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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN
AND FOR THE COUNTY OF SACRAMENTO
JAMES BURROUGHS
Petitioner,
Case No.04CS00142
vs.
Department of Motor Vehicles,
AND DOES 1 through 20,
inclusive,
Respondents.
Hearing: __1-20-06; 10:30
am__
Department:
_ _11 _ _ _
_
Trial Date:
__1-20-2006__
APPELLANT'S
OPENING BRIEF
APPEAL
FROM
THE ADMINISTRATIVE
HEARING OF THE DEPARTMENT OF MOTOR VEHICLES
OF THE STATE OF CALIFORNIA IN
SACRAMENTO
DEPARTMENT
OF MOTOR VEHICLES D.L. # D0737603
DRIVER SAFETY OFFICER R. JAIME
JAMES BURROUGHS
P.O.
Box 523
Citrus
Heights, CA 95611
(916) 455-1630
In
Pro Per
STATEMENT
OF THE CASE
Appellant, petitioned this Court for a writ of mandate under
Code of Civil Procedure §1094.5, directed to respondent Department of Motor Vehicles of the State of California. Appellant incorporates
by reference the Petition of Writ of
Mandate on Appeal and transcript of the trial that is included in the record on appeal. Appellant incorporates by reference the Statement of Facts (describing exhibits) and incorporates by reference the Exhibits that is included in the record on appeal. Administrative Law:
Judgments: Appeal and Error: When
reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. The Driver Medical
Evaluation (DME) forms in the
present case gave sufficient facts that appellant was not paranoid or schizophrenic. The second set of forms supplied by an expert even went further and established appellant was not suffering from (internal) seizures. (Exhibit 1, 20)
If the Driver
Safety Officer (DSO) had questions about a third party, he should have investigated them. In 1949, 1962, 1980, 1986 and 1987 hitman #1, #2, #3 #4, #5 acts crippled appellant and (obstructed justice) covered-up each crime by anesthetic. There was a series of robberies of friends of appellant. What crimes the suspects commit is ongoing. (Exhibit 4, 18, ) A robbery victim immediately developed Alzheimers. Who the third party is is important. (Exhibit 4) In 1962 DOE company relatives (DOE2 female) approached the hitman #2 mafia leader and ingratiated herself by showing, "how to use appellant as a pawn in extortions." (See Declaration of Extortion) How they deliver an anesthetic is important. Appellant played
on college football teams in 1956 and
1958, showing little impairment. (Exhibit 19) In 1957 appellant had eye surgery, after a job interview discovered eye coordination difficulties. Hitman#2 substituted mafia doctor to appellant 1962 surgery. Nurse aid DOE2 female stalks at both. GROUNDS FOR APPEAL
I. Judicial Error
II. Procedural Error
III. Insufficient Evidence
IV. Conflict of Interest
ARGUMENT
I. ASSUMING FOR ARGUMENT THAT THE RESPONDENT HAD JURISDICTION TO BEGIN THE PROCEEDINGS, IT HAD NO JURISDICTION TO PURSUE THEM UNDER THE PROCEDURES SHOWN IN THE RECORD
The DSO expresses, "And the Driver Medical Evaluation Documents that were sent, you stated
you dropped them off here prior, correct?" (Hearing
Transcripts p 14) "Okay, Mr. Burroughs,
thank you. What I need to do is to find that document review and then we'll take it from there,
okay." (Hearing Transcripts p 14) The DSO then asks appellant "did he have a diagnosis or tell
you he felt anything, the psychologist?" The appellant tells the DSO "Diagnosis was none.
There was no problem." (Hearing Transcript 15) The DSO at the end of the
hearing expresses,
"Okay. Well, I'll get the Medical and then if I have questions we'll review it and then we'll let you
know what the next step is okay?" (Hearing Transcripts p
16)
The DME documents test results express that Appellant is not psychiatric or schizophrenic. (Exhibit 1, 20) (See Memorandum of Points and Authorities p 5) After the hearing the DSO writes to appellant "the DME forms you completed earlier, were located)." On December 2, 2003 the DMV mailed a revised form (DS 2326 Rev 11/2003) (Exhibit 20) to the appellant. The appellant contacts the psychologist, and asks what can be done. The psychologist recommends an electroencephalogram (EEG) be added. Appellant telephones the DSO, and tells him he is getting an EEG. Because of holidays the EEG report was not
ready until January 9, 2004. Two days before on January 7, 2004 the DSO mailed a letter to the Appellant of a suspension (Exhibit
A) beginning January 11, 2004, for incomplete medical exam. If the DSO had questions about a third party abusing a
motorist, he should have investigated the third party without suspending Appellant.
