https://www.yousendit.com/download/UFh0UXV1ZDUxUUEwTVE9PQ

https://www.yousendit.com/download/UFh0UXV1K3hwcFd4dnc9PQ

Reagan Carter of San Diego County’s crime lab in this clip. Just unbelievable the way they butcher science.
A Cop named Carpenter in this one

117 E. Colorado Blvd. • Suite 465

Pasadena, California 91101

(626) 792-1301 Telephone

(626) 340-4141 Facsimile

OO@CASEHELP.COM

Attorneys for Defendant

SUPERIOR COURT FOR THE COUNTY OF ORANGE

CENTRAL DISTRICT OF CALIFORNIA

APPELLATE DIVISION

Petitioner and his counsel hereby request a writ of mandamus and/or prohibition preventing the trial Court from continuously ordering the Defendant and his attorney to be present every single day in the above trial Court while Defense Counsel is engaged in another trial and denying a continuance of the above case as punishment for choosing to exercise the right to go to trial.  This trial court ruling action further forces Defense Counsel to expend tremendous resources locating and hiring appearance attorneys for the entire time he is in trial.  Further, by forcing the Defendant to waste a lot of time and resources by going to Court repeatedly if he chooses to go to trial or have counsel of his choice, he is also being denied the right to trial and Counsel in violation of the most prized rights in the U.S. and California Constitutions.

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS

ALTHOUGH ALL LAWYERS WHO BELIEVE IN THE CONSTITUTION AND THE RIGHT TO A JURY TRIAL OVER THEIR OWN FINANCIAL GAIN AND AT THEIR PERIL, THE RIGHTS THEY PROTECT ARE SACRED AND ARE ABOVE ALL ELSE

It is an unfortunate but undeniable fact that any lawyer who refuses to go to trial can churn cases and make a fast dollar.  Equally as unfortunate is the perilous plight a lawyer faces for believing in the constitution and placing clients first and the repercussions that will result in some quarters.

Nevertheless, the underlying motions must be made pursuant to Penal Code 1050, although it regrettably causes inconvenience.

In this case, we are now going into the THIRD day in a row (March 2, 2011) that defense counsel is being harassed by being ordered to be in Court for no reason.  Defense Counsel is being harassed for taking cases to trial and NOT being dishonest by collecting retainers and forcing his clients to plead guilty, as it the custom and practice of the majority of lawyers that “defend” driving under the influence cases.  This is forcing defense counsel to expend large amounts of time, resources and money finding attorneys to cover his hearings for him and there is no end in sight.

II. LAW

Penal Code section 1050(b) provides that:

To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary….

Penal Code section 1050(e) further provides that “Continuances shall be granted only upon a showing of good cause.” The request must be supported by declarations, unless the court first finds good cause to excuse the notice and declaration requirement. The declaration must be executed under penalty of perjury. (Brown v Superior Court (1987) 189 CA3d 260, 265, 234 CR 416.)

The grant or denial of a motion for continuance is an act within the Court’s discretion (Ungar v Sarafite, (1964) 376 US 575, 589, 11 L Ed 2d 921, 931, 84 S Ct 841), but this discretion is not without bounds:

While the determination of whether in any given case a continuance should be granted normally rests in the discretion of the trial court, that discretion may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense. (Jennings v Superior Court (1967) 66 C2d 867, 59 CR 440.)

Although the Court must consider the welfare of witnesses (Pen C §1050(g)) and the right of the People to a speedy disposition (Pen C §1050(a)), it must also consider the defendant’s right to a fair trial. (People v Courts (1985) 37 C3d 784, 794, 210 CR 193. See also People v Murphy (1963) 59 C2d 818, 31 CR 306 (error to deny continuance to prepare following last-minute amendment by prosecution).)

When a defendant joins in requesting a continuance caused by defense counsel’s court commitments on behalf of other clients, the court must grant the continuance until either defense counsel can appear or the defendant can obtain other counsel. (People v.  Manchetti (1946) 29 C2d 452, 458, 175 P2d 533.)

There are no provisions in the Judicial Council or superior court rules or in any statute that would authorize a judge in one department to make a blanket order creating a priority for that department over other departments of the superior court with respect to the services of an attorney — be he in private practice or a member of the public defender’s office

Glen Mowrer, Jr., v. The Superior Court (Los Angeles County), 83 Cal. Rptr. 125, 3 Cal.App.3d 223, 231 (1969).

