Preview
F Superior Court of California F
County of Butte
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11/1/2018 L
oop =
THE LAW OFFICE OF MATTHEW C. BENTLY
Matthew C. Bently, Attorney at Law SBN 288352 Ki D
Post Office Box 8012 By __ —_ Deputy
Chico, California 95927 Electronically FILED
Office (530) 592-0676
Fax (530) 433-5402
Attorney for Shae Thomas OD Ruggireilo
Petitioner
SUPERIOR COURT OF CALIFORNIA
COUNTY OF BUTTE
10
Shae Thomas OD Ruggirello, Case No.: 18CV03613
iL Petitioner,
VERIFIED PETITION FOR
12
ALTERATIVE WRIT OF
13 MANDATE TO SET ASIDE
VS. SUSPENSION OF DRIVING
14 PRIVILEGE;
REQUEST FOR STAY OF
15
SUSPENSION;
16 Director of the California Department of REQUEST FOR ATTORNEY’S
Motor Vehicles, FEES AND LEGAL COSTS
V7 Respondent. [Cal. CCP §1694.5; Cal. Vehicle Code
§13559]
18
19 Date: December 21, 2018
20 Time: 9:00am
21
22 Petitioner, Shae Thomas OD Ruggirello, at all times relevant to this Petition was and is
23 a resident of the County of Butte, State of California.
24 Respondent, Director of the California Department of Motor Vehicles, is the Chief
25 Executive Officer of the California Department of Motor Vehicles, a State of California
26 government agency, hereinafter referred to as “DMV”, and is empowered by Vehicle
27 Code §1650 to administer and enforce the provisions of the California Vehicle Code.
28 This Petition is made Pursuant to California Code of Civil Procedure section 1094.5 et
Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attorney’s Fees
Page 1 of8
seq., on the grounds that Respondent’s decision to suspend Petitioner’s privilege to
operate a motor vehicle was a prejudicial abuse of discretion, arbitrary and capricious
because there was no probable cause to detain and seize Petitioner.
On June 22, 2018, in the County of Butte, State of California, Petitioner was detained
and seized by Officer Stewart, a law enforcement officer of the California Highway
Patrol for an alleged violation of California Vehicle Code section 24603(b). (Exhibit
“A”.) Attached to, and incorporated into, this Petition by this reference as Exhibit “A”
is a true and correct copy of Officer Stewart’s Driving Under the Influence Arrest-
Investigation Report.
10 Petitioner was arrested by Officer Stewart (Arresting Officer) for a violation of
li California Vehicle Code section 23152(a) and a violation of California Vehicle Code
12 section 23152(b). After the arrest, the Arresting Officer administered a chemical test
13 for blood alcohol concentration. Exhibit “A.” The chemical test reported a blood
14 alcohol concentration of .09 and .08.
15 Pursuant to California Vehicle Code section 13382(a), the arresting officer served
16 Petitioner with an Administrative Per Se Order of Suspension/Revocation Temporary
17 Driver License, a copy of which is attached to, and incorporated into this Petition by
18 this reference, as Exhibit “B”.
19 Prior to the suspension of Petitioners driver’s license, Petitioner was the holder of a
20 valid California driver’s license number D9612558 issued by the DMV.
21 Pursuant to California Vehicle Code section 13380, the Arresting Officer filed a sworn
22 statement (Form DS-367) with the DMV stating that there was probable cause to
23 believe Petitioner had been driving a motor vehicle in violation of California Vehicle
24 Code sections 23152(a) and (b). Attached to, and incorporated into, this Petition by this
25 reference as Exhibit “C” is a true and correct copy of the Arresting Officer’s Age 2/
26 And Older Officer’s Statement.
27 Petitioner timely requested an administrative hearing. The hearing was granted and
28 held on September 28, 2018.
Ruggirello v. DMV: Petition for Writ of Mandate, Request for Stay, Request for Attomey’s Fees
Page 2 of 8
10. The issues at the Administrative Per Se Hearing were:
A Did the Arresting Officer have reasonable cause to believe that the person had
been driving a motor vehicle in violation of California Vehicle Code section
23152 or section 23153;
B Was Petitioner lawfully arrested; and
Cc. Was Petitioner driving a motor vehicle with a .08 or higher blood-alcohol level.
11. The DMV introduced the following Exhibits into evidence at the hearing to supports its
finding:
A. Officer Stewart’s Driving Under the Influence Arrest-Investigation Report,
10 B. Administrative Per Se Order of Suspension/Revocation Temporary Driver
I License; and
12 C. Arresting Officer’s Age 2/ And Older Officer's Statement.
13 12. As required by the California Rules of Court, Rule 3.1140, a certified copy of the
14 transcript of the administrative hearing was ordered from the DMV, and will be lodged
15 with the Court as soon as it is received by Petitioner.
16 13. On September 28, 2018, the DMV issued a Notification of Findings and Decision
17 which stated that Petitioner’s privilege to drive a motor vehicle was suspended for 1
18 year, from October 10, 2018 through October 9, 2019. The suspension was under the
19 authority of California Vehicle Code section 13353.3. A copy of the Notification of
20 Findings and Decision is attached to, and incorporated into, this Petition as Exhibit
“Dp”
21
22 14. Petitioner was unlawfully seized by the Arresting Officer because there was no
23 probable cause to detain Petitioner.
24 15. The Fourth Amendment of the United States Constitution, and Section 13, of Article 1
25 of the California Constitution, guarantees an individual the right to be free of
26 unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th
27 Amend.; Cal. Const. Art. I, §13; Terry v. Ohio (1968) 392 U.S. 1, 8-9, 88 S.Ct. 1868,
28 20 L.Ed.2d 889; People v. Thompson (2006) 38 Cal.4th 811, 817, 43 Cal.Rptr.3d 750,
Ruggirelio v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attomey’s Fees
Page 3 of 8
135 P.3d 3; People v. Strider (2009) 177 Cal.App.4th 1393, 1398 [100 Cal.Rptr.3d 66,
69].)
16. A seizure occurs when an officer by means of physical force, or show of authority, has
in some way restrained the liberty of a citizen. (Terry v. Ohio, supra at footnote 16.)
17. Petitioner was seized by the Arresting Officer because the Arresting Officer states in
his written report, “I hand stopped the s/v [suspect vehicle]” (Exhibit “A”, Page 4, line
7) while “...I was in full uniform driving a marked CHP patrol vehicle...” (Exhibit
“A”, Page 4, line 3.) Therefore, Petitioner was seized by the Arresting Officer for the
purpose of the Fourth Amendment of the United States Constitution, and Section 13, of
10 Article | of the California Constitution.
il 18 As a general matter, the decision to stop an automobile is reasonable where the police
12 have probable cause to believe that a traffic violation has occurred. (Whren v. United
13 States (1996) 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89; People v. Lomax
14 (2010) 49 Cal.4th 530, 405.) In People v. Scott, the California Supreme Court analyzed
15 probable cause. (People v. Scott (2011) 52 Cal.4th 452, 474 [129 Cal Rpir.3d 91, 114,
16 257 P.3d 703, 722].) The Court stated: “Probable cause exists when the facts known to
17 the arresting officer would persuade someone of ‘reasonable caution’ that the person to
18 be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208,
19 fa. 9 [99 S.Ct. 2248, 60 L-Ed.2d 824].) ‘[P]robable cause is a fluid concept—turning on
20 the assessment of probabilities in particular factual contexts....' Ulinois v. Gates (1983)
21 462 U.S. 213, 232 [103 S.Ct. 2317, 76 L.Ed.2d 527].} It is incapable of precise
22 definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 [124 S.Ct. 795, 157 L.Ed. 2d
23 769}.) ‘“The substance of all the definitions of probable cause is a reasonable ground
24 for belief of guilt,”’ and that belief must be ‘particularized with respect to the person to
25 be ... seized,” (Ibid.)” (People v. Celis (2004) 33 Cal.4th 667, 673, 16 Cal. Rptr.3d 85,
26 93 P.3d 1027.) Although not expressly stated in California Vehicle Code section 13353
27 or 13557, in order for the DMV to meet the second prong of the Administrate Per Se
28 hearing, “That the person was arrested,” the DMV must show that the person arrested
Ruggiretlo v. DMV: Petition for Writ of Mandate; Request for Stay, Request for Attorney’s Fees
Page 4 of 8
was arrested lawfully. (Mercer v. DMV (1991) 53 Cal.3d 753.)
19. In the case at bar, the Arresting Officer states that his probable cause to seize and detain
Petitioner was that he, the Arresting Officer, saw Petitioner driving a red pickup pulling
a trailer “...with two jet skis...” and the trailer with the 2 jet skis did not have working
break lights. (Exhibit “C” at page 2; Exhibit “A” at page 4, lines 3 through 11.)
