State of Louisiana v. James Oliver McKeehan, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-569

STATE OF LOUISIANA

VERSUS

JAMES OLIVER MCKEEHAN, JR.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 115137-40
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and J. David Painter,
Judges.

Painter, J., dissents in part with written reasons.

CONVICTION AND SENTENCE
AFFIRMED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
James Oliver McKeehan, Jr.

W. Thomas Barrett III
Assistant District Attorney
Thirty-eighth Judicial District
P.O. Box 280
Cameron, LA 70631
Counsel for Plaintiff/Appellee:
State of Louisiana

James Oliver McKeehan, Jr.
In proper person
C. Paul Phelps Correction Center
P. O. Box 1056
Dequincy, LA 70633

DECUIR, Judge.

The Defendant, James Oliver McKeehan, Jr., was convicted of driving while

intoxicated (DWI), fourth offense, in violation of La.R.S. 14:98. He lodges this

appeal asserting the following three assignments of error:

1) The State’s reliance on the presumption of intoxication set forth in
La.R.S. 32:662 was improper, as the bill of information did not charge
the Defendant with a violation of La.R.S. 14:98(A)(1)(b), but instead
charged a violation of La.R.S. 14:98(A)(1)(a).

2) The evidence introduced at trial was insufficient to find that the
Defendant was under the influence of an alcoholic beverage at the time
he was driving.

3) The trial court imposed a sentence upon the Defendant that results in
the ex post facto application of the law which is prohibited by both the
federal and state constitutions. The trial court improperly applied the
harsher sentencing provisions in effect at the time of his conviction
instead of the sentencing provisions in effect at the time of the
commission of the offense.

ERRORS PATENT

Our review of the record reveals one error patent. The trial court failed to

inform the Defendant of the appropriate prescriptive period for filing post-conviction

relief as required by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial

court to inform the Defendant by written notice within ten days of the rendition of

this opinion.

SUFFICIENCY OF EVIDENCE

We will first examine Defendant’s allegation that the evidence is not sufficient

to support his conviction. See State v. Hearold, 603 So.2d 731 (La.1992). The

Defendant contends the evidence introduced at trial was insufficient to find that he

was under the influence of an alcoholic beverage at the time he was driving.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of the
essential elements of the crime charged. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d

676, 678 (La.1984). Additionally, where circumstantial evidence forms
the basis of the conviction, the evidence must exclude every reasonable
hypothesis of innocence, “assuming every fact to be proved that the
evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674
p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.
R.S. 15:438 “works with the Jackson constitutional sufficiency test to
evaluate whether all evidence, direct and circumstantial, is sufficient to
prove guilt beyond a reasonable doubt to a rational jury.” Neal,
2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592.

Thus, to support the Defendant’s conviction, the State was required to prove

the Defendant was operating a motor vehicle and was either under the influence of

alcohol or his blood alcohol concentration was 0.08 or more.

The Defendant testified that on November 22, 2003, he went to a hunting camp

to repair two air conditioners and an ice machine. While working, he had two cups

of beer from a keg, which possibly totaled fifteen ounces of beer. The Defendant

testified that he was at the camp for approximately two hours. When the Defendant

was ready to leave, the owner of the camp handed him a drink in a Big Gulp cup that

was either twenty or thirty-two ounces. When he got in the car, he placed the cup in

his lap. On his way back to Lake Charles, the Defendant passed Deputy Donald

LeDoux while driving seventy miles per hour. The Defendant testified that he then

drank the contents of the cup and then threw the cup out the window.

Deputy LeDoux testified that when he stopped the Defendant he appeared

unbalanced as he exited his vehicle and that his speech was slurred. Deputy LeDoux

then noticed marijuana in the Defendant’s vehicle and the Defendant was immediately

placed under arrest. Deputy LeDoux then contacted the Defendant’s parents, who

came to the scene to retrieve the Defendant’s vehicle. After the Defendant’s parents

left the scene, Detective LeDoux searched the surrounding area in an attempt to locate

the cup discarded by the Defendant prior to being stopped. Unable to locate the cup,

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Detective LeDoux left the scene and drove the Defendant to the police department in

Cameron.