III.       CONCLUSION

The Petitioner therefore requests that the instant Petition be granted.

DATED: March 1, 2011

_________________________

Okorie Okorocha

DECLARATION RE VERIFICATION, TRANSCRIPTS AND MINUTE ORDERS

1.      I, OKORIE OKOROCHA, am the attorney for the Defendant in the instant case.

2.      I declare that the contents of this writ are true and accurate.

3.      I will obtain all transcripts and minute orders as soon as possible.

4.      I have not been able to do so as this is an emergency writ filed while in trial.

5.      A COPY OF THIS PETITION IS BEING SERVED ON THE TRIAL COURT THAT MADE THE RULINGS BEING CHALLANGED.

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

Executed this 1^st day of March, 2011.

___________________________

Okorie Okorocha

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am over the age of 18 and not a party to the with­in action.  My address is 1055 E. COLORADO BLVD. · PENTHOUSE, PASADENA, CALIFORNIA 91105

On March 1, 2011, I served the foregoing document described as: writ of prohibition and mandamus on  all interested parties as follows:

DEPARTMENT H13

Harbor Justice Center

Newport Beach Facility

4601 Jamboree Road

Newport Beach, CA 92660-2595

DISTRICT ATTORNEY

Harbor Justice Center

Newport Beach Facility

4601 Jamboree Road

Newport Beach, CA 92660-2595

DEPARTMENT W13

West Justice Center

8141 13th Street

Westminster, CA 92683-4593

DISTRICT ATTORNEY

West Justice Center

8141 13th Street

Westminster, CA 92683-4593

xxxxx (BY PERSONAL SERVICE) I caused such envelope to be hand-delivered to the above-referenced parties.

XXXX (STATE) Pursuant to the California Rules of Civil Procedure.

]

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

Executed on March 1, 2011, at Pasadena, California.

________________________

Okorie Okorocha

FILE AT THE MISDEMEANOR APPEALS WINDOW

SANTA ANA SUPERIOR COURT.

People v. Martinez (2007) 156 Cal.App.4th 851  (The corpus delicti of driving under the influence is established with evidence that an automobile was parked facing the wrong way with its engine running and its headlights on, and that there were only two people in the vicinity, one of whom was in the passenger seat with her seatbelt buckled, and one of whom was intoxicated.)

ii)

People v. Binkerd (2007) 155 Cal.App.4th 1143  (driving under the influence of alcohol causing injury is a necessarily lesser included offense of vehicular manslaughter without gross negligence.)

iii)

People v .Verlinde (2002) 100 Cal.App.4th 1146 (Vehicular manslaughter while intoxicated charge is necessarily included in the greater offense of gross vehicular manslaughter while intoxicated;  Accomplice to DUI with severe injuries may not have bodily injury enhancement under the statutory terms of the enhancement.)

iv)

People v. Sanchez (2001) 86 Cal.App.4th 970 (Jury was properly instructed on second degree murder from DUI based upon implied malice from defendant’s excessive speed and running of red lights.)

v)

Baker v. Gourley (2000) 81 Cal.App.4th 1167 (Defendants must show evidence that a blood sample’s seal broken six days prior to testing resulted in compromising the integrity of the sample in order to rebut presumption of worthiness of result pursuant to Evid.Code §664.)

vi)

McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677 (Colorado DUI law is similar enough for DMV to use to convictions to suspend driver’s license.)

vii)

People v. Thompson (2000) 79 Cal.App.4th 40  (Jury instructions on Gross Vehicular Manslaughter while Intoxicated not including the phrase “unlawful manner” or the word “negligently” in enumerating the elements of that crime is harmless error.)

viii)

People v. Joehnk (1995) 35 Cal.App.4th 1488  (Arresting officer’s use of findings from use of horizontal gaze nystagmus (HGN) field sobriety test as a basis for his opinion that appellant was driving under the influence of alcohol. is admissible as evidence.)

ix)

