State of Louisiana v. Christopher Michael Jones

Judgment rendered August 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C. Cr. P.

No. 55,647-KW
No. 55,648-KW
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Applicant

versus

CHRISTOPHER MICHAEL JONES Respondent

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On Application for Writs from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court Nos. 246,345 and 246,345A

Honorable Allen Parker Self, Jr., Judge

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J. SCHUYLER MARVIN Counsel for Applicant
District Attorney

DALE NEWTON MONTGOMERY, II
AMANDA BROTHERTON-TODD
Assistant District Attorneys

WHITLEY R. GRAVES Counsel for Respondent

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Before PITMAN, STEPHENS, and THOMPSON, JJ.

STEPHENS, J., dissents with written reasons.

THOMPSON, J.

When a licensed driver fails or refuses a breathalyzer test, exposure to

both administrative and criminal consequences are triggered. In the matter

before us, a driver with a commercial driver’s license was successful in

having the results of his breathalyzer test suppressed by the trial court for an

omission of the arresting officer to read the entirety of the rights form

promulgated by the Department of Public Safety and Corrections. Finding

the omission to be a de minimis exclusion that does not justify the

suppression of the results, we reverse the trial court and remand this matter

for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 13, 2023, Christopher Jones (“Jones”) was driving a

private vehicle westbound on U.S. 80 in Bossier Parish when he was pulled

over by Trooper Clemmie Porter, III of the Louisiana State Police. Trooper

Porter stopped Jones for improper lane usage, and during the stop, Trooper

Porter suspected that Jones was intoxicated. Jones was arrested and

transported to the Bossier City Police Department, where he agreed to a

breath alcohol test on an Intoxilyzer 9000. Based on observations by the

Trooper during the stop and the results of the breath alcohol test, he was

charged with operating a vehicle while intoxicated-first offense, a violation

of La. R.S. 14:98.1.

Jones has a Class “A” commercial driver’s license (“CDL”) and

drives a commercial truck professionally. On the night of his arrest, he was

driving a personal vehicle, not a CDL truck. Before administering the

breathalyzer test, Trooper Porter read Jones a portion of the form authorized

by the Department of Public Safety and Corrections, the DPSSP 6621 form,

entitled Arrestee’s Rights Form-Rights Relating to the Chemical Test for

Intoxication (the “form”).

Figure 1- Exhibit D1

The form provides information related to an arrestee’s rights related to

chemical testing, including:

• The right to refuse the chemical test if the driver was not
involved in a crash where a fatality or serious bodily injury
occurred.

• There are consequences for refusing to submit to the
chemical test, including that driving privileges shall be

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suspended for a period of one year if this is the first refusal
and evidence of refusal will be used against you in court.

• If a person fails a test, meaning their blood alcohol level is
above 0.08 percent, they will lose their license for 90 days.

• A specific section for those people who have a CDL license
or are driving a CDL truck, which specifies that refusal to
submit to the chemical test or the results of the test indicate
a blood alcohol level above 0.08 percent will result in a one-
year suspension of their CDL license.

Jones argues that he was not read that specific portion of the form that

applies to those people holding a Class “A” CDL. He contends that he was

lulled into taking a test because he did not know all of the possible and

differing consequences for drivers who hold CDL licenses. He contends that

he was advised that his driver’s license would be suspended for 90 days for

submitting to the test, which resulted in a score above a 0.08 percent but was

not advised that his CDL license would be disqualified for one year for a

submission with a result above a 0.08 percent. Jones filed a motion to

suppress the result of the breathalyzer test. After considering the written

motions and argument, the trial court granted the motion to suppress, stating

that it found the intent of the legislature was for the entirety of the form to be

read to arrestees. The State filed a writ for supervisory review, which was

granted to docket before this court.

DISCUSSION

In its sole assignment of error, the State asserts that the trial court

erred in granting Jones’s motion to suppress. In reviewing a trial court’s

pretrial ruling on a motion to suppress, the appellate court may review the

entire record, including testimony at trial. We review the trial court’s ruling

on a motion to suppress under the manifest error standard for factual

determinations, while applying a de novo review to findings of law. State v.
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Jordan, 50,002 (La. 8/12/15), 174 So. 3d 1259, writ denied, 15-1703 (La.

10/10/16), 207 So. 3d 408.

It is well established that any person who operates a vehicle on public

highways shall be deemed to have given consent to a chemical test or test of

his breath for the purpose of determining the alcoholic content of his blood.

La. R.S. 32:661(A)(1). The test will be administered by a law enforcement

officer who has reasonable grounds to believe the person operating the

motor vehicle was under the influence. La. R.S. 32:661(A)(2)(a). La. R.S.

32:661(C)(1) states that when a law enforcement officer requests that a

person submit to a chemical test, 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;

(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;

(e) 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
is a crime under 14:98.7.

La. R.S. 32:661(C)(1)(a)-(e). Additionally, the arresting officer will request

the arrested person sign the form. If they refuse or are unable to sign, the

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officer shall certify that the arrestee was advised of the information

contained in the form and that they were unable to sign or refused to sign.

Id. at (C)(2). Finally, the notice issued to the person shall include the name

and employing agency of all law enforcement officers actively participating

in the stop, detention, investigation, or arrest of the person. Id. at (D).

