Gray v. Louisiana Department of Public Safety & Corrections

217 So. 3d 412, 2016 La.App. 1 Cir. 0612, 2017 WL 658737, 2017 La. App. LEXIS 268
CourtLouisiana Court of Appeal
DecidedFebruary 17, 2017
DocketNUMBER 2016 CA 0612
StatusPublished

This text of 217 So. 3d 412 (Gray v. Louisiana Department of Public Safety & Corrections) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Louisiana Department of Public Safety & Corrections, 217 So. 3d 412, 2016 La.App. 1 Cir. 0612, 2017 WL 658737, 2017 La. App. LEXIS 268 (La. Ct. App. 2017).

Opinion

GUIDRY, J.

|2In this administrative review proceeding, plaintiff, Charles Gray, Jr., appeals from a district court judgment affirming the decision of the Administrative Law Judge (ALJ) to suspend and disqualify Gray’s driving privileges for his refusal to submit to a chemical test for intoxication. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 6, 2014, Officer Wayne Anderson with the Houma Police Department was working patrol in Terrebonne Parish and traveling down Park Avenue1 when he observed a black 2011 Chevrolet Corvette pull out from a stop sign on Church Street into his lane of travel on Park Avenue, causing Officer Anderson to slam on his brakes and swerve to avoid a collision. After the Corvette turned left onto Park Avenue, Officer Anderson followed the vehicle in the left lane down Park Avenue and twice observed the vehicle drift over the white dashed line into’ the right lane and then drift back into the left lane. Thereafter, Officer Anderson activated his emergency lights and siren and conducted a traffic stop of Gray’s vehicle.

Upon coming into contact with Gray, Officer Anderson detected an odor of alcohol emitting from Gray’s breath and noticed that Gray’s eyes were glassy and bloodshot and that his speech was slurred. Officer Anderson asked Gray to perform a Standardized Field Sobriety Test and Gray refused. After advising Gray that if he refused to take the test, he would be placed under arrest, Gray again refused to take the test, and Officer Anderson placed Gray under arrest for failure to stop for a stop sign, a violation of La. R.S. 32:123(B); improper lane usage, a violation of La. R.S. 32:79; and driving while intoxicated (DWI), a violation of La. |sR.S. 14:98. Thereafter, Gray also refused to submit to a chemical test for intoxication.

Following Gray’s arrest, Officer Anderson seized Gray’s commercial driver’s license (CDL) and issued Gray a temporary receipt of license pursuant to La. R.S. 32:667(A)(1). In addition to authorizing Gray to temporarily operate a motor vehicle upon the public highways of Louisiana, the receipt also notified Gray that he had thirty days from the date of his arrest to make a written request to the Department of Public Safety and Corrections (Department) for an administrative hearing in accordance with the provisions of La. R.S. 32:668 to contest the Department’s one-year suspension of Gray’s driv[415]*415ing privileges for his refusal to submit to the chemical test for intoxication. See La. R.S. 32:668(A)(2). Thereafter, Gray filed a written request for an administrative hearing challenging the Department’s decision to suspend his driving privileges. Following a hearing, the ALJ affirmed the Department’s decision, finding that the statutory requirements of the Louisiana Tests for Suspected Drunken Drivers Law, La. R.S. 32:668(A), were met and Gray refused to submit to a chemical test for intoxication.

On August 11, 2014, Gray filed a petition for judicial review in the district court, asserting that the ALJ’s decision was erroneous because: the police officer had no reasonable grounds or probable cause to stop him because he violated no traffic laws; the police officer had no reasonable grounds to believe that he was under the influence of an alcoholic beverage; the police officer did not properly advise him of his rights as required by La. R.S. 32:661; and he was not afforded due process of law at the original administrative hearing, because he was statutorily prohibited from issuing a subpoena of the officer who stopped him. After the filing of Gray’s petition for judicial review, the district court issued an order staying the Department’s decision to suspend Gray’s driving privileges pending the district court’s review of the matter.

| ¿Thereafter, on January 20, 2015, the assistant district attorney for the Thirty-Second Judicial District Court, Parish of Terrebonne, filed a motion to nolle prose-qui the charges against Gray for insufficient evidence. Specifically, the assistant district attorney noted that there was a “lack of objective evidence and very weak subjective evidence. Cannot prevail at trial.”

Prior to trial, the Department submitted a pre-trial memorandum wherein it asserted that the district court should not only uphold the Department’s decision to suspend Gray’s driving privileges for one year but should also uphold the Department’s one-year disqualification of Gray’s CDL based upon Gray’s refusal to submit to the chemical test for intoxication. Gray did not file an objection to consideration of this issue either prior to or at the trial of this matter before the district court.

Gray’s petition for judicial review came for a de novo trial before the district court on August 6, 2015. At the trial, the Department presented evidence as to the propriety of the one-year suspension of Gray’s driving privileges as well as the disqualification of his CDL. Particularly, with regard to disqualification, the Department presented evidence, over the objection of Gray, as to the Department’s proposed lifetime disqualification of Gray’s CDL in accordance with La. R.S. 32:414.2(A)(2)(f). After consideration of the pleadings, testimony of witnesses, evidence, and applicable law, the district court signed a judgment affirming the decision of the ALJ to suspend and disqualify Gray’s driving privileges for one year for refusing to submit to the chemical test for intoxication on May 6,2014.

Gray now appeals from the district court’s judgment.

DISCUSSION

In order to promote safety on Louisiana highways, the Louisiana Legislature enacted the implied consent law, La. R.S. 32:661, et seq., which addresses the testing of persons suspected of operating motor vehicles while under the influence |fiof alcoholic beverages or controlled dangerous substances. Veasman v. State, Dept. of Public Safety, 15-0516, p. 3 (La.App. 1 Cir. 11/9/15), 184 So.3d 88, 90. Louisiana Revised Statute 32:661(A)(1) provides, in pertinent part, that any person “operat[ing] a [416]*416motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his ... breath ... for the purpose of determining the alcoholic content of his blood” if the person is “arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages.”

When a law enforcement officer places a person under arrest for violation of La. R.S. 14:98, La. R.S. 14:98.1, or any parish or municipal ordinance that prohibits operating a vehicle while intoxicated, and the person refuses to submit to an approved chemical test for intoxication, the officer is required to seize the driver’s license of the person under arrest and issue in its place a temporary receipt of license. La. R.S. 32:667(A)(1). Further, the Department is authorized to suspend the person’s driving privileges for one year from the date of suspension for the refusal. See La. R.S. 32:667(B)(2).

A person may request an administrative hearing to contest the Department’s decision in accordance with La, R.S. 32:668(A). At this hearing, the Department must prove that the officer had reasonable grounds to believe that the person had been driving under the influence of alcohol, that the person was placed under arrest and was advised by the officer as provided in La. R.S. 32:661, and that the driver refused to submit to the test upon request. See La. R.S.

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217 So. 3d 412, 2016 La.App. 1 Cir. 0612, 2017 WL 658737, 2017 La. App. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-louisiana-department-of-public-safety-corrections-lactapp-2017.