State of Louisiana v. David James Pulliam

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 05-534

STATE OF LOUISIANA

VERSUS

DAVID JAMES PULLIAM

**********

APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 03-563
HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
J. David Painter, Judges.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.

David E. Stone
Gary E. Proctor
Attorney At Law
P. O. Box 165
Alexandria, LA 71309
(318) 445-4601
Counsel for Defendant/Appellant:
David James Pulliam
James Patrick Lemoine
District Attorney
James D. White, Jr.

Assistant District Attorney
35th Judicial District Court
P. O. Box 309
Colfax, LA 71417
(318) 627-3205
Counsel for Plaintiff/Appellee:
State of Louisiana

EZELL, JUDGE.

On September 2, 2003, the Defendant, David James Pulliam, was charged by

bill of information with operating a motor vehicle while intoxicated, third offense, a

violation of La.R.S. 14:98(D). On February 3, 2005, the Defendant pled guilty to the

offense as charged, while preserving his rights to appeal under State v. Crosby, 338

So.2d 584 (La.1976). After his plea was accepted by the court, the Defendant was

sentenced to pay a fine of two thousand dollars and to serve two years at hard labor.

Thirty days of the sentence were to be served without benefit of parole, probation, or

suspension of sentence; the remainder of the sentence was suspended; and the

Defendant was ordered to serve two years supervised probation. Further, the

Defendant was ordered to serve, as a condition of his probation, a six-month term of

home incarceration with electronic monitoring, and was ordered to operate an

automobile fitted with an electronic interlock device.

The Defendant is now before this court seeking review of the trial court’s denial

of his motion to suppress. We find that the trial court’s denial of the motion to

suppress was not in error, and therefore, the Defendant’s conviction is affirmed. We

also find that the sentence in this case is an illegal sentence and we, therefore, vacate

the sentence and remand for resentencing pursuant to La.Code Crim.P. art. 881.4.

FACTS

On May 2, 2003, the Louisiana State Police conducted a seat belt checkpoint

in Grant Parish. The Defendant drove his automobile into the area of the checkpoint,

and a state trooper observed that he was not wearing his seat belt. The trooper

ordered him to stop his car by means of a hand signal, and the Defendant pulled to the

side of the road. After the Defendant stopped his car, the trooper instructed him to

exit the vehicle; when he did so, the trooper suspected the Defendant was impaired.

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The trooper then advised the Defendant of his rights and told him that he was under

arrest.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, we find

there are several errors patent involving the sentence imposed.

In reviewing the present sentence for legality, we discovered that it is unclear

under what sentencing provision the Defendant should have been sentenced. The

Defendant committed the DWI offense on May 3, 2003, and pled guilty on February

3, 2005. The penalty provision for DWIs received major amendments in 2001. Those

amendments were in effect when the Defendant committed the present offense on May

3, 2003. The DWI penalty provisions were again amended in 2004 by Acts 2004, No.

762, § 1. This amendment took effect on August 15, 2004, after the Defendant

committed the present offense but before he pled guilty. Even though the penalty

provision in effect when an offense is committed is usually the applicable sentencing

provision, the supreme court fashioned an exception to this rule when dealing with the

2001 amendment to the DWI sentencing scheme. The supreme court found the 2001

amendment should apply to all defendants convicted after the amendment’s effective

date, even though they committed the offenses before the effective date. The pertinent

question for the instant case is whether that same exception should apply to the 2004

amendment. In other words, should the 2004 amendment apply to all defendants who

are convicted (pled guilty) after the amendment’s effective date? For this Defendant,

specifically, the question is whether the trial court should have applied the penalty

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provision in effect when the offense was committed (2001 amendment) or the penalty

provision in effect when the Defendant pled guilty (2004 amendment).1

Although the trial court failed to comply with all the mandatory requirements of

the DWI penalty provision as amended in 2004, it appears it was attempting to comply

with that provision rather than the penalty provision in effect when the Defendant

committed the offense.

In State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, the supreme court

addressed whether the 2001 amendment to La.R.S. 14:98 should be applied to

defendants who committed DWIs prior to the effective date of the 2001 amendment.

