McNeil v. State ex rel. Department of Public Safety

334 So. 2d 704, 1976 La. App. LEXIS 3399

Opinion

STOULIG, Judge.

Appellant, Tracy McNeil, has appealed a judgment of the Twenty-Ninth Judicial District Court for the Parish of St. Charles, upholding an administrative decision by the Driver Improvement Division of the Louisiana State Department of Public Safety to revoke his driving privileges for a six-month period for refusing to submit to an intoxication test after he was arrested and charged with driving while intoxicated.

Briefly, the facts are these: At 1:30 a. m., on March 9, 1973, appellant was arrested by a state trooper in St. Charles Parish and charged with speeding and driving while intoxicated. Sheriff’s deputies asked him to submit to the photoelectric intoxi-meter (P.E.I.) test and advised him that his license could be suspended for a six-month period should he refuse. Appellant nonetheless declined.

We reverse solely on the basis of two recent appellate decisions, i. e., State v. Jones¹ and Mullens v. Department of Public Safety, Driv. Lic. D.2 The import of these cases is that P.E.I. tests administered or tendered prior to December 20, 1975, were invalid because the Health and Human Resources Administration failed to establish standards for the qualifications of personnel administering the test and for conduct of the test itself as required by L. R.S. 32:663. Consequently the test proposed to be given to plaintiff on March 9, 1973 was invalid and his refusal to submit thereto cannot serve as the basis for invoking the statutory penalty of suspension of his driving privileges.

For the reasons assigned, the judgment appealed from is reversed and the Driver Improvement Division of the Louisiana State Department of Public Safety is hereby enjoined from suspending driving privileges of Tracy McNeil.

REVERSED AND RENDERED.

1 . 316 So.2d 100 (La.1975).

2 . 327 So.2d 492 (La.App. 4th Cir. 1976).