Preview
Electronically Filed
Armando Villapudua, Esq., Bar No. 173945 i 11/24/2020 1:10 PM
Melissa I. Dougherty, Esq., Bar No. 303127
VILLAPUDUA & SOMERA, P.C.
| Superior Court of California
2431 W. March Lane, Ste. 220. | County of Stanislaus
Clerk of the Court
Stockton, CA 95207
Phone: (209) 956-1234 By: Sonia Krohn, Deputy
Fax: (209) 478-7981 $435 PAID
Counsel for Petitioner, $30 NOT PAID
IGNACIO PEREZ LOPEZ.
SONNY. SANDHU, sy.
‘Thas case nas been aetigned te Ju03e!
Deparment, forah purposes Incwaing Tria, SK
SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF STANISLAUS
10 CITY TOWERS COURTHOUSE
i
12 IGNACIO PEREZ LOPEZ, Case No.: CV-20-005289
13 Petitioner, PETITION FOR ALTERNATIVE WRIT
OF MANDATE CCP § 1094.5 AND
14 vs. VEHICLE CODE § 13559 TO SET
ASIDE SUSPENSION OF DRIVING
15 DIRECTOR OF THE DEPARTMENT OF PRIVILEGE - DUI
MOTOR VEHICLES,
16 Date: March 2, 2021
Respondent.
17
Time:
Dept.:
8:30
SK
18 COMES NOW the petitioner, IGNACIO PEREZ LOPEZ (‘“Petitioner”), by and through his
19 counsel, and petitions this Honorable Court for a Writ of Mandate under Cal. Veh. Code § 13559,
20 directed to respondent, DIRECTOR, CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,
21 and by this Verified Petition alleges as follows:
22 1 Petitioner was and is a resident of the County of Stanislaus, State of California, at all
23 times referenced herein.
24 2. Respondent is the Director of an agency of the State of California (“Respondent”).
25 The Department of Motor Vehicles is empowered by the Cal. Veh. Code § 1650 to administer and
26 enforce the provisions of the Cal. Veh. Code (see also, Gov. Code § 11150).
27 3. On May 24, 2020, in the County of Stanislaus, State of California, Petitioner was
Villapudua & Somera
231 WeachLnsie29 detained by California Highway Patrol Officer Mosleh (“Officer”), and, after arrested for alleged
Stockton, CA 95207
r
(209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF NDATE CCP § 1094.5 AND VEHICLE 1
CODE § 13559 TO SET ASIDE SUSPENSI 0 OF DRIVING PRIVILEGE - DUI
violations of Cal. Veh. Code § 23152, and was administered a chemical test for blood alcohol
concentration. Petitioner’s chemical tests returned results of 0.09% and 0.09% blood alcohol
concentration.
4 On May 24, 2020, per Cal. Veh. Code §§ 13382(a) and/or 23612(e), Officer served
Petitioner with an Administrative Per Se Order of Suspension/Revocation Temporary License
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Endorsement, a copy of which is attached to this petition as “Exhibit A”.
5. Prior to the suspension of Petitioner’s driver’s license, Petitioner was the holder of a
valid California driver’s license, number B9924755, which was issued by Respondent.
9 6 Petitioner timely requested an Administrative Per Se (“APS”) hearing. The request
10 for an APS hearing was granted, and the APS hearing was held on July 10, 2020, with Hearing
11 Officer D. Gutierrez.
12 7. A certified copy of the transcript of the APS and the administrative record has been
13 ordered from Respondent and will be lodged with the court as soon as it is received by Petitioner.
14 8. The issues at the APS hearing, as specified by statute, were:
15 a. whether or not Officer had reasonable cause to believe that Petitioner was
16 driving a motor vehicle in violation of Cal. Veh. Code §§ 23140, 23152, or 23153;
17 b. whether or not Petitioner was lawfully arrested; and,
18 c. and whether or not Petitioner was driving a motor vehicle when he had .08%
19 or more by weight of alcohol in his blood.
20 9. Pursuant Cal. Veh. Code § 13380, Officer filed a sworn statement
21 (Form DS-367) with Respondent stating that there was reasonable cause to believe Petitioner had
22 been driving a motor vehicle in violation of Cal. Veh. Code § 23152.
23 10. A copy of the officer’s DS-367 statement - Vehicle Code §§ 23152 and 23153 is
24 attached to this petition as “Exhibit B”.
25 11. On July 13, 2020, the DMV iss ed an order of suspension which stated Petitioner’s
26 privileged to drive a motor vehicle was suspended for one (1) year, from July 22, 2020, through
27 July 21, 2021. The suspension was under the apthority of Vehicle Code § 13353.3. A copy of the
Villapudua & Somera,
2431 W March Ln Ste 2888
Order of Suspension is attached to this petition as “Exhibit C”.
Stockton, CA 95207
(209) 956-1234
PETITION FOR ALTERNATIVE WRIT OF } IDATE CCP § 1094.5 AND VEHICLE 2
CODE § 13559 TO SET ASIDE SUSPENSIO} OF DRIVING PRIVILEGE — DUI
12. This petition is further based onthe following evidence introduced at the APS
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hearing:
a. Petitioner contends that the Respondent’s documents and record does not
amount to a preponderance of evidence, competent evidence, or sufficient prima facie proof that
Petitioner was driving a motor vehicle in violation of Cal. Veh. Code §23152;
b. On May 24, 2020, Petitioner was driving when an animal ran into the road,
directly in front of Petitioner’s path of travel, causing Petitioner to swerve to avoid colliding with
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the animal resulting in Petitioner’s vehicle colliding with a nearby pole;
9 Cc. Petitioner tried to call for help, but he didn’t have any cellular service;
10 d. Petitioner traveled on foot until he had cellular service, at which point he
11 called his wife to pick him up; i|
12 €. Petitioner then called his insurance company and law enforcement to report
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13 the incident;
14 f. Following the incident, at approximately 1:33 a.m., Officer was dispatched
15 to a reported traffic collision in unincorporated Stanislaus County, with unknown circumstances,
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16 arriving on scene at approximately 2:30 a.m. When Officer arrived, the vehicle was empty and
17 there was nobody around, There was no indication of when the accident had occurred;
18 g Officer arrived at Petitioner’s home at approximately 3:08 a.m., at which
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19 time Petitioner provided the aforementioned information to Officer;
20 h. Officer noted that he observed that Petitioner had red watery eyes, thick
21 slurred speech, and a smell of alcohol from his breath, though no unsteady gait was noted;
22 1. Petitioner denied drinking before the incident, and admitted that he had
23 consumed alcohol after he arrived home;
24 a Petitioner was compli: with Officer’s investigation and completed one
25 preliminary alcohol screening breath test, an own length of time after the collision. The breath
26 results read a .097% at 3:32 a.m. Petitioner was arrested for a violation of Veh. Code § 23132(a).