Mosier v. Department of Motor Vehicles (1993) 18 Cal.App.4th 420  (Veh.Code §13353.2 does not require a driver’s license be reinstated upon a dismissal of charges pursuant to a plea bargain, and only allows such reinstatement if there is an acquittal.)

x)

Davenport v. Department of Motor Vehicles (11992) 6 Cal.App.4th 133 (Under Evidence Code §664, a rebuttable presumption exists that BAC tests were administered in compliance with statutory and regulatory requirements, and thus reliable evidence to suspend a driver’s license.)

xi)

People v. Ricardi (1990) 221 Cal.App.3d 249 (Trial court commits reversible error by not instructing jury that CALJIC No. 4.21 re voluntary intoxication defense relevance to specific intent in DUI Murder case.)

xii)

People v. Leffell (1988)  203 Cal.App.3d 575 (Trial court’s failure to give a unanimity jury instruction that the jury must agree on one specific act which forms the basis of a vehicular manslaughter conviction is harmless error.)

xiii)

Blitzstein v. Department of Motor Vehicles (1988) 199 Cal.App.3d 138 (Arresting officer’s admonitions to DUI suspect on failure to agree to take BAC test required by the Veh. Code, §13353, subds. (a), (b) not inherently misleading or confusing.)

xiv)

People v. Von Staden (1987) 195 Cal.App.3d 1423 (The “gross negligence” element required for a conviction of gross vehicular manslaughter while intoxicated cannot be shown by the mere fact of driving under the influence or violating the traffic laws.)

xv)

People v. Subramani (1985) 173 Cal.App.3d 1106  (DUI suspect can be charged and convicted under both subdivision (a) and (b) of Veh.Code §23153, but may not be punished for both.)

xvi)

People v. Albright (1985) 173 Cal.App.3d 883 (Implied malice element of DUI murder charge does not require awareness of life-threatening risk to a particular person, and trial court erred in modifying jury verdict on this basis.)

xvii)

Mackler v. Alexis (1982) 130 Cal.App.3d 44  (An arresting officer’s written sworn statement made pursuant to Veh.Code.§13353 is admissible into evidence over a hearsay objection in either a formal or informal hearing before the DMV.)

xviii)

Miles v. Aexis (1981) 118 Cal.App.3d 555 (Second urine BAC test is required upon first unsuccessful urine test in order to comply with implied consent law.)

xix)

Skinner v. Sillas (1976) 58 Cal.App.3d 591  (Compliance with the implied consent law pursuant to Veh. Code, § 13353 consists of completing, not merely attempting, one of the three

blood alcohol content tests offered.]

xx)

Cahall v. Dept. of Motor Vehicles (1971) 16 Cal.App.3d 491 (Public policy dictates that the suspected drunken driver not be allowed to evade giving the best evidence of his offense by the pretext of partial compliance.)

xxi)

Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514 (DUI suspect’s demand that he only take blood test administered by his own physician constituted a violation of impleid consent rule and justified suspension of driver’s license.)

xxii)

Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752 (Arresting officer is required to take DUI suspect wiht a head injury to the hospital emergency room before providing the blood, breath, or urine admonitions, as it comports with constitutional due process and public policy in implied consent statute.)

xxiii)

Blitzstein v. Department of Motor Vehicles (1988) 199 Cal.App.3d 138 (The advisements required by the Implied Consent Law (Veh. Code, §§ 23157, 23157.5) to be given to DUI suspect are neither inherently confusing nor ambiguous.)

Brierton v. Department of Motor Vehicles (2006) 140 Cal.App.4th 427 (Reasonable Suspicion to Initiate Traffic Stop for “Peeling Out” Tires)

ii)

Kodani v. Snyder (1999) 75 Cal.App.4th 471 (Reasonable Suspicion to Initiate Traffic Stop for Failure to Wear Seatbelt Even Without Personal Observation)

iii)

Lowry v. Gutierrez (2005) 129 Cal.App.4th 926 ((Reasonable Suspicion to Initiate Traffic Stop for Reckless or Erratic Driving)

iv)

Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107 (Failure to advice of all BAC test choices did not violate implied consent law  and was not unconstitutional)

v)

