Motion for Judicial Determination of Probable Cause

REPUBLIC OF THE PHILIPPINES MUNICIPAL TRIAL COURT SAN FERNANDO, CEBU

PEOPLE OF THE PHILIPPINES Plaintiff, CRIM CASE NO. 3622 FOR : VIOLATION OF R.A 10586 (ANTI-DRUNK AND DRIVING ACT OF 2013)

-versus-

FERNANDO ALFECHE LOGUIBER Accused. x-----------------------------------------------/

MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE WITH PRAYER FOR OUTRIGHT DISMISSAL OF THE CASE

ACCUSED,FERNANDO ALFECHE LOGUIBER, (accused, for brevity) through undersigned counsels unto this Honorable Court, most respectfully avers : PREFATORY STATEMENT “While the determination of probable cause to charge a person of a crime is the sole function of the. prosecutor, the trial court may, in the protection of one's fundamental right to liberty, dismiss the case if, upon a personal assessment of the evidence, it finds that the evidence does not

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establish probable cause”1.(Alfredo C. Mendoza, Petitioner, vs People Of the Philippines and Juno Cars, Inc., Respondents.) AccusedLoguiber Is Not Driving Under The Influence Of Liquor Section 3 (e) of Republic Act 10586 or the Anti-Drunk and Drugged Driving Act of 2013 defines driving under the influence of alcohol, to wit : SEC. 3.Definition of Terms. – For purposes of this Act: xxxxxxxxxx (e) Driving under the influence of alcohol refers to the act of operating a motor vehicle while the driver’s blood alcohol concentration level has, after being subjected to a breath analyzer test, reached the level of intoxication, as established jointly by the Department of Health (DOH), the National Police Commission (NAPOLCOM) and the Department of Transportation and Communications (DOTC).(Italics supplied) A simple understanding of the definition under the aforementioned law of driving under the influence of alcohol would patently establish as to the process that must be initiated by law enforcement officer before a driver is considered driving under the influence of liquor and is deemed violated R.A 10586. It must be shown that driver’s blood alcohol concentration level has reached the level of intoxication. To determine this, the law further provides that the driver must be subjected to a breath analyzer test. 1Sec. 6.When warrant of arrest may issue.– (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. chan robles virtual law library (b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

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A perusal of paragraphs 3 and 5 of the Joint Affidavit of Arrest executed by arresting officers, P02 Cleofas Cabrera Jr. and P02 Edgar Enclonar as attached to the information2, they believed that accused was under the influence of liquor and smelled with alcohol when conversed to them. They, further, attested the fact that they never subjected the accused to Liqour Test Examination on account of the resistance and refusal of the accused. They contended that the refusal of the accused to undergo liquor test examination constitutes high probability of presumption that the latter is indeed driving under the influence of liquor. This only indicates that the arresting officers relied merely on presumption instead of following what the law mandates in order to determine the level of intoxication of accused. Based on their presumption that the accused is driving under the influence of liqours, they arbitrarily arrested the accused. Sec. 6 of R.A 10586, is clear as to the process that must be conducted law enforcement officers to determine the level of intoxication of those believed to be driving under the influence of liquor, to wit : Sec 6.Conduct Confirmatory Tests

of

Field

Sobriety,

Chemical

and

A law enforcement officer who has probable cause to believe that a person is driving under the influence of alcohol, dangerous drugs and/or other similar substances by apparent indications and manifestations, including over speeding, weaving, lane straddling, sudden stops, swerving, poor coordination or the evident smell of alcohol in a person’s breath or signs of use of dangerous drugs and other similar substances, shall conduct field sobriety tests. If the driver fails in the sobriety tests, it shall be the duty of the law enforcement officer to implement the mandatory determination of the driver’s blood alcohol concentration level through the use of a breath analyzer or similar measuring instrument. xxxxxxxxxxxxxxxxxxx Law enforcement officers and deputized local traffic enforcement officers shall be responsible in implementing this section.(Emphasis Supplied) 2 Attached as Annex “A” is a copy of the Joint Affidavit of Arrest of P02 Cleofas Cabrera Jr. and P02 Edgar Enclonar. 3

Thus, the failure of the arresting officers to conduct field sobriety nay resort to the mandatory determination of the accused blood alcohol concentration level using a breath analyzer or similar measuring instrument or to offer any evidence other than their self-assessment and evaluation that is a manifestation of how remiss they are as to their responsibility to implement the law. The absence of any liquor test examination to support that accused Loguiber’s blood alcohol concentration has reached the level of intoxication clearly warrants the dismissal of this case. The arresting officers speculation and conjecture that accused Loguiber was driving under the influence of alcohol is frail enough to prove that the latter has violated R.A 10586.

