State of Louisiana v. Ebone Shirley Wilson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1129

STATE OF LOUISIANA

VERSUS

EBONE SHIRLEY WILSON

**********

ON APPLICATION FOR WRIT OF SUPERVISORY REVIEW,
TENTH JUDICIAL DISTRICT COURT, NATCHITOCHES
PARISH, LOUISIANA, TRIAL COURT DOCKET
NOS. C24,957-A AND T27,295-A,
HONORABLE DESIREE DUHON DYESS,
DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar,
Judges.

WRIT DENIED.

Howard E. Conday
Law Offices of Howard E. Conday
113 South Drive, Suite #4
Natchitoches, LA 71457
(318) 238-1756
ATTORNEY FOR DEFENDANT/APPLICANT
Ebone Shirley Wilson

Billy Joseph Harrington
Tenth Judicial District Attorney
Amanda McClung
Assistant District Attorney
200 Church Street, 2nd Floor
Natchitoches, LA 71457
(318) 357-2214
ATTORNEYS FOR RESPONDENT
State of Louisiana

GREMILLION, Judge.

Defendant, Ebone Shirley Wilson, was charged by bill of information filed in

trial court docket number C24957-A on January 30, 2017, with vehicular homicide,

a violation of La.R.S. 14:32.1. She was charged on the same date in trial court docket

number T27295-A with driving left of center, a violation of La.R.S. 32:71; no safety

belt, a violation of La.R.S. 32:295.1; and possession of open alcoholic beverages, a

violation of La.R.S. 32:300.

A motion was filed on September 5, 2017, by which Defendant moved to

suppress the results of a blood draw because the officers unlawfully advised her that

she could not refuse consent, and no warrant for the blood draw was secured.

Defendant argued that these actions were unconstitutional under the United States

Supreme Court decisions in Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160

(2016), and Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552 (2013). The trial

court denied the motion at a hearing held on October 12, 2017.

Defendant timely filed a writ application with this court. Therein, she seeks

review of the trial court’s ruling denying her motion to suppress. For the reasons

that follow, we deny Defendant’s writ application.

ASSIGNMENTS OF ERROR

In her assignments of error, Defendant contends that the trial court erred in

finding that the warrantless blood draw was justified because the United States

Supreme Court has ruled that the Fourth Amendment does not permit warrantless

blood tests incidental to an arrest for drunk driving, and that the trial court erred in

finding that she voluntarily and validly consented to the blood draw.

ANALYSIS

Mixed findings of law and fact in motions to suppress are reviewed under the

abuse of discretion standard. State v. Everett, 11-1311 (La.App. 3 Cir. 5/9/12), 89

So.3d 463. At the hearing on the motion to suppress, Defendant argued that if

consent for the blood draw was given under the guise that there would be punishment

for not consenting, the consent was not valid. Defendant further argued the officer

unlawfully advised Defendant that she could not refuse the blood draw. The State

admitted that police did not obtain a warrant to draw Defendant’s blood.

Defendant cited McNeely, 569 U.S. 141, and Birchfield, 136 S.Ct. 2160, in

support of her argument. In McNeely, the Supreme Court held that in drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test

without a warrant.

There were three defendants in Birchfield. One of the defendants, Birchfield,

was arrested for drunk driving and advised of his obligation under North Dakota law

to undergo blood alcohol concentration testing and that refusing to submit to a blood

test would lead to criminal punishment. Birchfield refused to let his blood be drawn

and was convicted of a misdemeanor for his refusal. He appealed, arguing that the

Fourth Amendment prohibited criminalizing his refusal to submit to the test.

Another defendant, Beylund, was arrested for driving while impaired. He was read

North Dakota’s implied consent advisory, informing him that test refusal was a

crime. Beylund then agreed to have his blood drawn. Given the test results,

Beylund’s driver’s license was suspended for two years after an administrative

hearing. He appealed, arguing that his consent to the blood test was coerced by the

2

officer’s warning that refusing to consent would itself be a crime. In addressing

these claims, the Supreme Court stated:

Because breath tests are significantly less intrusive than blood
tests and, in most cases, amply serve law enforcement interests, we
conclude that a breath test, but not a blood test, may be administered as
a search incident to a lawful arrest for drunk driving. As in all cases
involving reasonable searches incident to arrest, a warrant is not needed
in this situation.