27 The chemical test breath results read a .09% and .09% at 03:40 p.m. and 03:46 a.m., respectively.
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2431 W March Ln e289 |
Stockton, CA 95207
(209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 3
CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI
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k, Expert forensic toxicologist Abigail O’Rourke testified as to a hypothetical
situation which relied on an assumption that an accident occurred between 11:00 p.m. and 1:20 a.m.
Officer had information that Petitioner had shopped at a particular store that closed at 11:00 p.m.
Based on the hypothetical facts given, Ms. O’Rourke testified that a person would have tested
-147% at 11:00 p.m. and .102% at 1:20 a.m. > 1
1 Petitioner was unrepresented at the APS hearing. Hearing Officer Gutierrez
overruled his objections as to the admission ofidocumentary evidence into the record, and did not
afford him an opportunity to object to the owe testimony; and,
9 m. Hearing Officer Gutierrez was aware that Petitioner had been in a car
10 accident. She was advised that he had hit his Head hard, and that he was having difficulty recalling
11 the incident details, specifically time.
12 13. Following the order of suspension (see Exhibit C), Petitioner retained counsel who
13 requested that Respondent conduct an administrative review of the hearing and its decision.
14 Counsel argued: (1) that there were hearsay and admissibility issued with the Traffic Collision
15 Report Narrative/Supplemental Attached to the DUI Investigation Report; (2) There was
16 insufficient information to find that the chemical test occurred within three hours of the collision;
17 (3) and that Ms. O’Rourke’s expert opinion is speculative and unreliable. Counsel ultimately
18 concluded Respondent could not make a legitimate, evidence-based finding that Petitioner’s blood
19 alcohol content was 0.08% at the time of the riving conduct. A copy of the aforementioned
20 department review request is attached hereto “Exhibit D”.
21 14. Respondent denied Petitioner’s Feaqnest for an Administrative Department Review on
22 October 14, 2020. A copy of said denial is attached hereto and referenced as “Exhibit E”)
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23 15. Accordingly, this petition is male on the ground that Respondent’s decision to
24 suspend Petitioner’s license is invalid under Cal. Code of Civ. Proc. §1094.5. Respondent’s
25 findings are not supported by the weight of evidence; thus, constituting a prejudicial abuse of
26 discretion.
27 16. Respondent has exceeded its at jority by making unreasonable inferences and
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2631 W March La Ste 29
conclusions, it has acted in an arbitrary and cay pricious manner, and made a determination which is
‘Stockton, CA 95207
(209) 956-1234
PETITION FOR ALTERNATIVE WRIT OF IDATE CCP § 1094.5 AND VEHICLE 4
CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI
i
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not supported by any evidence in that the record fails to establish that Petitioner was driving motor
vehicle with a .08 or higher blood-alcohol level and, thus, that Petitioner was lawfully arrested.
17. Petitioner reserves the right to file supplemental points and authorities in support
of the petition herein and does, in fact, anticipate filing said points and authorities upon receipt
of the APS hearing transcript and complete record in this matter.
18. No other speedy or adequate remedy: Petitioner does not have an alternative
plain, speedy, or adequate remedy at law, notwithstanding this petition, because his only other
recourse is an administrative review conducted by Respondent; which has already been submitted
and ruled on, upholding the respondent’s decision.
10 19. Moreover, a mandamus is the proper remedy for judicial review of an administrative
11 action. See, Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820; see also, Los
12 Angeles County v. Tax Appeals Board (1968) 267 Cal.App.2d 830.
13 20. |
Petitioner is beneficially interested in this action because Petitioner is a party
14 directly affected by the action of Respondent in suspending his privilege to operate a motor vehicle
15 21. Petitioner’s privilege to operate a motor vehicle is not suspended or revoked for any
16 reason other than those stated in this petition.
17 22. As required by California Rule of Court, rule 3.1142, a copy of Petitioner’s driving
18 record from the California Department of Motor Vehicles is attached to this petition and referenced
19 herein as “Exhibit F”.
20 WHEREFORE PETITIONER PRAYS|AS FOLLOWS:
21 1. An alternative writ of mandate issue|under the seal of the Court commanding Respondent
22 Director of the California Department of Motor Vehicles to set aside and life its suspension of
23 Petitioner’s driving privilege or to show cause |before the Court at a time and place to be specified
24 by the Court why it has not done so, and why 4 peremptory writ should not issue.
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Villapudua & Somera,
2431 W March Ln Ste 8
‘if
Stockton, CA 95207
(209) 956-1234
PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 5
CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI
1 2. For such and further reliefas the Court may deem proper.
Dated: November 18, 2020 VILLAPUDUA & SOMERA, P.C.
(WUC optec
Armando Villapudud “Esq.
Melissa I. Dougherty, Esq.,
Counsel for Petitioner IGNACIO PEREZ LOPEZ
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Villapudua & Somera
2431 W March Ln Ste 28
Stockton, C 15207
(209) 956-1234
PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 6
CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI
Ignacio Perez Lopez v. Director, California Departmest of Motor Vehicles
Case No |
PROOF OF SERVICE
I, Melissa Dougherty, am citizen of the United States. My business address is 2431 W.