The supreme court acknowledged that the prevailing jurisprudence adhered to the rule

that the appropriate penalty provision is the penalty provision in effect at the time an

offense is committed. The supreme court found, however, that the 2001 amendment

to La.R.S. 14:98 should not adhere to the prevailing jurisprudence. Rather, the

supreme court found that the 2001 amendment should apply to any defendant

convicted after the amendment’s effective date. The court reasoned as follows:

As an initial matter, statutory interpretation begins, “as [it] must,
with the language of the statute.” Bailey v. United States, 516 U.S. 137,
144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). While the amended
version of the statute does not specifically mention the “retroactivity” of
the new provisions, the statute contains three provisions which suggest
that the amended version should apply in the instant case.

First, the statute plainly states that “upon conviction,” and not
“upon committing the offense,” the defendant shall be sentenced to a
specific term. Thus, the specific language in LSA-R.S. 14:98 provides
the time at which the penalty provisions are applicable.

Second, as previously noted, the amended version of the statute
contains a specific statement of legislative purpose, as follows:

1
LRS-R.S. 14:98 was also amended in 2003. This amendment took effect after
the Defendant committed the present offense but before he pled guilty. The court will
not discuss whether that amendment should apply to the present Defendant, however,
since the penalty provisions at issue were not amended.

3

The legislature hereby finds and declares that
conviction of a third or subsequent DWI offense is
presumptive evidence of the existence of a substance abuse
disorder in the offender posing a serious threat to the health
and safety of the public. Further the legislature finds that
there are successful treatment methods available for
treatment of addictive disorders.

LRS-R.S. 14:98(G). Thus, the legislature has clearly stated its intention
to embrace treatment measures in preference to incarceration. Applying
the more lenient sentencing requirements of the amended statute to
someone convicted after the enactment of the legislation, despite the
commission of the offense prior to the enactment, would further this
legislatively stated purpose. This clearly stated legislative purpose is one
which this court cannot ignore.

Finally, language in the amending legislation grants potential relief
to those already convicted by providing that “[n]othing contained in this
Act shall be construed to limit the authority of the Department of Public
Safety and Corrections in recommending those persons incarcerated on
or before August 15, 2001, to participate in home incarceration in
accordance with Code of Criminal Procedure Article 894.2.” 2001 La.
Acts No. 1163, § 4. It would be incongruous to extend the opportunity
for home incarceration, and treatment, to those already convicted but to
withhold that opportunity from those who were charged but not
convicted prior to August 15, 2001, the effective date of the
amendments.

Thus, three specific provisions within the new legislation point to
an interpretation consistent with applying the new provisions to a
defendant who was not convicted of a fourth DWI charge until after the
effective date of the statute: 1) the words “upon conviction”; 2) the
legislative purpose of favoring treatment over incarceration; and 3)
allowing home incarceration for those previously convicted.

We acknowledge Louisiana’s prior case law on the subject has
adhered to the rule that “the law in effect at the time of the commission
of the offense is determinative of the penalty which the convicted
accused must suffer.” State v. Wright, 384 So.2d 399, 401 (La.1980);
see also, State v. Clark, 391 So.2d 1174 (La.1980); accord, State v.
Paciera, 290 So.2d 681 (La.1974) (Imposition of a sentence under a
statute in effect at the time an offense was committed rather than lesser
sentence provided for by an amended statute which was enacted after
commission of the charged offense and prior to conviction did not deny
defendant due process or equal protection when the amendatory statute
provided that it was not to apply to crimes committed prior to the
effective date of the amendment.). Although this rule of law has been
consistently applied in the courts of this state, the rule requiring the
penalty provision in effect at the time of the offense be the governing
provision where an ameliorative change in the law has occurred is not

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followed in all jurisdictions. See Clark, 391 So.2d at 1176 n. 1; see also,
State v. Morris, 131 Idaho 263, 954 P.2d 681 (1998) (Defendant
convicted of first degree burglary was subject to maximum ten-year
sentence under amended burglary statute enacted after he committed
offense but before he was sentenced, rather than to maximum 15 year
sentence under statute in effect when he committed offense, where
amended statute did not include savings clause and did not indicate
which maximum sentence should apply.). Today, this rule is followed by
a majority of the states that have dealt with the issue. See State v. Von
Geldern, 64 Haw. 210, 638 P.2d 319 (1981); Elkins v. State, 659 N.E.2d
563 (Ind.App.1995); People v. Schultz, 435 Mich. 517, 460 N.W.2d 505
(1990); State v. Coolidge, 282 N.W.2d 511 (Minn.1979); State v.
Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967); State v. Cummings, 386
N.W.2d 468 (N.D.1986); State v. Macarelli, 118 R.I. 693, 375 A.2d 944
(1977).

