State v. WAS

629 So. 2d 1209, 1993 WL 429684
CourtLouisiana Court of Appeal
DecidedOctober 15, 1993
DocketCA 92 1899
StatusPublished

This text of 629 So. 2d 1209 (State v. WAS) 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
State v. WAS, 629 So. 2d 1209, 1993 WL 429684 (La. Ct. App. 1993).

Opinion

629 So.2d 1209 (1993)

STATE of Louisiana
v.
W.A.S.[1]

No. CA 92 1899.

Court of Appeal of Louisiana, First Circuit.

October 15, 1993.
Rehearing Denied December 6, 1993.

Elizabeth Murry, Office of the Dist. Atty., Livingston, for plaintiff.

*1210 Marvin Montgomery, Baton Rouge, for defendant.

Before CARTER, GONZALES and WHIPPLE, JJ.

GONZALES, Judge.

Petition was filed January 11, 1991 by the State of Louisiana seeking to establish the defendant, W.A.S., as the natural father of the minor child, L.B., who was born June 15, 1979 to S.D.L. The court ordered blood testing for the mother, child and putative father, which was completed. Following trial in the matter, judgment was rendered by the court decreeing W.A.S. to be the natural father of the minor child, L.B., and subsequently, judgment was rendered ordering W.A.S. to pay child support. From the judgment establishing paternity, W.A.S. appeals and makes the following assignments of error:

A. The trial court erred in failing to declare the blood test unconstitutional under the Fourth Amendment to the United States Constitution and in failing to hold a show cause hearing to determine whether there was sufficient evidence to warrant court ordered blood testing.
B. The trial court erred in admitting the blood test results and subsequent affidavit into evidence where Plaintiff never offered them into evidence.
C. The trial court erred and abused its discretion in ruling after Plaintiff had rested its case-in-chief and [W.A.S.] had rested his case, that it had allowed Plaintiff to leave its case-in-chief open, when there is no indication in the record that such leave was requested by Plaintiff or ordered by the court.
D. The trial court erred in placing into evidence the blood test results and subsequent affidavit after the Plaintiff and [W.A.S.] had both rested their cases-in-chief.
E. The trial court erred in ruling that the blood test results were admissible into evidence where the chain of custody had not been proven as required by law.
F. The trial court erred in ruling that plaintiff proved by a preponderance of the evidence that [W.A.S.] is the biological father of the child.

Appellant first contests the constitutionality of La.R.S. 9:396[2], the statute authorizing blood tests in paternity cases, which reads as follows:

A. Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child, and alleged father to submit to the drawing of blood samples, and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.
B. (1) The district attorney, in assisting the Department of Social Services in establishing paternity as authorized by R.S. 46:236.1, may file a motion with a court of proper jurisdiction and venue prior to and without the necessity of filing any other legal proceeding. Upon ex parte motion of the district attorney and sworn affidavit of the party alleging specific facts tending to prove paternity and other facts necessary to establish the jurisdiction and venue of the court, the court shall issue an ex parte order directing the mother, child, and alleged father to appear at a certain date and time to submit to the drawing of blood samples and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures. The order shall be personally served upon the alleged father. If any *1211 party refuses to submit to such tests, the court, in a subsequent civil action in which paternity is a relevant fact, may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.
(2) If the written report of the results of the initial testing absolves a party from the allegation of paternity, the district attorney and the department shall be enjoined from initiating any subsequent civil action against that party to establish paternity of the same child. If the written report fails to absolve a party from the allegation of paternity, such report may be used by the district attorney or the department as evidence against the alleged father in any subsequent civil action for the establishment of paternity or by the alleged father in any subsequent proceeding in which filiation is an issue.

The constitutionality of La.R.S. 9:396 was addressed by the supreme court in In the Interest of J.M., 590 So.2d 565 (La.1991). In that case, the mother of the minor child ("Ms. B.") filed a paternity action against both her former husband, to whom she was married but separated from at the time of the child's conception, and, "Mr. Z.", with whom she had allegedly had an exclusive sexual relationship near the time of conception. During the course of the lawsuit, Ms. B. requested that the court order blood testing of the defendants. In response, Mr. Z. filed a Motion for Declaratory Judgment regarding the constitutionality of the statute, resulting in a ruling by the trial court declaring La.R.S. 9:396 unconstitutional. The supreme court in reversing that ruling of the trial court held as follows:

A court order for blood testing to determine paternity is ... a search and seizure within the meaning of the Fourth Amendment.... [T]he question at issue ... is whether a court-ordered blood test is reasonable and justified under the circumstances.
A blood test is minimally intrusive, relatively painless, and medically safe. In facilitating a determination of paternity, blood tests are highly reliable and unequaled in evidentiary value.
. . . .
Although the alleged father has a right to privacy and to be free from unreasonable searches and seizures, those rights are not absolute and may be reasonably regulated when the State has a sufficiently weighty interest.... [T]he State has a compelling interest because of its pervasive concern for the welfare of its children.... In addition, in a paternity case involving a minor child on public assistance, the State has an important interest in conservation of the State's public assistance funds.... Finally, a minor child has a right to support from his parents.
Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test.... [A]s a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity.

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State v. W.A.S.
629 So. 2d 1209 (Louisiana Court of Appeal, 1993)

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Bluebook (online)
629 So. 2d 1209, 1993 WL 429684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-was-lactapp-1993.