March Lane, Ste 220, Stockton, California, 95207. I am employed in the County of San Joaquin
where this service occurs. I am over the age of 18 years and not a party to the within cause.
On November 19, 2020, I served the following document described below:
Petition For Alternative Writ Of Mandate Cc ps 1094.5 And Vehicle Code § 13559 To
Set Aside Suspension Of Driving Privilege — D
x BY MAIL: I am readily familiar with my employer’s normal business practice of
collection and processing of correspondence for mailing. Under that practice,
correspondence is deposited with the U.S. Postal Service that same day in a sealed
envelope(s) with postage therein fully prepaid at Stockton, California, in the
ordinary course of business.
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BY FAX: I served said document(s) by transmitting via facsimile from facsimile
10 number (209) 478-4981 to the facsimile number(s) set forth below, or as stated on
the attached service list, on this date before 6:00 p.m. A statement that is document
11 was successfully transmitted without error is hereby attached to the Proof of Service.
12 BY ELECTRONIC MAIL: I served said document(s) by transmitting via
electronic mail from melissa@villapudualaw.com to the electronic mail address(es)
13 set forth below, or as stated on the attached service list, on this date before 6:00 p.m.
Prior to serving this document, written approval was obtained by the party to be
14 served or counsel for the party p be served.
15 BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand this
date to the offices of the addressee(s).
16
BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered on the
17 same day to an authorized courier or driver or to a regular box or other facility
regularly maintained by UPS with delivery fees provided for, addressed to the
18 person(s) on whom it is to be served.
19
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On the interested parties in this action addressed as follows:
Ms. Lindy Allen
21 Department of Motor Vehicles
2415 15 Avenue, Mailing Station C128
22 Sacramento CA 95818
facsimile : (916) 657-6243
23
x STATE: I declare under penalty of perjury under the laws of the State of California
24 that the foregoing is true and correct.
25 Executed on November 19, 2020, at Stockton, California.
26
27
(Name of server) (NeAT S50 Bovahecty
28
Proof of Service
Exhibit A
iE. 21-AND. OLDER- SPANISH. ORD!
~ SUSPENSIONREVOCACION (ADMI
SCANNED
‘Able Serves Agere) * Driver tniist beb ‘given’ ies
DE MANEJAR
16) 657-02:
TEMPORAL DS 367.SP
{AW ENFORCEMENT AGENCY CASENDNBER ge 3
IWARRESTOA FOROMVUSECNLY.
WS 5 24h DyL4
DRIVER NAME (LAST, FIRST, Ml): ' E NUM
RIVER | COMMERCIAL? [STATE
LOVE Ci Le IKE Cire
| Gy rest,
WALNG ADDRESS For: oe
MAE WI CiWon, WEN. all ppl
DATE OF BIRTH SEX’ HAR el Alcoholu
ASS. ie Bee US Ho innabis
LICENSE: oO Suspended/Revoked ” PRY Surrendered (Aftachéd) [2] Not in Pi esi Fj Unlicensed E1Othéf Drug Use
VIOLATION: ET 0, 08% or more BAC Chemical Tést Results. EV 001 Probation) rn (Com
Refusal 2) oth emical t Refusal (&
la presente su vil tun vehi
s al edici
ilk 0).
lon ll (916) 657-021
1A,
Debe llevar consigo es mento, ya que le'servi ‘omo ina lice ‘manejaf tem, de forni sujel las mismas: clases ya“ode las restecones
que su liceritia'de mai permanente.: Esta lice femp gui ivilegio. de’
California, osu licencia, it vencida, suspéndi ejo si:n una licehcla de manejar de
a, ca lada 0. fue'n ‘Se iedianoche; 30 ae | fecha dee edicion de
esta ‘orden Como Se indica mas abajo.
Se ha tomado esta accion ‘conforme alas 351855, 13: 33: 33 di svehict lifornia Vehi
detenido por manejar bajo los efectos del alcohol y/o di Ue Usted fle arrestado o
jas y tu
BAC. de 0.01% én el exartien PAS, de Usted comp! am de ali y.el.ofic
aliento, de Sangre 0 de orina estando resultados mostraran.una BAC de
0.01%'0 ‘Silos res fosde ‘muestran'que’su lor ‘Suspensi6n’se anulard. Se le
én periodo de prueba por ‘Dut volvera a exper demi ir Si no tien alt nsl6n’o revocacién énefecto.
Usted completo in uni let fe
“BAC de 0. 06% ‘enel examen de’ nde sangre ode orina’ syel oficial cree
que Ids resul dos raran una BAC de 1% 0. i LoS resi los del muestran’ que su. BAC era menor'de
allento, de sangre o de.orina 0.08%;€: en vocacidn'se-anula ‘Be le xpedir Su lic ia de. manejar ral no tienene ot Suspénisién o.|.
revoca enefecto:
Le: de Usted. complet tin: exat de to una.BAG dé 1as0
créée que'los resulta
.arina: y.el-oficial.|..
lent ‘sangre o de al om loses los.del lab ican qué su BA lor:
anejar un vehiculo cor ial’
de 0.04%; esta susp in Oo revocacién lara. Se te volvera a'expedir su licencia ir sino tiene otra suspension.
Orevocacié nefe
Negarse a.tomar el exam imico. Usted hhego a sometersé.a.no fier ‘uitfico da contenido de alcoloho! lo eos enla sagt.
CA CION CO MERCIAL
Se tomara. una accién de a alificact6n com: ual ‘siguiente: a tomar.ef.
inientras ‘Opera
o un vehi torizado comercial
en: quinn tiene una BA 04%
lefine enta Co tras porta mater ina licencia d anejar
comercial y maneja stat Vehicuto cori uni .08%.