Having concluded that the search incident to arrest doctrine does
not justify the warrantless taking of a blood sample, we must address
respondents’ alternative argument that such tests are justified based on
the driver’s legally implied consent to submit to them. It is well
established that a search is reasonable when the subject consents, e.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973), and that sometimes consent to a search need not
be express but may be fairly inferred from context, cf. Florida v.
Jardines, 569 U.S. 1, –––– – ––––, 133 S.Ct. 1409, 1415–1416, 185
L.Ed.2d 495 (2013); Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98
S.Ct. 1816, 56 L.Ed.2d 305 (1978). Our prior opinions have referred
approvingly to the general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on motorists who refuse
to comply. See, e.g., [Missouri v.] McNeely, supra, at ––––, 133 S.Ct.
[1552], at 1565–1566 [(2013)] (plurality opinion); [South Dakota v.]
Neville, [459 U.S. 553] at 560, 103 S.Ct. 916 [(1983)]. Petitioners do
not question the constitutionality of those laws, and nothing we say here
should be read to cast doubt on them.

It is another matter, however, for a State not only to insist upon
an intrusive blood test, but also to impose criminal penalties on the
refusal to submit to such a test. There must be a limit to the
consequences to which motorists may be deemed to have consented by
virtue of a decision to drive on public roads.

....

[W]e conclude that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal
offense.

....

Petitioner Birchfield was criminally prosecuted for refusing a
warrantless blood draw, and therefore the search he refused cannot be
justified as a search incident to his arrest or on the basis of implied
consent. There is no indication in the record or briefing that a breath
test would have failed to satisfy the State’s interests in acquiring
3

evidence to enforce its drunk-driving laws against Birchfield. And
North Dakota has not presented any case-specific information to
suggest that the exigent circumstances exception would have justified
a warrantless search. Cf. McNeely, 569 U.S., at –––– – ––––, 133 S.Ct.,
at 1567. Unable to see any other basis on which to justify a warrantless
test of Birchfield’s blood, we conclude that Birchfield was threatened
with an unlawful search and that the judgment affirming his conviction
must be reversed.

....

Unlike the other petitioners, Beylund was not prosecuted for
refusing a test. He submitted to a blood test after police told him that
the law required his submission, and his license was then suspended
and he was fined in an administrative proceeding. The North Dakota
Supreme Court held that Beylund’s consent was voluntary on the
erroneous assumption that the State could permissibly compel both
blood and breath tests. Because voluntariness of consent to a search
must be “determined from the totality of all the circumstances,”
Schneckloth, supra, at 227, 93 S.Ct. 2041 we leave it to the state court
on remand to reevaluate Beylund’s consent given the partial inaccuracy
of the officer’s advisory.

Id. at 2185-86 (footnote omitted).

Phillip Tagliarino, formerly employed by the Louisiana State Police, testified

at the hearing on the motion to suppress. He indicated that a traffic accident on

November 15, 2016, resulted in the death of Derrik Williams. Defendant was

transported to the hospital because of injuries from that accident. Tagliarino spoke

to Defendant at the hospital and sought her version of what occurred. He testified

that Defendant “had a strong odor of alcoholic beverage.” He then stated, “When

we got to that point, I advised her of her rights and proceeded with the paperwork,

as required under a crash investigation.” At the time he spoke to Defendant,

Tagliarino was aware of the fatality. He did not have a warrant to draw Defendant’s

blood. When asked what he informed Defendant regarding the drawing of blood,

Tagliarino stated, “We read the forms that are required to read, and I asked Ms.

4

Wilson if she would consent, which she did, and she signed the consent papers. I

think she signed two different consent papers.”

Tagliarino was questioned about State’s Exhibit 1, a form regarding the

arrestee’s rights and notice of withdrawal of driving privileges. The form contained

Miranda warnings and indicated that a blood test was administered. The form also

contained a statement that Defendant had fifteen days from the date of her arrest to

apply to the court for a hearing regarding her driver’s license, and if a hearing was

not requested, her license would be suspended for one year without eligibility for a

hardship license. The collector’s report that was part of the blood kit was admitted

as State’s Exhibit 2. Defendant signed that form, granting permission for the blood

draw. Tagliarino testified that he read the forms to Defendant, and she indicated that

she understood everything. Defendant did not state that she did not want to have her

blood drawn and did not ask if she could decline to do so.

