State in the Interest of C. C. M.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAC 12-1265

STATE IN THE INTEREST OF C. C. M.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-20120437
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, J. David Painter, and Phyllis M. Keaty,
Judges.

REVERSED.

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

Barry Joseph Sallinger
Attorney At Law
P. O. Box 2433
Lafayette, LA 70502
(337) 235-5791
COUNSEL FOR APPELLEE:
C. C. M.

Michelle M. Breaux
Assistant District Attorney
Fifteenth Judicial District Court
P. O. Box 3306
Lafayette, LA 70502
(337) 262-5170
COUNSEL FOR APPELLEE:
State of Louisiana

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PICKETT, Judge.

The State of Louisiana, Department of Public Safety and Corrections, Office

of Motor Vehicles (DPSC) appeals the trial court’s issuance of an order that orders

it to show cause why the driver’s license of C.C.M., a juvenile, should not be

immediately reinstated and why DPSC and/or its commissioner should not be held

in contempt for violating the trial court’s order to immediately reinstate the

juvenile’s driver’s license. For the following reasons, the trial court’s order is

reversed.

FACTS

C.C.M. was arrested for operating a vehicle while intoxicated (OWI) in

violation of La.R.S. 14:98 on March 9, 2012. Subsequently, a juvenile proceeding

seeking to have him adjudicated a delinquent was instituted. On August 27, 2012,

C.C.M. formally admitted the allegations of the State’s Petition. Thereafter, on

September 19, 2012, the trial court issued an order that C.C.M.’s driver’s license

be “reinstated effective immediately.” DPSC did not reinstate C.C.M.’s license

when he presented the order, and C.C.M. filed a Rule to Show Cause Why

Louisiana Driver’s License Should Not Be Reinstated and For Contempt. As

requested in the Rule, the trial court ordered DPSC to show cause “why [C.C.M.’s]

license should not be immediately reinstated . . . and why [DPSC] should not be

held in contempt for the willful and continued violation” of its order. DPSC

suspensively appealed the trial court’s order before the hearing on the Rule to

Show Cause was held.

ASSIGNMENTS OF ERROR

DPSC assigns four errors with the trial court’s September 19, 2012 order:

1. The trial court erred in allowing C.C.M. to proceed against
the DPSC without citation and service on it.

2. The trial court erred in allowing C.C.M. to improperly
cumulate a juvenile proceeding under the Children’s Code with a civil
proceeding regarding the suspension of C.C.M.’s driver’s license.

3. The trial court erred in signing the September 19, 2012 order
without requiring ten days written notice of a hearing to the DPSC,
Office of Motor Vehicles as required by La.R.S 32:414(F)(4).

4. The trial court erred in citing La. R.S. 32:430 as the authority
for suspending C.C.M.’s driver’s license and ordering the
reinstatement of C.C.M.’s driver’s license in accordance with that
statute.

DISCUSSION

The record before us is the juvenile proceeding against C.C.M. DPSC’s

brief contains the only facts pertaining to the civil administrative proceeding

regarding the suspension of C.C.M.’s license that were put at issue in his Rule to

Show Cause. C.C.M. did not file a brief herein disputing any of the facts set forth

in DPSC’s brief; therefore, for purposes of this appeal, we accept the facts set forth

in DPSC’s brief as true.

C.C.M. was arrested for violation of La.R.S. 14:98 after he submitted to a

chemical test for intoxication which revealed a result of .067% blood alcohol level.

Pursuant to La.R.S. 32:6671(A)(1), C.C.M.’s driver’s license was suspended at the

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Louisiana Revised Statutes 32:667 provides, in pertinent part:

A. When a law enforcement officer places a person under arrest for a
violation of R.S. 14:98 . . . [and] the person . . . submits to such test and such test
results show a blood alcohol level of 0.08 percent or above by weight or, if the
person is under the age of twenty-one years, a blood alcohol level of 0.02 percent
or above by weight, the following procedures shall apply:

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time he was arrested because he was under the age of twenty-one. The arresting

police officer issued C.C.M. a temporary license that was effective for fifteen days.