When the Defendant arrived at the police department he asked to go to the

restroom, but was told to wait. The Defendant then urinated on himself.

Subsequently, a field sobriety test was performed at the police department. Deputy

LeDoux testified that during the field sobriety test the Defendant was “unable to

respond to almost anything to the point of uncontrolled bowel movements where he

had to be taken to the restroom to complete. And he was just -- seemed to be out of

control, incoherent in every manner.” Deputy LeDoux was asked if the Defendant

cooperated and completed the horizontal gaze nystagmus test. He testified the

Defendant tried, but it was hard for him. He stated “I believe we can say he

completed it.” Deputy LeDoux then testified the Defendant had a positive result in

all the different categories. The Defendant subsequently submitted to the intoxilyzer

test. The results indicated the Defendant’s blood alcohol concentration was .227

percent.

The trial court found the Defendant guilty of DWI, fourth offense, stating the

following:

I’ll agree with you about one thing, Mr. McHale. I don’t think
that his level of intoxication at the time of his stop was as severe as it
was when he was videotaped or else Deputy LeDoux would not have
observed that the vehicle was going straight.

But nevertheless, the evidence is such that he was imbibing
alcoholic beverages before the stop and there is some evidence of
impairment. And that’s adequate.

The Defendant contends the State failed to prove he was operating the vehicle

while intoxicated. In State v. Picard, 03-2422, pp. 8-9 (La.App. 1 Cir. 9/17/04), 897

So.2d 49, 54-55 the court said:

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Intoxication with its attendant behavioral manifestations is an
observable condition about which a witness may testify. What
behavioral manifestations are sufficient to support a charge of driving
while intoxicated must be determined on a case-by-case basis. Some
behavioral manifestations, independent of any scientific test, are
sufficient to support a charge of driving while intoxicated. State v.
Anderson, 2000-1737, p. 10 (La.App. 1st Cir.3/28/01), 784 So.2d 666,
676, writ denied, 2001-1558 (La.4/19/02), 813 So.2d 421. Furthermore,
an officer’s subjective opinion that a subject failed a field sobriety test
may constitute sufficient evidence of intoxication to support a DWI
conviction. See State v. Smith, 93-1490, p. 6 (La.App. 1st Cir.6/24/94),
638 So.2d 1212, 1215.

In Smith, 93-1490 at pp. 3-4, 638 So.2d at 1214, this court found
the evidence sufficient to support a DWI conviction where the trooper
testified that the defendant smelled of alcohol, his speech was slurred
and deliberate, his eyes were bloodshot, he was staggering, he admitted
that he had consumed four beers, he was uncooperative and aggressive
after being arrested, and he refused to take the breath test. Similarly, a
DWI conviction was found to be supported by the evidence when a
trooper observed the defendant’s erratic driving, physical appearance,
slurred speech, and behavior. The defendant failed the field sobriety
tests. He attempted to hide a vodka bottle under the back seat of his
truck, and he admitted he had drunk alcohol. State v. Worachek,
98-2556, p. 9 (La.App. 1st Cir.11/5/99), 743 So.2d 1269, 1274. Also,
in State v. Minnifield, 31,527, pp. 3-4 (La.App. 2nd Cir.1/20/99), 727
So.2d 1207, 1211, writ denied, 99-0516 (La. 6/18/99), 745 So.2d 19, the
evidence was sufficient where the officer observed the defendant weave
out of the traffic lane three times; he staggered, slurred, smelled of
alcohol, and gave a false name; and a second officer indicated that the
defendant failed the horizontal gaze nystagmus test.

We find that the evidence presented was sufficient to prove beyond a

reasonable doubt that the Defendant was under the influence of alcohol when

operating his vehicle. Accordingly, the Defendant’s conviction is affirmed.