Thus, while current Louisiana appellate court jurisprudence holds
that the law in effect at the time of the offense should control the
sentencing of the instant defendant, this court has not concluded
definitely that, in a case such as the one before it here concerning the
specific statutory provisions of the amended LRS-R.S. 14:98, the date
of the offense and not the date of the conviction controls. Specifically,
this case differs from both Wright, 384 So.2d 399, and Clark, 391 So.2d
1174, in that those cases dealt only with changes in the term of
imprisonment. In both of those cases, the earlier statute, LRS-R.S.
14:67.1, had provided for a penalty of imprisonment at hard labor of “not
less than one nor more than ten years,” for the crime of theft of livestock.
As amended, the penalty provided for imprisonment for “not more than
one year.” Nothing in the language of the statute changed except the term
of imprisonment.

Conversely, here, as discussed at length above, the legislature
made substantial changes to the penalty provisions of the statute as well
as adding a “policy” statement to the statute. See LRS-R.S.14:98(G).
While the amended version of the statute does not specifically address
the “retroactivity” of the new provisions, the statute does state that
“upon conviction” and not “upon committing the offense” the defendant
shall be punished to a specific term. Finally, imposing the harsher
penalty in such circumstances would serve no valid penological purpose,
particularly in the instant case in which the legislature has made a policy
determination that a third or fourth DWI offense is presumptive evidence
of the existence of a substance abuse disorder and that successful
treatment methods other than imprisonment are available and effective for
such disorders.

Drunk drivers have extracted a significant toll on society and on
the innocent victims of their misdeeds. However, it is the legislature, not
this court, which establishes the sentencing range. It is the role of the
courts to follow the sentencing provisions which were clearly stated by
the legislature.

5

State v. Mayeux, 01-3195, pp. 4-8 (La. 6/21/02), 820 So.2d 526, 529-31 (footnotes

omitted)(alterations and emphasis in original).

In examining whether Mayeux’s holding should apply in the present case, we

note that the 2004 amendment also contains the “upon conviction” language

emphasized by the supreme court in Mayeux. It also appears from the 2004

amendment that the legislature was attempting to “fine tune” the treatment plans for

DWI offenders as well as clearly state that a defendant is under supervised probation

while subject to home incarceration. Although the pre-2004 law stated that an

offender sentenced to home incarceration was subject to any conditions of probation,

the law did not clearly state that an offender was placed on supervised probation

immediately upon his release from serving the mandatory thirty days imprisonment.

The 2004 amendment makes this clear. The 2004 amendment also allows the trial

court more discretion as to the length of home incarceration. Thus, it appears that the

2004 amendment was simply a continuation of the efforts begun by the legislature in

2001.

The court finds the same considerations applicable in Mayeux are not applicable

to the present case. While the 2001 amendment discussed in Mayeux produced

drastic changes to the DWI sentencing scheme, the 2004 amendment merely “fine

tuned” those provisions. Both the 2001 amendment and the 2004 amendment favor

treatment plans over imprisonment. Thus, one major concern of the court in Mayeux,

(i.e.), failing to adhere to the legislature’s obvious preference of treatment over

imprisonment (-) is arguably not present in the instant case. Under either sentencing

provision, the Defendant receives the benefit of the legislature’s intent to improve

treatment over imprisonment. For this reason, the court finds that an exception to the

prevailing jurisprudential rule is not warranted in the present case, and the penalty

6

provision in effect at the time of the offense is the applicable sentencing provision.

See State v. Parker, 03-924 (La. 4/14/04), 871 So.2d 317.

Assessing the sentence under the provision in effect when the offense was

committed, this court finds the trial court failed to impose several mandatory

sentencing requirements.