20 At the administrative hearing, Petitioner called to testify Eric McCullough
(McCullough), a passenger in Petitioner’s vehicle at the time of the detention and
seizure. Under oath, McCullough testified that Petitioner was not pulling a trailer with
two jet skis, but in fact was pulling a boat. (Exhibit “D”, Section I Findings of Fact.)
10 Therefore, the Arresting Officer saw the wrong trailer with malfunctioning break lights.
i Not Petitioner’s trailer.
12 21 Respondent made a factual determination that Petitioner was pulling a trailer with a
13 boat and not 2 jet skis. (dbid.) Therefore, Respondent’s finding that Petitioner was
i4 lawfully arrested is arbitrary and capricious because Respondent ignored the evidence
15 that the Arresting Officer unlawfully detained Petitioner because the Arresting Officer
16 saw a trailer, other than Petitioner’s, without working break lights because the
17 Arresting Officer saw a trailer with 2 jet skis that did not have working brake lights.
18 Petitioner’s trailer had a boat, not 2 jet skis.
19 22. Respondent’s finding that Petitioner was lawfully arrested is arbitrary and capricious
20 because Respondent ignored the evidence and made a factual finding that the Arresting
21 Officer had probable cause to detain Petitioner based upon the Arresting Officer’s
22 observation of driving. (ibid.}
23 23. As demonstrated in the Arresting Officer’s Driving Under the Influence Arrest-
24 Investigation Report, page 4, lines 3 through 11, and Age 2] And Older Officer’s
25 Statement, page 2, the sole basis for the Arresting Officer’s seizure and detention of
26 Petitioner was the trailer with 2 jet skis that did not have brake lights. (Exhibits “A”
27 and “C”.)} There are no other driving observations.
28 24. Respondent’s finding that Petitioner was lawfully arrested because of the “...details of
Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attorney’s Fees
Page 5 of8
the contact...” (Exhibit “D”, Section| Findings of Fact) is arbitrary and capricious
because the details of the contact as reported by the Arresting Officer’s Driving Under
the Influence Arrest-Investigation Report, page 4, lines 3 through 11, and Age 21 And
Older Officer's Statement, page 2, demonstrate that the only reason for the contact was
that the Arresting Officer saw a trailer pulling 2 jet skis that did not have brake lights.
25 As shown by the evidence, and documented in the DMV’s Findings of Fact,
Petitioner’s vehicle was not pulling a trailer with 2 jet skis, but a trailer with a boat.
(Bid.
26 Petitioner is beneficially interested in this action because Petitioner is a party directly
10 affected by the action of Respondent in suspending his privilege to operate a motor
il vehicle.
12 27 Petitioner needs his license to drive to and from and in connection with his
13 employment, to provide care for his child, as well as personal needs. Unless the Order
14 of the DMV is stayed, Petitioner will suffer irreparable damage and injury since he will
1S be unable to continue his employment and unable to financially support himself, his
16 family or his home, thus resulting in severe economic loss and distress. Furthermore,
17 Petitioner has no friends or family members in the area to drive him to his place of
18 employment or during the scope and duties of his employment, nor to assist him in the
19 care and maintenance of his personal home and business needs. See Mackey v.
20 Montrym, 443 U.S. 1, 10-11 (1979) (“[The driver’s interest in] continued possession
21 and use of his license pending the outcome of the hearing due him ... is a substantial
22 one, for the Commonwealth will not be able to make a driver whole for any personal
23 inconvenience and economic hardship suffered by reason of any delay in redressing an
24 erroneous suspension....”); Dixon v. Love, 431 U.S. 105, 113 (1977) (“a licensee is not
25 made entirely whole if his suspension or revocation is later vacated”); Berlinghieri v.
26 Department of Motor Vehicies, 33 Cal. 3d 392, 397, 188 Cal. Rptr. 891 (1983) (“We ...
27 emphasize that we view the “right to drive” herein as important, indeed “fundamental”
28 for purposes of seiecting the standard of judicial review of the administrative decision
Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attomey’s Fees
Page 6 of 8
to suspend the driver's license”).
28. Petitioner’s privilege to operate a motor vehicle is not suspended or revoked for any
reason other than those stated in this Petition.
29. As required by California Rule of Court, Rule 3.1142, a copy of the Petitioner’s driving
records from the DMV is attached to this Petition as Exhibit “E”.
30 Petitioner does not have a speedy and adequate remedy at law because there is no stay
of the suspension pending an appeal from Respondent’s order suspending the privilege
to operate a motor vehicle. Petitioner’s only method of review of that order and stay of
the suspension is by writ of mandate in this Court.
10 31 As the result of Respondent’s action, Petitioner was required to employ an attorney to
I prosecute this Petition and is personally obligated to pay attorney’s fees and costs
12 incurred herein. Respondent’s action was without legal authority, lacked any basis in
13 law or fact, and was not supported by the evidence. The action was, therefore, both
14 arbitrary and capricious under the provisions of Gov’t Code §800, and Petitioner
iS requests this Court award attorney’s fees and legal costs of prosecuting this Petition.
16 32. Counsel for Petitioner anticipates that the costs associated with the Petition are
17 expected to range from $450 to $750, and that attorney’s fees will be $5,000.
18 Petitioner prays that:
19 33. An alternative writ of mandate issue under the seal of the Court commanding
20 Respondent Director of the DMV to set aside and revoke the DMV’s suspension of
21 Petitioner’s driving privilege or to show cause before the Court at a time and place to
22 be specified by the Court why it has not done so, and why a peremptory writ should not
23 issue.
24 34 Pending the hearing and final judgement of the Court in this matter, the DMV be
25 ordered to immediately stay the operation of the order suspending Petitioner’s driving
26 privilege, and immediately reinstate his license to operate a motor vehicle.
27 35 The Court order Respondent to pay attorney’s fees and legal costs pursuant to
28 California Government Code section 800 and Code of Civil Procedure section 1095.
Ruggirello v. DMV: Petition for Writ of Mandate, Request for Stay; Request for Attorney’s Fees
Page
7 of 8
36. For such order and further relief as this Court deems just and proper.
Dated: “/26/(¥
Matthew C. Bently, Attoraey for Petitioner
Dated: |O “U4 “tol €
Shae Thomas OD Ruggirello, Petitioner
10 VERIFICATION
ll
12 I, the undersigned, declare under penalty of perjury under the laws of the State of
13 California that the foregoing is true and correct, except as to the matters which are herein
14 stated upon information and belief, and as to those matted, I believe them to be true.
<
15
16 Dated: (o- 4 -wls heM pnb
Th Shae Thomas OD Ruggirello, Petitioner
18
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Ruggirello v. DMV: Petition‘for Writ of Mandate; Request for Stay; Request for Attorney’s Fees
Page 8 of8
Exhibit A
STATE OF CALIFORNIA
DEPARTMENT OF CALIFORNIA IIGHWAY PATROL
{] Wisdemeanor —[]_Demeste Vioince (Refer HP 100.88) PAGE 1 OF 5we
COURT FILE NUBBER ‘EVIDENGEIPROPERTY
DRIVING UNDER THE INFLUENCE
ARREST—INVESTIGATION REPORT
4 Felony BUTTE 730324018 (ves [x]xo Ez
AREA [BEAT (COLLISION REPORT NUMBER
CHP 202 (Rev, 4-17) OPI 061 240. 020 ES
DATETIME OF ARREST REPORT DATE/TIME OF INCIDENT [x] Same LOCATION OF ARRESTINCIDENT wars fee Tso (s
2
06/21/2018 1561 LARKIN RD. @ AFTERBAY ENTRANCE Disc
#4
CITATION NUMBER
DW 1iis4
‘OFFENSE(S) CHARGED OR INVESTIGATED: 23152(A) VC, 23152(B) VC [JUS s71s REQUIRED
NUMBER
moepe
SUBJECT NO 1 OF I BS
NAME flast, frst, middie) "RESIDENCE ADDRESS 695 OREGON ST.