People v. Beltran (2007) 157 Cal.App.4th 235  (Permissive inferences do not shift the burden of production or lower the prosecution’s burden of proof as they may or may not be drawn by the jury and do not operate in an unconstitutionally pernicious manner. CALJIC No. 12.61.1 may be given regardless of whether there is other evidence admitted at trial “rebutting” the inference, but the use of permissive inferences is not permitted in all cases.  Where the permissive inference in CALJIC No. 12.61.1 was not rationally connected to the proven fact, prejudicial error occurs.)

vi)

Arburn v. Department of Motor Vehicles (2007)  (Driving \under the influence arrestee weaving and near miss of the curb created an immediate concern for public safety raised a reasonable suspicion that he was driving under the influence that justified investigative stop as lawful.) ,

vii)

Lowry v. Gutierrez (2006) 129 Cal.App.4th 926 (2005) (Anonymous cell phone tip od drunk driver did not render initial stop of driver unconstitutional.)

viii)

Grundy v. Gourley (2003) 110 Cal.App.4th 20 (On administrative mandamus, the trial court may consider additional evidence in the administrative record compiled by the DMV if it states sufficient facts to warrant license suspension.)

ix)

Hamilton v Gourley (2002) 103 Cal.App.4th 351 (Trial court may not order license suspension penalty that exceeds statutorily allowed penalty.)

x)

People v. Sugarman (2002) 96 Cal.App.4th 210 (DUI arrestee’s blood test taken at hospital after frustrating breath test did not violate the 4th Amendment.)

xi)

People v. Acevedo (2001) 93 Cal.App.4th 757  (Defendant’s preclusion from challenging the partition ratio of urine sample to determine BAC  through cross-examination of a prosecution expert witness was unconstitutional.)

xii)

People v. Superior Court (Moore) (1996) 50 Cal.App.4th 1202  (Criminal prosecution for DUI after the DMV’s action temporarily suspending driver’s license after administrative per se hearing does not violate double jeopardy.)

xiii)

Armando v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174  (A disappearing lawful arrest does not invalidate an administrative per se suspension of a driver’s license.)

xiv)

Fitzpatrick v. Department of Motor Vehicles (1993) 13 Cal.App.4th 1771 (Petitioner at administrative per se hearing has a constitutional and statutory rights to confront and cross-examine the arresting officer on issue of refusal to submit to BAC test.)

xv)

Nick v. Department of Motor Vehicles (1993) 12 Cal.App.4th 1407 [Government Code § 68097.2 (b) requiring that requires the party at whose request the subpoena pay $150 fee to reimburse the public entity for the officer's appearance at administrative per se hearing does not violate the indigent petitioner's U.S.Const.Amend. VI Confrontation Clause.]

xvi)

Ellis v. Pierce (1991) 230 Cal.App.3d 1557 (DMV’s administrative suspension of a driver’s license for refusal to take a blood-alcohol test along with concurrent criminal DUI penalty of a 48-hour “refusal enhancement” for the same conduct does not violate double jeopardy clause of U.S.Const.Amend. V.”

xvii)

People v, Fiscalini (1991) 228 Cal.App.3d 1639 (The driver/defendant’s rights under the Fourth Amendment by forcibly drawing blood sample after driver voluntarily provides a urine sample.)

xviii)

People v. Trotman (1989) 214 Cal.App.3d 430 (The Truth-in-Evidence provision of Proposition 8, which added article I, section 28, subdivision (d) to the California Constitution, abrogated requirement of police to have exigent circumstances in order to perform a warrantless seizure of a blood sample from an apparently intoxicated, but conscious, driver without his consent and without a prior formal arrest.)

xviv)

Ostrow v. Municipal Court (1983) 149 Cal.App.3d 668 (Veh.Code section 23152 subdivision (b) is not constitutionality vague and does not require an intent element for a conviction.)

xx)

People v. Keltie (1983) 148 Cal.App.3d 773 (Arresting officer’s situation of emergency situation requiring quick action to forestall the imminent destruction of evidence of felony vehicular manslaughter justifies warrantless arrest in home.)

xxi)

People v. Ryan (1981) 116 Cal.App.3d 168 (DUI suspect was not entitled to the suppression of the blood alcohol test results or the dismissal of the charges because the blood removal was done incident to his arrest, in a reasonable, medically approved manner;, and based upon the reasonable belief that the person is intoxicated.)

xxii)