The trial court imposed the following sentence:

- Two years at hard labor and a $2,000.00 fine

- Thirty days without benefit of probation, parole or suspension of
sentence

- Remainder of sentence suspended and the Defendant placed on
supervised probation for two years

- Probation shall commence the day after Defendant released from
custody

- Defendant shall undergo evaluation with Department of Health and
Hospitals for substance abuse

- Six months home incarceration, subject to electronic monitoring and
a reasonable curfew

- Electronic interlock device on any vehicle

- After home incarceration, general conditions of article 895 are imposed,
plus a $55.00 per month supervision.

- Fine and costs payable as condition of probation

Below is the sentencing provisions of La.R.S. 14:98 in effect when the present

offense was committed. The emphasized portions reflect the mandatory requirements

erroneously omitted by the trial court.

D.(1)(a) On a conviction of a third offense, notwithstanding any
other provision of law to the contrary and regardless of whether the
offense occurred before or after an earlier conviction, the offender shall
be imprisoned with or without hard labor for not less than one year nor
more than five years and shall be fined two thousand dollars. Thirty days
of the sentence of imprisonment shall be imposed without benefit of
probation, parole, or suspension of sentence. The remainder of the
sentence of imprisonment shall be suspended and the offender shall be

7

required to undergo an evaluation to determine the nature and extent of
the offender’s substance abuse disorder.

(b) The treatment professional performing the evaluation shall
recommend appropriate treatment modalities which shall include
substance abuse treatment at an inpatient facility recommended by the
Department of Health and Hospitals, office for addictive disorders and
approved by the Department of Public Safety and Corrections for a
period of not less than four weeks nor more than six weeks.

(c) The offender may be sentenced to additional outpatient
substance abuse treatment services to meet the offender’s needs if
determined to be necessary by the offender’s treating physician, for a
period not to exceed twelve months. The follow-up treatment shall be
provided in a manner to gradually decrease the intensity of treatment
services.

(d) Upon successful completion of the inpatient substance abuse
treatment required by the Paragraph, the offender shall be sentenced to
home incarceration for not less than the period of time remaining on
the offender’s suspended sentence as provided in Paragraph (3) of this
Subsection.

(e) If the offender fails to complete the substance abuse treatment
required by the provisions of this Paragraph or violates any condition of
home incarceration, he shall be imprisoned for the original term of his
suspended sentence with no credit for time served under home
incarceration.

(2)(a) In addition, the court shall order that the vehicle being driven
by the offender at the time of the offense shall be seized and impounded,
and sold at auction in the same manner and under the same conditions as
executions of writ of seizures and sale as provided in Book V, Title II,
Chapter 4 of the Code of Civil Procedure.

(b) The vehicle shall be exempt from sale if it was stolen, or if the
driver of the vehicle at the time of the violation was not the owner and the
owner did not know that the driver was operating the vehicle while
intoxicated.

....

(3)(a) An offender sentenced to home incarceration shall be
supervised and shall be subject to any of the conditions of probation.
The court shall specify the conditions of home incarceration which shall
include but shall not be limited to the following:

(i) Electronic monitoring.

(ii) Curfew restrictions.

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(iii) Home visitation at least once per month by the
Department of Public Safety and Corrections.

(b) The court shall also require the offender to obtain employment
and to participate in a court-approved driver improvement program at
his expense. The activities of the offender outside of his home shall be
limited to traveling to and from work, church services, Alcoholics
Anonymous meetings, or a court-approved driver improvement program.

As emphasized, the trial court failed to impose several mandatory sentencing

requirements. First, the Defendant was sentenced to only six months of home

incarceration while the penalty provision calls for home incarceration for not less than

the period of time remaining on the offender’s suspended sentence. Thus, the

Defendant should have been placed on home incarceration for at least one year and

eleven months. The trial court also failed to impose home visitation at least once a

month as a condition of home incarceration. Additionally, the trial court failed to order

the Defendant to obtain employment and participate in a court- approved driver

improvement program. Finally, the trial court failed to establish a payment plan for the

fine and costs ordered as conditions of the Defendant’s probation. The trial court did

not order impoundment of the vehicle because the parties agreed that the car was not

subject to forfeiture.

This court must vacate the sentence imposed and remand for resentencing. It

is recognized by the court that neither party has raised the errors discussed above.