RUGGIRELLO, SHAE THOMAS ‘Gridley CA 95948 US. Ee
AKA HOME PHONE MAILING ADDRESS fk] Same iz
(916)349-6669 4
RACHETIMGHY SEX BIRTHDATE HAIR [EVES | HEIGHT WEIGHT PLAGE OF BIRTH (oily, state, country} DISPATOR x
White (M 02/23/1987 BRN [BLU 5-06 145 Sacramento CA_US
NOTIFIED
DRIVER LICENSE NUMBER STATE ‘DDE STATUS ISG (SSN, INS& ETC.) es vol
CA ALID THE 1504 nm
EMPLOVER ‘BUSINESS PHONE BUSINESS ADDRESS
UNKNOWN LOG 148
‘SGOKING, Ci, FEL ETC, NUBBER(S) WHERE SOOXEGCONFNED oaTETE FINGERPRINTED
Butte County Jail 6/22/2018 1533. gprs [80
NOTIFICATION (Who, How, When} EXPLAIN
IN NARRATIVE. WOTIFED BY:
M
(7 vuverne (7 Foreion National (CJ mune
cx
VEHICLE
CIGENSE STATE YEAR VINGEN NUMBER VEHICLE WAS. PARKED ReLeasco [STORAGE AUTHORITY
12915K2 CA 18 ACORRGFTSHS805246 [1] stoneo necoversD tepounoen
VERYEAR [MAKE BODY STYLE COLOR BODY TYRE ‘LOCATION OF VERIGLE/RELEASED TO/ADDRESS/TELEPHONE NUMBER
2017 DODG RAM RED Pickup ERIC MCCULLOUGH - (530)434-1452
NAME OF REGISTERED OVINER Px] SAHEAS SUBJECT ADDRESS fe] same as suave:
NAwe OF LEGAL OWNER [Jsane ase ADDRESS PQ BOX 961272 LOCATION
OF KEYS
CHRYSLER CAPITAL FORT WORTH TX 76161 US WITH VEHICLE
WITNESS/PASSENGERI/VICTIM PHONE
‘SiRTHOATE ‘SEX | NAME [Liverness ig] passencer tive 586 E. GRIDLEY RD. RES:(91 6)3.49-6669
02/13/1958 {M_BVILLIAM RUGGIRELLO Gridley CA 95948 US.
WaTNESS PASSENGER Dom 125 2 VERMONT ST. RES: (530)434-1452
09/25/1988 _{M_jERIC MCCULLOUGH Gridley CA 95948 US.
[yermess [J rassencen Liven RES:
aus:
Liwrness [J rassencen [vers es
jaus:
‘ADMONITION OF RIGHTS
4. YOU HAVE THE RIGHT TO REMAIN SILENT, 3. YOU HAVE THE RIGHTTO TALK WITH AN 4. IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE
ATTORNEY AND TO HAVE AN ATTORNEY PRESENT APPOINTED FREE OF CHARGE TO REPRESENT YOU.
2. ANYTHING YOU SAY GAN AND WILL BE BEFORE AND DURING QUESTIONING. BEFORE AND QURING QUESTIONING, IF YOU DESIRE.
USED AGAINST YOU IN A COURT OF LAW.
‘THE ABOVE STATEMENT WAS READ TO THE ARRESTEE BY:
[lactaoveen (L Aanestine orricen Clee ia Me:
‘BG Va UNDERSTAND
BAGH GF THESE RIGHTS NAVE HAVING THESE RIGHTS I HARD, WAIVER STATEMENT
EXPLAIKED
To YOu? DO You WISH TO TALK To US
Ne
Cys or oOo Oo»
MISDEMEANOR INCARCERATION {To be completed upon physical arrast for any misdemeanor, pursuant to Panal Code Section 863.6)
“Ths person acrestad:
1 ] 25 50 Intoxicated as to be a danger to himseltinersetf or others. 8 [Lt leased immesiaely, would jeopardize the prosecution af the offense
‘oF otfenses for which arrested or the presecution of aay other offenses.
20 required medical examination or mectcal care or was otherwise unable to
care for hitsinar avin safety. Oo ‘would be reasonably ikely tp continue the offense ar eifenses, or the safety
otparsons oF property weuld be nminontyendarerod innately
‘was arrested under one or mora of the cumstances listed in
3B ‘Sections 40302 and 40303 of the Vehicle Code { Note 5 and Sif [L] demanded 1 be taken before a magistrate or refused to sign the cation
also applicable),
4. [7] fad one or more outstanding arrest warrants issued. [LT] would not aprear atthe time and place specified inthe notice
5. [[] could not provide satisfactory evidence of personal ieniticaion 10. [[] comestc violence (rafer to HPM 100,69)
ARRESTINGIINVESTIGATING OFFICER, (Print aamotrank) 1.8. NUMBER REVIEWED BY (Print nomena) 1D. NUMBER
C. Stewart/ Officer
Bane nt OE 000008
nuRS; [sor [Ses q iI shie
. STRONG
LAST NAME, FIRST NAME, MIDDLE INITIAL CITATIONICASE # PASE 2 oF §
RUGGIRELLO, SHAE THOMAS DW 11154
*ALL QUESTIONS ASKED PRIOR TO FST'S: INVESTIGATION INTERVIEW
DO YOU KNOW OF ANYTHING MECHANICALLY WRONG WITH YOUR VEHICLE? OESCRIBE, ARE YOU SICK OR INJURED? DESCRIBE. (Yves no
Cyes fi] no
"ARE VOU DIABETIC OR EPILEPTIC? DO YOU TAKE INSULIN? (Pillsfiajaction) (09 YOU HAVE ANY PHYSICAL IMPAIRGENTS? DESCRIBE. (Put, Logs, Anion oF Hips) Ey ves [Ry no
Olves EE] no Cl ves ] no
WHEN 0:5 YOU CAST SLEEP? HOW LONG? | WHEN DID YOU LAST EAT? OESCRIBE
LAST NIGHT JOHRS | 45 MIN AGO CHIPS:
WERE YOU DRIVING THE VEHICLE? WF NO, WHOF WHERE 1D YOU START DRIMING?WHERE WERE YOU GOING?
ves NO a LAKE TWIN BROTHERS HOUSE
WHERE WERE YOU STOPPED? WHAT HAVE YOU BEEN DRINKING? | HOW MUCH? TIME STARTED TME STOPPED
LARKIN COORS LIGHT 2-120Z 2 HRS AGO 20 MIN AGO
LOCATION WHERE YOU WERE DRINKING? NAMEIADORESS BO YOU FEEL THE EFFECTS GF THE ORINKS? DESCRIBE. Cyres BT te
LAKE
BID YoU BUMP VouR HEAD? 'RAVE YOU SEEN DRINKING SINGE THE ACCIDENT? iFVES, WHAT? HOW MUCH?
Clves Dyno Bl wa C] ves C1 wo El wa
ARE VOU UNDER THE CARE WF YES, NAWE AND ADDRESS RECENT SURGERY PERFORNEST
oF ApocTORORoeNTisT? [] ves [XE] No
ves EE] wo
HAVE YOU TAKEN ANY
MEDICINE OR DRUGS? (ves [no IF YES, WHAT? HOW wien? TE OF LAS? DosaGe
“(Explain in Narrative)
DO VOU FEEL THE EFFECTS OF THE WEDICINEDRUGS? DESCRIBE. Ties Cyne
N/A
ti
OBJECTIVE SIGNS/APPEARANCE/FIELD SOBRIETY TEST LOCATION
IREATH ODOR OF ALGONOLIC BEVERAGE | GLASSESILENSES BYES (appearance) ‘DEWEANOR ‘SPEECH
PRESENT ves [] x0 iClves Eno RED & WATERY | CALM NORMAL
CLOTHING WIGAN: CONDITION AND DESCRIPTION,
CLOTHING IN FAIR CONDITION: GRAY TANK TOP, SWIM SHORTS, SANDALS
DESCRIBE TEST LOCATION, SURFACE, WEATHER, AND LIGHTING
FIRM ASPHALT ROAD, HOT, DAYLIGHT
PRELIMINARY ALCOHOL SCREEN INFORMATION
PAS. Admonition: tam requesting that you lake a preliminary alcohol screening test to further assist me in determining whether you are under the
Influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and If arrested, you will be required to give 5
sampie of your blood, breath, or urine for the purpose of determining the actual alcoholfe and drug content of your blood,
THE SUBJECT WAS ADVISED OF THE ASOVE STATEMENT BY:
C1 wa E]_arresrine oFFicen DD or Lo. vie 1459
‘PAS SERIAL NUMBER TEMBERATURE ‘ZEROED RESULTS WOT TET RESULTS HOLE TED RESULTS NO. 3 Ut needeay rane
17170095 IN RANGE |E] ves [] No j[] senses 092 1459 -096 1501
‘ecation oF TEST [Ey Atscone ‘BREATH SaOLE ‘OFFICER ADMINISTERING PAS TEST fe] araestiNe oFFiceR LD. NUMBER AREA
[El ssonac (Oy meat (2 on
CHEMICAL TEST INFORMATION
TET imptied Consent Admonishment, 22612 V.C. DRUG ADMONISHMENT FE] na ATTACHMENTS: Ey cur tar one (iy ove
EE]. otused Test{s) {Complete DS 367} Lye [1 Rotused (Complete 08 367) A
TPEOF TEST TIME 1D. OF SAMPLEIS) RESULTS IF AVAILABLE DISPOSITION OF SAMPLEIS)
121 Brest 1524 1526 .09 08 ATTACHED W/REPORT
2 Boos
aL] unne
TEST GIVEN LOCATION WHERE TEST WAS cowoUCTED NAME AND TITLE OF PERSON GIVING TEST OR TAKING SAMPLE
1 Butte County Jail TE] arnesrisa orricen Cloe
2 arrestin ofricer C1 or
3 Lo] anzstins ornces CT on
TROMBETTA ADVISEMENT
‘A. The breath testing equipment doas NOT retain any breath sample for later analysis by you or anyone else,
8. If you want a sample retained, you may provide a blood or urine sample that will be retained at no cost to you. If you do so, the bloed or urine
sample may be tested for alcoholic or drug content hy either party in a criminal prosecution.