Martin v. Department of Motor Vehicles (1976) 54 Cal.App.3d 903 (Once the legality of the DUI suspect’s arrest is conceded or established, the obligation is upon that individual involved to choose take one of the BAC tests or forfeit the driver’s license.)

xxiii)

Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821 (Implied consent law pursuant to Veh.Code, section 13353  is not violative of federal or state due process as it is designed to help regulate the drunk driving problem, and that the means used are reasonably related to the end sought to be achieved.)

xxiv)

Carleton v. Superior Court (1985) 170 Cal.App.3d 1182 (Police officer’s use of considerable strength and restraint on the DUI suspect was necessary use of force against resistive and aggressive suspect, and not violative of the 4th Amendment.)

xxv)

People v. Wilson (2003) 114 Cal.App.4th 953 (Nonconsensual blood test administered after PAS breath test in constitutional under 4th Amendment.)

xxvi)

People v. Sugarman (2002) 96 Cal.App.4th 210 (Arresting officer’s requiring DUI suspect to take blood BAC test after taking breath test does not violate the 4th Amendment, and was not unauthorized or unreasonable.)

xxvii

Villalobos v. Zolin (1995) 35 Cal.App.4th 556 (Arresting officer’s observance of DUI suspect’s symptoms of intoxication in a vehicle that was obstructing an interstate highway permits that officer to arrest the DUI suspect without a warrant.)

xxix)

People v. Superior Court (Maria) (1992) 11 Cal.App.4th 134 (Law enforcement agency’s failure to maintain an adequate supply of specimen bottles at the jail and also by failing to inquire whether the bottles were available from the hospital or CHP, all for the DUI suspect’s requested urine test does not warrant dismissal of the DUI charges.)

xxx)

People v. Esayian (2003) 112 Cal.App.4th 1031 (Blood BAC test not taken in exact compliance with the California’s regulatory scheme requiring certification of blood drawer does not violate the DUI suspect’s 4th Amendment rights.)

xxxi)

People v. Fiscalini (1991) 228 Cal.App.3d 1639  (Arresting officer’s forcibly drawing his blood after DUI suspect had given a urine sample violated the 4th Amendment and warranted  its suppression as evidence at trial.)

xxxiii)

Music v. Department of Motor Vehicles (1990)  221 Cal.App.3d 841 (Arresting officer’s warrantless arrest for misdemeanor drunk driving without having observed the DUI suspect driving the vehicle invalidates implied consent law.)

xxxiv)

Quintana v. Municipal Court (1987) 192 Cal.App.3d 361 (The enhancement of the penalty for driving under the influence where a BAC test has been refused does not violate constitutional principles of substantive due process or equal protection.)

xxxv)

Miles v. Alexis (1981) 118 Cal.App.3d 555 (The blood alcohol content tests are set forth in California Administrative Code, title 17, sections 1219 through 1221.5 are authorized by the Legislature.)

xxxvi)

Behan v. Alexis (1981) 116 Cal.App.3d 403 (Penal Code Sections 849.5 and 851.6, Subdivision (b) do not apply to Administrative Per Se hearings conducted by the DMV.)

xxxvi)

People v. Ryan (1981) 116 Cal.App.3d 168 (A blood sample taken of DUI suspect by a blood technician in a medically approved manner is  clearly admissible in evidence in the criminal DUI proceeding.)

xxxvii)

Plumb v. Department of Motor Vehicles (1969) 1 Cal.App.3d 256 (DUI suspect is not entitled to have counsel before deciding whether to take BAC test in compliance with implied consent law.)

xxxviii)

Whalen v. Municipal Court (1968) 274 Cal.App.2d 809 (Evidence obtained by an arresting officer in observing a field sobriety test does not fall within the protection of the 5th Amendment privilege.)

xxxix)

Reirdon v. Department of Motor Vehicles (1968) 266 Cal.App.2d 808 (DUI suspect is not entitled to have counsel before deciding whether to take BAC test in compliance with implied consent law.)

lx)

Chr. Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199 (Given the presumption under Evidence Code section 664,  DUI suspect has the burden to adduce evidence the sobriety checkpoint did not comport with the Ingersoll factors. The presumption attaches once the arresting officer submits a written report and testimony regarding duties as a contact officer at the sobriety checkpoint.]