The Defendant pled guilty with an agreed-upon sentence. On appeal, the Defendant’s

sole assignment of error challenges the trial court’s denial of his motion to suppress.

He makes no allegations regarding the illegality or excessiveness of the sentence

imposed. Although these factors do not change the illegality of the sentence imposed,

the court will not exercise its discretionary authority under La.Code Crim.P. art. 882.

However, in view of the illegality of the sentence, the court vacates and remands the

matter back to the trial court for resentencing of the Defendant.

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ASSIGNMENT OF ERROR

As his single assignment of error, the Defendant asserts that the trial court erred

in denying his motion to suppress. The Defendant asserts that the motion to suppress

should have been granted due to fatal flaws in the procedures followed by the

Louisiana State Police while conducting the seat belt checkpoint. The procedures for

establishing and conducting seat belt checkpoints are provided by La.R.S. 32:295.4:

All law enforcement agencies involved in traffic enforcement shall
establish guidelines for the operation of seat belt checkpoints and proof
of compulsory motor vehicle liability security checkpoints. Such
guidelines shall include but not be limited to the following provisions:

(1) The location, time, and duration for seat belt and
compulsory motor vehicle liability security checkpoints
shall be established in written form by supervisory or other
administrative personnel of the law enforcement agency
rather than the field officers implementing the checkpoint.

(2) Provision for advance warning to the approaching
motorists with signs, flares, and other indications to warn
motorists of an impending stop and to provide indication of
its official nature as a police checkpoint.

(3) Provisions to ensure detention of motorists for a
minimal length of time.

(4) The use of a systematic, nonrandom criteria for
stopping motorists.

First, the Defendant asserts that the Louisiana State Police failed to use a

“systematic, nonrandom criteria for stopping motorists.” The Defendant argues, in

his brief to this court, that the troopers’ failure to use a “systematic, nonrandom

criteria” in deciding which motorists to stop at the checkpoint was unlawful, and

rendered the evidence of his intoxication subject to suppression.

At the hearing on the motion to suppress, Louisiana State Police Trooper

Michael Hataway was the only witness to testify. Trooper Hataway worked at the seat

belt checkpoint on the date in question and observed the Defendant without his seat

10

belt. We note that the Defendant does not dispute the allegation that he was not

wearing his seat belt when he entered the checkpoint. Trooper Hataway also

described the means by which he decided which motorists to stop:

Q And describe for me how you would determine which vehicles to
stop and which vehicles not to stop at this particular checkpoint.

A The persons that were not wearing their seat belt were stopped.
Those that were wearing their seat belt were not stopped.

Trooper Hataway further testified:

Q Okay. Now, this was a, this was a seat belt checkpoint and you
weren’t looking for anything else?

A I think if a person came through with a . . . no vehicle license or
expired, really expired, inspection sticker that that would be taken care
of as well.

....

Q And, so if you saw a passenger not wearing a seat belt you would
have stopped the vehicle as well; correct?

A Probably not.

Q Probably not?

A Probably not.

....

A My . . . do we just . . . I, I . . . let me answer it this way, our
primary responsibility is to check seat belts. I looked for drivers not
wearing seat belts. If I saw a driver not wearing a seat belt or if I saw a
vehicle come through with a really expired inspection sticker or if it
passed by, I didn’t see any license plates on it, I’d ask the next trooper,
“Check those plates”, or the same token, if he was up there with traffic
going south he may say, “Check that . . .

Q My question . . .

A . . . that plate.”

Q Let me, let me go back to my question. If you didn’t see an
observable offense, in other words some type of observable while the car
was in motion?

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A There were . . .

Q I’m not talking about stopping the car and checking papers or
stopping and checking drivers for DWI or anything like that. If you
didn’t notice an observable offense did you stop any vehicles and make
them pull to the side of the road?

A No.

Q If . . . did you see any other officers stopping any other cars for
. . . with any other criteria, in other words under those same guidelines?
Did, did you see any other . . .

A No.

Q . . . officer just randomly . . .

A No.

Q . . . stopping cars to check paperwork or anything like that?

A No.

Q Okay. So there had to be an observable offense first; isn’t . . .