La.R.S. 32:667(A)(1). The officer also notified C.C.M that his license would be

suspended for 180 days pursuant to La.R.S. 32:667(B)(1)(a)(b) because he was

under the age of twenty-one years on the date of his arrest and his blood alcohol

level was over 0.02% when tested.

C.C.M. requested an administrative hearing as provided in La.R.S.

32:667(A)(2), which extended his temporary license “until the completion of

administrative suspension, revocation, or cancellation proceedings.” La.R.S.

32:667(D)(1). At the conclusion of the administrative hearing held July 31, 2012,

the administrative law judge affirmed the suspension of C.C.M.’s license. La.R.S.

32:667(A)(1); (D)(1). C.C.M. had thirty days to seek a hearing before the district

(1) The officer shall seize the driver’s license of the person under arrest
and shall issue in its place a temporary receipt of license on a form approved by
the Department of Public Safety and Corrections. Such temporary receipt shall
authorize the person to whom it has been issued to operate a motor vehicle upon
the public highways of this state for a period not to exceed thirty days from the
date of arrest or as otherwise provided herein.

(2) The temporary receipt shall also provide and serve as notice to the
person that he has not more than fifteen days from the date of arrest to make
written request to the Department of Public Safety and Corrections for an
administrative hearing in accordance with the provisions of R.S. 32:668.

....

B. If such written request is not made by the end of the fifteen-day period,
the person’s license shall be suspended as follows:

(1) . . .

(b) . . . If the person was under the age of twenty-one years on the date of
the test and the test results show a blood alcohol level of 0.02 percent or above by
weight, his driving privileges shall be suspended for one hundred eighty days
from the date of suspension.

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court to review the suspension ordered by the administrative law judge. La.R.S.

32:668(C); La.R.S. 32:414(F)(4). He did not request such a hearing.

Peremption

In Simmons v. Louisiana Department of Public Safety & Corrections, Office

of Motor Vehicles, 04-102 (La.App. 3 Cir. 5/12/04), 872 So.2d 650, another panel

of this court determined that the thirty-day time period provided for in La.R.S.

32:414(F)(4) is peremptive and that the plaintiff’s petition to reinstate his driver’s

license was perempted because he failed to seek judicial review of the

administrative law judge’s affirmation of his license suspension during the thirty-

day time period provided therein. See also, Lord v. La. Dep’t. of Public Safety &

Correc., 12-53 (La.App. 5 Cir. 5/31/12), 97 So.3d 1077. As noted in Simmons,

872 So.2d 650, peremption can be supplied by a court at any time prior to final

judgment. It cannot “be renounced, interrupted, or suspended.” La. Civ.Code art.

3461. “[T]he expiration of the peremptive time period destroys the cause of action

itself.” Ebinger v. Venus Constr. Corp., 10-2516, p. 9 (La. 7/1/11), 65 So.3d 1279,

1286.

C.C.M. had thirty days from July 31, 2012, to file a petition to have the

administrative law judge’s affirmation of the suspension of his license reviewed.

He did not; therefore, his right to have the suspension of his license reviewed was

perempted, and the trial court’s September 19, 2012 order is absolutely null.

Citation and Service

DPSC argues C.C.M. did not properly cite and serve it in this proceeding.

The supreme court held in Butler v. Department of Public Safety and Corrections,

609 So.2d 790 (La.1992), that the suspension of a driver’s license is a civil

proceeding, separate from the criminal prosecution for OWI. See also, City of

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Broussard v. Watkins, 03-1381 (La.App. 3 Cir. 3/31/04), 869 So.2d 962.

Therefore, C.C.M. had to serve DPSC as it would in a civil proceeding. When a

state agency has been sued, citation and service must be made on the attorney

general and the agency head of the agency sued. La.R.S. 13:5107(A)(1). DPSC is

incorporated as a legal entity separate from the state. La.R.S. 36:401.

