Robert C. Navarre v. State of La, Dept. of Public Safety & Corr., Office of Motor Vehicles

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-949

ROBERT C. NAVARRE

VERSUS

LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS,
OFFICE OF MOTOR VEHICLES

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2011-005080-B
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M.
Keaty, Judges.

REVERSED.

Jennifer Del Murray
Stephen A. Quidd
7979 Independence Blvd.
Post Office Box 66614
Baton Rouge, Louisiana 70896
(225) 922-2311
COUNSEL FOR APPELLANT:
Department of Public Safety and Corrections,
Office of Motor Vehicles

Glen D. Vamvoras
Vamvoras, Schwartzberg & Hinch
1111 Ryan Street
Lake Charles, Louisiana 70601
(337) 433-1621
COUNSEL FOR PLAINTIFF/APPELLEE:
Robert C. Navarre

GENOVESE, Judge.

The Louisiana Department of Public Safety and Corrections, Office of

Motor Vehicles (OMV), appeals the judgment of the trial court ordering it to

reinstate Robert C. Navarre‟s Class A commercial driver‟s license (CDL). For the

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

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Navarre was arrested by Calcasieu Parish Sheriff‟s Deputy

J.W. Childress on April 17, 2011, for violating La.R.S. 14:98, operating a vehicle

while intoxicated, and La.R.S. 32:51, no license plate. Deputy Childress stopped

Mr. Navarre on Louisiana Highway 27 in Calcasieu Parish after he noticed

Mr. Navarre‟s vehicle did not have a license plate.1 Mr. Navarre had the odor of

alcohol on his breath, slurred speech, was unsteady on his feet, and admitted to

consuming beers before driving. Mr. Navarre consented to a field sobriety test, but

withdrew his cooperation after completing only a third of the test. Mr. Navarre

was then arrested by Deputy Childress. Mr. Navarre was asked to submit to an

alcohol concentration test, but he refused.

As a result of Mr. Navarre‟s refusal to submit to the alcohol concentration

test, OMV suspended his Class E personal driver‟s license for one year pursuant to

La.R.S. 32:667(A)2 and disqualified him from driving a commercial motor vehicle

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The vehicle being driven by Mr. Navarre belonged to his friend and passenger in the
vehicle.
2
Pursuant to La.R.S. 32:667(A), when a person is placed under arrest for a violation of
La.R.S. 14:98, 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 which notifies the person that he or she may request an
administrative hearing in accordance with La.R.S. 32:668.

for one year pursuant to La.R.S. 32:414.23 and 49 C.F.R. § 383.51.4 Mr. Navarre

requested an administrative hearing in accordance with La.R.S. 32:668(A)5 to

contest the suspension of his driver‟s license. The suspension was affirmed by the

administrative law judge (ALJ) on September 28, 2011.

On November 2, 2011, Mr. Navarre filed a Petition for Judicial Review and

Voluntary Stay in the Fourteenth Judicial District Court. Prior to the trial on

Mr. Navarre‟s petition, the charges of operating a vehicle while intoxicated and no

license plate against Mr. Navarre were dismissed on December 5, 2012. At the

trial on Mr. Navarre‟s petition, the parties entered into a joint stipulation of facts

and exhibits and agreed to submit the matter to the trial court on briefs. In its

March 28, 2013 Written Reasons, the trial court opined:

3
Louisiana Revised Statutes 32:414.2 contains provisions relating to the suspension and
restriction of commercial driving privileges.
4
49 C.F.R. § 383.51 contains provisions relating to the United States Department of
Transportation‟s authority to suspend and restrict commercial driving privileges.
5
The scope of a hearing in accordance with 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 . . . 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.

(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.

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[Louisiana Revised Statutes] 32:414.2(A)(4)(ii)(d)[6] requires there be
an “offense” of refusal to submit. [Mr. Navarre] has not been
adjudicated of any offense in this matter since his charges were
dismissed.

Brooks [v. Louisiana Department of Public Safety &
Corrections], 46,654 (La.App. 3 Cir. 6/1/11), 66 So.3d 1236, . . .
supports [Mr. Navarre‟s] position that a conviction is required before
[OMV] can revoke a license under the applicable statutes.

Accordingly, the trial court ordered that Mr. Navarre‟s driving privileges be

reinstated. OMV appeals.

ASSIGNMENTS OF ERROR

OMV sets forth the following assignments of error:

1. The State of Louisiana, Department of Public Safety and
Corrections, Office of Motor Vehicles[,] alleges as error the
trial court‟s finding that the dismissal of criminal charges for
violation of La.R.S. 14:98 negates the mandatory
disqualification of commercial driving privileges under the
provisions of La.R.S. 32:414.2 and 49 C.F.R. §383.51.