INFORMACION UDIENGIA
TIENE 10: DIASA PARTIR DEE RECIBO! DE ESTA A NOTIFICACION >ARA SOI
JUSTIFICA: No se pospondra: (demoraré) fa Suspensi6n o revo
ADDIE RAR QUI ‘SUSPENSION O REVOCACION NO:SI
/6n, a menos que solici ‘un plazo de.10 DIAS a partir c lafecha
de exp
de esta orden yel DMV no, ‘plieda proveer ina atidiencia:antes dé que la sus,
solamente para determinar fos hechos tal como se describe.al Teverso. Su nace: igory tomat lan
audiencia Otiéne preguntas relacionadas con este-asunto; ,comuniquesi Und ticencla dé manejar no se pued en la audi Ld
1D 16), 4. ta cla se I Por.teléforio.a nosqi
Una audiencia en persona.’ § de la audiencia puede: obtener copi la | dep jen Debe solicita irtainent
porlo menos 10 DIAS antes de la fecha estable inicio de la auc
informaciéna alguien mas, debe firmar un permiso. ene del fone esta
a tener un net
‘un intérprete, favor de avisarlé al DMV, Inmediatame lurante Ja audienct juede presentar siren oral yy
declaracién y. la.audiencia se graba. Usted puede set repi iden 1a bajo. nto,
ntade pu Es
lo arresté en este asunto si se determiria que Se necesita su testim« a ih ue. ‘a comparecer.al of
Coinparecer 4.cualquler otro testigo qué crea le puede dé citar.
it 61} SU_ca y tiene, ines
liciales en blarico en la siguiente direccién de ternal V.Ca.govip ide! s/formsds
0 él ofici ‘audie rasi
antes de la-audiencia. Usted es responsable de en iclone: gui 190. fade
oficial dé audiencias dara’ tos Tesiltados ylomat na: dean
Ng
AGENCY
Epo CeM vos t HY
Ch | PA ODE a. ‘COURT CODE (F
t e did O did not Persortally Serve a copy of the Order: SugpendonRevocation tothe sae
Date. 24 jt29 Signature of Arresting Office XH L
ORDER SERVED BY ANOTHER OFFICER: If order was servéd on driver by another: Ory have that. aHoge coi this
section.
lpersonally served a copy of the order to the driver ‘on the date. showi m below:
Date Servifig Officer's Protege * -BadgellD: Number “- Signature Of Serving Officer
I I
OS 367 SP (REV. 1/2019) ‘White—DMV! ‘low Law Enfconigt Pink—Driver continued
on reverse...i_:
Exhibit B
1” AGE: 21 AND OLDER OFFICER'S STATEMENT- SPANISH
(A
‘APubte Sone Agency
Cad (CV) S385, 80691, 005428 180 Page4
YAW ENFORCEMENT AGENCY CASE NUMBER enero
RIVER
.
O25 05 2420
NAME (LAST, FRST, Ml)
as
2
WAILaiG ADRESS
G1, TGNACe 2 Eis [Bires Eto CA
ZP COE
Arrest Type
purposes
Check
al that apply
DATE OF BIRTH
Halo “Li cwog Oe, INES & S32 Alcohol Use
UAB ee “Bee ern | b-to "BHO Cannabis Use
LICENSE: [/] Suspended/Revoked
D9 Surender (Atha [Not in PossessiohCO) Unticensed O other Drug Use
VIOLATION: i 0.08% or more BAC Chemica! Test Resuits - (0.01% ormore BAC (DU! Probation) LD 0.04%or more BAC (Commercial Vehicle)
Chemical Test Refusal (Complete Reverse) © PAS.or other Chernical Test pees (oUt Probate {Comple! le Reverse)
VEHICLE: . Llcenge Number or VIN: “TAG BID:
CJ Conimetctal Vehicle: Vehicle .conimend
diver al
teense (CVC §18210). [] [Hazardous Materials: eaten era ASRS Or
NARRATIVE; Déseribe In detall the fe observations, and ore ies that led f0 the stop or contact withees driver In, sake on on?Page 2 of this form.
Contact: On date: at Ole ~ Ett lh ‘Clty (County. OM th ste diver was contacted,
DRIVING: - Li Driving observedby this officesor 1 Driving observed by another obse rf (complets sete sect On| Page 3.
- Admission ing adinitted ving the veils Callitons jb Diver lnvolved in a colllston=
(driving.
TIME: ‘What lime did’ or liston waitfor law enforcement! r Respa: ‘am Cl eu
BMA
ARREST OR DETENTION STATEMENT: ‘Thad reasonable cause tol befleve the driver was driving a.mgtor vehicle, with alcohol and/or drugs present in the blood or while.