Roelfsema v. Department of Motor Vehicles (1995) 41 Cal.App.4th 871 (The DMV does not have to prove the constitutionality of every sobriety checkpoint in every section 13558 license suspension hearing it considers.)

ii)

Bell v Department of Motor Vehicles (1992) 11 Cal.App.4th 304 (At Administrative Per Se Hearing Suspending Driver’s License, Rebuttable Presumption of Veh.Code § 23152 (b) of .08% BAC Applies if Test Administered Within Three Hours of Driving)

iii)

Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687 (DMV Need not Prove Actual in Fact Driving in Order to Suspend Driver’s License Based on Licensee’s Failure to Submit to BAC Test Due to Implied Consent Law)

iv)

Bobus v. Department of Motor Vehicles (2005) 125 Cal.App.4th 680  (Minor’s License Properly Suspended Where Cough Syrup Containing Alcohol Within Meaning of Veh.Code § 23136(a), 01% Alcohol)

v)

Brown v. Valverde (2010)  (At a DMV administrative per se hearing, a driver facing license suspension may not file a Pitchess discovery motion to obtain a police officer’s personnel record.)

vi)

Lee v. Valverde (2009) 178 Cal.App.4th 1069  (A forensic report submitted as evidence as. an administrative per se hearing is not inadmissible hearsay.)

vii)

Miyamoto v. Dept. Of Motor Vehicles (2009) 176 Cal.App.4th 1210 (A laboratory report of blood alcohol content is admissible as evidence at administrative per se hearing under the public employee records exception to the hearsay rule.)

viii)

Molenda v. Dept. of Motor Vehicles (2009) 172 Cal.App.4th 974  (The DMV may not rely on the presumptions in Evidence Code section 664 to establish the foundation necessary for the admission of the PAS test results, and BAC and breath test results and the resulting laboratory report obtained using a PAS device are properly excluded as evidence at an administrative mandamus hearing.)

ix)

Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161  (The trial court’s may not rely on a legally infirm ground that police officer was driving an unmarked police vehicle for granting the petition for writ of administrative mandamus and failure to conduct an independent review of the sufficiency of the evidence to support the DMV’s factual findings constitute grounds to vacate the judgment and remand for a new hearing.)

x)

Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176  (A preliminary alcohol screening (PAS) test results without complying with Title 17 regulatory requirements is insufficient evidence to establish administrative finding to suspend driver’s license.)

xi)

Brierton v. Department of Motor Vehicles (2006) 140 Cal.App.4th 427  (DMV’s use of fact of prior convictions to impose a higher driver’s license higher suspension than ordered by the court does not violate constitutional separation of powers.)

xii)

Kodani v. Snyder (1999) 75 Cal.App.4th 471 (Suspension of driver’s license is proper where arresting officer’s observation that driver was not wearing his seat belt as this was reasonable cause to stop vehicle.)

xiii)

Wheeler v. Department of Motor Vehicles (1994) 34 Cal.App.4th 228  (The Results of any chemical BAC test must be sworn under Veh.Code § 23158.2. in order to support the findings of the hearing officer at administrative per se hearing.)

xiv)

Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730  (DUI arrestee’s statement to arresting officer and contained in the subsequent police report  that arrestee was driving was admissible competent evidence under the hearsay exceptions for public employee records and admissions of a party in a civil administrative per se hearing.)

xv)

Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687 (DMV is not required to  to prove that a person was actually driving at the time of arrest before his or her license may be suspended or revoked under Veh.Code §§ 13353 and 23157.)

xvi)

Robertson v. Department of Motor Vehicles (1992) 7 Cal.App.4th 938 (Any conflict in the drunk driving provisions of the Vehicle Code between administrative per se laws mandating the

suspension of driving privileges of second offenders for a period of one year (§§ 13353.2 & 13353.3, subd. (b)(2)) and preexisting second-offender probation statutes providing for a restricted driver’s license (§§ 23165, 23166, 13352, subd. (a)(3), &13352.5, subd. (a), is insufficient to reverse driving loss suspension.)

xvii)

Santos v Department of Motor Vehicles (11992) 5 Cal.App.4th 537 (BAC test result lacking the time of the test is insufficient to establish BAC at the time of driving, and thus warrant driver’s license suspension at Administrative Per Se hearing.)