C. Do you wish to provide an additional sample? 1] ves Gl no Ona "NO"
WATSON ADVISEMENT
‘You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, It is extremely
dangerous to human life to drive while under the influance of alcohol or drugs, of both. if you continue to drive while under the influence of alcoho} or drugs, ar
both, and, as a result of that driving, someone is killed, you can be charged with murder.
DO YOU UNDERSTAND []ves [Jno READ VERSATIM: []ves [] xo [i] cw not aoe “(Explain in Narrative)
[larrestncorrcer [Jor io
‘Deskoy Tevnos Coe e mca Agasey Ghpate oat? pat
000007
STATE OF CALIFORNIA
NARRATIVE/SUPPLEMENTAL PAGE 3 OF 5
DATE OF INCIDENT TIME NCIC NUMBER OFFICER LD. NUMBER
06/21/2018 1501 9240 018841
FIELD SOBRIETY TESTS (FST’S):
(| RECEIVED VERBAL AFFIRMATION THAT RUGGIRELLO UNDERSTOOD THE
INSTRUCTIONS PRIOR TO PERFORMING EACH FST)
i.Horizontal Gaze Nystagmus: Ruggirello’s eyes lacked the ability to smoothly follow a moving
stimulus (my left index finger). Ruggirelio displayed distinct nystagmus at the extremes and
nystagmus prior to 45 degrees.
10 2.Walk and Turn: Ruggirello raised both arms approximately 6 inches from his sides throughout
a this test. Ruggirello missed heel toe contact by approximately 1 inch on step 2 on his first set of
12 steps. Ruggirello missed heel to toe contact by approximately 2 inches on step 9 on his last set of
13 steps.
14
15 3.One Leg Stand: Ruggirello swayed in a left to right fashion approximately 1 inch from center
16 and raised his right arm approximately 6 Inches from his side throughout this test.
1?
18 4.Preliminary Alcohol Screening Test: | advised Ruggirello of the P.A.S. admonishment and he
19 agreed to perform this test. Ruggirello provided two breath samples with results of .092% and
20 .096%, ethyl alcohol presence.
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24
25
26
27
28
29
36
31
32
33
34
35
36
37
38
39
40
41
42
PREPARED BY COO NUMBER DATE REVIEWER'S NAME DATE
C. STEWART / OFFICER 018841
oo00es
STATE OF CALIFORNIA
NARRATIVE/SUPPLEMENTAL PAGE 4 OF 5
DATE OF INCIDENT TIME NCIC NUMBER OFFICER LD. NUMBER
06/21/2018 1501 9240 018841
First observations:
On 6/21/2018, at approximately 1446 hours, | was in full uniform driving a marked CHP patrol
vehicie on Larkin Road approaching the Afterbay entrance/exit. | observed a red pickup (s/v,
subject vehicle) pulling a trailer (bearing CA license plate #4NV4731, 1972 Highl, well over 30
inches in width) with two jet skis stopped at the Afterbay exit at Larkin Road. | turned right into the
Afterbay entrance. As | passed the s/v, | observed the s/v's brake lights to be activated, but the
s/'s trailer's brake lights were not activated (violation of 24603(b) VC). As | turned my patrol
vehicle to exit the Afterbay and follow the s/v, | observed the s/v turn a u-turn on Larkin Road and
10 travel back toward my location. | stopped my patrol vehicle and exited as the s/v approached my
W location. | hand stopped the s/v.
12
13
14 Observations after the stop:
15
16 ! contacted the driver through the open driver's side window and advised him of the reason for the
17 stop. The driver advised me (in essence) that he was returning to the lake to retrieve his hat. |
18 smelled the odor of an alcoholic beverage emitting from within the s/v and the driver's eyes were
19 red and watery. | asked the driver if he had consumed any alcoholic beverages prior to driving,
20 and he advised he had two beers on the lake. | directed the driver to retrieve his license and exit
21 the s/v, while | positioned my pairol vehicie behind the s/v and its trailer. As | turned my patrol
22 vehicle, | observed the driver exit and stand outside the driver's side door. | positioned behind the
23 s/s trailer, exited my patrol vehicle, and directed the driver to meet me behind the s/V’s trailer. |
24 obtained the driver's California driver license (identified as Shae Thomas OD Ruggirello with a
25 DOB: QE. | smelled the odor of an alcoholic beverage emitting from Ruggirello’s breath as
26 | stood approximately 4 feet away from him. | explained and demonstrated a series of FST’s for
27 Ruggirello. Ruggirello was unable to perform the FST's as explained and demonstrated.
28
29
30 Arrest:
31
32 Based upon my observations of Ruggirello driving, Ruggirello’s objective signs of intoxication {i.e.
33 ted and watery eyes, odor of an alcoholic beverage), his admission to consuming alcoholic
34 beverages prior to driving, and his performance on the FST’s, | formed the opinion that Ruggirello
35 was driving the s/v while under the influence of an alcoholic beverage.
36
37 At 1501 hours, | placed Ruggirello under arrest for violating section 23152(a)-DUI. | advised
38 Ruggirello of implied consent per 23612 VC, and gave him the option of a blood or breath test.
39 Ruggirello chose a breath test. | determined passenger McCullough was sober and | released the
40 vehicle to him. Prior to McCullough pulling away in the s/v, | observed the driver's side brake light
44 on the trailer activate, but the passenger's side trailer light again did not activate. | transported
42 Ruggirello to the Butte County Jail for the breath test. Prior to administering the breath test,
43 Ruggirello was observed for fifteen minutes and he did not vomit, regurgitate, drink, eat, or smoke
PREPAHED BY 10. NUMBER DATE REVIEWER'S NAME DATE
C. STEWART / OFFICER 018844
ococa9
STATE 0! CALIFORNIA
T ‘SUPPLEMENTAL ES
DATE OF INCIDENT TIME iG NUMBER NU
06/21/2018 1501. 9240 018844
within those fifteen minutes. | administered the breath test to Ruggirello resulting with two
readings of .08% and .08% ethyl alcohol. | booked Ruggirello into the Butte County Jail with his
property.
Recom: ndations:
| recommend this report be forwarded to the Butte County District Attorney’s Office for review and
prosecution of Shae Thomas OD Auggirello for violating sections:
10
1 23152(a) VC- Driving under the influence of an alcoholic beverage
12 23152(b) VC- Driving under the influence of an alcoholic beverage with a BAC of .08 or greater
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PREPARED BY LD. NUMBER DATE REVIEWER'S NAME DATE
. STEWART / OFFICER 018841
000070
Exhibit B
oy
ws
AGE 21 AND OLDER - PAGE 3 APS
aaa ADMINISTRATIVE PER SE
A Publ Service Agony DRIVER MUST BE GIVEN A COPY OF THIS
SUSPENSION/REVOCATION ORDER ORDER WHEN COMPLETED BY THE OFFICER
COMPLETE IN BLACK INK AND TEMPORARY DRIVER LICENSE OMY Teleghone Number {948} 857-0214
EHFORCENME! TRGENGY CASE |
(AW pee uere st RE ‘BMY USE ONLY
i i ‘i
GRIVERS TAME FRSERES ~y DRIVES LICENSE NO. COMMERCIAL? © TURE: PRINT
ee + & (Beght thumb or spectty}
SIAILING ADDRESS
LA vd ives Gave |
aie HOGE
a ix le Af
DOB:
24 Hair:
free rs3 4 Ht Whey
Dever Licenee: oO Sumpandad Revered Sierendared {Aitached) (5 notin ssession skUnlicensed
{} 0.01% or mare BAC DUI Prebation {_]PAs or other Chemical Test Reiusal - (DUI Probation)
6.04% of mare BAC/COMM YEH Chemical Test Refusal
fho.9% ‘or munre RAG Cheniloal Tests Results [| forced Binad Test
You are hereby notified that your privilege to operate a motor vehicle will be suspended or revoked effective
30 days from th a issue date
of this order as shown below, and until you pay a $126 reissue fee and file proof of financial responsibility as shown on the reverse.
