Harold Brooks v. Louisiana Dept. of Public Safety & Corrections

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-71

HAROLD BROOKS

VERSUS

LOUISIANA DEPT. OF PUBLIC SAFETY & CORRECTIONS

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 10-C-3450-A
HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Jennifer Del Murray
Louisiana Dept. of Public Safety & Corrections
P. O. Box 66614
Baton Rouge, LA 70896
(225) 922-2311
Counsel for Defendant/Appellant:
Louisiana Dept. of Public Safety & Corrections

Chad Patrick Pitre
Attorney at Law
111 N. Court St.
Opelousas, LA 70570
(337) 942-8587
Counsel for Plaintiff/Appellee:
Harold Brooks

GREMILLION, Judge.

Harold Brooks was arrested by State Trooper Timothy Barlow on March 28,

2010 for violating La.R.S. 14:98, operating a vehicle while intoxicated. Barlow

stopped Brooks on Louisiana Highway 182 in St. Landry Parish after he noticed

Brooks crowding both the center line and the fog line of the road. Brooks exited

his vehicle in an unsteady fashion and gripped the bed rail of his Chevrolet S-10

pickup to steady himself. Brooks consented to a field sobriety test, but was unable

to follow Barlow’s instructions. Barlow administered an intoxilizer test that

registered Brooks’ blood alcohol level at 0.123%. Barlow was then arrested

Brooks and seized Brooks’ commercial driver’s license. Barlow issued Brooks a

temporary receipt of license in accordance with La.R.S. 32:667(A)(1). At that

time, Brooks signed a Request for Administrative Hearing form.

On March 31, 2010, the District Attorney for the 27th Judicial District

dismissed the charges against Brooks.

Brooks was notified on May 24, 2010, that his administrative hearing was

set for June 29, 2010. His attorney filed a motion to dismiss the administrative

hearing. That motion was granted by the Administrative Law Judge on June 10,

2010. On June 23, Brooks requested rehearing of the order terminating his

administrative adjudication. Because the request for rehearing was filed more than

ten days after the June 10 order, it was denied pursuant to La.R.S. 49:959, the

provision of the Administrative Procedures Act governing rehearing. That section

mandates that requests for rehearing must be filed within ten days.

When his request for rehearing was denied, Brooks filed suit in the 27th

Judicial District Court, seeking judicial review of his adjudication and

reinstatement of his driver’s license. The State, through the Department of Public

Safety and Corrections, Office of Motor Vehicles (the State), filed exceptions of no

cause of action and lack of subject matter jurisdiction. It argued that Brooks’

withdrawal of his request for an administrative hearing and his failure to timely

request rehearing constituted a failure to exhaust his administrative remedies;

therefore, the district court was without jurisdiction to hear the matter.

The trial court maintained the State’s exceptions. It reasoned that Brooks’

license had been suspended pursuant to La.R.S. 32:667, which did not require a

conviction as a condition precedent to the suspension of his license. A judgment to

that effect was signed by the trial court on August 18, 2010. Brooks then sought a

new trial on the grounds that Section 667 requires that a driver be convicted before

his license is suspended. The trial court granted the request for new trial and ruled

in favor of Brooks. The State was ordered to reinstate Brooks’ commercial

driver’s license.

The State appeals this ruling. For the reasons that follow, we affirm.

ANALYSIS

The suspension of drivers’ licenses for various offenses is governed by

several statutes. Generally, La.R.S. 32:667(A) requires the seizure of a driver’s

license by an officer arresting that driver for violation of any statute or ordinance

prohibiting the operation of a motor vehicle while intoxicated when the driver

either refuses a chemical test or submits to a test that registers his blood alcohol

level at 0.08% or above. If the driver is younger than 21, the blood alcohol level

threshold for license seizure is 0.02%. Section 667 also provides that a driver can

request an administrative hearing to have his license reinstated. If he does not

request an administrative hearing within 15 days of arrest, his license is suspended

for various periods, depending upon the driver’s status in terms of previous

violations, his refusal to submit to chemical testing, the amount of alcohol in his

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blood if he does submit to testing, and whether he was involved in an accident that

resulted in serious bodily injury or fatality. La.R.S. 32:667(B).

The seizure of the driver’s license is mandated by subsection (A) upon his

arrest. The suspension under subsection (B) is premised upon the driver’s failure

to request an administrative hearing, or upon an adjudication that the license

should be suspended. However, subsection (H) provides that when a driver’s

license has been seized, suspended, or revoked in connection with “charges of

violation of a criminal law, and the charge or charges do not result in a conviction,

plea of guilty, or bond forfeiture, the person charged shall have his license

immediately reinstated” if he can demonstrate that the appropriate prosecutor either

dismissed the charges or has permanently refused to prosecute or that he has been

acquitted.

Because the charges against Brooks were dismissed by the district attorney,

the State was required to immediately reinstate his license under the plain terms of

subsection (H).

