Villalobos

The superior court rendered a judgment granting a petition for writ of mandate directing the Department of Motor Vehicles (hereafter, DMV) to set aside an order revoking Manuel E. Villalobos’s driving privileges following Villalobos’s arrest for driving under the influence of alcohol. It reasoned that Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [ 280 Cal.Rptr. 745 , 809 P.2d 404 ], compelled issuance of the writ because the undisputed facts showed that the arresting officer did not see volitional movement of Villalobos’s vehicle. On appeal, DMV contends that Mercer does not apply because Villalobos was lawfully arrested for drunk driving notwithstanding that the officer did not see volitional movement. We agree and therefore reverse the judgment.

Scope of Review

Ordinarily, we would examine the superior court’s findings after its independent review of the administrative record to determine whether the findings were supported by substantial evidence. (Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687, 1692 [ 13 Cal.Rptr.2d 457 ].) But the determinative question in this case is one of law, i.e., application of Mercer to undisputed facts.…