Barry L. Jacobs v. State of Louisiana, Department of Public Safety, License Control and Driver Improvement Division

Judgment rendered January 15, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,208-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BARRY L. JACOBS Plaintiff-Appellant

versus

STATE OF LOUISIANA, Defendant-Appellee
DEPARTMENT OF PUBLIC
SAFETY, LICENSE CONTROL
AND DRIVER IMPROVEMENT
DIVISION

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2017-3022

Honorable B. Scott Leehy, Judge

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HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellant
By: G. Adam Cossey

LAURA C. HOPES Counsel for Appellee

*****

Before MOORE, PITMAN, and STEPHENS, JJ.

PITMAN, J.

Plaintiff-Appellant Barry L. Jacobs appeals the trial court’s ruling in

favor of Defendant-Appellee the State of Louisiana, Department of Public

Safety, License Control and Driver Improvement Division (the

“Department”). For the following reasons, we reverse the judgment of the

trial court and reinstate Jacobs’s commercial driver’s license.

FACTS

On September 13, 2017, Jacobs filed a petition for judicial review.

He stated that on the evening of March 10, 2017, he was driving on

Highway 165 in Monroe and was pulled over by a Ouachita Parish Sheriff’s

Deputy. After a field sobriety test, he was transported to the Ouachita

Correctional Center (“OCC”) to take a chemical alcohol test. He attempted

to provide two breath samples, but was unable to provide a satisfactory one.

He was charged with DWI first offense, which was amended to reckless

operation. He pled guilty to the amended charge, an associated speeding

violation was dismissed and he was sentenced to a fine of $750 and costs.

Pursuant to La. R.S. 32:666, his commercial driver’s license was suspended

for refusing to submit to a chemical alcohol test. He requested an

administrative hearing, and the Department issued a ruling affirming the

suspension of his license. He sought a review of this administrative

suspension of his license and requested that the suspension be denied and

that he be awarded all driving privileges.

On October 12, 2017, the Department filed an answer denying the

allegations.

A trial was held on May 14, 2019. The Department called Lt. Paul

Knight of the Ouachita Parish Sheriff’s Office as a witness. Lt. Knight

testified that he was on duty on March 10, 2017; at 10:34 p.m., he stopped

Jacobs’s vehicle for traveling at a speed of 66 miles per hour in a 50 m.p.h.

speed zone. While speaking to Jacobs, he noticed a smell of alcohol on his

breath and asked him to step out of his vehicle. Jacobs stated that he drank

alcohol with his dinner that night. Lt. Knight noticed that Jacobs was unsure

of his balance and swayed a bit, so he administered a field sobriety test. At

10:47 p.m., he advised Jacobs that he was under arrest and seized his

commercial driver’s license. He then transported Jacobs to OCC and took

him to the DWI interview room. He testified that he advised Jacobs of his

rights regarding the chemical test for intoxication, and Jacobs refused to sign

the rights form. He left the room for 21 minutes; and, when he returned, he

offered Jacobs a chemical breath test to be conducted on the Intoxilyzer

9000 (the “Intoxilyzer”).1 He recalled that Jacobs hesitated at first, but then

began the test by blowing into the tube of the Intoxilyzer. He explained that

the Intoxilyzer displays a person’s blood alcohol content as the person blows

into the tube. He stated that when Jacobs saw his blood alcohol content

increasing on the display as he blew into the tube, he stopped blowing and

then would start blowing again once the number decreased. He stated that

Jacobs did not provide a proper sample during the initial test, so it was

registered as a refusal to submit to the test. At Jacobs’s request, he

attempted a second test, but he again stopped blowing into the Intoxilyzer

when the number increased. Jacobs did not provide a proper sample during

the second test, so it was also registered as a refusal to submit to the test. He

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Lt. Knight identified a certification card for the Intoxilyzer, which showed that it
was certified as of January 11, 2016. He explained that the certification expires after two
years, so the March 10, 2017 arrest date was within those two years.
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then booked Jacobs into jail for DWI based on the refusal to submit to the

chemical breath test.

On cross-examination, Lt. Knight testified that Jacobs was very

cooperative during the traffic stop and field sobriety test. He did not

preserve or retrieve any recording of Jacobs performing the chemical breath

test. He agreed that although Jacobs’s test results were registered as a

refusal due to insufficient samples, he did blow into the Intoxilyzer. He

opined that Jacobs was trying to beat the Intoxilyzer by watching the display

of his blood alcohol content and ceasing to blow into the tube before his

blood alcohol content was displayed at .08. He stated that he did have the

option to administer a blood or urine test, but did not offer these options to

Jacobs. He also explained that the rights form is on the online LADRIVE

system, and he prints off the form from the system and has the person sign

the rights form after he reads it. The person can either electronically sign the

form or he can note on the form that the person refused to sign.