xviii)

Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974  (The DMV may not rely on the Evid.Code § 664 presumption to establish the foundation necessary for the admission of the Preliminary Alcohol Screening [PAS] test results.)

xix)

Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176 (PAS Test evidende that is supported by substantial evidence is admissible in DMV administrative per se hearing.)

xx)

Moles v. Gourley (2003) 112 Cal.App.4th 1049 (2003)

(In deciding driver’s license suspension, the DMV may use out-of-state conviction as prior DUI offense by giving reciprocal effect.)

xxi)

Zink v. Gourley (2000) 77 Cal.App.4th 774 (DMV’s one-year suspension of DUI arrestee is mandatory and not mitigated by the commercial driver’s license provisions of Veh.Code §13353.6.)

xxii)

Foster v. Snyder (1999) 76 Cal.App.4th 264 (The defense of duress under Veh.Code § 23136 does not apply to administrative per se proceedings.)

xxiii)

Burnstine v. Department of Motor Vehicles (1996) 51 Cal.App.4th 1428 (The DMV does not have a mandatory duty to reinstate a person’s driver’s license suspended pursuant to Veh.Code §13353 if that person is later found factually innocent of a criminal charge of willfully refusing to take a chemical test.)

xxiv)

Pyburn v. Zolin (1995) 40 Cal.App.4th 744 (The DMV has a mandatory duty to suspend the license and not to reinstate it until the driver completes all the requirements listed Veh.Code §13352.)

xxv)

Armondo v. Department of Motor Vehicles (1993)15 Cal.App.4th 1174 (The “disappearing lawful arrest” — i.e., an arrest which, by operation of law, is subsequently deemed only a detention — may support the DMV’s administrative per se suspension of a driver’s license.)

xxvi)

Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687 ((It is unnecessary for the DMV to prove that a person was actually driving at the time of arrest before his or her license may be suspended or revoked under Veh.Code § 13353 and 23157.)

xxvii)

Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364 (Veh.Code § 14108 does not authorize the DMV’s sole reliance on the officer’s sworn statement to support driver’s license suspension under the implied consent law where the licensee has requested a hearing.)

xxviii)

Hughes v. Alexis (1985) 170 Cal.App.3d 800 (Where DUI suspect subpoenaed arresting officer for administrative per se hearing and officer does not attend, remand is proper for rehearing on matter of DUI suspect’s license suspension)

xxix)

Hensley v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445 ((In administrative per se hearing n DUI suspect’s license revocation hearing, the arresting officer did not need to personally observe  DUI suspect driving vehicle where DUI suspect parked his vehicle the wrong way in a traffic lane, and thus suspension was proper.)

xxx)

Dunlap v. Department of Motor Vehicles ( 1984) 156 Cal.App.3d 279 (Arresting officer is not required to offer a DUI suspect an additional opportunity to complete either a blood, breath or urine test after that driver initially has refused to comply with the requirements of California Vehicle Code section 13353 subdivision (a)(2), and one refusla equals one suspension.)

xxxi)

Barrie v. Alexis (1981) 151 Cal.App.3d 1157 (Initial refusal to take BAC test followed by taking test “under protest is a violation of the implied consent law in California.)

xxxii)

Buttimer v. Alexis (1983) 146 Cal.App.3d 754 (The State of California is the real party in interest in both the administrative per se hearing and the criminal DUI proceedings,  and the requirement of privity as an element of collateral estoppel is satisfied.)

xxxiii)

Eilinger v. Department of Motor Vehicles (1983) 143 Cal.App.3d 748 (DUI suspect’s earlier fear of police resulting in becoming almost paralyzed because of this fear did not excuse refusing to take BAC test in violation of implied consent law.)

xxxiv)

Sanchez v. Alexis (1982) 131 Cal.App.3d 709 (A DUI suspect’s refusal to submit to BAC test without knowing the criminal consequences of such a refusal relates solely to evidentiary questions in the criminal prosecution.)

xxxv)

Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730 (The dismissal of criminal DUI charges does not have collateral estoppel effect on administrative per se hearing on issued of violation of implied consent law.)

xxxvi)