Tagliarino was further questioned:

Q. And you’re . . . are you aware of the Louisiana Supreme Court law
that says that even if she had not consented, that you would have been
authorized to take blood in this case?

A. Yes, ma’am. I’m not familiar with the case law, but it is within our
rights form that we do read.

Q. And you are familiar with that as part of your duties at Louisiana
State Police at the time?

A. Yes, ma’am.

Q. Okay. But based on the fact that she signed these consent forms, that
wasn’t even something that you were. . .you weren’t even seek . . . were
you seeking to take her blood without her permission that day?

A. No, ma’am. I asked . . . I’ll ask anybody that, if they’ll voluntarily
submit.

Q. And you believe her consent to be voluntary?

5

A. Absolutely.

The questioning of Tagliarino continued:

Q. So you’re familiar with the state laws of Louisiana that gives
implied consent when an individual is driving a vehicle, correct?

A. Yes, sir.

Q. Okay. And then you’re also familiar with the laws that say that in
regards to fatality, you don’t actually need consent to draw for blood,
correct?

A. Yes, sir.

Q. Do you make your subjects aware of that law?

A. Yes, sir, I read everything that’s required.

Q. Okay. So did you make Ms. Wilson aware of those laws?

A. Yes, sir, I did.

Q. You did. Did you make her aware of those laws before she actually
signed the consent form?

A. Yes, sir.

Q. Right. So, you basically told Ms. Wilson that by her driving that
vehicle, it was implied that she was giving consent to submit to a
chemical test, correct?

A. I read all the forms that she [sic] provided. The last thing I do is get
the signature, and then we state that they understand.

Sergeant Paul Raines worked for the Louisiana State Police on November 15,

2016 and investigated the accident. He spoke to Defendant at the Natchitoches

Parish Hospital. He recalled Tagliarino reading Defendant her rights from State’s

Exhibit 1, the arrestee’s rights form and notice of withdrawal of driving privileges ,

and was present when the form was signed. Sergeant Raines filled out State’s

Exhibit 2, the collector’s report from the blood kit. He was also present when

6

Defendant signed Exhibit 2. Sergeant Raines testified Defendant never indicated

she did not consent, nor did she ask questions about whether she could refuse.

Sergeant Raines was questioned about consent to the blood draw:

Q. You’re also familiar with state laws that say when there is some type
of fatality involved, that individual can’t really. . .they can’t not consent
to a blood draw, correct?

A. There is a form that we read when it a . . . when it’s not a vehicle
[sic] homicide case. Um, this form that we read, I believe it’s 1, Exhibit
1, because we knew it was a vehicle [sic] homicide case, that portion is
not on that form.

Q. It’s not on which form?

A. The form that we read, that Trooper Tagliarino read.

Q. Okay. Did you advise her that it was in the implied consent?

A. No, we advise [sic] her what the State says we have to advise her on
a vehicle [sic] homicide.

Q. What does the State say you have to advise?

A. That’s what the . . . that form is a state form for vehicle [sic]
homicide advice.

Q. So, you have less . . . less rights to advise when it’s a homicide as
opposed to a regular DUI?

A. I do what the State says do, sir.

Q. So, I know with the DUIs, it says that you have to tell them that their
driving privileges can be suspended for refusing to submit to a chemical
test, correct?

A. Yes, sir.

Q. And are you telling me that you did not let her know that situation?

A. We didn’t read the rights for a DWI, we read the rights for a vehicle
[sic] homicide.

7

Sergeant Raines indicated that Tagliarino was the first officer on the scene, and he

would not know whether Tagliarino read Defendant her full rights before she was

transported to the hospital.

