Flynn v. STATE, DEPT. OF PUBLIC SAFETY & CORR.

608 So. 2d 994, 1992 WL 355085
CourtSupreme Court of Louisiana
DecidedNovember 30, 1992
Docket92-C-0961
StatusPublished
Cited by21 cases

This text of 608 So. 2d 994 (Flynn v. STATE, DEPT. OF PUBLIC SAFETY & CORR.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flynn v. STATE, DEPT. OF PUBLIC SAFETY & CORR., 608 So. 2d 994, 1992 WL 355085 (La. 1992).

Opinion

608 So.2d 994 (1992)

Linda B. FLYNN
v.
STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTION.

No. 92-C-0961.

Supreme Court of Louisiana.

November 30, 1992.

Doug Allen Jr., Metairie, for applicant.

Paul E. Schexnayder, Baton Rouge, for respondent.

*995 COLE, Justice.

The issue presented in this case is whether a person seeking judicial review of a driver's license suspension or denial under LSA-R.S. 32:668(C) is entitled to a trial de novo or judicial review limited to a review of the administrative record. On the basis of statutory interpretation, a review of the jurisprudence and legislative history, we find that trial de novo is mandated by the statute.

FACTS

On November 4, 1989, Linda Flynn was stopped for suspicion of DWI by the Lake Pontchartrain Causeway Police after an officer observed her traveling 94 m.p.h. in a 55 m.p.h. zone, swerving across the center line, and maintaining inconsistent speeds of travel. After coming into personal contact with Flynn, the officer noted that Flynn smelled of alcohol, swayed on her feet, had blood-shot eyes, and slurred her speech. After administering a breath test, the officer found that Flynn had .111% blood alcohol content. The officer arrested Flynn for DWI.

On February 13, 1990, an administrative hearing was held at State Police Troop L to determine whether Flynn's driving privileges should be suspended pursuant to LSA-R.S. 32:661-668. At the administrative hearing, the Department relied on the sworn affidavit of the arresting officer and the DWI arrest report. Based on this evidence, the administrative hearing officer found the arresting officer had reasonable grounds to believe Flynn was operating her motor vehicle while under the influence of an alcoholic beverage and affirmed the Department's proposed suspension of Flynn's driving privileges.

Pursuant to LSA-R.S. 32:668(C), Flynn appealed the decision of the administrative hearing officer and sought reinstatement of her driving privileges by filing suit in district court. The Department filed a motion to confine judicial review to the administrative record, which was granted over Flynn's objection. Thereafter, the case was submitted on written memorandum. Finding no error in the record of the administrative hearing, the district court denied Flynn's appeal of the suspension of her driver's license.

Flynn appealed to the first circuit court of appeal, asserting that she was entitled to a trial de novo in the district court and challenging the findings of the administrative hearing officer and the sufficiency of the evidence which supported those findings. The court of appeal affirmed, finding no statutory authorization for a trial de novo.[1] The court of appeal found that in the absence of a special statute authorizing trial de novo, judicial review is confined to review of the record of the administrative agency under the provisions of the Administrative Procedure Act (APA), LSA-R.S. 49:950 et seq. In addition, the court of appeal found that the APA, in LSA-R.S. 49:964(E), provided Flynn with a method of applying to the district court for leave to present further evidence if she felt the administrative record was insufficient.

Finding a conflict in the circuits as to whether a trial de novo or review of the administrative record is authorized under LSA-R.S. 32:668(C), this court granted the plaintiff's writ.[2]

LAW

The Informed Consent Law, LSA-R.S. 32:661-668, "addresses the testing of persons suspected of operating motor vehicles and motor powered watercraft while under the influence of alcoholic beverages or controlled dangerous substances" and provides sanctions for persons who refuse to submit to a chemical test for intoxication or who submit to a chemical test, the results of which are presumptive of intoxication. Boe v. State, 558 So.2d 1333, 1335 (La.App. 4th Cir.1990). The statutes also provide the administrative procedures for sanctioning such persons and for review of such decisions. Id.

LSA-R.S. 32:667 authorizes law enforcement officers to seize the driver's license *996 and issue a temporary receipt when a person has been arrested for DWI and either refuses a chemical test or takes the test which results in a finding of a blood alcohol level presumptive of intoxication. A person may request an administrative hearing under LSA-R.S. 32:668(A) to determine whether the law enforcement officer had reasonable grounds to believe that the person who had been driving was under the influence of either alcoholic beverages or illegal controlled dangerous substances. If the person seeks review of the administrative decision, LSA-R.S. 32:668(C) provides:

C. After a person has exhausted his remedies with the department, he shall have the right to file a petition in the appropriate court for a review of the final order of suspension or denial by the Department of Public Safety and Corrections in the same manner and under the same conditions as is provided in R.S. 32:414 in the cases of suspension, revocation, and cancellation of licenses. The court in its review of the final order of suspension or denial by the Department of Public Safety and Corrections may exercise any action it deems necessary under the law including ordering the department to grant the person restricted driving privileges where appropriate as provided in Subsection B.
(emphasis added)

The reference to R.S. 32:414 is to the comparable statute for the procedure following withdrawal of driving privileges after a conviction for driving while intoxicated or some other driving offense. In pertinent part, LSA-R.S. 32:414(F)(4) provides:

Any person denied a license or whose license has been suspended, cancelled, or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides. That court is vested with jurisdiction to set the matter for hearing in open court upon ten days' written notice to the department and thereupon to determine whether the person is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this Chapter. Appeal from the decision of the district court may be taken to any court of competent appellate jurisdiction.
(emphasis added)

The court of appeal found the language providing for a "hearing in open court" to be "merely in contrast to a hearing in chambers, which is allowable under several specific statutes in other areas of our law."[3] The court of appeal erred in its interpretation of this language. Since § 414 makes no provision for any type of hearing before the department prior to notice of the department's action, it is clear that the "hearing in open court" provides a plaintiff his first opportunity for a hearing. Judicial review of the department's action under § 414 must, of necessity, be a trial de novo so that the plaintiff may introduce evidence as to his claim. See Guillot v. State, Department of Public Safety, 380 So.2d 1250, 1254 (La.App. 3rd Cir.), writ denied, 384 So.2d 795 (La.1980); State, Department of Public Safety, Drivers' License Division v. Moore, 311 So.2d 20, 23 (La.App. 2nd Cir.1975). Thus, if cases brought pursuant to § 668 are to use the same judicial review procedure as the procedure authorized under § 414, they should be afforded trial de novo.[4]

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Bluebook (online)
608 So. 2d 994, 1992 WL 355085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flynn-v-state-dept-of-public-safety-corr-la-1992.