Burkhart v. Department of Motor Vehicles (1981) 124 Cal.App.3d 99 (Federal due process clause does not invalidate the statutory hearing scheme provided for in section Veh.Code §14100.)

xxxvii)

Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354 (Where DUI suspect is unable to understand the warning of the consequences of refusal to undergo one of the required BAC tests through no fault of their own, license suspension is improper.)

xxxviii)

McConville v. Alexis (1997) 97 Cal.App.3d 593 ((Possession of a driver’s license rises to the level of a fundamental right.)

xxxix)

Holland v. Department of Motor Vehicles (1979) 92 Cal.App.3d 25 (DUI suspect’s emotional impairment is insufficient to justify refusal to consent to BAC test.)

lx)

Joyce v. Department of Motor Vehicles (1979) 90 Cal.App.3d 539 (Where arresting officer gives confusing or misleading statements by the arresting officer and not engendered by the driver’s self-impaired ability to understand, license suspension is improper.)

lxi)
Jones v. Department of Motor Vehicles (1977) 71 Cal.App.3d 615 (Vehicle Code § 13353 is not per se confusing to an out-of-state driver merely because there is no special supplementary explanation for such a driver.)

lxii)

McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653 (Impaired judgment is not a defense to refusal to take BAC test in violation of implied consent law.)

(a)        In any case charging a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, the court shall not strike any separate conviction of those offenses for purposes of sentencing in order to avoid imposing, as part of the sentence or term of probation, the minimum time of imprisonment and the minimum fine, as provided in this chapter, or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code.

(b)        In any case charging a violation of Section 23152 or 23153, the court shall obtain a copy of the driving record of the person charged from the Department of Motor Vehicles and may obtain any records from the Department of Justice or any other source to determine if one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, have occurred within 10 years of the charged offense. The court may obtain, and accept as rebuttable evidence, a printout from the Department of Motor Vehicles of the driving record of the person charged, maintained by electronic and storage media pursuant to Section 1801 for the purpose of proving those separate violations.

(c)        If any separate convictions of violations of Section 23152 or 23153 are reported to have occurred within 10 years of the charged offense, the court shall notify each court where any of the separate convictions occurred for the purpose of enforcing terms and conditions of probation pursuant to Section 23602.

xxvi)

Cal.Veh.Code §23624 (Separate Convictions: Constitutional Challenge)

Only one challenge shall be permitted to the constitutionality of a separate conviction of a violation of Section 14601, 14601.2, 23152, or 23153, which was entered in a separate proceeding. When a proceeding to declare a separate judgment of conviction constitutionally invalid has been held, a determination by the court that the separate conviction is constitutional precludes any subsequent attack on constitutional grounds in a subsequent prosecution in which the same separate conviction is charged. In addition, any determination that a separate conviction is unconstitutional precludes any allegation or use of that separate conviction in any judicial or administrative proceeding, and the department shall strike that separate conviction from its records. Pursuant to Section 1803, the court shall report to the Department of Motor Vehicles any determination upholding a conviction on constitutional grounds and any determination that a conviction is unconstitutional.

This section shall not preclude a subsequent challenge to a conviction if, at a later time, a subsequent statute or appellate court decision having retroactive application affords any new basis to challenge the constitutionality of the conviction.

xxvii)

Cal.Veh.Code §23626 (Effect of Conviction in Another Jurisdiction)

A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.

xxviii)

Cal.Veh.Code §23635 (Court Record: Reason for Order or Motion)

When an allegation of a violation of Section 23152 is dismissed by the court, an allegation of a different or lesser offense is substituted for an allegation of a violation of Section 23152, or an allegation of a separate conviction is dismissed or stricken, the court shall specify on the record its reason or reasons for the order. The court shall also specify on the record whether the dismissal, substitution, or striking was requested by the prosecution and whether the prosecution concurred in or opposed the dismissal, substitution, or striking.

When the prosecution makes a motion for a dismissal or substitution, or for the striking of a separate conviction, the prosecution shall submit a written statement which shall become part of the court record and which gives the reasons for the motion. The reasons shall include, but need not be limited to, problems of proof, the interests of justice, why another offense is more properly charged, if applicable, and any other pertinent reasons. If the reasons include the “interests of justice,” the written statement shall specify all of the factors which contributed to this conclusion.