A. THE RESPONDENT COURT LACKED JURISDICTION TO MAKE THE PURPORTED ORDER BECAUSE THERE WAS NO EVIDENCE, SUBSTANTIAL OR OTHERWISE, "OF A PRIMA FACIE CASE, WHICH IS REQUIRED."
The DSO implies that he has disqualified the medical expert tests. "Disqualification of an expert
witness is reversible on the basis of an abuse of discretion." (Brown v
Colm (1974) 11 C3d 639,
647, 114 CR, 128.)
HERE there are
evidentiary conflicts, in that the Respondent asked for a psychiatric, and when he got expert testimony, then claimed the expert medical information was incomplete. The California Administrative Hearing Practice booklet describes an Expert witness as, "One who possesses expert knowledge or skill on a subject . . . " The instruction
itself places the burden upon the
Respondent. The DME form (Exhibit 1) has the driver sign
to "I
hereby authorize my doctor or hospital to answer any questions from the Department of Motor Vehicle, or its employees, relating to my physical or mental condition, and/or drug and/or alcohol use or abuse, and to release any related information or records to the Department of Motor Vehicles or its employees. Any expense involved is to be charged to me and not to the Department of Motor Vehicles." The DSO has full investigation and adjudication powers and could have called the doctors who completed the cognitive and (organic) EEG. On March 22, 2004 the
DMV counsel now seems to admit there
is mistake. He wants appellant to settle, and dismiss his Writ of Mandate. (Exhibit 24) The DSO did not at any time state that the trial had been continued. Appellant had to rely on a competent staff at DMV. Appellant had to rely on competent medical experts. HERE Appellant had called the DMV several times, and the staff assured him his forms were there and being investigated. The investigation would take 30 days. Appellant even tried to talk with the supervisor at DMV, but the supervisor informed appellant the investigation would have to be completed, first. "The burden is not on the applicant to clear up these matters. The burden is upon the
examiner to prove that they constitute grounds for refusing to issue a license." (Smith vs City, we
vacate the circuit court's August 17, 2000 remand for the entry of an order dismissing the July
13, 2000 Motion for Reconsideration. DATED: Honolulu, Hawaii, June 28,
2002. )
II. THERE WAS INSUFFICIENT EVIDENCE
A. APPELLANT'S SUSPENSION SHOULD BE VACATED BECAUSE THE STATE DMV FAILED TO PRESENT EVIDENCE SUFFICIENT TO PROVE EACH ELEMENT CONTAINED IN THE INSTRUCTION DEFINING FAILURE OF A MEDICAL TEST OR REFUSAL TO TAKE A MEDICAL TEST.
The doctors believe that appellant passed the medical test, in signing the DME. The doctor is reluctant to call anyone a safe driver. There are driving tests at DMV that determine that. Here the DSO seems to want more from the doctor, but what more information he wants is not stated. Appellant complements the doctors testing him. It was a blind study, because the appellant was not given any information other than a re-exam psychiatric was necessary. Appellant was under the impression that a recent citation for a seat belt, the first in over ten years may have generated the re-exam. Appellant also complements the DSO for his investigatory approach. But it must be recognized that wireless harmonics are abused by terrorist DOE Company relatives and associates. (Exhibit 18, 26)
While Insufficient
Evidence does not carry much weight in
criminal cases, it has credibility in traffic appeals (People v Behjat 84 Cal.App. 4th Supp.1.). On October 12, 2000, the court issued its opinion in People v. Behjat.
In that case a conviction for violating Vehicle Code section 22350 had to be reversed for lack of
substantial evidence. "It was insufficient to establish mandatory duty on part of DMV to revoke
or suspend driver's license." (People vs Superior Court, 18 Cal.App. 4th
31, 22 Cal.Rptr. 2d 110)
B. THE DSO SHOULD NOT HAVE SUSPENDED THE APPELLANT WITHOUT CONSIDERATION OF SECTION 13802.
The DSO expresses "This is an In-Person Reexamination conducted December 1, 2003, from the
Sacramento Driver Safety Office regarding the medical condition and driving privilege of Mr.
James Francis Burroughs, conducted under the provisions of Vehicle Code Sections 13801."
(Hearing Transcript p 1) The DSO expresses "Okay. What is your occupation, right now?" The
appellant expresses, "Well, I'm an accountant." The DSO expresses, "Okay. Are you working
right now?" The appellant expresses, "I'm retired." (Hearing Transcript
p 15)
Section
13802 describes "in applying provisions of 13800 the department shall give due
consideration to the amount of use and mileage travelled in the operation of a motor vehicle."
HERE the small number of miles in retirement that appellant drives, should have been
considered before a suspension.