After the testimony, the State argued Defendant consented to the blood draw,

and there was no evidence that her consent was not voluntarily given. Defendant

argued that warrantless blood draws were unlawful, and that a motorist could not be

deemed to have consented to submit to a blood test on “pain of committing a criminal

offense.” Defendant further argued:

She submitted to a blood test, not necessarily in the pain of committing
a criminal offense, but it’s the pain of receiving some type of criminal
punishment if she doesn’t consent to the blood test. You have the
officer who was on the scene at the beginning who admitted that he told
her about the implied consent laws and he told her that in the case of a
fatality, she basically cannot say, “I don’t consent.” And that’s why
she consented. That is not voluntary consent.

The State countered that it was conjecture to say that Defendant consented to the

blood draw because she thought she could not refuse. Defendant argued that the

form itself informed her that her consent is implied, and that if she failed to consent,

she would receive punishment.

The trial court ruled:

I believe that Ms. Ebone Wilson’s consent was valid and voluntary. In
fact, there are two documents that indicate her consent. I believe that
the blood draw was justified under the circumstances. Louisiana law
allows law enforcement officers to draw blood from a motorist who has
been involved in an accident in which there is a fatality. There was
consent in this case. In fact, two documents. But even past that, the law
allows under Louisiana R.S. 32 : 681 (a) the operator of any motor
vehicle which is involved in a collision, or an operator of any watercraft
involved in a collision, crash, or other casualty, in which a fatality
occurs should be deemed to have given consent to and shall be
administered a chemical test or test of the blood, urine, or other bodily
substances for the purposes of determining the presence of any abused
substance or controlled dangerous substance as set forth in Louisiana
R.S. 40 : 964, or any other impairing substance. So, point of fact, that
she has given consent, additionally in accordance with this law and
8

State v. Weber, which has been cited by the State, I believe that the
blood draw was justified and the Motion to Suppress is denied.

In her writ application, Defendant discussed Birchfield, stating that police

should have conducted a breath test to determine her blood alcohol concentration

rather than a warrantless blood draw, which, she argued, is prohibited by the Fourth

Amendment.

Louisiana’s implied consent law and penalties for failure to acquiesce thereto

can be found in La.R.S. 32:661. That statute provides:

A. (1) Any person, regardless of age, who operates a motor
vehicle upon the public highways of this state shall be deemed to have
given consent, subject to the provisions of R.S. 32:662, to a chemical
test or tests of his blood, breath, urine, or other bodily substance for the
purpose of determining the alcoholic content of his blood, and the
presence of any abused substance or controlled dangerous substance as
set forth in R.S. 40:964 in his blood if arrested for any offense arising
out of acts alleged to have been committed while the person was driving
or in actual physical control of a motor vehicle while believed to be
under the influence of alcoholic beverages or any abused substance or
controlled dangerous substance as set forth in R.S. 40:964.

(2)(a) The test or tests shall be administered at the direction of a
law enforcement officer having reasonable grounds to believe the
person, regardless of age, to have been driving or 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.
The law enforcement agency by which such officer is employed shall
designate in writing and under what conditions which of the aforesaid
tests shall be administered.

(b) In the case of all traffic fatalities, the coroner, or his designee,
shall perform or cause to be performed a toxicology screen on the
victim or victims of all traffic fatalities for determining evidence of any
alcoholic content of the blood and the presence of any abused substance
or controlled dangerous substance as set forth in R.S. 40:964 which
shall include the extracting of all bodily substance samples necessary
for such toxicology screen. The coroner, or his designee, shall be
responsible for ensuring the body is not removed from his custody until
such time as the bodily substance samples are extracted. The coroner’s
report shall be made available to the investigating law enforcement
agency and may be admissible in any court of competent jurisdiction as
evidence of the alcoholic content of the blood and the presence of any
9

abused substance or controlled dangerous substance as set forth in R.S.
40:964 at the time of the fatality. The coroner, or his designee, shall
determine, by the most current and accepted scientific method
available, whether the presence of alcoholic content in the blood of the
deceased is the result of pre-death ingestion of alcoholic beverages or
the postmortem synthesis of ethanol. Nothing herein shall be construed
to limit the authority of the investigating law enforcement agency from
conducting an investigation of the accident scene concurrently with the
coroner or his designee.

....

B. Any person who is dead, unconscious or otherwise in a
condition rendering him incapable of refusal shall be deemed not to
have withdrawn the consent provided by Subsection A of this section,
and the test or tests may be administered subject to the provisions of
R.S. 32:662.

