In Re: Bernard B. Lafleur

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1227

IN RE: BERNARD B. LAFLEUR

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 73460-A
HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and John E. Conery,
Judges.

AFFIRMED.

Anthony C. Dupre’
Post Office Drawer F
Ville Platte, LA 70586
(337) 363-3804
COUNSEL FOR APPELLEE:
Bernard B. LaFleur

Harrietta J. Bridges
Post Office Box 66614, Drawer B-4
Baton Rouge, LA 70896-6614
(225) 922-0788
COUNSEL FOR APPELLANT:
State of Louisiana, Department of Public Safety and Corrections
Office of Motor Vehicles

AMY, Judge.

The complainant in this matter was arrested on suspicion of operating a

vehicle while intoxicated. The Department of Public Safety and Corrections,

Office of Motor Vehicles, suspended the complainant’s commercial driver’s

license and declared him ineligible for commercial driving privileges for one year.

However, the district attorney declined to prosecute the driving while intoxicated

charge. After an administrative hearing, the administrative law judge found that

the Department of Public Safety and Corrections had met its burden and upheld the

suspension. However, after a de novo trial in the district court, the district court

found that the complainant was entitled to an immediate reinstatement of his

commercial driving privileges because the complainant had not been convicted of

the driving while intoxicated charge. The Department of Public Safety and

Corrections appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, the complainant, Bernard B. Lafleur, was stopped

by Trooper Willie Williams, Jr., an officer with the Louisiana State Police, because

one of Mr. Lafleur’s headlights was not working properly. Observing several

indications of intoxication, the trooper arrested Mr. Lafleur and took him to a

police station for processing. After being advised of his rights, Mr. Lafleur

submitted to a blood alcohol test. The test results showed that Mr. Lafleur’s blood

alcohol content was 0.144 grams percent by weight. The record indicates that Mr.

Lafleur was charged with driving while intoxicated, first offense, a violation of

La.R.S. 14:98.

Mr. Lafleur’s commercial driver’s license was seized as a result of the arrest,

and the Department of Public Safety and Corrections, Office of Motor Vehicles,

(DPSC) suspended Mr. Lafleur’s driving privileges. Mr. Lafleur timely sought an

administrative hearing concerning the suspension. However, before the

administrative hearing, the district attorney’s office notified Mr. Lafleur that it was

“declining prosecution at this time on the charges of DWI 1st and the charges

listed above.”1

The record contains only a copy of the administrative law judge’s decision

and order. That decision indicates that a hearing was conducted on June 11, 2012,

before Administrative Law Judge John O. Kopynec. At the hearing, Mr. Lafleur

and Trooper Williams testified, and exhibits were submitted into evidence. The

administrative law judge affirmed the suspension. The administrative law judge

concluded that, pursuant to La.R.S. 32:668, DPSC “properly suspended

Respondent’s driver’s license because the Department met its burden of proving

the statutory requirements of the Louisiana Tests for Suspected Drunken Drivers

law.” Further, Mr. Lafleur argued that, because the district attorney had declined

to prosecute the driving while intoxicated charges, he was entitled to an immediate

reinstatement of his driving privileges. However, the administrative law judge

rejected Mr. Lafleur’s argument, finding that “while an individual may be entitled

to have driving privileges reinstated, the validity of the civil suspension under the

Tests for Suspected Drunken Drivers Law must still be determined.”

Thereafter, Mr. Lafleur filed a petition in the district court seeking review of

the administrative law judge’s decision. At a hearing, the parties briefly presented

the testimony of Mr. Lafleur and Trooper Williams, and submitted evidence into

the record. Mr. Lafleur again contended that the district attorney’s refusal to

1
In its appellate brief, DPSC does not contest that the district attorney’s office declined
to prosecute the charges against Mr. Lafleur in the manner contemplated by La.R.S.
32:667(H)(1).

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prosecute the charges mandated that his driving privileges be immediately

reinstated. At the conclusion of the hearing, the district court found that because

“[t]here was no conviction, therefore, there is no suspension, there is no

disqualification.” Accordingly, the district court ordered that Mr. Lafleur’s driving

privileges be reinstated.

DPSC appeals, asserting that the district court erred in ordering the

reinstatement of Mr. Lafleur’s commercial driver’s license.

Discussion

On appeal, the parties’ arguments focus on La.R.S. 32:414.2’s requirement,

in part, that the person whose driving privileges are suspended be convicted of one

of the offenses listed therein. DPSC contends that the administrative law judge’s

adjudication constitutes a “conviction” pursuant to La.R.S. 32:414.2(A)(9)(a). Mr.