The State points out that La.R.S. 32:414.2 governs the disqualification of a

commercial driver’s licensee from operating a commercial motor vehicle. Section

414.2 ascribes to commercial drivers a much higher standard of conduct behind the

wheel than other laws impose upon non-professionals. For instance, a commercial

driver’s license holder has committed a “serious traffic violation” when he is

convicted of exceeding the speed limit by 15 miles per hour or more, when he

“tailgates” another vehicle, when he fails to stop at a railroad grade crossing when

required, or if he fails to negotiate a railroad grade crossing due to insufficient

undercarriage clearance. La.R.S. 32:414.2(A)(1)(d). These “serious traffic

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violations” can all result in the disqualification of a driver from operating a

commercial motor vehicle.

Section 414.2 specifically provides for the circumstance of a driver

convicted of operating a motor vehicle while intoxicated or who refuses chemical

testing. La.R.S. 32:414.2(A)(2), (3), and (4). These statutes prescribe the period

of disqualification to drive a commercial vehicle for licensees who are convicted of

intoxicated driving.

However, the State argues, La.R.S. 32:414.2(A)(1)(b)(i) does not require a

conviction. That statute reads (emphasis theirs):

There shall be no economic hardship license to operate a
commercial motor vehicle. Upon receipt of a conviction of an offense
which requires disqualification of commercial driving privileges, the
department shall disqualify the individual from commercial driving
privileges. A disqualification shall be imposed even if the
conviction is set aside or dismissed pursuant to any provision of
the Code of Criminal Procedure unless the conviction is set aside
or dismissed because of an appeal of the conviction. The
disqualification shall become part of the individual's official
operating record.

Thus, the dismissal of the charges does not relieve Brooks of his suspension,

according to the State’s interpretation of the statute. We disagree. The statute does

not provide for disqualification when the charges are dismissed, but rather if the

conviction is dismissed, unless it was set aside or dismissed because of an appeal.

Both the phrases “set aside” and “dismissed” refer to “conviction.”

Our interpretation is reinforced by other subsections of La.R.S. 32:414.2.

Subsection (A)(4)(a)(i) provides for a one-year disqualification for a first

conviction for operating a noncommercial motor vehicle with a blood alcohol level

of 0.08% or higher. Subsection (A)(4)(a)(ii) provides for a one-year

disqualification for a first conviction for operating a commercial motor vehicle

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with a blood alcohol level of between 0.04 and 0.08 percent. The statute defines

“conviction” as:

[A]n unvacated adjudication of guilt or a determination in a court of
original jurisdiction or by an authorized administrative tribunal that a
person has violated or failed to comply with the law; an unvacated
forfeiture of bail or collateral deposited to secure the person's
appearance in court; a plea of guilty or nolo contendere accepted by a
court; the payment of a fine or court costs; or a violation of a
condition of release without bail, regardless of whether the penalty is
rebated, suspended, or probated. A conviction shall occur regardless
of whether a person is referred to a remedial or pretrial diversion
program as an alternative to the imposition of a penalty, fine, or other
sanction.

La.R.S. 32:414.2(A)(9)(a).

None of these circumstances include the dismissal of charges by the district

attorney except by pretrial diversion, and the record does not reflect that Brooks

has been diverted. Because Brooks was not convicted of operating a motor vehicle

while intoxicated, he is not disqualified from operating a commercial motor vehicle

under La.R.S. 32:414.2.

Trucking is heavily regulated by the federal government. The State asserts

that Brooks’ license is subject to suspension in accordance with federal regulations.

Specifically, 49 CFR §383.51(b) provides for the disqualification of a driver for

certain offenses. But these offenses only include convictions for operating a motor

vehicle while intoxicated or refusing to be tested. The definition of “conviction”

for purposes of the federal regulations is identical to the definition adopted by

Louisiana is La.R.S. 32:414.2(A)(9)(a). The problem with the State’s argument

lies in the fact that Brooks was not adjudicated by any tribunal as having violated

any law. He was not convicted under the definition of the Louisiana Revised

Statutes or the Code of Federal Regulations.

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Lastly, the State argues that the suspension of Brooks’ license is supported

by the “implied consent” statute, La.R.S. 32:661. In pertinent part, the statute

reads:

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:

(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.

La.R.S. 32:661(C)(1)(c).

This argument fails. While it is true that a driver’s license can be suspended

if he submits to chemical testing and his blood alcohol concentration equals or

exceeds 0.08%, the license must be immediately reinstated if the charges are

dismissed. Section 661(C) merely requires that the State advise a driver of the fact

that his driving privileges can be suspended if he registers a 0.08% blood alcohol

level under La.R.S. 32:667.

CONCLUSION

Brooks’ license was suspended once testing registered his blood alcohol

level at 0.123%, by virtue of La.R.S. 32:667(B). However, when the district

attorney dismissed the charges against Brooks, the State was required to reinstate

his license immediately. The judgment of the trial court is affirmed. All costs of

appeal, in the amount of $499.50, are taxed to the State of Louisiana through the

Department of Public Safety and Corrections, Office of Motor Vehicles pursuant to

La.R.S. 13:5112.

AFFIRMED.

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