The Arresting Officers Illegally Arrested Accused Loguiber Accused Loguiber was arrested without a benefit of warrant arrest by the arresting officers who were acting based on instruction of the private complainant and not based on personal knowledge of the arresting officers as can be gleaned in paragraph 4 of the Joint Affidavit of Arrest executed by the arresting officers. Basic is that rule on exceptional cases of warrantless arrest under Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure, to wit : Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 4

The warrantless arrest of the accused did not fall in any of the exceptions provided by law for a lawful arrest without warrant. Accused was not actually committing, has committed or is attempting to commit a crime in their presence. In fact, the arresting officers were present in the place where they arrested the accused because they responded to the report of the private complainant of vehicular accident. However, there was no traffic accident sketch supporting the fact of the accident. Verily, the police officers have no probable cause based on personal knowledge of facts and circumstances that accused was probably guilty of reckless imprudence resulting to damage to property. What they did was to heed to the request of the private complainant to arrest the accused because the private complainant will be filling a case against the accused. This only shows partiality and biases of the arresting officer in favor of the private complainant to the expense of violating the guaranteed constitutional right to due process of the accused before the latter can be deprived of his liberty. The Inquest Prosecutor Haphazardly filed the information sans examination of the documents to establish probable cause It bears stressing that the inquest prosecutor has the duty to carefully examine the documents submitted to sufficiently establish the findings of probable cause and to warrant the filing of the information in court. Under Sec 11, Part 2 of Department of Justice Manual for Prosecutors it provides : SEC. 11. Inquest proper.- Where the detained person does not opt for a or otherwise refuses to execute the required waiver, proceed with the inquest by examining the sworn the complainant and the witnesses and other supporting If necessary, the Inquest Officer shall require the presence of the complaining witnesses and subject them to an informal and summary investigation or examination for purposes of determining the existence of probable cause.(Italics Supplied) Thus, when the inquest prosecutor filed the information for violation of R.A 10586 despite the absence of a liquor test examination or any material proof thereof to prove that the accused blood alcohol concentration has reached the level of intoxication and is liable of driving under the influence of alcohol, it cannot be gainsaid that the prosecutor haphazardly

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filed the information though there was no probable cause to charge the accused.

WHEREFORE, premises considered,in the interest of justice and to uphold the rule of law, accused Fernando Alfeche Loguiber prays for the outright dismissal of this case. Other forms of relief that are just and equitable under the premises are also prayed for. Cebu City, Philippines. September 07, 2015.

RESPECTFULLY SUBMITTED. LOON CORPUZ PATIÑO AND ASSOCIATES (Counsel of the Accused) G/F GMC Plaza Bldg. Legaspi Extension corner M.J Cuenco St, Cebu City, Philippines Tel No. (032) 254-0453 By: JURIL B. PATIÑO Roll of Attorney No. 63966 April 27,2015 PTR OR No. 707854 5-06-15 IBP OR No. 0997508 4-27-15 Cebu City Chapter MCLE COMPLIANCE No. Exempt-New Passer Email add: [email protected] HABEAS CORPUZ Roll of Attorney No. 62850 May 06,2014 PTR OR No. 599058 January 07,2015 Cebu City IBP OR No. 966627 January 7,2015 Cebu City Chapter MCLE COMPLIANCE No. Exempt-New Passer Email add: [email protected]

NOTICE OF HEARING

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Hon. Pepita Jane A. Petralba Provincial Prosecutor Province of Cebu Greetings : Please take notice that the foregoing Motion for Judicial Determination of Probable Cause with Prayer for Outright Dismissal of this Case shall be submitted for the consideration and approval of this Honorable Court on September 18, 2015 at 8:30 in the morning or as soon as counsel and matter may be heard. Juril B.Patiño

REQUEST Clerk of Court Municipal Trial Court San Fernando, Cebu Please submit the foregoing Motion for Judicial Determination of Probable Cause with Prayer for Outright Dismissal of this Case for the Court’s consideration immediately upon receipt thereof. Juril B. Patiño

EXPLANATION Copy of this Motion for Judicial Determination of Probable Cause with Prayer for Outright Dismissal of this Case is made through registered mail due to lack of personnel to effect personal service. Copy Furnished : Hon. Pepita Jane E. Petralba Provincial Prosecutor Province of Cebu Office of the Provincial Prosecutor Capitol Site, Cebu City

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PNP San Fernando San Fernando Police Station

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