Lafleur disputes that contention and argues that the district court’s de novo review

vacated the administrative law judge’s decision.

Louisiana has enacted two statutory schemes concerning the “suspension of

driving privileges for persons who drive while intoxicated or under suspicion of

doing so.” Walker v. State, Dept. of Public Safety, 589 So.2d 622, 624 (La.App. 3

Cir. 1991). Those schemes, codified at La.R.S. 32:661-670 and at La.R.S. 32:414-

415.1, permit DPSC to suspend the driving privileges of those persons meeting the

statutory requirements contained therein. Id. However, although both schemes

contain provisions concerning suspension of driving privileges based on driving

while intoxicated or the suspicion thereof, “the two schemes are parallel, they are

not integrated. The two statutory schemes are separate and distinct.” Id. The

procedures delineated in La.R.S. 32:667-670 concern those who have been arrested

upon suspicion of driving while intoxicated, while La.R.S. 32:414-415.1 concerns

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those who have been convicted of and sentenced for, among other offenses,

operating a vehicle while intoxicated.

Pursuant to La.R.S. 32:667(A), when a person is placed under arrest for a

violation of La.R.S. 14:98, La.R.S. 14:98.1, or a similar parish or municipal

ordinance, and that person “either refuses to submit to an approved chemical test

for intoxication, or submits to such test and such test results show a blood alcohol

level of 0.08 percent or above by weight,” the arresting officer is required to seize

the person’s driver’s license and issue a temporary license that notifies the person

that they may make a written request to DPSC for an administrative hearing in

accordance with La.R.S. 32:668. If that person fails to timely make the written

request, the person’s license shall be suspended pursuant to the provisions of

La.R.S. 32:667(B).

If the person requests an administrative hearing, one shall be provided

pursuant to La.R.S. 32:668. The scope of the hearing pursuant to La.R.S.

32:668(A) is limited to:

(1) Whether a law enforcement officer had reasonable grounds to
believe the person, regardless of age, had been driving or was in
actual physical control of a motor vehicle upon the public
highways of this state, or had been driving, . . . while under the
influence of either alcoholic beverages or any abused substance
or controlled dangerous substance as set forth in R.S. 40:964.

(2) Whether the person was placed under arrest.

(3) Whether he was advised by the officer as provided in R.S.
32:661.

(4) Whether he voluntarily submitted to an approved chemical test
and whether the test resulted in a blood alcohol reading of 0.08
percent or above by weight . . . .

(5) Whether he refused to submit to the test upon the request of the
officer.

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(6) Such additional matters as may relate to the legal rights of the
person, including compliance with regulations promulgated by
the Department of Public Safety and Correction and rights
afforded to the person by law or jurisprudence.

The person may seek further review of the suspension of their driving privileges by

filing a petition in the district court, “in the same manner and under the same

conditions as is provided in R.S. 32:414.” La.R.S. 32:668(C).

However, we observe that La.R.S. 32:667(H)(1) provides, in relevant part,

that:

When any person’s driver’s license has been seized, suspended,
or revoked, and the seizure, suspension, or revocation is connected to
a charge or 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 and
shall not be required to pay any reinstatement fee if at the time for the
reinstatement of driver’s license, it can be shown that the criminal
charges have been dismissed or that there has been a permanent
refusal to charge a crime by the appropriate prosecutor or there has
been an acquittal.

In contrast, La.R.S. 32:414 addresses the suspension of driving privileges

after a conviction for certain offenses, stating, in part, that DPSC:

shall suspend the license of any person for a period of twelve months
upon receiving, from any district, city, or municipal court . . .
satisfactory evidence of the conviction or the entry of a plea of guilty
or nolo contendere and sentence thereupon . . . of any such person
charged with . . . operating a motor vehicle while under the influence
of beverages of high alcoholic content, of low alcoholic content, of
narcotic drugs, or of central nervous system stimulants.

La.R.S. 32:414(A)(1)(a). Pursuant to La.R.S. 32:414(F)(4), any person whose

license is suspended shall have the right to seek a hearing in the district court to

determine whether the license is subject to suspension. Review in the district court

is de novo. Henry v. State, Dept. of Pub. Safety, 01-103 (La.App. 3 Cir. 6/27/01),

788 So.2d 1286.

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Similarly, La.R.S. 32:414.2 specifically addresses those cases where a

person holding a commercial driver’s license has been convicted of certain

offenses. Specifically, La.R.S. 32:414.2(A)(1)(a) states, in relevant part, that:

[A] person shall be disqualified from driving a commercial motor
vehicle for committing any offense specified in this Section. . . . The
department shall suspend, revoke, or cancel the commercial driving
privileges of a person who is disqualified to drive pursuant to this
section. . . . If a driver is suspended or revoked from operating a
Class “D” or “E” motor vehicle, he shall also be disqualified from
operating a commercial motor vehicle.