II.
THERE WAS PROCEDURAL ERROR
A. THE DSO ELICITS WIRELESS ABUSE BUT NOT THEFT OF A STORAGE PUMP The DSO expresses, "Okay. One of the steps where I got the information from here, you're
referring to saliva control may be causing your digestion to be stopped." (Hearing Transcript p 7)
The DSO asked Appellant what did you mean by," . . . an
involuntary server on my anatomy.
There's apparently a spinal equilibrium device, which is continually attacked by the wireless
radio operator. I could feel the wireless attack on my brain stem as the radio operator trained the
recent high school graduates in his gang in July 1988. I
suffer from brain stem component basal
ganglia position damages as well as radar detecting my breathe while I am unable to hold
breathe or deep breathe." (Hearing Transcript p 7) Appellant expresses, "So the uh, what I have tried to explain is that there is a possibility that I was injured when I was a small child, and that somebody put in a rehabilitation device to
help me to stretch." (Hearing Transcripts p 8) The DSO expresses, "It's a possibility or it's a
fact? Appellant expresses, "So I - I have developed enough information to me, that it is a fact.
Here are two things I can give to you. (1) from childhood on, and it was noticed while I was
playing football, I could not touch my toes, so there was some kind of an injury that prevented
me from touching my toes." "The other thing was, is I could not twist my
body into a high jump
for a uh, what's called a western roll." 1949 Crime. The DSO then expresses,
"so your point is you were injured, which prohibited or caused you not to be able to do these maneuvers? Is that what your saying?" (Hearing Transcsripts p 9)
The Appellant then expresses, "I had difficulty with my feet and I explained it to the persons
there and after that I had no difficulty with my feet. . . . and
apparently no one reported this."
Seven years later
Lawrence DOE was seen reaching in
to the throat of the owner of the property where appellant had been injured, after the radar engineer was unconscious from a choke hold. A DOE approached appellant, expressing they were copying his system.
Perpetrator ID - copying his system. There is evidence that Lawrence DOE et al interrupted appellant surgery (1957), by arranging for another doctor. (Statement of Facts - describing exhibits p 2) He was also using appellant as his pawn, and leaving him behind. The radar engineer did not find out about Lawrence DOE deceit until 1975, one year before his death (or murder). (See Declaration of Extortion)
The DSO does not elicit
the significance of a 1987 injury,
or theft of a storage pump (by hitman #5). The crippling in 1987 was severe and lasting. Appellant knew he was injured, the night of December
17. He had loss of time for the injury, and was surprised. He thought the injury would heal (Exhibit 8-3/2)
On November 1988 while
appellant was complaining of sudden
bouts of pain to his brain stem (or middle of the head), he found a DOE3 male exiting the weight room late at night. He did not appear to live in the apartment complex, and Appellant got his license number # 2EDY917. Appellant called the apartment manager, who said "We have been continually finding urine in the waste baskets in the weight room." The manager declined turning it in
to the police because only a weight pin was missing. Several months later appellant felt pain, and looked outside for a possible wireless cause. Wireless Equipment Type seen - He found a person standing outside his window with what looked like a camera over his shoulder. Perpetrator ID- He got the license number and identified the owner through DMV records, as Richard Jackson. In 1989 James C.
DOE celebrated at the local high
school reunion, but did not announce why he was celebrating. James C. DOE was now crippled, and had an aided assist (radio wave) that propelled his body as he walked. (Statements of Fact p 5, Exhibit 11-2) Allegedly James C. DOE had a biofeedback bowel and bladder (reflex stimulation). (Exhibit 5-5) Appellant noticed a collision detection system operating, that is known in video games. (Exhibit 11-12) When tiny pine needles struck the scalp of appellant, an exaggerated startle response would occur along the spine. The Sacramento County Health Dept. doctor did notice (ataxia) signs of loss of resistance in 1993. Ataxia was caused by cerebellum damage. _25/ (Had appellant been hit over the head (cerebellum), or was it minor surgery?) (See Statement of Facts
- describing exhibits p 3, Exhibit 8-3) _12/ The vibration was such, that x-rays could not be optimally imaged. (Exhibit 11-7/2) When doctors looked at a rigid abdomen, they waited for the appellant to relax his abdomen. The doctors all described the abdomen as soft.
Tracking transmitter - simple blocking or relaxation oscillators- However appellant was unable to explain to doctors that it was not him contracting or relaxing muscle of the abdomen. Appellant did come to believe his stretch interference and lack of resistance was related to the higher level reflex. (Appellant had come to this conclusion, from Medical Reference Booklets.) _/24 (Exhibit 11-1, 11-15)
Continue - Opening Brief
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