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Michael M. Rooney, SBN 190346
ROONEY LAW FIRM
1361 The Esplanade 1/14/2019
3 Chico, California 95926
Telephone: (530) 345 —5678
Facsimile: (530) 897 —0985
Attorneys for Defendant, Christopher Bradley Dow
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF BUTTE
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CHRISTOPHER BRADLEY DOWs ) Case No.: 19CV00123
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Petitioner/Licensee, ) PETITION FOR WRIT OF
) ADMINISTRATIVF.MANDATE
V. )
) [CCP I11094.5]
DEPARTMENT OF MOTOR )
VEHICLES, ) Date: April 3, 2019
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) Time: 9:00 a.m.
16 Respondent. ) Dept.: TBA
) Judge: TBA
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19 Petitioner/Licensee, Christopher Bradley Dow, petitions this Court for a writ of mandate
20 under Code of Civil Procedure 111094.5, directed to respondent, Bill Davidson, Acting Director,
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Department of Motor Vehicles, State of California and Hearing Officer K. Rupp
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(530.224.4755), to Stay the Findings and Decision Order of December 10, 2018, Administrative
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Per Se hearing of Petitioner/Licensee: D1452632, Christopher Bradley Dow, re-imposing the
25 driver's license suspension, and by this verified petition alleges as follows:
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1. Petitioner/Licensee, at all times mentioned in this petition, has been and now is the
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Petitioner/Licensee with the designated driver's license number D1452632, issued by
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respondent, California Department of Motor Vehicles (hereinatier the "Department" ),
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Petitionfor Writ of Administrative Mandamus For Stay of Administrative Decision
and said license being necessary for Petitioner/Licensee's livelihood.
2. At all times mentioned in this petition, respondent has been and is now the agency
charged with administering California Vehicle Code section 13353 et seq.
3. Respondent failed to grant Petitioner/Licensee a fair hearing, in that the Respondent
made findings that are not supported by the evidence and failed to are not supported by
the weight of the evidence offered by Petitoner/Licensee.
4. Respondent's decision is not supported by the findings, because the Respondent
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refused to give any weight to the testimonies of Dr. Kirk Meekins and
Petitioner/Licensee regarding Petitioner/Licensee's diagnosed medical illness which
12 interfered with Petitioner/Licensee's ability to complete perfonnance a test of
Petitioner/Licensee's breath.
5. Petitioner/Licensee has exhausted the available administrative remedies required to be
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pursued by him.
17 6. If respondent's order and decision is allowed to be remain, as executed,
1B will be
Petitioner/Licensee irreparably injured in that he will have to expend more
time, energy, and monies than a cost-benefit analysis would support for his
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employment remunemtion. Furthermore, imposition of a stay is not against the public
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22 interest, because the Petitioner/Licensee is normally a safe driver. In addition,
23 Petitioner/Licensee is likely to ultimately prevail on the merits in that Respondent
disregarded Dr. Meekins'edical examination, evaluation, and medical diagnosis as
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testified to, and supported by, Petitioner/Licensee's testimony, was without legal
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justification.
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28 7. Petitioner/Licensee is personally obligated to pay his attorney for attorney services to
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Petition for Writ of Administrative Mandamus for Stay of Administrative Decision
prosecute this action. Petitioner/Licensee is entitled to recover attorney fees as
provided in Government Code section 800(a) ifhe prevails in the within action, on the
grounds that respondent's decision was the result of arbitrary and capricious action, as
follows: Respondent gave little weight to the testimony of Dr. Kirk Meekins, despite
Dr. Meekins testifying that Petitioner/Licensee suffers from panic attacks that cause
dyspnea, difficulty breathing, and chest tightness resulting in an inability to perform a
chemical breath test requiring the Petitioner to expel sufficient quantities of his breath.
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Respondent gave little weight to the testimony of Petitioner/Licensee, despite
Petitioner/Licensee testifying that he suffered a panic attack on October 6, 2018, while
12 attempting to perform the breath test. Mr. Dow never refused, again and again, to
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attempt to complete performance of the breath test as reouested bv the officer.
8. On January 8, 2019, a letter and check was mailed to the Department of Motor
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Vehicles —Driver Safety Appeal Unit requesting the transcript and complete record of
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17 the hearing.
1B 9. Petitioner/Licensee will lodge a copy of the Reporter's Transcript and the complete
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record of the hearing once it is made available by the Department.
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10. Because Respondent has not fulfilled Petitioner/Licensee's request for transcript of the
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22 record of the Administrative Per Se hearing, Petitioner/Licensee's now comes tc
23 Notice of Lodging Administrative Record, when available, including copies of the
Exhibits, for completion of the Record and Petitioner/Licensee hereby further requests,
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when available, incorporation by reference the entire documents as ifthey are fully set
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forth herein.
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2B
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Petitionfor Writ of Administrative Mandamus for Stayof Administrative Decision
Wherefore, Petitioner/Licensee prays:
1. This Court review the Order of the Department of Motor Vehicles, set aside the
administrative suspension arbitrarily entered against him, and order
Petitioner/Licensee's California Driver's License reinstated and returned to him;
and,
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2. Petitioner/Licensee recover his costs in this action including attorney fees under
Government Code section 800(a); and,
3. Petitioner/Licensee recover his damages according to proof; and,
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4. Such other relief be granted that the Court considers and deems proper.
Dated: January /l, 2019. Respectfully submitted,
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ROONEY LAW FIRM
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By: michael M. Rooney, Esq.