A “conviction” is defined in La.R.S. 32:414.2(A)(9)(a) as:

an 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. . . . 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.

Further, La.R.S. 32:414.2(A)(1)(b)(ii) provides that, if a person has been

disqualified from driving a commercial vehicle, once the suspension, revocation, or

cancellation resulting from the disqualifying offense has expired, that person shall

be issued a Class “D” or “E” driver’s license, provided that the person’s Class “D”

or “E” driving privileges are still valid.

DPSC argues that Austin v. Department of Public Safety, Office of Motor

Vehicles, 46,654 (La.App. 2 Cir. 11/2/11), 77 So.3d 474, is applicable to the facts

of this case. Therein, Mr. Austin was arrested for operating a vehicle while

intoxicated after he refused to take a chemical intoxication test. Accordingly,

DPSC suspended Mr. Austin’s driving privileges and further declared that Mr.

Austin was ineligible for commercial driving privileges for one year. Mr. Austin

sought an administrative hearing and the suspension was affirmed by the

administrative law judge. However, Mr. Austin was ultimately acquitted of the

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driving while intoxicated charge and DPSC reinstated his Class “E” driver’s

license, but refused to return his commercial driver’s license. Mr. Austin filed suit,

and the district court ordered DPSC to reinstate Mr. Austin’s commercial driver’s

license. Id.

On appeal, the second circuit found that the legislature intended “to hold

individuals with a CDL to a zero tolerance standard as far as alcohol/drug use and

driving.” Austin, 77 So.3d at 476. The second circuit noted that La.R.S.

32:414.2(A)(4)(d) penalized the refusal to submit to an alcohol concentration or

drug test for commercial driver’s license holders, whether they were driving a

commercial motor vehicle or a noncommercial vehicle. Id. Thus, even though “it

seem[ed] harsh to penalize Austin for refusal to submit to the blood test when he

was ultimately acquitted of the crime of DWI,” because Mr. Austin had refused to

submit to the chemical intoxication test, the second circuit reinstated the

disqualification of Mr. Austin’s commercial driving privileges. Id. at 476.

Mr. Lafleur relies on Brooks v. Louisiana Department of Public Safety &

Corrections, 11-71 (La.App. 3 Cir. 6/1/11), 66 So.3d 1236, writ denied, 11-1977

(La. 11/14/11), 75 So.3d 948, for the proposition that an adjudication is required

before DPSC can suspend his commercial driving privileges pursuant to La.R.S.

32:414.2. In Brooks, Mr. Brooks was arrested after an intoxilyzer test indicated

that his blood alcohol content was 0.123%, and Mr. Brooks’ commercial driver’s

license was seized pursuant to La.R.S. 32:667. Mr. Brooks requested an

administrative hearing. However, after the district attorney’s office dismissed the

charges against him, Mr. Brooks moved to dismiss the administrative hearing.

Thereafter, Mr. Brooks sought review of his suspension in the district court,

arguing that La.R.S. 32:667 required a conviction before a person’s license is

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suspended. The district court ultimately found in Mr. Brooks’ favor, and ordered

DPSC to reinstate Mr. Brooks’ commercial driver’s license. Id.

On appeal, a panel of this court affirmed the district court’s order, noting

that La.R.S. 32:667(H) requires that a person’s license be reinstated when that

person can demonstrate that the prosecuting authority has “either dismissed the

charges against him or permanently refused to prosecute or that he has been

acquitted.” Brooks, 66 So.3d at 1238. Thus, there was no statutory authority for

suspension of Mr. Brooks’ driving privileges under La.R.S. 32:661-670. Further,

DPSC contended that suspension was appropriate under La.R.S.

32:414.2(A)(1)(b)(i), which addresses disqualification of commercial driving

privileges, stating that, “[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.” However, the court found that “[t]he statute does not provide for

disqualification when the charges are dismissed, but rather if the conviction is

dismissed.” Id. at 1239. The court also noted that the definition of “conviction” in

La.R.S. 32:414.2(A)(9)(a) did not include dismissal of the charges by the district

attorney, except in cases of pretrial diversion. Id. The court noted that there was

no evidence that Mr. Brooks had been placed in a pretrial diversion program. Id.