The district court granted Jones’s motion to suppress on the basis of

State v. Alcazar, 00-0536 (La. 5/15/01), 784 So. 2d 1276. There, police

officers did not tell a defendant that he had a right to refuse the breathalyzer

test until after he had submitted to the test. The court found that the

defendant had received “none of the statutorily mandated warnings prior to

taking the breathalyzer test.” The court found that any holding which allows

the test results to be admitted into evidence when a defendant has not first

been advised that he had a right to refuse the test, effectively renders La.

R.S. 32:661(C)(1) and 32:666(A) meaningless. While the right to refuse is

not a constitutional right, it is a matter of grace that the Louisiana

Legislature has bestowed upon defendants. Alcazar, supra. The court

ultimately found that the test results were properly suppressed by the trial

court.

We find Alcazar, supra, to be distinguishable from the case at bar.

Unlike the present case, the officer in Alcazar, supra, did not give the

defendant any of the statutorily mandated warnings prior to taking the

breathalyzer test. Here, Jones was provided with notice of his constitutional

rights and was warned that there would be consequences for refusal to take

the test, as required by statute; he simply was not warned of the exact

consequences for someone holding a Class “A” driver’s license.

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We believe the present matter to be comparable to this Court’s prior

findings in State v. Hastings, 42,624 (La. App. 2 Cir. 6/14/07), 959 So. 2d

1000, writ denied, 07-1697 (La. 11/2/07), 966 So. 2d 606. There, the police

officer read the defendant all the substantive contents of the form but did not

read the signature line disclosing the names and employing agency of the

officers involved in the stop, detention, and arrest. This Court held that

“while we agree that the statute is phrased in mandatory terms, we disagree

that the instant de minimis omission mandates suppressing the evidence of

the chemical test.” Similarly, we find the failure of the officer to read that

portion of the form that lists the penalties specific to CDL drivers to be a de

minimis omission, when all other statutorily required portions of the form

were read. We maintain our findings from Hastings, supra, wherein we

stated:

Even though the statute uses the mandatory ‘shall,’ nothing else
suggests that the legislature intended suppression of the
evidence as a consequence of this deficiency. The key question
for judicial consideration is whether suppression would help
deter police misconduct, a key rationale for implementing the
state exclusionary rule in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct.
1684, 6 L. Ed. 2d 1081 (1961). We do not find that suppressing
this evidence would serve that goal.

We note that this Court has evaluated the statutory requirements set

forth in La. R.S. 32:661 to determine whether a CDL driver’s license should

be reinstated by the Department of Public Safety in Jacobs v. Dep’t of

Public Safety, 53,208 (La. App. 2 Cir. 1/15/20), 289 So. 3d 221 and State

Dep’t of Pub. Safety & Corr. In Matter of Litton, 51,757 (La. App. 2 Cir.

11/15/17), 245 So. 3d 1075. However, matters resolving whether a CDL

driver could have his license reinstated due to the statutory requirements set

forth in La. R.S. 33:661 are separate and apart from a determination of

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whether evidence in a criminal proceeding should be suppressed. As we

have noted before, “suppression of evidence … has always been our last

resort, not our first impulse.” Hastings, supra (quoting Hudson v. Michigan,

547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)). Jones argues that

because he was not read that portion of the form that includes possible

results for CDL drivers, the results of his breathalyzer test should be

suppressed in his criminal proceedings. We find this to be a de minimis

omission that does not warrant suppression of the breathalyzer test results.

For these reasons, the State’s assignment of error has merit, and the trial

court’s ruling is reversed.

CONCLUSION

For the foregoing reasons, the trial court’s grant of the motion to

suppress is reversed. This matter is remanded for further proceedings.

REVERSED AND REMANDED.

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STEPHENS, J., dissenting.

I respectfully dissent from the majority’s opinion. Although the

majority views the omission of reading the entirety of the rights form as a de

minimis exclusion, the law requires strict construction of criminal statutes.

La. R.S. 32:661(C)(1) provides that law enforcement officers “shall” read a

person the standardized form approved by the Department of Public Safety

and Corrections. This mandatory language leaves no room for

interpretation; a law enforcement officer must read the form to persons the

officer has asked to submit to chemical testing. For those drivers who have

commercial driver’s licenses, this necessarily includes the section pertaining

to commercial driver’s license holders. In this case, officers omitted reading

to Jones the section for individuals who have a Class A, B, or C commercial

driver’s license. This omission is clearly contrary to the mandatory

language of the statute.

While officers informed Jones of the penalties he faced for a non-

commercial license (which he in fact did not have), they also failed to advise

Jones that his Class “A” CDL would be suspended for one year, a penalty

that is four times greater than the penalty for a driver with a non-commercial

license, which is 90 days. The substantive omission of informing a driver

with a CDL license of the one-year suspension penalty for a CDL is

distinguishable from officers failing to read a signature line disclosing

names and the employing agency of officers involved in the stop, detention,

and arrest. See Hastings, supra. Furthermore, when officers fail to read

CDL holders the section pertaining to commercial licenses, these

individuals’ commercial licenses should only be suspended for the period of

time for which they were informed. Contrary to my colleagues’ positions, I
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am of the opinion that failing to inform Jones of the one-year suspension

penalty for his CDL is far from de minimis and agree with the trial court’s

ruling suppressing Jones’s breath test results. For these reasons, I dissent.

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