2. The State of Louisiana, Department of Public Safety and
Corrections, Office of Motor Vehicles[,] alleges as error the
trial court‟s entry of an order to reinstate the commercial
driving privileges of Mr. Robert Navarre, in violation of
Louisiana state law and federal regulations.

LAW AND DISCUSSION

OMV contends that the trial court erred in ordering the reinstatement of

Mr. Navarre‟s commercial driving privileges. OMV argues that the statutory

language in La.R.S. 32:414.2 clearly states that any person possessing a CDL faces

a mandatory one-year disqualification for refusing to submit to the alcohol

concentration test.

Mr. Navarre disputes OMV‟s argument and asserts that the trial court

correctly interpreted the provisions of La.R.S. 32:414.2 to overturn the ALJ and

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The trial court‟s Written Reasons mistakenly refer to La.R.S. 32:414.2(A)(4)(ii)(d);
however, the correct statutory provision is La.R.S. 32:414.2(A)(4)(d).

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reinstate his commercial driving privileges. Mr. Navarre contends that the

statutory language in La.R.S. 32:414.2 references “offense[s]” and “conviction[s,]”

and, since “his charge for driving while intoxicated was „dismissed outright[,]‟ and

there was no conviction for the offense[,]” he should not be disqualified from

possessing a CDL pursuant to the language of La.R.S. 32:414.2.

In In re Lafleur, 12-1227, pp. 3-6 (La.App. 3 Cir. 3/6/13), 129 So.3d 543,

545-47, this court recently explained:

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 those who have been convicted of and
sentenced for, among other offenses, operating a vehicle while
intoxicated.

....

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.

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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.

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.

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Specifically addressing those cases where a person holding a CDL refuses to

submit to an alcohol concentration test, La.R.S. 32:414.2(A)(4)(d) provides, in

pertinent part, that:

[A] person shall be disqualified from operating a commercial motor
vehicle for a minimum period of one year for . . . [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.

OMV emphasizes the holding in Austin v. Department of Public Safety,

Office of Motor Vehicles, 46,654 (La.App. 2 Cir. 11/2/11), 77 So.3d 474, in

support of its position. Mr. Austin was arrested for operating a vehicle while

intoxicated after he refused to submit to an alcohol concentration test. OMV

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 ALJ. Mr. Austin

was ultimately acquitted of the driving while intoxicated charge, and OMV

reinstated his Class E personal driver‟s license, but refused to return his CDL.

Mr. Austin filed suit, and the trial court ordered OMV to reinstate his CDL.

Addressing OMV‟s appeal, the second circuit ruled that the legislature

intended “to hold individuals with a CDL to a zero tolerance standard as far as

alcohol/drug use and driving[.]” Id. 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 CDL holders, whether they were driving a

commercial motor vehicle or a noncommercial vehicle. Thus, even though “[i]t

seem[ed] harsh to penalize [Mr.] Austin for refusal to submit to the blood test

when he was ultimately acquitted of the crime of DWI[,]” because Mr. Austin had

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refused to submit to the alcohol concentration test, the second circuit reinstated the

disqualification of his commercial driving privileges. Id.

Mr. Navarre emphasizes this court‟s holding in Brooks, 66 So.3d 1236, in

support of his position, and the trial court accepted Mr. Navarre‟s assertion. We

find Brooks similar, yet not completely analogous to the instant matter. An

important distinction is that Mr. Brooks was arrested for operating a vehicle while

intoxicated after submitting to an alcohol concentration test which indicated that

his blood alcohol content was 0.123 percent. This court determined that the trial

court correctly reinstated Mr. Brook‟s CDL on the basis that his charges were

dismissed by the district attorney. The issue of whether La.R.S. 32:414.2

authorizes the disqualification of a CDL because of a person‟s refusal to submit to

an alcohol concentration test was not examined in Brooks, 66 So.3d 1236. It was,

however, squarely addressed by the second circuit in Austin, 77 So.3d 474.

Based upon our review of the record and jurisprudence, we find error in the

trial court‟s ruling “that a conviction is required before [OMV] can revoke a

license under the applicable statutes.” Mr. Navarre‟s license was rightfully seized

pursuant to La.R.S. 32:667, and he was rightfully disqualified from operating a

commercial motor vehicle pursuant to La.R.S. 32:414.2 for his refusal to submit to

an alcohol concentration test. The trial court incorrectly relied upon Brooks, 66

So.3d 1236, when it ordered that Mr. Navarre‟s commercial driving privileges be

reinstated. In accordance with the statutory provisions of La.R.S.

32:414.2(A)(4)(d), Mr. Navarre “shall be disqualified from operating a commercial

motor vehicle for a minimum period of one year for” his “refusal to submit to an

alcohol concentration . . . test, while operating a . . . noncommercial motor vehicle

by a commercial driver‟s license holder.”

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DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All

costs of these proceedings are assessed to Appellee, Robert C. Navarre.

REVERSED.

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