C.C.M did not cite and serve DPSC as required by La.R.S. 13:5107(A)(1);

therefore, the proceedings against DPSC are absolutely null. La.Code Civ.P. art.

1201(A).

Improper Cumulation

In its second assignment of error, DPSC next argues that C.C.M. improperly

attempted to cumulate his juvenile proceeding with the regulatory proceeding in

which his driver’s license was suspended. The exception of improper cumulation

is a dilatory exception that must be pleaded prior to or in a party’s answer.

La.Code Civ.P. arts. 926, 928. Failure to raise a dilatory exception to prior or in its

answer results in waiver of the exception. La.Code Civ.P. art. 926(B). Because

DPSC was not cited or served, it did not have the opportunity to raise this

exception. Therefore, we will consider it.

The State’s Petition instituted a juvenile proceeding against C.C.M. that is

conducted under the Children’s Code. La.Ch.Code arts. 103, 804(1), (3). The

suspension of his driver’s license was a civil proceeding conducted under DPSC

department regulations which would have been conducted under the Code of Civil

Procedure if a petition for judicial review had been filed. Meyer v. State, Dep’t

Public Safety License Control & Driver Improvement Div., 312 So.2d 289

(La.1975).

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A plaintiff can cumulate two or more actions against the same defendant if

each action “is within the jurisdiction of the court and is brought in the proper

venue[,]” and the cumulated actions “are mutually consistent and employ the same

form of procedure.” La.Code Civ.P. art. 462. Accordingly, C.C.M’s attempt to

join his juvenile proceeding and the regulatory proceeding was improper.

Moreover, pursuant to La.R.S. 32:414(F)(4), a trial court is not vested with

jurisdiction to review the suspension of a driver’s license unless the driver files an

application seeking review with the trial court within thirty days of his license

being suspended. C.C.M. did not file such an application with the trial court.

Therefore, the trial court did not have jurisdiction to review the suspension of

C.C.M.’s license, and the request for the order should have been dismissed.

La.Code Civ.P. art. 464.

Written Notice

In its third assignment of error, DPSC argues the trial court improperly

issued the September 19, 2012 order because it did not require a ten day written

notice to DPSC. DPSC relies on provisions contained in La.R.S. 32:668(C) and

La.R.S. 32:414. Pursuant to La.R.S. 32:668(C), C.C.M had “the right to file a

petition in the appropriate court for a review of the final order” suspending his

license, as provided in La.R.S. 32:414. If C.C.M. had filed a petition for review,

the trial court in which it was filed could have “set the matter for hearing in open

court upon ten days’ written notice to the department.” La.R.S. 32:414(F)(4).

Without notice of the hearing, DPSC was denied its procedural due process right to

be heard, and the September 19, 2012 order should not have been issued against it.

U.S. Const. amend. XIV; Miller v. Crescent City Health Care Ctr., 11-403 (La.

11/9/11), 78 So.3d 219.

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Authority Granted by La.R.S. 32:430

Lastly, DPSC assigns error with the trial court’s reliance on La.R.S. 32:430

as authority for ordering DPSC to reinstate C.C.M.’s driver’s license. Section 430

addresses orders issued by a trial court to DPSC to suspend, revoke, or deny

driving privileges after the driver was convicted in that court of an offense

enumerated therein. Section 430 also provides for a trial court to withdraw an

order it issued thereunder in which case DPSC would reinstate a driver’s driving

privileges. La.R.S. 32:430(D). As argued by DPSC, La.R.S. 32:430 does not

authorize a trial court to reinstate driving privileges suspended pursuant to La.R.S.

32:667, 668 and La.R.S. 32:430. Therefore, it cannot serve as authority for the

trial court’s issuance of its September 19, 2012 order.

DISPOSITION

For the reasons discussed, the order of the trial court is reversed. Costs of

this proceeding are assessed to C.C.M.

REVERSED.

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