A Correct.

Following the hearing, the trial court issued a written ruling on the Defendant’s

motion to suppress. The trial court denied the motion, stating that “th[e] stop in

question, as it was administered by the Louisiana State Police, the Louisiana

Department of Safety, and Trooper Michael Hataway, was legal under the Tucker

analysis as well as the other constitutional rights of the defendant.”

In State v. Tucker, 626 So.2d 707 (La.1993), affirmed on rehearing, 626

So.2d720 (La.1993), the defendant was observed by police officers standing in front

of a business establishment in a neighborhood that was the target of a drug sweep.

When the defendant saw the police officers, he began to run from the scene. The

police officers then ordered the defendant to “halt,” but before doing so, the defendant

discarded a small bag containing marijuana. Id. at 709. He then complied with the

officers’ order; they retrieved the marijuana and arrested him for possession with intent

12

to distribute. In his motion to suppress, the Tucker defendant asserted that he was

unconstitutionally seized without a reasonable, articulable suspicion that he was

engaged in criminal activity, and that, therefore, the evidence was the fruit of an illegal

seizure. We find that because the Defendant in the instant case was stopped only after

his violation of the seat belt statute was observed, Tucker offers no guidance. Indeed,

the Tucker court distinguished its analysis from those involving automobile

roadblocks.

We also note that the seat belt security checkpoint statute, La.R.S. 32:295.4,

was first added in 2003. After careful research, we find that no cases have yet been

reported under that statute. However, because the language of that statute is directly

drawn from guidelines first set forth in State v. Jackson, 00-15 (La. 7/6/00), 764 So.2d

64, an analysis of that case is relevant.

In Jackson, the supreme court analyzed the constitutionality of automobile

checkpoints that were used to enforce compliance with proof of insurance statutes.

The court provided the language that was later made the substance of La.R.S.

32:295.4, and emphasized that “the guiding principle must be that the procedures

utilized curtail the discretion of the officer in the field.” Id. at 73. The Defendant

asserts that the conduct of the officers, as indicated by Trooper Hataway’s testimony,

was discretionary, and therefore, fell short of meeting the principle enunciated in

Jackson.

However, we note that one important fact distinguishes Jackson from the instant

case. In Jackson, the police established a roadblock in order to check motorists for

proof of insurance. In order to conduct their inspections, the police officers required

every motorist traveling a certain road to stop and produce the necessary documents.

The defendant was a driver who had abandoned his car by the side of the road in

13

order to avoid the checkpoint. After leaving his car, the defendant was approached

by a police officer working at the checkpoint, who asked him for his driver’s license.

During their encounter, the police officer discovered that the license had been

suspended, and after issuing citations for numerous traffic violations, he arrested the

defendant. While conducting a pat-down search pursuant to that arrest, the officer

discovered a small bag containing marijuana.

In Jackson, the trial court granted the defendant’s motion to suppress, which

was affirmed by the appellate court. On the state’s application for writs, the supreme

court found that the record was unclear as to whether the regulations used in the

selection and implementation, the duration of the detention of the motorists, and the

signage used to warn motorists, were sufficiently followed to make the checkpoint

constitutional.

In the instant case, we note that the procedures utilized by the Louisiana State

Police differed significantly from those occurring in Jackson. In Jackson, the police

stopped every car, and spoke with every driver, in order to determine whether a

violation of driving without proof of insurance was occurring. However, here, the

police did not stop any cars, or speak to any drivers, but merely caused them to slow

their speed to a level at which noncompliance with the seat belt statutes could be

visually observed by the checkpoint officers. So, while every motorist in Jackson had

to interact on a personal level with the police, the motorists in the instant case did not

have to do so, unless they were observed to be in violation of the statute the

checkpoint was designed to enforce.

Despite that difference, La.R.S. 32:295.4 requires adherence, in the instant case,

to the Jackson guidelines. However, we find the Defendant has failed to show that the

criteria used by the officers at the checkpoint in the instant case was not systematic

14

and nonrandom. Trooper Hataway indicated in his testimony that if no violations were

observed, drivers were allowed to pass through the checkpoint without stopping.

