance of
19

20 defeating the license suspension because should it be determined that the officer did not wait

21 fifteen minutes before conducting the PAS test, then the results are not reliable. If Title 17 was
22
not adhered to, his license would have been reinstated. Further, the Department’s findings were
23
based on the determination that the PAS results were reliable; however Petitioner was denied the|
24

25
right to cross-examine Officer Carabajal on those issues. Therefore, the DMV abused its power

26 and erred.

27
M/
28
MI

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
7
Vit.

THE DMV ERRED IN FAILING TO ISSUE AN “ORDER TO SHOW CAUSE” FOR THE|
SUBPOENAED MATERIAL WITNESS THAT FAILED TO APPEAR OR TESTIFY

Code of Civil Procedure 1985 (a) states, in pertinent part:

“The process by which the attendance of a witness is required is a
subpoena. It is a writ or order directed to a person and requiring
the person’s attendance at a particular time and place to testify as a
witness.” (Chapman v. Superior Court (1968) 261 Cal. App. 2d 194, 197.)

“Section 1987 of that code provides that . . . the service of a subpoena is made by

showing the original and delivering a copy *** to that witness personally, giving or offering him
10
at the same time, if demanded by him, the fees to which he is entitled.” (Jbid.) “Disobedience of
11
a subpoena duly served may be punished by contempt of court.” (/d. at pgs. 197-198.)
12
In the matter at hand, Officer Zamarripa was subpoenaed to appear and testify multiple
13
times. He failed to appear at the hearings; therefore the DMV should have issued an “order to
14

is
show cause” hearing, as to why sanctions should not be imposed. However, the hearing officer

16 failed to do so.
17
Mr. Singh has an absolute right to subpoena one of the arresting officers and examine
18
him about the arrest, field sobriety tests, Title 17, etc. The DMV denied Mr. Singh of that right
19
by failing to issue an order to show cause and failing to continue the hearing, until the officer
20

21 appeared. Therefore, the Department erred and Mr. Singh was prejudiced by that error.

22 Ix.
23
THE STOP CANNOT BE JUSTIFIED BY DEFENDANT WEAVING
24
Weaving within the lane does not constitute an objective violation of the Vehicle Code.
25

26
Vehicle Code § 21658(a) provides:

27 A vehicle shall be driven as nearly as practical within a single lane
and shall not be moved from the lane until such movement can be
28 made with reasonable safety. [Emphasis added.]

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
Most recently, State v. Cook, (2009) WL 2461905 (Tenn. Crim. App.) held that weaving

within the lane cannot justify the stop of a vehicle.

When a statute is clear, as here, its words must be given effect:

The rules governing statutory construction are well settled. We
begin with the fundamental premise that the objective of statutory
interpretation is to ascertain and effectuate legislative intent. In
determining intent, we look first to the language of the statute,
giving effect to its plain meaning. Although we may properly rely
on extrinsic aids, we should first turn to the words of the statute to
determine the intent of the Legislature. [Emphasis added.]

Burden v. Snowden, (1992) 2 Cal. 4th 556. See also, Chevron U.S.A., Inc. v._Natural
10

11 Resources Defense Council, Inc., (1984) 467 U.S. 837; 104 S.Ct. 2778 at 2781-2782. The Court

12 in Khajavj v. Feather River Anesthesia Medical Group, (2000) 84 Cal. App. 4th 32 at 34 further
13
explained that:
14
“the most powerful safeguard for the courts' adherence to their
15 constitutional role of construing, rather than writing, statutes is to
rely on the statute's plain language.”
16

17 Moreover, in People v. Birkett, (1999) 21 Cal. 4th 226 at 231 the court stated, "[w]e must

18 follow the statute's plain meaning, if such appears, unless doing so would lead to absurd results
19
the Legislature could not have intended." Here, the statute could not be clearer. A look at the
20
legislative history of the statute supports the analysis that the legislature did not intend to
21

22
penalize momentary or minor deviations from the lane. Prior to 1970, the statute read that the

23 vehicle “shall not be moved from the lane until the driver has first ascertained that such
24
movement can be made with safety.” The present statute was obviously drafted to ensure that
25
not every minor violation constituted probable cause. The addition of “reasonable” is an obvious|
26
attempt by the legislature to allow minor lane changing transgressions.
27

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
9
Clearly, the officer has failed to establish that Mr. Singh objectively violated the Vehicle

Code. He momentarily weaved, which is not a Vehicle Code violation.

Thus, even if Mr. Singh swerved, under the case law, this is not sufficient reasonable

suspicion to detain him. Therefore, the stop was illegal.