BILL OF INFORMATION

The Defendant contends that the State’s reliance on the presumption of

intoxication in La.R.S. 32:622 at trial was improper because the Bill of Information

referenced La.R.S. 14:98(A)(1)(a) rather than La.R.S. 14:98(A)(1)(b).

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The bill charges the Defendant with “Driving While Intoxicated -4th La.R.S.

14:98.” The purpose of the bill of information is to inform the defendant of the

charges against him. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d

1367. The bill of information in this case was sufficient to inform the defendant of

the charges lodged against him. This assignment has no merit.

SENTENCING

The Defendant contends that by sentencing him under La.R.S. 14:98E as it was

written at the time of his conviction rather than at the time of his arrest the trial court

violated the prohibition against ex post facto application of the law provided in both

the state and federal constitutions. The statute, as it was written at the time of the

arrest, provided for the mandatory suspension of all but sixty days of a defendant’s

sentence for fourth offense DWI. In 2005, the legislature amended the statute to

make the suspension of sentence discretionary on the part of the trial court. 2005 La.

Acts No. 497, § 1.

This court has previously addressed the retroactive application issue with

regard to the 2004 amendment to La.R.S. 14:98 as follows:

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.

State v. Pulliam, 2005-534, p.3 (La.App. 3 Cir. 12/30/05), 920 So.2d 900, 902.

In Pulliam, this court noted that the basis for the exception created in Mayeaux was

the substantial nature of the legislative change and the policy change of direction

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from a focus on incarceration to a focus on treatment in DWI cases. Finding that the

2004 amendment was a mere fine tuning rather than the drastic change contemplated

by the court in Mayeaux, this court declined to apply the 2004 amendment to the

statute retroactively.

We find the 2005 amendment is more like the 2001 amendment in Mayeux. In

removing the mandatory suspension of sentence for fourth offense, the legislature has

indicated that the focus on treatment rather than incarceration requires a case by case

analysis. This is a substantial legislative change in that it shifts discretion from the

legislature back to the courts.

In State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 799 So.2d 735, the

Louisiana Supreme Court held that if a law changes the definition of criminal conduct

or increases the penalty for a particular crime applying it retroactively violates the

state and federal constitutional prohibitions against ex post facto laws. In the present

case, the question is whether the removal of the mandatory suspension of sentence

constitutes an increase in penalty. We think not.

We find the 2005 amendment merely alters the conditions upon which the

defendant’s sentence may be suspended. In cases discussing changes to statutes

governing the requirements for a defendant’s release for parole or good time

diminution, the courts have concluded that the law in effect at the time of a prisoner’s

release governs the terms of that release, rather than the law in effect at the time of

the commission of the offense. Id. The changes to the eligibility requirements do not

subject defendant to a greater penalty than that authorized for his crime at the time of

its commission and, therefore, do not violate constitutional prohibitions against ex

post facto laws. See State v. Hutchinson, 99-0034 (La.App. 4 Cir. 5/17/00).

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We are mindful that the cases cited above involved changes to eligibility

requirements in statutes other than the statute defining the crime and sentence.

However, we find no compelling reason that the changes to the eligibility for

suspension of sentence in this case should be treated differently simply because they

are contained within La.R.S. 14:98(E). Accordingly, the trial court did not err in

applying the sentencing provisions of La.R.S. 14:98E in effect at the time of the

Defendant’s conviction.

This assignment has no merit.

DECREE

For the foregoing reason, the Defendant’s conviction and sentence are

affirmed. The trial court is instructed to inform the Defendant of the proper

prescriptive period for post- conviction relief.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-569

STATE OF LOUISIANA

VERSUS

JAMES OLIVER MCKEEHAN, JR.

PAINTER, Judge, Dissenting in Part.

I agree with the majority’s decision to affirm the Defendants’ conviction.

However, I respectfully dissent from the opinion of the majority insofar as it affirms

the Defendant’s sentencing on the charge of fourth-offense DWI under the penalty

provisions in effect at the time of his conviction.