TEMPORARY DRIVER LICENSE
This document must be carried with you and sh: all serve as your temporary California driver license. It is subject to the same class(es)
and all restrictions as your permanent driver license: This temporary driver license does not provide you with any driving privileges
it do not have a California driver license or your license is ex(pired, Suspended, revoked, canceled or denied, expires at
midnight 30 days fromthe issue date of this order shown below.
Preview
F Superior Court of California F County of Butte | 11/1/2018 L oop = THE LAW OFFICE OF MATTHEW C. BENTLY Matthew C. Bently, Attorney at Law SBN 288352 Ki D Post Office Box 8012 By __ —_ Deputy Chico, California 95927 Electronically FILED Office (530) 592-0676 Fax (530) 433-5402 Attorney for Shae Thomas OD Ruggireilo Petitioner SUPERIOR COURT OF CALIFORNIA COUNTY OF BUTTE 10 Shae Thomas OD Ruggirello, Case No.: 18CV03613 iL Petitioner, VERIFIED PETITION FOR 12 ALTERATIVE WRIT OF 13 MANDATE TO SET ASIDE VS. SUSPENSION OF DRIVING 14 PRIVILEGE; REQUEST FOR STAY OF 15 SUSPENSION; 16 Director of the California Department of REQUEST FOR ATTORNEY’S Motor Vehicles, FEES AND LEGAL COSTS V7 Respondent. [Cal. CCP §1694.5; Cal. Vehicle Code §13559] 18 19 Date: December 21, 2018 20 Time: 9:00am 21 22 Petitioner, Shae Thomas OD Ruggirello, at all times relevant to this Petition was and is 23 a resident of the County of Butte, State of California. 24 Respondent, Director of the California Department of Motor Vehicles, is the Chief 25 Executive Officer of the California Department of Motor Vehicles, a State of California 26 government agency, hereinafter referred to as “DMV”, and is empowered by Vehicle 27 Code §1650 to administer and enforce the provisions of the California Vehicle Code. 28 This Petition is made Pursuant to California Code of Civil Procedure section 1094.5 et Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attorney’s Fees Page 1 of8 seq., on the grounds that Respondent’s decision to suspend Petitioner’s privilege to operate a motor vehicle was a prejudicial abuse of discretion, arbitrary and capricious because there was no probable cause to detain and seize Petitioner. On June 22, 2018, in the County of Butte, State of California, Petitioner was detained and seized by Officer Stewart, a law enforcement officer of the California Highway Patrol for an alleged violation of California Vehicle Code section 24603(b). (Exhibit “A”.) Attached to, and incorporated into, this Petition by this reference as Exhibit “A” is a true and correct copy of Officer Stewart’s Driving Under the Influence Arrest- Investigation Report. 10 Petitioner was arrested by Officer Stewart (Arresting Officer) for a violation of li California Vehicle Code section 23152(a) and a violation of California Vehicle Code 12 section 23152(b). After the arrest, the Arresting Officer administered a chemical test 13 for blood alcohol concentration. Exhibit “A.” The chemical test reported a blood 14 alcohol concentration of .09 and .08. 15 Pursuant to California Vehicle Code section 13382(a), the arresting officer served 16 Petitioner with an Administrative Per Se Order of Suspension/Revocation Temporary 17 Driver License, a copy of which is attached to, and incorporated into this Petition by 18 this reference, as Exhibit “B”. 19 Prior to the suspension of Petitioners driver’s license, Petitioner was the holder of a 20 valid California driver’s license number D9612558 issued by the DMV. 21 Pursuant to California Vehicle Code section 13380, the Arresting Officer filed a sworn 22 statement (Form DS-367) with the DMV stating that there was probable cause to 23 believe Petitioner had been driving a motor vehicle in violation of California Vehicle 24 Code sections 23152(a) and (b). Attached to, and incorporated into, this Petition by this 25 reference as Exhibit “C” is a true and correct copy of the Arresting Officer’s Age 2/ 26 And Older Officer’s Statement. 27 Petitioner timely requested an administrative hearing. The hearing was granted and 28 held on September 28, 2018. Ruggirello v. DMV: Petition for Writ of Mandate, Request for Stay, Request for Attomey’s Fees Page 2 of 8 10. The issues at the Administrative Per Se Hearing were: A Did the Arresting Officer have reasonable cause to believe that the person had been driving a motor vehicle in violation of California Vehicle Code section 23152 or section 23153; B Was Petitioner lawfully arrested; and Cc. Was Petitioner driving a motor vehicle with a .08 or higher blood-alcohol level. 11. The DMV introduced the following Exhibits into evidence at the hearing to supports its finding: A. Officer Stewart’s Driving Under the Influence Arrest-Investigation Report, 10 B. Administrative Per Se Order of Suspension/Revocation Temporary Driver I License; and 12 C. Arresting Officer’s Age 2/ And Older Officer's Statement. 13 12. As required by the California Rules of Court, Rule 3.1140, a certified copy of the 14 transcript of the administrative hearing was ordered from the DMV, and will be lodged 15 with the Court as soon as it is received by Petitioner. 16 13. On September 28, 2018, the DMV issued a Notification of Findings and Decision 17 which stated that Petitioner’s privilege to drive a motor vehicle was suspended for 1 18 year, from October 10, 2018 through October 9, 2019. The suspension was under the 19 authority of California Vehicle Code section 13353.3. A copy of the Notification of 20 Findings and Decision is attached to, and incorporated into, this Petition as Exhibit “Dp” 21 22 14. Petitioner was unlawfully seized by the Arresting Officer because there was no 23 probable cause to detain Petitioner. 24 15. The Fourth Amendment of the United States Constitution, and Section 13, of Article 1 25 of the California Constitution, guarantees an individual the right to be free of 26 unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th 27 Amend.; Cal. Const. Art. I, §13; Terry v. Ohio (1968) 392 U.S. 1, 8-9, 88 S.Ct. 1868, 28 20 L.Ed.2d 889; People v. Thompson (2006) 38 Cal.4th 811, 817, 43 Cal.Rptr.3d 750, Ruggirelio v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attomey’s Fees Page 3 of 8 135 P.3d 3; People v. Strider (2009) 177 Cal.App.4th 1393, 1398 [100 Cal.Rptr.3d 66, 69].) 16. A seizure occurs when an officer by means of physical force, or show of authority, has in some way restrained the liberty of a citizen. (Terry v. Ohio, supra at footnote 16.) 17. Petitioner was seized by the Arresting Officer because the Arresting Officer states in his written report, “I hand stopped the s/v [suspect vehicle]” (Exhibit “A”, Page 4, line 7) while “...I was in full uniform driving a marked CHP patrol vehicle...” (Exhibit “A”, Page 4, line 3.) Therefore, Petitioner was seized by the Arresting Officer for the purpose of the Fourth Amendment of the United States Constitution, and Section 13, of 10 Article | of the California Constitution. il 18 As a general matter, the decision to stop an automobile is reasonable where the police 12 have probable cause to believe that a traffic violation has occurred. (Whren v. United 13 States (1996) 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89; People v. Lomax 14 (2010) 49 Cal.4th 530, 405.) In People v. Scott, the California Supreme Court analyzed 15 probable cause. (People v. Scott (2011) 52 Cal.4th 452, 474 [129 Cal Rpir.3d 91, 114, 16 257 P.3d 703, 722].) The Court stated: “Probable cause exists when the facts known to 17 the arresting officer would persuade someone of ‘reasonable caution’ that the person to 18 be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, 19 fa. 9 [99 S.Ct. 2248, 60 L-Ed.2d 824].) ‘[P]robable cause is a fluid concept—turning on 20 the assessment of probabilities in particular factual contexts....' Ulinois v. Gates (1983) 21 462 U.S. 213, 232 [103 S.Ct. 2317, 76 L.Ed.2d 527].