under the {nfluance. The driver fully arrested, or le whl DUI probafi this office, or by te pron abn f the Obseivadontcent section
‘on Page 2.on dats at. 2 Cini for violation of CVE §§23152, 23153, 6r'23154;*- 7
OBJECTIVE Si ‘OMS OF INTOXICATION:
[o& Blocdshotiwatery Odor of alcohoticbéaverage ~Unsteady galt bax ined sch FAS ao
ae FST Ce Shsorvedty: ett cla (Another observer:
PRELIMINE Y ALCOHOL SCREENING TEST (PAS) oat atin
efor Regia
Driver submitte aid comlted Pag test wit the gis * Taayh
on sera Ee,
at
OF
o8': BAC on, 24 = tn ghee -Test2 s% BACon
NE
ER CERTIFICATION: certify under penalty of ret under the laws of the State of Galfer that: (1).J gplalned the
L ab —
~Ha-
‘ebove PAS test fesultsin the regular course
of my Gutins, (2)°1 ‘Used PAS "Model (Nanre/Number)” Fesr 7s {o- » Serlalt. ee 22 =Y.Manufattured ‘by|
» (3) | administered thisPAS test properly In accor with the manufacturer's guidelines and Instructions, (4) 'have received
training on roper operation of this device and admintstration of the PAS testand am itand qualifiedto operate tha device, and (6) the davice was functio
rT ning
Date * 46 agate *BacgatD Nunter 2AZIS~ Agoy/Div CHP Mepssm
Breath Test rea CHEMICAL TEST
Test't 202 Bacar 15, DY, al 3! Bu tz 291g Home. Dla 216 Hm Bittcoas
1g Qa
A at
BREATH TEST, LMACHINE | OPERATOR. ‘atari ‘J ‘arty ‘under penatty of perry under the faws of the Stato of California, at the above Tae OPM,
_
breath test sample]
results were. obtained in the. regular course of my duties, | furthercary that fam qualified operate this equlpmant and that the test
was. admired pursuant to -_
requirements of Title a7 ofthe Cadfornta Code of Regulat
Preview
Electronically Filed Armando Villapudua, Esq., Bar No. 173945 i 11/24/2020 1:10 PM Melissa I. Dougherty, Esq., Bar No. 303127 VILLAPUDUA & SOMERA, P.C. | Superior Court of California 2431 W. March Lane, Ste. 220. | County of Stanislaus Clerk of the Court Stockton, CA 95207 Phone: (209) 956-1234 By: Sonia Krohn, Deputy Fax: (209) 478-7981 $435 PAID Counsel for Petitioner, $30 NOT PAID IGNACIO PEREZ LOPEZ. SONNY. SANDHU, sy. ‘Thas case nas been aetigned te Ju03e! Deparment, forah purposes Incwaing Tria, SK SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 CITY TOWERS COURTHOUSE i 12 IGNACIO PEREZ LOPEZ, Case No.: CV-20-005289 13 Petitioner, PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND 14 vs. VEHICLE CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING 15 DIRECTOR OF THE DEPARTMENT OF PRIVILEGE - DUI MOTOR VEHICLES, 16 Date: March 2, 2021 Respondent. 17 Time: Dept.: 8:30 SK 18 COMES NOW the petitioner, IGNACIO PEREZ LOPEZ (‘“Petitioner”), by and through his 19 counsel, and petitions this Honorable Court for a Writ of Mandate under Cal. Veh. Code § 13559, 20 directed to respondent, DIRECTOR, CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, 21 and by this Verified Petition alleges as follows: 22 1 Petitioner was and is a resident of the County of Stanislaus, State of California, at all 23 times referenced herein. 24 2. Respondent is the Director of an agency of the State of California (“Respondent”). 25 The Department of Motor Vehicles is empowered by the Cal. Veh. Code § 1650 to administer and 26 enforce the provisions of the Cal. Veh. Code (see also, Gov. Code § 11150). 27 3. On May 24, 2020, in the County of Stanislaus, State of California, Petitioner was Villapudua & Somera 231 WeachLnsie29 detained by California Highway Patrol Officer Mosleh (“Officer”), and, after arrested for alleged Stockton, CA 95207 r (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF NDATE CCP § 1094.5 AND VEHICLE 1 CODE § 13559 TO SET ASIDE SUSPENSI 0 OF DRIVING PRIVILEGE - DUI violations of Cal. Veh. Code § 23152, and was administered a chemical test for blood alcohol concentration. Petitioner’s chemical tests returned results of 0.09% and 0.09% blood alcohol concentration. 4 On May 24, 2020, per Cal. Veh. Code §§ 13382(a) and/or 23612(e), Officer served Petitioner with an Administrative Per Se Order of Suspension/Revocation Temporary License | Endorsement, a copy of which is attached to this petition as “Exhibit A”. 5. Prior to the suspension of Petitioner’s driver’s license, Petitioner was the holder of a valid California driver’s license, number B9924755, which was issued by Respondent. 9 6 Petitioner timely requested an Administrative Per Se (“APS”) hearing. The request 10 for an APS hearing was granted, and the APS hearing was held on July 10, 2020, with Hearing 11 Officer D. Gutierrez. 12 7. A certified copy of the transcript of the APS and the administrative record has been 13 ordered from Respondent and will be lodged with the court as soon as it is received by Petitioner. 14 8. The issues at the APS hearing, as specified by statute, were: 15 a. whether or not Officer had reasonable cause to believe that Petitioner was 16 driving a motor vehicle in violation of Cal. Veh. Code §§ 23140, 23152, or 23153; 17 b. whether or not Petitioner was lawfully arrested; and, 18 c. and whether or not Petitioner was driving a motor vehicle when he had .08% 19 or more by weight of alcohol in his blood. 20 9. Pursuant Cal. Veh. Code § 13380, Officer filed a sworn statement 21 (Form DS-367) with Respondent stating that there was reasonable cause to believe Petitioner had 22 been driving a motor vehicle in violation of Cal. Veh. Code § 23152. 23 10. A copy of the officer’s DS-367 statement - Vehicle Code §§ 23152 and 23153 is 24 attached to this petition as “Exhibit B”. 