Hataway further described the observable violations for which he would have stopped

a motorist. Those violations were the driver’s failure to wear a seat belt, an inspection

sticker that was significantly out of date, or absent, or expired license plate. Thus, the

officers did not use discretion to determine which cars without violations they would

stop, but rather, they used discretion to select which cars with observable violations

they would stop. In the cases cited by the Defendant in which unacceptable levels of

discretion invalidated stops, the discretion was used to select and stop cars without

observable violations. We find that this use of discretion is patently different from the

discretion used in determining which of a number of observed violators to stop.

In State v. Parms, 523 So.2d 1293 (La.1988), an unacceptable level of

discretion invalidated the stop of the defendant’s car. In Parms, the defendant was

stopped at a sobriety checkpoint, at which some cars were allowed to proceed when

the officers on duty were busy. The court found that the officers had complete

discretion as to which cars to stop and which cars to allow to pass; the defendant was

among the cars stopped without observable violations of traffic laws. In the instant

case, the Defendant was not chosen to stop regardless of observed violations, but

rather, he was stopped because he was observed to be driving without a seat belt.

Therefore, the Defendant’s argument that Parms invalidates his stop fails.

In another case involving a DWI checkpoint, a defendant’s seizure was ruled

in violation of the Louisiana Constitution when it occurred at a DWI checkpoint at

which every car was stopped and every driver required to produce a driver’s license

while the police checked for signs of intoxication. State v. Church, 538 So.2d 993

(La.1989). The defendant in Church did not have his driver’s license at the time he

15

was stopped; while he waited by his car to be ticketed for that offense, the officers

observed signs of intoxication. Id. at 994. Following a field sobriety test, the

defendant was charged with driving while intoxicated. Id. However, the court ruled

that in light of the ineffectiveness of such checkpoints on the problems of intoxicated

motorists, such checkpoints were an unconstitutional intrusion on individual privacy.

Again, such a checkpoint, at which drivers are stopped without any observable

violations, or reasonable suspicion that such violations were occurring, is easily

distinguishable from the checkpoint at issue. The checkpoint at issue did not require

any car to stop, unless a violation was observed. Those drivers who were not

observed to be in violation of traffic laws were allowed to continue without any direct

interaction with the police. We find that the checkpoint at issue did not constitute an

intrusion on the individual privacy of those drivers. We conclude, therefore, that the

Defendant’s reliance on this case to assert that the checkpoint was unconstitutional is

misplaced.

The Defendant also asserts that the checkpoint violated the other provisions of

La.R.S. 32:295.4. The first provision requires the location, time, and durations for the

checkpoints to be established in written form by supervisory or administrative

personnel, rather than by the officers on the scene. The Defendant states that no

evidence was presented showing compliance with this provision. The officer who

testified worked at the checkpoint, and his testimony indicated that he was not

involved in the establishment of the checkpoint. No evidence was presented to show

how the checkpoint was established. The Defendant has produced no evidence that

the establishment of the checkpoint was in violation of this provision. Accordingly,

this argument is without merit.

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The Defendant then argues that the checkpoint violated the second provision of

La.R.S. 32:295.4, which requires “signs, flares, and other indications to warn

motorists of an impending stop and to provide indication of its official nature as a

police checkpoint.” The witness testified that he was unaware of the nature of the

indications used to comply with this provision. However, as in the previous argument,

the Defendant has not shown any evidence that this provision was violated.

Accordingly, this argument is also without merit.

Finally, the Defendant argues that the State did not adequately show that the

checkpoint complied with the third provision of La.R.S. 32:295.4, requiring a detention

of motorists for a minimal length of time. However, the motorists who were not

observed to be in violation of any statute were not detained, but were merely slowed.

The only motorists who were detained were those who, like the Defendant, were

observed to be in violation of a traffic statute. Accordingly, this argument, like the

others, is without merit.

CONCLUSION

The Defendant has failed to show that the trial court erroneously denied his

motion to suppress. He failed to show that the evidence of his intoxication was

obtained as a result of a checkpoint that was improperly established or administered.

Accordingly, his conviction is affirmed. The Defendant’s sentence, however, is

vacated as illegal, and the case is remanded for resentencing. The trial court is

instructed to resentence the Defendant to a legal sentence under the sentencing

provision in effect when the offense was committed.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.

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