The offense at issue was committed on November 22, 2003. The Defendant

was convicted on May 15, 2006, and sentenced on December 14, 2006. At the time

of the commission of the offense, La.R.S. 14:98 provided, in pertinent part, as

follows:

E. (1)(a) Except as otherwise provided in Subparagraph (4)(b) of
this Subsection, on a conviction of a fourth or subsequent offense,
notwithstanding any other provision of law to the contrary and
regardless of whether the fourth offense occurred before or after an
earlier conviction, the offender shall be imprisoned with or without hard
labor for not less than ten years nor more than thirty years and shall be
fined five thousand dollars. Sixty 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 required to undergo an evaluation
to determine the nature and extent of the offender’s substance abuse
disorder.

(Emphasis added).

1

On the date of conviction, the penalty provision read as follows:

E. (1)(a) Except as otherwise provided in Subparagraph (4)(b) of
this Subsection, on a conviction of a fourth or subsequent offense,
notwithstanding any other provision of law to the contrary and
regardless of whether the fourth offense occurred before or after an
earlier conviction, the offender shall be imprisoned with or without hard
labor for not less than ten years nor more than thirty years and shall be
fined five thousand dollars. Sixty days of the sentence of imprisonment
shall be imposed without benefit of probation, parole, or suspension of
sentence. The court, in its discretion, may suspend all or any part of
the remainder of the sentence of imprisonment. If any portion of the
sentence is suspended, the offender shall be placed on supervised
probation with the Department of Public Safety and Corrections,
division of probation and parole, for a period of time not to exceed five
years, which probation shall commence on the day after the offender’s
release from custody.

(Emphasis added).

The penalty provision in effect in May 2006 differs from that in effect in

November 2003 in that, in 2003, the trial court was required to suspend the period of

incarceration imposed after the first sixty days. In 2006, the trial court was given the

discretion to suspend the remainder of the sentence.

This court addressed a similar issue in State v. Pulliam, 05-534 (La.App. 3 Cir.

12/30/05), 920 So.2d 900, writ denied, 06-667 (La. 10/6/06), 938 So.2d 65. The

defendant in Pulliam committed a DWI offense on May 3, 2003, and pled guilty on

February 3, 2005. In an error patent discussion, this court was called on to determine

whether the defendant should be sentenced under the penalty provision in effect at the

time of the commission of the offense or at the time he pled guilty. This court

addressed the supreme court’s decision in State v. Mayeux, 01-3195 (La. 6/21/02),

820 So.2d 526, and the 2004 amendments to La.R.S. 14:98 as follows:

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

2

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:

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

3

“[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 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

4

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

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establishes the sentencing range. It is the role of the courts
to follow the sentencing provisions which were clearly
stated by the legislature.

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 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.

Id. at 902-05.

The 2005 amendments to La.R.S. 14:98 gave the trial court the discretion to

suspend all or part of a defendant’s sentence, beyond thirty days for a third offender

and beyond sixty days for a fourth offender, for a conviction of DWI. Additionally,

the amendments provided that, if an offender was unable to pay the costs incurred for

6

participating in a substance abuse treatment program, driver improvement program,

or home incarceration, the trial court could require the offender to reimburse the State

pursuant to a payment schedule determined by that court.

The 2005 amendments appear to give the trial court more discretion regarding

sentencing for third and fourth offenders. I do not agree with the majority that this

change is an ameliorative change in La.R.S. 14:98; thus, the amendment at issue

differs from the 2001 amendments discussed in Mayeux. Accordingly, in my view,

the jurisprudential exception set out in Mayeux is not warranted in the case sub

judice. Instead, we would do well to follow our decision in Pulliam and find that the

Defendant should have been sentenced pursuant to the penalty provisions in effect at

the time of the commission of the offense. As the Defendant was sentenced in

accordance with the penalty provisions in effect at the time of his conviction, I would

vacate the Defendant’s sentence and remanded the matter for resentencing.

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