25 11. On July 13, 2020, the DMV iss ed an order of suspension which stated Petitioner’s 26 privileged to drive a motor vehicle was suspended for one (1) year, from July 22, 2020, through 27 July 21, 2021. The suspension was under the apthority of Vehicle Code § 13353.3. A copy of the Villapudua & Somera, 2431 W March Ln Ste 2888 Order of Suspension is attached to this petition as “Exhibit C”. Stockton, CA 95207 (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF } IDATE CCP § 1094.5 AND VEHICLE 2 CODE § 13559 TO SET ASIDE SUSPENSIO} OF DRIVING PRIVILEGE — DUI 12. This petition is further based onthe following evidence introduced at the APS | hearing: a. Petitioner contends that the Respondent’s documents and record does not amount to a preponderance of evidence, competent evidence, or sufficient prima facie proof that Petitioner was driving a motor vehicle in violation of Cal. Veh. Code §23152; b. On May 24, 2020, Petitioner was driving when an animal ran into the road, directly in front of Petitioner’s path of travel, causing Petitioner to swerve to avoid colliding with | the animal resulting in Petitioner’s vehicle colliding with a nearby pole; 9 Cc. Petitioner tried to call for help, but he didn’t have any cellular service; 10 d. Petitioner traveled on foot until he had cellular service, at which point he 11 called his wife to pick him up; i| 12 €. Petitioner then called his insurance company and law enforcement to report | 13 the incident; 14 f. Following the incident, at approximately 1:33 a.m., Officer was dispatched 15 to a reported traffic collision in unincorporated Stanislaus County, with unknown circumstances, | 16 arriving on scene at approximately 2:30 a.m. When Officer arrived, the vehicle was empty and 17 there was nobody around, There was no indication of when the accident had occurred; 18 g Officer arrived at Petitioner’s home at approximately 3:08 a.m., at which | 19 time Petitioner provided the aforementioned information to Officer; 20 h. Officer noted that he observed that Petitioner had red watery eyes, thick 21 slurred speech, and a smell of alcohol from his breath, though no unsteady gait was noted; 22 1. Petitioner denied drinking before the incident, and admitted that he had 23 consumed alcohol after he arrived home; 24 a Petitioner was compli: with Officer’s investigation and completed one 25 preliminary alcohol screening breath test, an own length of time after the collision. The breath 26 results read a .097% at 3:32 a.m. Petitioner was arrested for a violation of Veh. Code § 23132(a). 27 The chemical test breath results read a .09% and .09% at 03:40 p.m. and 03:46 a.m., respectively. Villepudua& Somera, | 2431 W March Ln e289 | Stockton, CA 95207 (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 3 CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI | k, Expert forensic toxicologist Abigail O’Rourke testified as to a hypothetical situation which relied on an assumption that an accident occurred between 11:00 p.m. and 1:20 a.m. Officer had information that Petitioner had shopped at a particular store that closed at 11:00 p.m. Based on the hypothetical facts given, Ms. O’Rourke testified that a person would have tested -147% at 11:00 p.m. and .102% at 1:20 a.m. > 1 1 Petitioner was unrepresented at the APS hearing. Hearing Officer Gutierrez overruled his objections as to the admission ofidocumentary evidence into the record, and did not afford him an opportunity to object to the owe testimony; and, 9 m. Hearing Officer Gutierrez was aware that Petitioner had been in a car 10 accident. She was advised that he had hit his Head hard, and that he was having difficulty recalling 11 the incident details, specifically time. 12 13. Following the order of suspension (see Exhibit C), Petitioner retained counsel who 13 requested that Respondent conduct an administrative review of the hearing and its decision. 14 Counsel argued: (1) that there were hearsay and admissibility issued with the Traffic Collision 15 Report Narrative/Supplemental Attached to the DUI Investigation Report; (2) There was 16 insufficient information to find that the chemical test occurred within three hours of the collision; 17 (3) and that Ms. O’Rourke’s expert opinion is speculative and unreliable. Counsel ultimately 18 concluded Respondent could not make a legitimate, evidence-based finding that Petitioner’s blood 19 alcohol content was 0.08% at the time of the riving conduct. A copy of the aforementioned 20 department review request is attached hereto “Exhibit D”. 21 14. Respondent denied Petitioner’s Feaqnest for an Administrative Department Review on 22 October 14, 2020. A copy of said denial is attached hereto and referenced as “Exhibit E”) | 23 15. Accordingly, this petition is male on the ground that Respondent’s decision to 24 suspend Petitioner’s license is invalid under Cal. Code of Civ. Proc. §1094.5. Respondent’s 25 findings are not supported by the weight of evidence; thus, constituting a prejudicial abuse of 26 discretion. 27 16. Respondent has exceeded its at jority by making unreasonable inferences and Villapudua & Somera. 2631 W March La Ste 29 conclusions, it has acted in an arbitrary and cay pricious manner, and made a determination which is ‘Stockton, CA 95207 (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF IDATE CCP § 1094.5 AND VEHICLE 4 CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI i | not supported by any evidence in that the record fails to establish that Petitioner was driving motor vehicle with a .08 or higher blood-alcohol level and, thus, that Petitioner was lawfully arrested. 17. Petitioner reserves the right to file supplemental points and authorities in support of the petition herein and does, in fact, anticipate filing said points and authorities upon receipt of the APS hearing transcript and complete record in this matter. 18. No other speedy or adequate remedy: Petitioner does not have an alternative plain, speedy, or adequate remedy at law, notwithstanding this petition, because his only other recourse is an administrative review conducted by Respondent; which has already been submitted and ruled on, upholding the respondent’s decision. 10 19. Moreover, a mandamus is the proper remedy for judicial review of an administrative 11 action. See, Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820; see also, Los 12 Angeles County v. Tax Appeals Board (1968) 267 Cal.App.2d 830. 