17 Attnrneys for Petitioner/Licensee,
Christopher Bradley Dow
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Petitionfor Writ of Administrative Mandamus for Stay of Administrative Decision
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Michael M. Rooney, SBN 190346 ROONEY LAW FIRM 1361 The Esplanade 1/14/2019 3 Chico, California 95926 Telephone: (530) 345 —5678 Facsimile: (530) 897 —0985 Attorneys for Defendant, Christopher Bradley Dow 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF BUTTE 10 CHRISTOPHER BRADLEY DOWs ) Case No.: 19CV00123 11 ) Petitioner/Licensee, ) PETITION FOR WRIT OF ) ADMINISTRATIVF.MANDATE V. ) ) [CCP I11094.5] DEPARTMENT OF MOTOR ) VEHICLES, ) Date: April 3, 2019 15 ) Time: 9:00 a.m. 16 Respondent. ) Dept.: TBA ) Judge: TBA 17 18 19 Petitioner/Licensee, Christopher Bradley Dow, petitions this Court for a writ of mandate 20 under Code of Civil Procedure 111094.5, directed to respondent, Bill Davidson, Acting Director, 21 Department of Motor Vehicles, State of California and Hearing Officer K. Rupp 22 (530.224.4755), to Stay the Findings and Decision Order of December 10, 2018, Administrative 23 Per Se hearing of Petitioner/Licensee: D1452632, Christopher Bradley Dow, re-imposing the 25 driver's license suspension, and by this verified petition alleges as follows: 26 1. Petitioner/Licensee, at all times mentioned in this petition, has been and now is the 27 Petitioner/Licensee with the designated driver's license number D1452632, issued by 28 respondent, California Department of Motor Vehicles (hereinatier the "Department" ), 1 Petitionfor Writ of Administrative Mandamus For Stay of Administrative Decision and said license being necessary for Petitioner/Licensee's livelihood. 2. At all times mentioned in this petition, respondent has been and is now the agency charged with administering California Vehicle Code section 13353 et seq. 3. Respondent failed to grant Petitioner/Licensee a fair hearing, in that the Respondent made findings that are not supported by the evidence and failed to are not supported by the weight of the evidence offered by Petitoner/Licensee. 4. Respondent's decision is not supported by the findings, because the Respondent 10 refused to give any weight to the testimonies of Dr. Kirk Meekins and Petitioner/Licensee regarding Petitioner/Licensee's diagnosed medical illness which 12 interfered with Petitioner/Licensee's ability to complete perfonnance a test of Petitioner/Licensee's breath. 5. Petitioner/Licensee has exhausted the available administrative remedies required to be 15 16 pursued by him. 17 6. If respondent's order and decision is allowed to be remain, as executed, 1B will be Petitioner/Licensee irreparably injured in that he will have to expend more time, energy, and monies than a cost-benefit analysis would support for his 20 employment remunemtion. Furthermore, imposition of a stay is not against the public 21 22 interest, because the Petitioner/Licensee is normally a safe driver. In addition, 23 Petitioner/Licensee is likely to ultimately prevail on the merits in that Respondent disregarded Dr. Meekins'edical examination, evaluation, and medical diagnosis as 25 testified to, and supported by, Petitioner/Licensee's testimony, was without legal 26 justification. 27 28 7. Petitioner/Licensee is personally obligated to pay his attorney for attorney services to 2 Petition for Writ of Administrative Mandamus for Stay of Administrative Decision prosecute this action. Petitioner/Licensee is entitled to recover attorney fees as provided in Government Code section 800(a) ifhe prevails in the within action, on the grounds that respondent's decision was the result of arbitrary and capricious action, as follows: Respondent gave little weight to the testimony of Dr. Kirk Meekins, despite Dr. Meekins testifying that Petitioner/Licensee suffers from panic attacks that cause dyspnea, difficulty breathing, and chest tightness resulting in an inability to perform a chemical breath test requiring the Petitioner to expel sufficient quantities of his breath. 10 Respondent gave little weight to the testimony of Petitioner/Licensee, despite Petitioner/Licensee testifying that he suffered a panic attack on October 6, 2018, while 12 attempting to perform the breath test. Mr. Dow never refused, again and again, to 13 attempt to complete performance of the breath test as reouested bv the officer. 8. On January 8, 2019, a letter and check was mailed to the Department of Motor 15 Vehicles —Driver Safety Appeal Unit requesting the transcript and complete record of 16 17 the hearing. 1B 9. Petitioner/Licensee will lodge a copy of the Reporter's Transcript and the complete i9 record of the hearing once it is made available by the Department. 20 10. Because Respondent has not fulfilled Petitioner/Licensee's request for transcript of the 21 22 record of the Administrative Per Se hearing, Petitioner/Licensee's now comes tc 23 Notice of Lodging Administrative Record, when available, including copies of the Exhibits, for completion of the Record and Petitioner/Licensee hereby further requests, 25 when available, incorporation by reference the entire documents as ifthey are fully set 26 forth herein. 27 2B 3 Petitionfor Writ of Administrative Mandamus for Stayof Administrative Decision Wherefore, Petitioner/Licensee prays: 1. This Court review the Order of the Department of Motor Vehicles, set aside the administrative suspension arbitrarily entered against him, and order Petitioner/Licensee's California Driver's License reinstated and returned to him; and, 7 2. Petitioner/Licensee recover his costs in this action including attorney fees under Government Code section 800(a); and, 3. Petitioner/Licensee recover his damages according to proof; and, 10 4. Such other relief be granted that the Court considers and deems proper. Dated: January /l, 2019. Respectfully submitted, 13 ROONEY LAW FIRM 15 16 By: michael M. Rooney, Esq. 17 Attnrneys for Petitioner/Licensee, Christopher Bradley Dow 18 19 20 21 22 23 24 25 26 27 28 4 Petitionfor Writ of Administrative Mandamus for Stay of Administrative Decision