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

establish probable cause1.(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 drivers 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 drivers 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.

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 persons 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
drivers 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 Loguibers 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

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 PATIO 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. PATIO
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: juril.patino@yahoo.com
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: writofhabeascorpuz@gmail.com

NOTICE OF HEARING

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.Patio

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
Courts consideration immediately upon receipt thereof.
Juril B. Patio

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

PNP San Fernando

San Fernando Police Station