} It is incapable of precise 22 definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 [124 S.Ct. 795, 157 L.Ed. 2d 23 769}.) ‘“The substance of all the definitions of probable cause is a reasonable ground 24 for belief of guilt,”’ and that belief must be ‘particularized with respect to the person to 25 be ... seized,” (Ibid.)” (People v. Celis (2004) 33 Cal.4th 667, 673, 16 Cal. Rptr.3d 85, 26 93 P.3d 1027.) Although not expressly stated in California Vehicle Code section 13353 27 or 13557, in order for the DMV to meet the second prong of the Administrate Per Se 28 hearing, “That the person was arrested,” the DMV must show that the person arrested Ruggiretlo v. DMV: Petition for Writ of Mandate; Request for Stay, Request for Attorney’s Fees Page 4 of 8 was arrested lawfully. (Mercer v. DMV (1991) 53 Cal.3d 753.) 19. In the case at bar, the Arresting Officer states that his probable cause to seize and detain Petitioner was that he, the Arresting Officer, saw Petitioner driving a red pickup pulling a trailer “...with two jet skis...” and the trailer with the 2 jet skis did not have working break lights. (Exhibit “C” at page 2; Exhibit “A” at page 4, lines 3 through 11.) 20 At the administrative hearing, Petitioner called to testify Eric McCullough (McCullough), a passenger in Petitioner’s vehicle at the time of the detention and seizure. Under oath, McCullough testified that Petitioner was not pulling a trailer with two jet skis, but in fact was pulling a boat. (Exhibit “D”, Section I Findings of Fact.) 10 Therefore, the Arresting Officer saw the wrong trailer with malfunctioning break lights. i Not Petitioner’s trailer. 12 21 Respondent made a factual determination that Petitioner was pulling a trailer with a 13 boat and not 2 jet skis. (dbid.) Therefore, Respondent’s finding that Petitioner was i4 lawfully arrested is arbitrary and capricious because Respondent ignored the evidence 15 that the Arresting Officer unlawfully detained Petitioner because the Arresting Officer 16 saw a trailer, other than Petitioner’s, without working break lights because the 17 Arresting Officer saw a trailer with 2 jet skis that did not have working brake lights. 18 Petitioner’s trailer had a boat, not 2 jet skis. 19 22. Respondent’s finding that Petitioner was lawfully arrested is arbitrary and capricious 20 because Respondent ignored the evidence and made a factual finding that the Arresting 21 Officer had probable cause to detain Petitioner based upon the Arresting Officer’s 22 observation of driving. (ibid.} 23 23. As demonstrated in the Arresting Officer’s Driving Under the Influence Arrest- 24 Investigation Report, page 4, lines 3 through 11, and Age 2] And Older Officer’s 25 Statement, page 2, the sole basis for the Arresting Officer’s seizure and detention of 26 Petitioner was the trailer with 2 jet skis that did not have brake lights. (Exhibits “A” 27 and “C”.)} There are no other driving observations. 28 24. Respondent’s finding that Petitioner was lawfully arrested because of the “...details of Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attorney’s Fees Page 5 of8 the contact...” (Exhibit “D”, Section| Findings of Fact) is arbitrary and capricious because the details of the contact as reported by the Arresting Officer’s Driving Under the Influence Arrest-Investigation Report, page 4, lines 3 through 11, and Age 21 And Older Officer's Statement, page 2, demonstrate that the only reason for the contact was that the Arresting Officer saw a trailer pulling 2 jet skis that did not have brake lights. 25 As shown by the evidence, and documented in the DMV’s Findings of Fact, Petitioner’s vehicle was not pulling a trailer with 2 jet skis, but a trailer with a boat. (Bid. 26 Petitioner is beneficially interested in this action because Petitioner is a party directly 10 affected by the action of Respondent in suspending his privilege to operate a motor il vehicle. 12 27 Petitioner needs his license to drive to and from and in connection with his 13 employment, to provide care for his child, as well as personal needs. Unless the Order 14 of the DMV is stayed, Petitioner will suffer irreparable damage and injury since he will 1S be unable to continue his employment and unable to financially support himself, his 16 family or his home, thus resulting in severe economic loss and distress. Furthermore, 17 Petitioner has no friends or family members in the area to drive him to his place of 18 employment or during the scope and duties of his employment, nor to assist him in the 19 care and maintenance of his personal home and business needs. See Mackey v. 20 Montrym, 443 U.S. 1, 10-11 (1979) (“[The driver’s interest in] continued possession 21 and use of his license pending the outcome of the hearing due him ... is a substantial 22 one, for the Commonwealth will not be able to make a driver whole for any personal 23 inconvenience and economic hardship suffered by reason of any delay in redressing an 24 erroneous suspension....”); Dixon v. Love, 431 U.S. 105, 113 (1977) (“a licensee is not 25 made entirely whole if his suspension or revocation is later vacated”); Berlinghieri v. 26 Department of Motor Vehicies, 33 Cal. 3d 392, 397, 188 Cal. Rptr. 891 (1983) (“We ... 27 emphasize that we view the “right to drive” herein as important, indeed “fundamental” 28 for purposes of seiecting the standard of judicial review of the administrative decision Ruggirello v. DMV: Petition for Writ of Mandate; Request for Stay; Request for Attomey’s Fees Page 6 of 8 to suspend the driver's license”). 28. Petitioner’s privilege to operate a motor vehicle is not suspended or revoked for any reason other than those stated in this Petition. 29. As required by California Rule of Court, Rule 3.1142, a copy of the Petitioner’s driving records from the DMV is attached to this Petition as Exhibit “E”. 30 Petitioner does not have a speedy and adequate remedy at law because there is no stay of the suspension pending an appeal from Respondent’s order suspending the privilege to operate a motor vehicle. Petitioner’s only method of review of that order and stay of the suspension is by writ of mandate in this Court. 10 31 As the result of Respondent’s action, Petitioner was required to employ an attorney to I prosecute this Petition and is personally obligated to pay attorney’s fees and costs 12 incurred herein. Respondent’s action was without legal authority, lacked any basis in 13 law or fact, and was not supported by the evidence. The action was, therefore, both 14 arbitrary and capricious under the provisions of Gov’t Code §800, and Petitioner iS requests this Court award attorney’s fees and legal costs of prosecuting this Petition. 16 32. Counsel for Petitioner anticipates that the costs associated with the Petition are 17 expected to range from $450 to $750, and that attorney’s fees will be $5,000. 18 Petitioner prays that: 19 33. An alternative writ of mandate issue under the seal of the Court commanding 20 Respondent Director of the DMV to set aside and revoke the DMV’s suspension of 21 Petitioner’s driving privilege or to show cause before the Court at a time and place to 22 be specified by the Court why it has not done so, and why a peremptory writ should not 23 issue. 24 34 Pending the hearing and final judgement of the Court in this matter, the DMV be 25 ordered to immediately stay the operation of the order suspending Petitioner’s driving 26 privilege, and immediately reinstate his license to operate a motor vehicle. 