In US. v. Colin (9th Cir. Cal. 2002) 314 F.3d 439 the Defendant traveled on the solid

white fog line for approximately ten seconds, drifted to the left side of the right lane, signaled a

lane change, and moved into the left lane. Then he drifted to the left side of the left lane where

his left wheels traveled along the solid yellow line for approximately ten seconds. Then the car
10

1. returned to the center of the left lane and signaled a lane change and moved into the right lane.

12 The officer cited Vehicle Code § 21658(a), supra, to stop that defendant. The Court held
13
that the stop was illegal. The Court stated:
14
Touching a dividing line, even if a small portion of the body of the
15 car veers into a neighboring lane, satisfies the statute’s requirement
that a driver drive as ‘nearly as practical entirely within a single
16
lane’... It is reasonable that a driver with no cars abreast of him
17 might veer slightly within his lane or over the lane line in the
course of making a lane change to ensure that it is safe to do so. In
18 sum, we conclude that the facts, taken together, support the
conclusion that Carmichael lacked probable cause to stop Estrada-
19
Nava and Colin for lane straddling. (dd. at 444-445. )
20
The Court went on to note the reasoning of cases from other states stating that:
al
[P]ronounced weaving within a lane provides an officer with
22 reasonable cause to stop a vehicle on suspicion of driving under
23
the influence where such weaving continues a substantial
distance...Here, Estrada-Nava and Colin did not demonstrate
24 ‘pronounced weaving” of up to two feet in either direction, or
weave for a ‘substantial distance’. [Emphasis in original.] (/d. at
25
446.)
26
In US. v. Beil, the court held that the Defendant” remained on the white line for at most
27
two seconds before swerving back into its lane. Its tires may also have briefly crossed over the
2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
lane line. This is neither the pronounced weaving nor the weaving for a substantial distance

required to initiate a traffic stop.” (United States v. Bell (2014) U.S. Dist. LEXIS 13908, 6.)

Mr. Singh momentarily weaved and corrected that immediately. This does not constitute

pronounced weaving or weaving for a substantial distance. Therefore, the stop was illegal.

In Arizona v. Livingston the defendant’s right side tires crossed the white shoulder line on|

one occasion. Arizona has the same statute as California, requiring that a vehicle be driven as

nearly as practicable entirely within a single lane. That Court held that the statutory language,

“demonstrates an express legislative intent to avoid penalizing brief, momentary, and minor
10

11 deviations outside the marked lines.” (Arizona v. Livingston (2003) 75 P.3d 1103 at 1106.) Thus

12 the Court found Mr. Livingston did not violate the Vehicle Code, as this Court should find that
13
Mr. Singh, similarly, did not violate the Vehicle Code.
14
The Court in United States v. Fernando-Castillo (2003) 324 F.3d 1114 held:
15
In the instant case, Officer Schock followed the car for less than
16 three minutes, during which time he observed the vehicle “drifting
within the lane, whereas it goes from the fog line to the center line
17
and back.” He did not witness the vehicle violate any traffic laws
18 and, contrary to the officers in Colin, specifically testified at trial
that he believed the behavior he personally observed did not
19 warrant issuing a citation. Under Colin, these observations do not
provide a basis for reasonable suspicion. “This circuit has
20
repeatedly held that movement within ones own lane or other
21 relatively benign driving activity is not a sufficient ground on
which to base reasonable suspicion, even when coupled with other
22 suspicious circumstances.” (Fernando-Castillo at 1129.)
23
(Emphasis added.] See also, United States v. Jimenez-Medina (9th
Cir. 1999) 173 F.3d 752 at 755. (“The law of this circuit teaches
24 that the presence of such facts as driver preoccupation, slow speed,
movement within one’s own lane of traffic, and even coming from
25 the wrong neighborhood do not give rise to legally sufficient
26
‘reasonable suspicion.’”); People v. Perez (1985) 175 Cal.App.3d
Supp. 8 at 11. (“Pronounced weaving within a lane provides an
27 officer with reasonable cause to stop a vehicle on suspicion of
driving under the influence where such weaving continues for a
28
substantial distance.”)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
1 This court also frowned on speed of the vehicle as a basis for reasonable suspicion in

Garcia-Camacho, pointing out that the government has argued both increases and decreases in

speed constitute “suspicious” conduct, creating a “heads I win, tails you lose” trap for drivers

who do not maintain constant speed. (Id. 53 F.3d at 247.)