13 20. | Petitioner is beneficially interested in this action because Petitioner is a party 14 directly affected by the action of Respondent in suspending his privilege to operate a motor vehicle 15 21. Petitioner’s privilege to operate a motor vehicle is not suspended or revoked for any 16 reason other than those stated in this petition. 17 22. As required by California Rule of Court, rule 3.1142, a copy of Petitioner’s driving 18 record from the California Department of Motor Vehicles is attached to this petition and referenced 19 herein as “Exhibit F”. 20 WHEREFORE PETITIONER PRAYS|AS FOLLOWS: 21 1. An alternative writ of mandate issue|under the seal of the Court commanding Respondent 22 Director of the California Department of Motor Vehicles to set aside and life its suspension of 23 Petitioner’s driving privilege or to show cause |before the Court at a time and place to be specified 24 by the Court why it has not done so, and why 4 peremptory writ should not issue. 25 ‘1 26 11 27 //1 Villapudua & Somera, 2431 W March Ln Ste 8 ‘if Stockton, CA 95207 (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 5 CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI 1 2. For such and further reliefas the Court may deem proper. Dated: November 18, 2020 VILLAPUDUA & SOMERA, P.C. (WUC optec Armando Villapudud “Esq. Melissa I. Dougherty, Esq., Counsel for Petitioner IGNACIO PEREZ LOPEZ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25; 26 27 Villapudua & Somera 2431 W March Ln Ste 28 Stockton, C 15207 (209) 956-1234 PETITION FOR ALTERNATIVE WRIT OF MANDATE CCP § 1094.5 AND VEHICLE 6 CODE § 13559 TO SET ASIDE SUSPENSION OF DRIVING PRIVILEGE — DUI Ignacio Perez Lopez v. Director, California Departmest of Motor Vehicles Case No | PROOF OF SERVICE I, Melissa Dougherty, am citizen of the United States. My business address is 2431 W. March Lane, Ste 220, Stockton, California, 95207. I am employed in the County of San Joaquin where this service occurs. I am over the age of 18 years and not a party to the within cause. On November 19, 2020, I served the following document described below: Petition For Alternative Writ Of Mandate Cc ps 1094.5 And Vehicle Code § 13559 To Set Aside Suspension Of Driving Privilege — D x BY MAIL: I am readily familiar with my employer’s normal business practice of collection and processing of correspondence for mailing. Under that practice, correspondence is deposited with the U.S. Postal Service that same day in a sealed envelope(s) with postage therein fully prepaid at Stockton, California, in the ordinary course of business. | BY FAX: I served said document(s) by transmitting via facsimile from facsimile 10 number (209) 478-4981 to the facsimile number(s) set forth below, or as stated on the attached service list, on this date before 6:00 p.m. A statement that is document 11 was successfully transmitted without error is hereby attached to the Proof of Service. 12 BY ELECTRONIC MAIL: I served said document(s) by transmitting via electronic mail from melissa@villapudualaw.com to the electronic mail address(es) 13 set forth below, or as stated on the attached service list, on this date before 6:00 p.m. Prior to serving this document, written approval was obtained by the party to be 14 served or counsel for the party p be served. 15 BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s). 16 BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered on the 17 same day to an authorized courier or driver or to a regular box or other facility regularly maintained by UPS with delivery fees provided for, addressed to the 18 person(s) on whom it is to be served. 19 | On the interested parties in this action addressed as follows: Ms. Lindy Allen 21 Department of Motor Vehicles 2415 15 Avenue, Mailing Station C128 22 Sacramento CA 95818 facsimile : (916) 657-6243 23 x STATE: I declare under penalty of perjury under the laws of the State of California 24 that the foregoing is true and correct. 25 Executed on November 19, 2020, at Stockton, California. 26 27 (Name of server) (NeAT S50 Bovahecty 28 Proof of Service Exhibit A iE. 21-AND. OLDER- SPANISH. ORD! ~ SUSPENSIONREVOCACION (ADMI SCANNED ‘Able Serves Agere) * Driver tniist beb ‘given’ ies DE MANEJAR 16) 657-02: TEMPORAL DS 367.SP {AW ENFORCEMENT AGENCY CASENDNBER ge 3 IWARRESTOA FOROMVUSECNLY. WS 5 24h DyL4 DRIVER NAME (LAST, FIRST, Ml): ' E NUM RIVER | COMMERCIAL? [STATE LOVE Ci Le IKE Cire | Gy rest, WALNG ADDRESS For: oe MAE WI CiWon, WEN. all ppl DATE OF BIRTH SEX’ HAR el Alcoholu ASS. ie Bee US Ho innabis LICENSE: oO Suspended/Revoked ” PRY Surrendered (Aftachéd) [2] Not in Pi esi Fj Unlicensed E1Othéf Drug Use VIOLATION: ET 0, 08% or more BAC Chemical Tést Results. EV 001 Probation) rn (Com Refusal 2) oth emical t Refusal (& la presente su vil tun vehi s al edici ilk 0). lon ll (916) 657-021 1A, Debe llevar consigo es mento, ya que le'servi ‘omo ina lice ‘manejaf tem, de forni sujel las mismas: clases ya“ode las restecones que su liceritia'de mai permanente.: Esta lice femp gui ivilegio. de’ California, osu licencia, it vencida, suspéndi ejo si:n una licehcla de manejar de a, ca lada 0. fue'n ‘Se iedianoche; 30 ae | fecha dee edicion de esta ‘orden Como Se indica mas abajo. Se ha tomado esta accion ‘conforme alas 351855, 13: 33: 33 di svehict lifornia Vehi detenido por manejar bajo los efectos del alcohol y/o di Ue Usted fle arrestado o jas y tu BAC. de 0.01% én el exartien PAS, de Usted comp! am de ali y.el.ofic aliento, de Sangre 0 de orina estando resultados mostraran.una BAC de 0.01%'0 ‘Silos res fosde ‘muestran'que’su lor ‘Suspensi6n’se anulard. Se le én periodo de prueba por ‘Dut volvera a exper demi ir Si no tien alt nsl6n’o revocacién énefecto. Usted completo in uni let fe “BAC de 0. 06% ‘enel examen de’ nde sangre ode orina’ syel oficial cree que Ids resul dos raran una BAC de 1% 0. i LoS resi los del muestran’ que su. BAC era menor'de allento, de sangre o de.orina 0.08%;€: en vocacidn'se-anula ‘Be le xpedir Su lic ia de. manejar ral no tienene ot Suspénisién o.