Finally, the court noted that Mr. Brooks had not been adjudicated “by any tribunal

as having violated any law.” Id. at 1240.

According to the record, after Trooper Williams arrested Mr. Lafleur for

driving while intoxicated, he seized Mr. Lafleur’s driver’s license pursuant to

La.R.S. 32:667. Trooper Williams also notified Mr. Lafleur about his right to an

administrative hearing, and Mr. Lafleur exercised his right to do so. The

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administrative law judge’s reasons indicate that the administrative law judge

reviewed Mr. Lafleur’s license suspension pursuant to La.R.S. 32:668, and found

that DPSC had satisfied the requirements of that statute. Accordingly, the

administrative law judge affirmed DPSC’s suspension of Mr. Lafleur’s driving

privileges. However, after Mr. Lafleur sought further review of the suspension in

the district court, the district judge relied on Brooks, 66 So.3d 1236, and ordered

that Mr. Lafleur’s driving privileges be reinstated.

We find no error in the trial court’s judgment. The record indicates that Mr.

Lafleur’s license was seized pursuant to La.R.S. 32:667 after his arrest for

operating a vehicle while intoxicated. However, the district attorney declined to

pursue criminal charges against Mr. Lafleur on May 24, 2012. Accordingly, Mr.

Lafleur was entitled to reinstatement of his driving privileges pursuant to La.R.S.

32:667(H)(1) at that time.

However, we must also examine whether DPSC had the authority to suspend

Mr. Lafleur’s license pursuant to the statutory scheme delineated in La.R.S.

32:414-415.1. DPSC argues that the decision by the administrative law judge

constituted a conviction as defined by La.R.S. 32:414.2(A)(9)(a). We reject this

contention. The scope of administrative review for suspensions pursuant to

La.R.S. 32:667 does not require that DPSC prove that the person was operating a

motor vehicle while intoxicated. See La.R.S. 14:98. 2 Instead, La.R.S. 32:668

requires DPSC to prove that the “law enforcement officer had reasonable grounds

to believe the person . . . had been driving . . . while under the influence of either

2
We also note that the standard of proof for criminal convictions is beyond a reasonable
doubt. See State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367. However, a
license suspension proceeding is “a civil action amenable to all of the ordinary rules of procedure
and proof.” Meyer v. State, Dept. of Pub. Safety License Control & Driver Improvement Div.,
312 So.2d 289, 292 (La.1975).

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alcoholic beverages or any abused substance or controlled dangerous substance.”

La.R.S. 32:668(A)(1) (emphasis added). DPSC must also address several other

elements, including whether the person submitted to an approved chemical test

with results of 0.08 percent or greater blood alcohol content or whether the person

refused the test. Id. Further, pursuant to Brooks, 66 So.3d 1236, where there is no

administrative adjudication and the district attorney declines to pursue prosecution,

DPSC must reinstate a person’s commercial driving privileges. To impose

additional civil penalties because a person sought an administrative hearing on the

suspension of their driving privileges would be an absurd result. See Credit v.

Richland Parish Sch. Bd., 11-1003 (La. 3/13/12), 85 So.3d 669.

Additionally, pursuant to La.R.S. 32:414.2(A)(9)(a), a remedial or pretrial

diversion program is considered a conviction. After reviewing the record, we find

no indication that Mr. Lafleur was placed in such a program. We observe that,

pursuant to La.R.S. 15:578.1, when a person is arrested on charges for operating a

vehicle while intoxicated, “[t]he arrest record and placement into the pretrial

diversion or intervention program shall become a public record when the person

successfully completes the pretrial diversion or intervention program or is

terminated from the program.”

Thus, pursuant to our review of the record, we find no basis for the

suspension of Mr. Lafleur’s driving privileges under the provisions of either

La.R.S. 32:661-670 or La.R.S. 32:414-415.1. Accordingly, we find no error in the

trial court’s judgment ordering DPSC to reinstate Mr. Lafleur’s driving privileges.

This assignment of error is without merit.

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DECREE

For the foregoing reasons, we affirm the judgment of the trial court ordering

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

reinstate the driving privileges of the appellee, Bernard B. Lafleur. The costs of

this appeal are allocated to the Department of Public Safety and Corrections,

Office of Motor Vehicles, in the amount of $1,003.32.

AFFIRMED.

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