Joshua Dore v. State of Louisiana, Dps, Office of Motor Vehicles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-892

JOSHUA DORE

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY, OFFICE
OF MOTOR VEHICLES

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 12-C-5293-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.

REVERSED.

Stephen A. Quidd
Jennifer Del Murray
Department of Public Safety & Corrections
P. O. Box 66614
Baton Rouge, LA 70896
(225) 925-6103
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, DPS, Office ofMotor Vehicles

D. Warren Ashy
A Professional Law Corporation
P. O. Box 2515
Lafayette, LA 70502
(337) 237-0000
COUNSEL FOR PLAINTIFF/APPELLEE:
Joshua Dore

EZELL, Judge.

The State of Louisiana Department of Public Safety, Office of Motor

Vehicles (hereinafter DPS) appeals the decision of the trial court ordering a

notation on the driving record of Joshua Dore for refusal of a chemical test to be

stricken. For the following reasons, we reverse the decision of the trial court.

On May 23, 2010, Mr. Dore was arrested for operating a vehicle while

intoxicated. Mr. Dore had a commercial drivers’ license (CDL) at the time. At the

scene, Mr. Dore refused to take a breath test. Thereafter, in accordance with state

and federal law, Mr. Dore’s CDL was disqualified for one year. He did not in any

way challenge this disqualification, even though administrative appeal was an

option. After his year of disqualification, Mr. Dore applied for reinstatement of his

driving privileges and was issued a Class A CDL. He then filed the current suit to

challenge the notation on his driving record indicating his refusal to take the

chemical test.

After a hearing on the issue, the trial court below ordered the notation

stricken from Mr. Dore’s driving record. The DPS appeals, asserting as its sole

assignment of error that the trial court erred in so ruling. We agree.

In cases concerning issues of law, “the standard of review of an appellate

court is simply whether the court’s interpretive decision is legally correct.” Duhon

v. Briley, 12-1137, 12-1138, p. 4 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58.

“Accordingly, if the decision of the trial court is based upon an erroneous

application of law rather than on a valid exercise of discretion, the decision is not

entitled to deference by the reviewing court.” Id.

In this matter, the relevant statute is La.R.S. 32:414.2. It states, in pertinent

part (emphasis added):

A. (1)(a) Notwithstanding any other law to the contrary, a
person shall be disqualified from driving a commercial motor vehicle
for committing any offense specified in this Section. The
disqualification offenses apply to violations occurring in this or any
other state or in any foreign jurisdiction complying with the
requirements of the Federal Motor Carrier Safety Administration for
commercial motor vehicles. The department shall suspend, revoke, or
cancel the commercial driving privileges of a person who is
disqualified to drive pursuant to this Section.

(b)(i) 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.

....

(4) Except as provided in Subparagraph (A)(2)(a) for lifetime
disqualification, and in Paragraph (A)(3) for three years
disqualification for offenses committed while transporting hazardous
materials, any person shall be disqualified from operating a
commercial motor vehicle for a minimum period of one year for:

....

(d) A first offense of refusal to submit to an alcohol
concentration or drug test, while operating a commercial motor
vehicle or noncommercial motor vehicle by a commercial driver’s
license holder.

....

(9)(a) The operating record of a commercial motor vehicle
driver shall include those offenses where an individual has pled
guilty and been sentenced thereupon, forfeited bond resulting in a
final judgment of forfeiture, or been found guilty in a final disposition
by a court of competent jurisdiction of violating a law in the operation
of a motor vehicle, regulatory actions in which an individual has
been adjudged at fault. . . .

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Moreover, under 49 C.F.R. § 384.225(a)(emphasis added), the DPS must:

“Post and maintain as part of the CDLIS driver record: (1) All convictions,

disqualifications and other licensing actions for violations of any State or local

law relating to motor vehicle traffic control (other than parking, vehicle weight, or

vehicle defect violations) committed in any type of vehicle.”

In this case, Mr. Dore was advised of his rights as required by La.R.S.

32:661(C), as he signed the form acknowledging that his license would be

suspended for the refusal to submit to a chemical test for intoxication. This

suspension came via an administrative regulatory action, as La.R.S.

32:414.2(A)(4)(d) sets forth, not a disqualification for a conviction as the discussed

in the rest of La.R.S. 32:414.2, but rather for a “first offense of refusal to submit to

an alcohol . . . concentration test.” The language of the statute is clear that a

refusal alone results in the actions taken by the state, regardless of any subsequent

criminal filings or proceedings. This is a regulatory action in which Mr. Dore has

been automatically adjudged at fault. He accepted without administrative

challenge his subsequent year-long disqualification for that refusal. It remains

unchallenged still. Under La.R.S. 32:414.2(9)(A), the offense of refusing the

chemical test was required to be noted on his driving record. The language of the

statute is clear and unambiguous. Again, the fact that he was not charged with the

underlying OWI charge does not affect that whatsoever, as the disqualification was

for the refusal and not for any OWI offense. The trial court committed legal error

in ordering the notification removed.

Furthermore, the trial court made its ruling claiming Mr. Dore had not

received proper notice of the length of the notification on his record. However,

“the long-standing jurisprudential rule of law is: a statute must first be questioned

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in the trial court, not the appellate courts, and the unconstitutionality of a statute

must be specially pleaded and the grounds for the claim particularized.” Vallo v.

Gayle Oil Co., Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 864-65 (footnote

omitted). Mr. Dore’s argument regarding lack of notice of the above-discussed

law’s penalties was raised at his hearing; it was never mentioned in any pleading.

Moreover, Mr. Dore did not serve the attorney general or notify him of any

challenge to the constitutionality of the statute, nor did he afford DPS sufficient

time to brief and prepare arguments defending the constitutionality of the statute.

Hence, the trial court should not have even considered any claims of insufficient

notice surrounding the law in question.

For the above reasons, the decision of the trial court is hereby reversed.

Costs of this appeal are hereby assessed against Mr. Dore.

REVERSED.

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