As established above, Mr. Singh momentarily drifted over the broken line; however he

corrected it immediately. Therefore, there was no reasonable cause to pull him vehicle over and

the stop was illegal.

X.
10

il CONCLUSION

12 For the foregoing reasons, Petitioner asserts that the Respondent, Director of the
13
Department of Motor Vehicles, improperly sustained the order suspending the driver’s license of
14
Amardeep Singh.
15
In conducting the administrative per se hearing, the Department failed to allow Officer
16

17 Carabajal to be adequately cross-examined on Title 17; the Department failed to issue an “order

18 to show cause” for Officer Zamarripa, and the Department incorrectly found that the stop was
19
legal.
20
The suspension of Petitioner’s license absent any foundational evidence to support such a]
21

22 decision was capricious and arbitrary, entitling Petitioner to attorney’s fees and costs pursuant to

23 Government Code section 800. Petitioner respectfully requests that this Court issue an

24 administrative Writ of Mandamus affording the relief for which Petitioner prays in the Verified
25
Petition, filed herewith.
26
Ml
27

28 MI

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
Respectfully Submitted,

DATED: October 1, 2015 LAW OFFICE OF SCOTT LEVY

Sco y, Attorney for Amardeep Singh

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF MANDATE/REVIEW
13
EXHIBIT “A”
~
=== Re” _ENT OF CALIFORNIA HIGHWAY
P.O. BOX 942900
qSag —
)
SACRAMENTO, CA 94298-2900
(916) 843-3570
Tax Identification No. 94-2257827
FG
1763
LEVY, ATTORN
SCOTT D. 19, EY AT LAW 11-4288/1210 4963
TULARE st SUITE 136 9584018793
93721

Q— N
ane Z
mae D us Daay e ny
De lars Son cent S Botts & =
Che ondved Terk, Two
Welsago ean

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FOR
WOOOO00STEa" HaztaO caAes ASAL gan

Case Name: DMV. VS. SINGH
CHP Employee: OFFICER CARABAWAL, I.D. #017827
Appearance Date/s: 3/3/14 4/30/14 03/03 SHORT NOTICES CANCELLATION FEE
—- ————
Regular salary 0 hours @ 62.12 per hour $ 0.00
Staff benefits 63.163% of regular salary charges $ 0.00
Overtime salary 4 hours @ 68.59 per hour $ 274.36
Overtime staff benefits 1.450% of overtime salary charges $ 3.98
Administrative costs 38.66
Travel expenses (includes mileage) 30.24

Airfare / rental car/ per diem / meals 0.00

US District Court fee or late cancellation fee 50.00

Total charges 397.24
Less deposit/payments received 275.00
Plus refunds issued 0.00
Total due this invoice. 122.24
Refund due__ 0.00

Mail your payment within 30 days payable to:
California Highway Patrol, P.O. Box 942900, Sacramento, CA 94298-2900
and reference the invoice number above.

Safety, Service, and Security An Internationally Accredited Agency
PAF? “ENT OF CALIFORNIA HIGHWAY~" TI
~4 P.O. BOX 942900
SACRAMENTO, CA 94298-2900
(916) 843-3570
Tax Identification No. 94-2257827

Date: August 12, 2014 INVOICE NO.
E 95482

Law Offices of SCOTT D. LEVY WFD071
SCOTT D. LEVY
1713 TULARE STREET, SUITE 136
FRESNO, CA 93721

Subpenaed witness charges pursuant to Goverment Code Section 68097 et.seq. PAID IN FULL
Case Name: DMV. VS. SINGH
CHP Employee: OFFICER CARABAJAL, |.D. #017827
Appearance Date/s: 3/3/14 4130/14

Regular salary 0 hours @ 62.12 per hour 0.00

Staff benefits 63.163% of regular salary charges 0.00
Overtime salary 4 hours @ 68.59 per hour 274.36
Overtime staff benefits 1.450% of overtime salary charges 3.98
Administrative costs 38.66
Travel expenses (includes mileage) 30.24
Airfare / rental car / per diem / meals 0.00
US District Court fee or late cancellation fee 50.00

Total charges. 397.24
Less deposit/payments received 397.24
Plus refunds issued _ $ 0.00
Total due this invoice $ 0.00
Refund due. $ 0.00

Mail your payment within 30 days payable to:
California Highway Patrol, P.O. Box 942900, Sacramento, CA 94298-2900

Case Info

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Ikeda, Dale Track Judge’s New Case

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October 08, 2015

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Complaint,Petition: Amardeep Singh vs Director of the Department of Motor Vehicles for the State of California

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