|. revoca enefecto: Le: de Usted. complet tin: exat de to una.BAG dé 1as0 créée que'los resulta .arina: y.el-oficial.|.. lent ‘sangre o de al om loses los.del lab ican qué su BA lor: anejar un vehiculo cor ial’ de 0.04%; esta susp in Oo revocacién lara. Se te volvera a'expedir su licencia ir sino tiene otra suspension. Orevocacié nefe Negarse a.tomar el exam imico. Usted hhego a sometersé.a.no fier ‘uitfico da contenido de alcoloho! lo eos enla sagt. CA CION CO MERCIAL Se tomara. una accién de a alificact6n com: ual ‘siguiente: a tomar.ef. inientras ‘Opera o un vehi torizado comercial en: quinn tiene una BA 04% lefine enta Co tras porta mater ina licencia d anejar comercial y maneja stat Vehicuto cori uni .08%. INFORMACION UDIENGIA TIENE 10: DIASA PARTIR DEE RECIBO! DE ESTA A NOTIFICACION >ARA SOI JUSTIFICA: No se pospondra: (demoraré) fa Suspensi6n o revo ADDIE RAR QUI ‘SUSPENSION O REVOCACION NO:SI /6n, a menos que solici ‘un plazo de.10 DIAS a partir c lafecha de exp de esta orden yel DMV no, ‘plieda proveer ina atidiencia:antes dé que la sus, solamente para determinar fos hechos tal como se describe.al Teverso. Su nace: igory tomat lan audiencia Otiéne preguntas relacionadas con este-asunto; ,comuniquesi Und ticencla dé manejar no se pued en la audi Ld 1D 16), 4. ta cla se I Por.teléforio.a nosqi Una audiencia en persona.’ § de la audiencia puede: obtener copi la | dep jen Debe solicita irtainent porlo menos 10 DIAS antes de la fecha estable inicio de la auc informaciéna alguien mas, debe firmar un permiso. ene del fone esta a tener un net ‘un intérprete, favor de avisarlé al DMV, Inmediatame lurante Ja audienct juede presentar siren oral yy declaracién y. la.audiencia se graba. Usted puede set repi iden 1a bajo. nto, ntade pu Es lo arresté en este asunto si se determiria que Se necesita su testim« a ih ue. ‘a comparecer.al of Coinparecer 4.cualquler otro testigo qué crea le puede dé citar. it 61} SU_ca y tiene, ines liciales en blarico en la siguiente direccién de ternal V.Ca.govip ide! s/formsds 0 él ofici ‘audie rasi antes de la-audiencia. Usted es responsable de en iclone: gui 190. fade oficial dé audiencias dara’ tos Tesiltados ylomat na: dean Ng AGENCY Epo CeM vos t HY Ch | PA ODE a. ‘COURT CODE (F t e did O did not Persortally Serve a copy of the Order: SugpendonRevocation tothe sae Date. 24 jt29 Signature of Arresting Office XH L ORDER SERVED BY ANOTHER OFFICER: If order was servéd on driver by another: Ory have that. aHoge coi this section. lpersonally served a copy of the order to the driver ‘on the date. showi m below: Date Servifig Officer's Protege * -BadgellD: Number “- Signature Of Serving Officer I I OS 367 SP (REV. 1/2019) ‘White—DMV! ‘low Law Enfconigt Pink—Driver continued on reverse...i_: Exhibit B 1” AGE: 21 AND OLDER OFFICER'S STATEMENT- SPANISH (A ‘APubte Sone Agency Cad (CV) S385, 80691, 005428 180 Page4 YAW ENFORCEMENT AGENCY CASE NUMBER enero RIVER . O25 05 2420 NAME (LAST, FRST, Ml) as 2 WAILaiG ADRESS G1, TGNACe 2 Eis [Bires Eto CA ZP COE Arrest Type purposes Check al that apply DATE OF BIRTH Halo “Li cwog Oe, INES & S32 Alcohol Use UAB ee “Bee ern | b-to "BHO Cannabis Use LICENSE: [/] Suspended/Revoked D9 Surender (Atha [Not in PossessiohCO) Unticensed O other Drug Use VIOLATION: i 0.08% or more BAC Chemica! Test Resuits - (0.01% ormore BAC (DU! Probation) LD 0.04%or more BAC (Commercial Vehicle) Chemical Test Refusal (Complete Reverse) © PAS.or other Chernical Test pees (oUt Probate {Comple! le Reverse) VEHICLE: . Llcenge Number or VIN: “TAG BID: CJ Conimetctal Vehicle: Vehicle .conimend diver al teense (CVC §18210). [] [Hazardous Materials: eaten era ASRS Or NARRATIVE; Déseribe In detall the fe observations, and ore ies that led f0 the stop or contact withees driver In, sake on on?Page 2 of this form. Contact: On date: at Ole ~ Ett lh ‘Clty (County. OM th ste diver was contacted, DRIVING: - Li Driving observedby this officesor 1 Driving observed by another obse rf (complets sete sect On| Page 3. - Admission ing adinitted ving the veils Callitons jb Diver lnvolved in a colllston= (driving. TIME: ‘What lime did’ or liston waitfor law enforcement! r Respa: ‘am Cl eu BMA ARREST OR DETENTION STATEMENT: ‘Thad reasonable cause tol befleve the driver was driving a.mgtor vehicle, with alcohol and/or drugs present in the blood or while. under the {nfluance. The driver fully arrested, or le whl DUI probafi this office, or by te pron abn f the Obseivadontcent section ‘on Page 2.on dats at. 2 Cini for violation of CVE §§23152, 23153, 6r'23154;*- 7 OBJECTIVE Si ‘OMS OF INTOXICATION: [o& Blocdshotiwatery Odor of alcohoticbéaverage ~Unsteady galt bax ined sch FAS ao ae FST Ce Shsorvedty: ett cla (Another observer: PRELIMINE Y ALCOHOL SCREENING TEST (PAS) oat atin efor Regia Driver submitte aid comlted Pag test wit the gis * Taayh on sera Ee, at OF o8': BAC on, 24 = tn ghee -Test2 s% BACon NE ER CERTIFICATION: certify under penalty of ret under the laws of the State of Galfer that: (1).J gplalned the L ab — ~Ha- ‘ebove PAS test fesultsin the regular course of my Gutins, (2)°1 ‘Used PAS "Model (Nanre/Number)” Fesr 7s {o- » Serlalt. ee 22 =Y.Manufattured ‘by| » (3) | administered thisPAS test properly In accor with the manufacturer's guidelines and Instructions, (4) 'have received training on roper operation of this device and admintstration of the PAS testand am itand qualifiedto operate tha device, and (6) the davice was functio rT ning Date * 46 agate *BacgatD Nunter 2AZIS~ Agoy/Div CHP Mepssm Breath Test rea CHEMICAL TEST Test't 202 Bacar 15, DY, al 3! Bu tz 291g Home. Dla 216 Hm Bittcoas 1g Qa A at BREATH TEST, LMACHINE | OPERATOR. ‘atari ‘J ‘arty ‘under penatty of perry under the faws of the Stato of California, at the above Tae OPM, _ breath test sample] results were. obtained in the. regular course of my duties, | furthercary that fam qualified operate this equlpmant and that the test was. admired pursuant to -_ requirements of Title a7 ofthe Cadfornta Code of Regulat