27 35 The Court order Respondent to pay attorney’s fees and legal costs pursuant to 28 California Government Code section 800 and Code of Civil Procedure section 1095. Ruggirello v. DMV: Petition for Writ of Mandate, Request for Stay; Request for Attorney’s Fees Page 7 of 8 36. For such order and further relief as this Court deems just and proper. Dated: “/26/(¥ Matthew C. Bently, Attoraey for Petitioner Dated: |O “U4 “tol € Shae Thomas OD Ruggirello, Petitioner 10 VERIFICATION ll 12 I, the undersigned, declare under penalty of perjury under the laws of the State of 13 California that the foregoing is true and correct, except as to the matters which are herein 14 stated upon information and belief, and as to those matted, I believe them to be true. < 15 16 Dated: (o- 4 -wls heM pnb Th Shae Thomas OD Ruggirello, Petitioner 18 19 20 21 22 23 24 25 26 27 28 Ruggirello v. DMV: Petition‘for Writ of Mandate; Request for Stay; Request for Attorney’s Fees Page 8 of8 Exhibit A STATE OF CALIFORNIA DEPARTMENT OF CALIFORNIA IIGHWAY PATROL {] Wisdemeanor —[]_Demeste Vioince (Refer HP 100.88) PAGE 1 OF 5we COURT FILE NUBBER ‘EVIDENGEIPROPERTY DRIVING UNDER THE INFLUENCE ARREST—INVESTIGATION REPORT 4 Felony BUTTE 730324018 (ves [x]xo Ez AREA [BEAT (COLLISION REPORT NUMBER CHP 202 (Rev, 4-17) OPI 061 240. 020 ES DATETIME OF ARREST REPORT DATE/TIME OF INCIDENT [x] Same LOCATION OF ARRESTINCIDENT wars fee Tso (s 2 06/21/2018 1561 LARKIN RD. @ AFTERBAY ENTRANCE Disc #4 CITATION NUMBER DW 1iis4 ‘OFFENSE(S) CHARGED OR INVESTIGATED: 23152(A) VC, 23152(B) VC [JUS s71s REQUIRED NUMBER moepe SUBJECT NO 1 OF I BS NAME flast, frst, middie) "RESIDENCE ADDRESS 695 OREGON ST. RUGGIRELLO, SHAE THOMAS ‘Gridley CA 95948 US. Ee AKA HOME PHONE MAILING ADDRESS fk] Same iz (916)349-6669 4 RACHETIMGHY SEX BIRTHDATE HAIR [EVES | HEIGHT WEIGHT PLAGE OF BIRTH (oily, state, country} DISPATOR x White (M 02/23/1987 BRN [BLU 5-06 145 Sacramento CA_US NOTIFIED DRIVER LICENSE NUMBER STATE ‘DDE STATUS ISG (SSN, INS& ETC.) es vol CA ALID THE 1504 nm EMPLOVER ‘BUSINESS PHONE BUSINESS ADDRESS UNKNOWN LOG 148 ‘SGOKING, Ci, FEL ETC, NUBBER(S) WHERE SOOXEGCONFNED oaTETE FINGERPRINTED Butte County Jail 6/22/2018 1533. gprs [80 NOTIFICATION (Who, How, When} EXPLAIN IN NARRATIVE. WOTIFED BY: M (7 vuverne (7 Foreion National (CJ mune cx VEHICLE CIGENSE STATE YEAR VINGEN NUMBER VEHICLE WAS. PARKED ReLeasco [STORAGE AUTHORITY 12915K2 CA 18 ACORRGFTSHS805246 [1] stoneo necoversD tepounoen VERYEAR [MAKE BODY STYLE COLOR BODY TYRE ‘LOCATION OF VERIGLE/RELEASED TO/ADDRESS/TELEPHONE NUMBER 2017 DODG RAM RED Pickup ERIC MCCULLOUGH - (530)434-1452 NAME OF REGISTERED OVINER Px] SAHEAS SUBJECT ADDRESS fe] same as suave: NAwe OF LEGAL OWNER [Jsane ase ADDRESS PQ BOX 961272 LOCATION OF KEYS CHRYSLER CAPITAL FORT WORTH TX 76161 US WITH VEHICLE WITNESS/PASSENGERI/VICTIM PHONE ‘SiRTHOATE ‘SEX | NAME [Liverness ig] passencer tive 586 E. GRIDLEY RD. RES:(91 6)3.49-6669 02/13/1958 {M_BVILLIAM RUGGIRELLO Gridley CA 95948 US. WaTNESS PASSENGER Dom 125 2 VERMONT ST. RES: (530)434-1452 09/25/1988 _{M_jERIC MCCULLOUGH Gridley CA 95948 US. [yermess [J rassencen Liven RES: aus: Liwrness [J rassencen [vers es jaus: ‘ADMONITION OF RIGHTS 4. YOU HAVE THE RIGHT TO REMAIN SILENT, 3. YOU HAVE THE RIGHTTO TALK WITH AN 4. IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE ATTORNEY AND TO HAVE AN ATTORNEY PRESENT APPOINTED FREE OF CHARGE TO REPRESENT YOU. 2. ANYTHING YOU SAY GAN AND WILL BE BEFORE AND DURING QUESTIONING. BEFORE AND QURING QUESTIONING, IF YOU DESIRE. USED AGAINST YOU IN A COURT OF LAW. ‘THE ABOVE STATEMENT WAS READ TO THE ARRESTEE BY: [lactaoveen (L Aanestine orricen Clee ia Me: ‘BG Va UNDERSTAND BAGH GF THESE RIGHTS NAVE HAVING THESE RIGHTS I HARD, WAIVER STATEMENT EXPLAIKED To YOu? DO You WISH TO TALK To US Ne Cys or oOo Oo» MISDEMEANOR INCARCERATION {To be completed upon physical arrast for any misdemeanor, pursuant to Panal Code Section 863.6) “Ths person acrestad: 1 ] 25 50 Intoxicated as to be a danger to himseltinersetf or others. 8 [Lt leased immesiaely, would jeopardize the prosecution af the offense ‘oF otfenses for which arrested or the presecution of aay other offenses. 20 required medical examination or mectcal care or was otherwise unable to care for hitsinar avin safety. Oo ‘would be reasonably ikely tp continue the offense ar eifenses, or the safety otparsons oF property weuld be nminontyendarerod innately ‘was arrested under one or mora of the cumstances listed in 3B ‘Sections 40302 and 40303 of the Vehicle Code { Note 5 and Sif [L] demanded 1 be taken before a magistrate or refused to sign the cation also applicable), 4. [7] fad one or more outstanding arrest warrants issued. [LT] would not aprear atthe time and place specified inthe notice 5. [[] could not provide satisfactory evidence of personal ieniticaion 10. [[] comestc violence (rafer to HPM 100,69) ARRESTINGIINVESTIGATING OFFICER, (Print aamotrank) 1.8. NUMBER REVIEWED BY (Print nomena) 1D. NUMBER C. Stewart/ Officer Bane nt OE 000008 nuRS; [sor [Ses q iI shie . STRONG LAST NAME, FIRST NAME, MIDDLE INITIAL CITATIONICASE # PASE 2 oF § RUGGIRELLO, SHAE THOMAS DW 11154 *ALL QUESTIONS ASKED PRIOR TO FST'S: INVESTIGATION INTERVIEW DO YOU KNOW OF ANYTHING MECHANICALLY WRONG WITH YOUR VEHICLE? OESCRIBE, ARE YOU SICK OR INJURED? DESCRIBE. (Yves no Cyes fi] no "ARE VOU DIABETIC OR EPILEPTIC? DO YOU TAKE INSULIN? (Pillsfiajaction) (09 YOU HAVE ANY PHYSICAL IMPAIRGENTS? DESCRIBE. (Put, Logs, Anion oF Hips) Ey ves [Ry no Olves EE] no Cl ves ] no WHEN 0:5 YOU CAST SLEEP? HOW LONG? | WHEN DID YOU LAST EAT? OESCRIBE LAST NIGHT JOHRS | 45 MIN AGO CHIPS: WERE YOU DRIVING THE VEHICLE? WF NO, WHOF WHERE 1D YOU START DRIMING?WHERE WERE YOU GOING? ves NO a LAKE TWIN BROTHERS HOUSE WHERE WERE YOU STOPPED? WHAT HAVE YOU BEEN DRINKING? | HOW MUCH? TIME STARTED TME STOPPED LARKIN COORS LIGHT 2-120Z 2 HRS AGO 20 MIN AGO LOCATION WHERE YOU WERE DRINKING? NAMEIADORESS BO YOU FEEL THE EFFECTS GF THE ORINKS? DESCRIBE. Cyres BT te LAKE BID YoU BUMP VouR HEAD? 'RAVE YOU SEEN DRINKING SINGE THE ACCIDENT? iFVES, WHAT? HOW MUCH? Clves Dyno Bl wa C] ves C1 wo El wa ARE VOU UNDER THE CARE WF YES, NAWE AND ADDRESS RECENT SURGERY PERFORNEST oF ApocTORORoeNTisT? [] ves [XE] No ves EE] wo HAVE YOU TAKEN ANY MEDICINE OR DRUGS? (ves [no IF YES, WHAT? HOW wien? TE OF LAS? DosaGe “(Explain in Narrative) DO VOU FEEL THE EFFECTS OF THE WEDICINEDRUGS? DESCRIBE. Ties Cyne N/A ti OBJECTIVE SIGNS/APPEARANCE/FIELD SOBRIETY TEST LOCATION IREATH ODOR OF ALGONOLIC BEVERAGE | GLASSESILENSES BYES (appearance) ‘DEWEANOR ‘SPEECH PRESENT ves [] x0 iClves Eno RED & WATERY | CALM NORMAL CLOTHING WIGAN: CONDITION AND DESCRIPTION, CLOTHING IN FAIR CONDITION: GRAY TANK TOP, SWIM SHORTS, SANDALS DESCRIBE TEST LOCATION, SURFACE, WEATHER, AND LIGHTING FIRM ASPHALT ROAD, HOT, DAYLIGHT PRELIMINARY ALCOHOL SCREEN INFORMATION PAS. Admonition: tam requesting that you lake a preliminary alcohol screening test to further assist me in determining whether you are under the Influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and If arrested, you will be required to give 5 sampie of your blood, breath, or urine for the purpose of determining the actual alcoholfe and drug content of your blood, THE SUBJECT WAS ADVISED OF THE ASOVE STATEMENT BY: C1 wa E]_arresrine oFFicen DD or Lo. vie 1459 ‘PAS SERIAL NUMBER TEMBERATURE ‘ZEROED RESULTS WOT TET RESULTS HOLE TED RESULTS NO. 3 Ut needeay rane 17170095 IN RANGE |E] ves [] No j[] senses 092 1459 -096 1501 ‘ecation oF TEST [Ey Atscone ‘BREATH SaOLE ‘OFFICER ADMINISTERING PAS TEST fe] araestiNe oFFiceR LD. NUMBER AREA [El ssonac (Oy meat (2 on CHEMICAL TEST INFORMATION TET imptied Consent Admonishment, 22612 V.C. DRUG ADMONISHMENT FE] na ATTACHMENTS: Ey cur tar one (iy ove EE]. otused Test{s) {Complete DS 367} Lye [1 Rotused (Complete 08 367) A TPEOF TEST TIME 1D. OF SAMPLEIS) RESULTS IF AVAILABLE DISPOSITION OF SAMPLEIS) 121 Brest 1524 1526 .09 08 ATTACHED W/REPORT 2 Boos aL] unne TEST GIVEN LOCATION WHERE TEST WAS cowoUCTED NAME AND TITLE OF PERSON GIVING TEST OR TAKING SAMPLE 1 Butte County Jail TE] arnesrisa orricen Cloe 2 arrestin ofricer C1 or 3 Lo] anzstins ornces CT on TROMBETTA ADVISEMENT ‘A. The breath testing equipment doas NOT retain any breath sample for later analysis by you or anyone else, 8. If you want a sample retained, you may provide a blood or urine sample that will be retained at no cost to you. If you do so, the bloed or urine sample may be tested for alcoholic or drug content hy either party in a criminal prosecution. C. Do you wish to provide an additional sample? 