Jacobs testified on his own behalf. He stated that he is required to

have a commercial driver’s license for his job and that he had been able to

keep his license pending the court’s decision. He recalled that on March 10,

2017, he and his girlfriend were driving home from a restaurant when the

traffic stop occurred. He told Lt. Knight that he had drinks at the restaurant

and then cooperated with a field sobriety test. He stated that at the OCC he

did the chemical breath test twice and that during the first test, the

Intoxilyzer beeped around .07. He contended that he passed the test, but that

Lt. Knight still thought he was intoxicated, so he did the test again with the

same result. He stated that he asked Lt. Knight if he could do the test a third

time because his livelihood depended on him having a commercial driver’s
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license, but Lt. Knight refused. He testified that he did not see the display of

his blood alcohol content on the Intoxilyzer while he was performing the

test. He demonstrated how he blew into the Intoxilyzer and noted that he

had had breathing problems, including bronchitis, since he was a child. He

further testified that he did not refuse the chemical breath test and did not

purposefully give an insufficient sample. He did not sign the rights form

presented to him by Lt. Knight because he was offended that after he had

been cooperative, Lt. Knight still arrested him for DWI. Reviewing an

exhibit of the tests, Jacobs agreed that his first test began at 11:17 p.m. and

ended at 11:21 p.m., that the second test began at 11:27 p.m. and ended at

11:31 p.m. and that he refused to sign the rights form at 12:02:41 a.m. On

cross-examination, he testified that he did not remember Lt. Knight reading

him the rights form.

Counsel for both parties then provided arguments. The trial court

raised questions about the timeline of events, specifically about when

Lt. Knight read Jacobs the rights form. It noted that while it did not matter

when Jacobs signed the form, it did matter that Lt. Knight read the rights to

Jacobs prior to administering the chemical breath test. It pointed out that the

exhibits showed that Lt. Knight read the rights form at 10:50 p.m. and that

the first chemical breath test began at 11:17 p.m. After taking a recess to

review Lt. Knight’s testimony, it noted that Lt. Knight was emphatic that he

advised Jacobs of his rights related to the chemical test for intoxication

before the test was administered.

The trial court found by a preponderance of the evidence that all of

the requirements had been met to support the revocation of Jacobs’s

commercial driver’s license. It stated that Jacobs voluntarily submitted to the
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chemical breath test, but that he stopped blowing into the Intoxilyzer based

on the display of his blood alcohol content. It was not convinced that Jacobs

had any type of infirmity on that night that would have prevented him from

blowing into the Intoxilyzer and successfully completing the test.

On May 24, 2019, the trial court filed a judgment affirming the

suspension and disqualification of Jacobs’s commercial driving privileges.

Jacobs appeals.

DISCUSSION

In his first assignment of error, Jacobs argues that the trial court

committed manifest error when it concluded that the rights form required by

La. R.S. 32:661(C) was read to him three minutes after his arrest and before

the chemical breath test was administered. He notes that La. R.S. 32:661(C)

requires that an officer advise the person of his rights regarding the test

before the test is administered, but that the evidence establishes that

Lt. Knight read the rights form to Jacobs after the chemical breath test. He

explains that (1) the time-stamped, documentary evidence shows that the

rights form was read 45 minutes after the test was administered; (2) it is

physically impossible for the rights form to have been read to him at the

OCC just three minutes after he was taken into custody on the shoulder of

the highway; (3) he unequivocally testified that the rights form was not

provided before the test; (4) the arresting deputy admittedly had very limited

memory of the arrest; and (5) the arresting deputy was unfamiliar and

admittedly violated DWI testing protocols. Jacobs argues that Lt. Knight

testified that the rights form is signed or refused at the time it is read. Thus,

the time stamp, showing when the form was signed or refused, documents

the time the form was read.
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The Department argues that the trial court did not err when it

determined that Lt. Knight read Jacobs the rights form prior to the

administration of the chemical breath test. It contends that Jacobs’s

argument incorrectly equates the reading of the form with the signing of the

form. It emphasizes that La. R.S. 32:661(C) only requires that law

enforcement read the rights form prior to the administration of the test; it

does not require that the arrestee sign the form prior to the administration of

the test.

