Wheeler v. STATE, DEPT. OF PUB. SAFETY, ETC.

377 So. 2d 539
CourtLouisiana Court of Appeal
DecidedNovember 12, 1979
Docket7207
StatusPublished
Cited by7 cases

This text of 377 So. 2d 539 (Wheeler v. STATE, DEPT. OF PUB. SAFETY, ETC.) 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
Wheeler v. STATE, DEPT. OF PUB. SAFETY, ETC., 377 So. 2d 539 (La. Ct. App. 1979).

Opinion

377 So.2d 539 (1979)

Roger O. WHEELER, Plaintiff-Appellee,
v.
STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVERS IMPROVEMENT DIVISION, Defendant-Appellant.

No. 7207.

Court of Appeal of Louisiana, Third Circuit.

November 12, 1979.

*540 Foye L. Lowe, Jr., Baton Rouge, for defendant-appellant.

Lloyd F. Love, Ferriday, for plaintiff-appellee.

Before DOMENGEAUX, FORET and SWIFT, JJ.

DOMENGEAUX, Judge.

The Louisiana Department of Public Safety has taken this appeal from a judgment granting the plaintiff a restricted driver's license in order to support his family.

Although it appears that the relief granted plaintiff was under the provisions of La.R.S. 32:415.1, there were some suggestions in the briefs and at oral argument, that it may have been granted pursuant to La.R.S. 32:1471, et seq., the Motor Vehicle Habitual Offender Law, which was interpreted by the Louisiana Supreme Court in the recent case of Smith v. State, through Department of Public Safety, 366 So.2d 1318 (La.1978). As shown hereinafter, since Smith, La.R.S. 32:1479 has been amended and re-enacted.

For the reasons shown hereafter, we find that the plaintiff is not entitled to relief under either statute.

Plaintiff's petition, dated February 13, 1979, alleges that his driver's license was revoked during the year 1973, and that the revocation was extended from time to time by the defendant, Department of Public Safety, with the consequence that the revocations extended to the year 1989. He prayed specifically for a restricted driver's license under the provisions of La.R.S. 32:415.1,[1] and pursuant thereto, was granted *541 a summary hearing by the District Court on February 21, 1979. The defendant Department opposed plaintiff's petition.

The record indicates that in open court, prior to the commencement of the hearing, the trial judge stated that a previous suit, entitled Louisiana Department of Public Safety v. Roger O. Wheeler, to have Wheeler declared an habitual offender, was tried by him and taken under advisement. He then stated that pursuant thereto he would then and there render his decision on that prior suit, which he did as follows:

"It's the finding of the Court that the defendant, Mr. Roger O. Wheeler, is an Habitual Offender and Judgment will be rendered accordingly."[2]

Following that preliminary matter, the court proceeded to hear the present case, which, as aforesaid, was for relief under the provisions of La.R.S. 32:415.1.

IS PLAINTIFF ENTITLED TO RELIEF UNDER LA.R.S. 32:415.1?

The record shows that plaintiff was 22 years of age at the time of the hearing. His traffic record for the previous five years is as follows:

March 4, 1974 — Revocation violation-license suspended for one year, subsequently reinstated. June 2, 1975 — Convicted for careless driving and revocation violation-license suspended an additional year. November 5, 1975 — DWI conviction, suspension of license for additional year, subsequently reinstated. July 7, 1976 — Convicted for speeding and revocation violation-license suspended one additional year. August 4, 1976 — Convicted for speeding and revocation violation-additional suspension of one year. November 3, 1976 — Convicted for speeding and revocation violation occurring on October 6, 1976-additional suspension of one year. November 3, 1976 — Convicted for DWI and revocation violation occurring on October 10, 1976-with resulting additional suspension. February 4, 1977 — DWI and revocation violation conviction-with additional suspension. November 26, 1977 — DWI and revocation violation pending. December 7, 1977 — Declared an habitual offender, with additional suspension.[3]

A DWI charge on May 29, 1978, and a careless driving and revocation violation charge on July 20, 1978, are pending.[4]

The above uncontested facts show that the plaintiff, Wheeler, has suffered multiple convictions of DWI, careless driving, speeding, and driving with a suspended or revoked driver's license. His driver's license has been suspended repeatedly. He is not entitled to relief under La.R.S. 32:415.1. That statute expressly provides that a restricted license for economic hardship can only be issued where the applicant's driver's license has been suspended, revoked, or cancelled "for the first time only" under La.R.S. 32:414(B), (C), (D), (E), and La.R.S. 32:415. Smith v. State, through Department of Public Safety, 352 So.2d 443 (La.App. 3rd Cir. 1977); Perry v. State, Department of Public Safety, Driver's License Division, 353 So.2d 318 (La.App. 1st Cir. 1977), writ denied 354 So.2d 1385 *542 (La.1978); Howard v. Louisiana Department of Public Safety, 360 So.2d 228 (La. App. 1st Cir. 1978); Bradley v. State, Department of Public Safety, 372 So.2d 1259 (La.App. 3rd Cir. 1979); Wenfrey v. Department of Public Safety, 374 So.2d 119 (La.App. 4th Cir. 1979).

We find, therefore, that the trial court erred in granting a restricted driver's license to plaintiff under the provisions of La.R.S. 32:415.1.

IS PLAINTIFF ENTITLED TO RELIEF UNDER LA.R.S. 32:1471, ET SEQ. (HABITUAL OFFENDER LAW)?

A.

In Smith v. State, through Department of Public Safety, supra, the Supreme Court held, inter alia, that an habitual offender could be granted limited driving privileges in hardship cases during the five-year revocation period. The high Court pronounced that the District Courts had discretion to determine when good cause exists for a conditional restoration of driving privileges during the five-year revocation term.

La.R.S. 32:1479, at the time that the Supreme Court decided the Smith case, read as follows:

"No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state:
(1) For a period of five years from the date of the order of the court finding such person to be an habitual offender; and
(2) Until such time as financial responsibility requirements are met; and
(3) Until upon petition, and for good cause shown, such court may, in its discretion, restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators' licenses."

It is clear that Smith has been legislatively overruled by Acts Nos. 220 and 347 of the 1979 Regular Session of the Louisiana Legislature,[5] which Acts amended and re-enacted La.R.S. 32:1479, so that it now reads as follows:

"No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state until all of the following requirements have been complied with:
(1) a period of five years has elapsed

Free access — add to your briefcase to read the full text and ask questions with AI

Related

St. Paul Fire & Marine Insurance Co. v. Smith
609 So. 2d 809 (Supreme Court of Louisiana, 1992)
St. Paul Fire & Marine Ins. Co. v. Smith
609 So. 2d 809 (Supreme Court of Louisiana, 1992)
Lattier v. Department of Public Safety
403 So. 2d 809 (Louisiana Court of Appeal, 1981)
Barron v. STATE, DEPT. OF PUBLIC SAFETY LICENSE CONTROL
397 So. 2d 29 (Louisiana Court of Appeal, 1981)
In re Taber
393 So. 2d 931 (Louisiana Court of Appeal, 1981)
Hazley v. State ex rel. Department of Public Safety
388 So. 2d 115 (Louisiana Court of Appeal, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
377 So. 2d 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-state-dept-of-pub-safety-etc-lactapp-1979.