1] ves Gl no Ona "NO" WATSON ADVISEMENT ‘You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, It is extremely dangerous to human life to drive while under the influance of alcohol or drugs, of both. if you continue to drive while under the influence of alcoho} or drugs, ar both, and, as a result of that driving, someone is killed, you can be charged with murder. DO YOU UNDERSTAND []ves [Jno READ VERSATIM: []ves [] xo [i] cw not aoe “(Explain in Narrative) [larrestncorrcer [Jor io ‘Deskoy Tevnos Coe e mca Agasey Ghpate oat? pat 000007 STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL PAGE 3 OF 5 DATE OF INCIDENT TIME NCIC NUMBER OFFICER LD. NUMBER 06/21/2018 1501 9240 018841 FIELD SOBRIETY TESTS (FST’S): (| RECEIVED VERBAL AFFIRMATION THAT RUGGIRELLO UNDERSTOOD THE INSTRUCTIONS PRIOR TO PERFORMING EACH FST) i.Horizontal Gaze Nystagmus: Ruggirello’s eyes lacked the ability to smoothly follow a moving stimulus (my left index finger). Ruggirelio displayed distinct nystagmus at the extremes and nystagmus prior to 45 degrees. 10 2.Walk and Turn: Ruggirello raised both arms approximately 6 inches from his sides throughout a this test. Ruggirello missed heel toe contact by approximately 1 inch on step 2 on his first set of 12 steps. Ruggirello missed heel to toe contact by approximately 2 inches on step 9 on his last set of 13 steps. 14 15 3.One Leg Stand: Ruggirello swayed in a left to right fashion approximately 1 inch from center 16 and raised his right arm approximately 6 Inches from his side throughout this test. 1? 18 4.Preliminary Alcohol Screening Test: | advised Ruggirello of the P.A.S. admonishment and he 19 agreed to perform this test. Ruggirello provided two breath samples with results of .092% and 20 .096%, ethyl alcohol presence. 21 22 23 24 25 26 27 28 29 36 31 32 33 34 35 36 37 38 39 40 41 42 PREPARED BY COO NUMBER DATE REVIEWER'S NAME DATE C. STEWART / OFFICER 018841 oo00es STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL PAGE 4 OF 5 DATE OF INCIDENT TIME NCIC NUMBER OFFICER LD. NUMBER 06/21/2018 1501 9240 018841 First observations: On 6/21/2018, at approximately 1446 hours, | was in full uniform driving a marked CHP patrol vehicie on Larkin Road approaching the Afterbay entrance/exit. | observed a red pickup (s/v, subject vehicle) pulling a trailer (bearing CA license plate #4NV4731, 1972 Highl, well over 30 inches in width) with two jet skis stopped at the Afterbay exit at Larkin Road. | turned right into the Afterbay entrance. As | passed the s/v, | observed the s/v's brake lights to be activated, but the s/'s trailer's brake lights were not activated (violation of 24603(b) VC). As | turned my patrol vehicle to exit the Afterbay and follow the s/v, | observed the s/v turn a u-turn on Larkin Road and 10 travel back toward my location. | stopped my patrol vehicle and exited as the s/v approached my W location. | hand stopped the s/v. 12 13 14 Observations after the stop: 15 16 ! contacted the driver through the open driver's side window and advised him of the reason for the 17 stop. The driver advised me (in essence) that he was returning to the lake to retrieve his hat. | 18 smelled the odor of an alcoholic beverage emitting from within the s/v and the driver's eyes were 19 red and watery. | asked the driver if he had consumed any alcoholic beverages prior to driving, 20 and he advised he had two beers on the lake. | directed the driver to retrieve his license and exit 21 the s/v, while | positioned my pairol vehicie behind the s/v and its trailer. As | turned my patrol 22 vehicle, | observed the driver exit and stand outside the driver's side door. | positioned behind the 23 s/s trailer, exited my patrol vehicle, and directed the driver to meet me behind the s/V’s trailer. | 24 obtained the driver's California driver license (identified as Shae Thomas OD Ruggirello with a 25 DOB: QE. | smelled the odor of an alcoholic beverage emitting from Ruggirello’s breath as 26 | stood approximately 4 feet away from him. | explained and demonstrated a series of FST’s for 27 Ruggirello. Ruggirello was unable to perform the FST's as explained and demonstrated. 28 29 30 Arrest: 31 32 Based upon my observations of Ruggirello driving, Ruggirello’s objective signs of intoxication {i.e. 33 ted and watery eyes, odor of an alcoholic beverage), his admission to consuming alcoholic 34 beverages prior to driving, and his performance on the FST’s, | formed the opinion that Ruggirello 35 was driving the s/v while under the influence of an alcoholic beverage. 36 37 At 1501 hours, | placed Ruggirello under arrest for violating section 23152(a)-DUI. | advised 38 Ruggirello of implied consent per 23612 VC, and gave him the option of a blood or breath test. 39 Ruggirello chose a breath test. | determined passenger McCullough was sober and | released the 40 vehicle to him. Prior to McCullough pulling away in the s/v, | observed the driver's side brake light 44 on the trailer activate, but the passenger's side trailer light again did not activate. | transported 42 Ruggirello to the Butte County Jail for the breath test. Prior to administering the breath test, 43 Ruggirello was observed for fifteen minutes and he did not vomit, regurgitate, drink, eat, or smoke PREPAHED BY 10. NUMBER DATE REVIEWER'S NAME DATE C. STEWART / OFFICER 018844 ococa9 STATE 0! CALIFORNIA T ‘SUPPLEMENTAL ES DATE OF INCIDENT TIME iG NUMBER NU 06/21/2018 1501. 9240 018844 within those fifteen minutes. | administered the breath test to Ruggirello resulting with two readings of .08% and .08% ethyl alcohol. | booked Ruggirello into the Butte County Jail with his property. Recom: ndations: | recommend this report be forwarded to the Butte County District Attorney’s Office for review and prosecution of Shae Thomas OD Auggirello for violating sections: 10 1 23152(a) VC- Driving under the influence of an alcoholic beverage 12 23152(b) VC- Driving under the influence of an alcoholic beverage with a BAC of .08 or greater 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 30 34 32 33 34 35 36 37 38 39 40 43 42 43 PREPARED BY LD. NUMBER DATE REVIEWER'S NAME DATE . STEWART / OFFICER 018841 000070 Exhibit B oy ws AGE 21 AND OLDER - PAGE 3 APS aaa ADMINISTRATIVE PER SE A Publ Service Agony DRIVER MUST BE GIVEN A COPY OF THIS SUSPENSION/REVOCATION ORDER ORDER WHEN COMPLETED BY THE OFFICER COMPLETE IN BLACK INK AND TEMPORARY DRIVER LICENSE OMY Teleghone Number {948} 857-0214 EHFORCENME! TRGENGY CASE | (AW pee uere st RE ‘BMY USE ONLY i i ‘i GRIVERS TAME FRSERES ~y DRIVES LICENSE NO. COMMERCIAL? © TURE: PRINT ee + & (Beght thumb or spectty} SIAILING ADDRESS LA vd ives Gave | aie HOGE a ix le Af DOB: 24 Hair: free rs3 4 Ht Whey Dever Licenee: oO Sumpandad Revered Sierendared {Aitached) (5 notin ssession skUnlicensed {} 0.01% or mare BAC DUI Prebation {_]PAs or other Chemical Test Reiusal - (DUI Probation) 6.04% of mare BAC/COMM YEH Chemical Test Refusal fho.9% ‘or munre RAG Cheniloal Tests Results [| forced Binad Test You are hereby notified that your privilege to operate a motor vehicle will be suspended or revoked effective 30 days from th a issue date of this order as shown below, and until you pay a $126 reissue fee and file proof of financial responsibility as shown on the reverse. TEMPORARY DRIVER LICENSE This document must be carried with you and sh: all serve as your temporary California driver license. It is subject to the same class(es) and all restrictions as your permanent driver license: This temporary driver license does not provide you with any driving privileges it do not have a California driver license or your license is ex(pired, Suspended, revoked, canceled or denied, expires at midnight 30 days fromthe issue date of this order shown below.