La. R.S. 32:661(C) states:

(1) When a law enforcement officer requests that a person
submit to a chemical test as provided for above, he shall first
read to the person a standardized form approved by the
Department of Public Safety and Corrections. The department
is authorized to use such language in the form as it, in its sole
discretion, deems proper, provided that the form does inform
the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
(b) That his driving privileges can be suspended for
refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he
submits to the chemical test and such test results show a
blood alcohol level of 0.08 percent or above or, if he is
under the age of twenty-one years, a blood alcohol level of
0.02 percent or above.
(d) That his driving privileges can be suspended if he
submits to the chemical test and the test results show a
positive reading indicating the presence of any controlled
dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement
officers involved in the stop, detention, investigation, or
arrest of the person.
(f) That refusal to submit to a chemical test after an arrest
for an offense of driving while intoxicated if he has refused
to submit to such test on two previous and separate
occasions of any previous such violation is a crime under the
provisions of R.S. 14:98.2 and the penalties for such crime
are the same as the penalties for first conviction of driving
while intoxicated.
(2) In addition, the arresting officer shall, after reading said
form, request the arrested person to sign the form. If the person
is unable or unwilling to sign, the officer shall certify that the

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arrestee was advised of the information contained in the form
and that the person was unable to sign or refused to sign.

On review of the administrative suspension of a driver’s license, the

district court is required to conduct a trial de novo to determine the propriety

of the suspension. State Dep’t of Pub. Safety & Corr. In Matter of Litton,

51,757 (La. App. 2 Cir. 11/15/17), 245 So. 3d 1075. Such a trial is a civil

action amenable to all of the ordinary rules of procedure and proof. Id.

Further, the fact that this is an action for judicial review of a

decision resulting from an administrative hearing does not change the

burden of proof placed by law on the plaintiff. Id.

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO,

549 So. 2d 840 (La. 1989). The appellate review of fact is not completed by

reading only so much of the record as will reveal a reasonable factual basis

for the finding in the trial court. Id. If the trial court’s findings are

reasonable in light of the record reviewed in its entirety, the court of appeal

may not reverse even though convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently. Id.

This is a factual dispute regarding when Lt. Knight read the rights

form to Jacobs. Although the trial court determined that Lt. Knight read

Jacobs the rights form before he submitted to the chemical breath tests, the

trial court’s finding is clearly wrong and is not reasonable in light of the

record in its entirety.

The record does not indicate that Lt. Knight sufficiently complied

with La. R.S. 32:661(C). According to the state’s case, Lt. Knight read the

rights form to Jacobs at 10:50 p.m., approximately three minutes after

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Jacobs was taken into custody; Lt. Knight left Jacobs in the DWI interview

room for 21 minutes; Lt. Knight administered Jacobs’s first chemical breath

test at 11:17 p.m.; Lt. Knight administered Jacobs’s second chemical breath

test at 11:27 p.m.; and Jacobs refused to sign the rights form at 12:02 a.m.

This timeline presents the physical and logical impossibility that Lt. Knight

was able to transport Jacobs to OCC and read him his rights within three

minutes of arresting him. There is also not sufficient time in this timeline

for Lt. Knight to observe Jacobs for 15 minutes prior to administering the

first test to ensure that he did not ingest alcohol, regurgitate, vomit or take

anything by mouth. La. R.S. 32:663; La. Admin. Code tit. 55, pt. I, § 514.

We note that times of the chemical breath tests were time stamped by the

Intoxilyzer but Lt. Knight manually entered the time that he allegedly read

the rights form to Jacobs.

Lt. Knight’s testimony is contradictory and is contrary to the

documentary evidence. He stated that his practice was to read the rights

form to the person, print the form from the LADRIVE system and then have

the person sign the form. Although Lt. Knight testified that he read the

rights form before administering the test, the testing equipment recorded that

the rights form was signed, or there was a refusal to sign, after the test was

performed.

Accordingly, this assignment of error has merit. Considering this

determination, we need not discuss Jacobs’s remaining assignment of error.

CONCLUSION

For the following reasons, we reverse the judgment of the trial court,

render judgment in favor of Plaintiff-Appellant Barry L. Jacobs and reinstate

his commercial driver’s license. Costs of this appeal are assessed to
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Defendant-Appellee The State of Louisiana, Department of Public Safety,

License Control and Driver Improvement Division, in the amount of

$863.50.

REVERSED AND RENDERED.

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