C. (1) When a law enforcement officer requests that a person
submit to a chemical test as provided for above, he shall first read to the
person a standardized form approved by the Department of Public
Safety and Corrections. The department is authorized to use such
language in the form as it, in its sole discretion, deems proper, provided
that the form does inform the person of the following:

(a) His constitutional rights under Miranda v. Arizona[, 384 U.S.
436, 86 S.Ct. 1602 (1966).]

(b) That his driving privileges can be suspended for refusing to
submit to the chemical test.

(c) That his driving privileges can be suspended if he submits to
the chemical test and such test results show a blood alcohol level of
0.08 percent or above or, if he is under the age of twenty-one years, a
blood alcohol level of 0.02 percent or above.

(d) That his driving privileges can be suspended if he submits to
the chemical test and the test results show a positive reading indicating
the presence of any controlled dangerous substance listed in R.S.
40:964.

(e) The name and employing agency of all law enforcement
officers involved in the stop, detention, investigation, or arrest of the
person.

(f) That refusal to submit to a chemical test after an arrest for an
offense of driving while intoxicated if he has refused to submit to such
test on two previous and separate occasions of any previous such
violation is a crime under the provisions of R.S. 14:98.2 and the
10

penalties for such crime are the same as the penalties for first conviction
of driving while intoxicated.

(2) In addition, the arresting officer shall, after reading said form,
request the arrested person to sign the form. If the person is unable or
unwilling to sign, the officer shall certify that the arrestee was advised
of the information contained in the form and that the person was unable
to sign or refused to sign.

Defendant claims Tagliarino admitted that he read her the requirements that

made her aware of the possible punishment for failure to consent to a warrantless

blood draw or any other warrantless search. She argues that once she was read that

language, she consented to the blood draw under “the pain of committing a criminal

offense if she refused.” Because the Supreme Court has held that motorists cannot

be deemed to have consented to a warrantless blood draw “on pain of committing a

criminal offense,” Defendant argues, she cannot be deemed to have given valid and

voluntary consent after being informed of the criminal punishment for refusing to

consent to the warrantless blood draw.

Louisiana Revised Statutes 32:661, which was quoted above, sets forth

Louisiana’s general implied consent law. However, implied consent in cases

involving fatalities is governed by La.R.S. 32:681, which provides:

A. The operator of any motor vehicle which is involved in a
collision or the operator of any watercraft involved in a collision, crash,
or other casualty in which a fatality occurs shall be deemed to have
given consent to, and shall be administered, a chemical test or tests of
his blood, urine, or other bodily substance for the purpose of
determining the presence of any abused substance or controlled
dangerous substance as set forth in R.S. 40:964 or any other impairing
substance.

B. The test or tests shall be administered at the direction of a law
enforcement officer having reasonable grounds to believe the person to
have been driving or in actual physical control of a motor vehicle upon
the public highways of this state which is involved in a collision or to
have been operating or in physical control of a watercraft on the
waterways of this state involved in a collision, crash, or other casualty
in which a fatality occurs. The law enforcement agency by which such
11

officer is employed shall designate in writing under what conditions the
tests shall be administered.

C. In the case of all traffic or boating fatalities, the coroner, or
his designee, shall perform or cause to be performed a toxicology
screen on the victim or victims of all traffic fatalities for determining
evidence of the presence of any abused substance or controlled
dangerous substance as set forth in R.S. 40:964 or any other impairing
substance which shall include the extracting of all bodily substance
samples necessary for such toxicology screen. The coroner, or his
designee, shall be responsible for ensuring the body is not removed
from his custody until such time as the bodily substance samples are
extracted. The coroner’s report shall be made available to the
investigating law enforcement agency and may be admissible in any
court of competent jurisdiction as evidence of the presence of any
abused substance or controlled dangerous substance as set forth in R.S.
40:964 or any other impairing substance at the time of the fatality.
Nothing herein shall be construed to limit the authority of the
investigating law enforcement agency from conducting an investigation
of the accident scene concurrently with the coroner or his designee.

D. Any chemical test or tests of a person’s blood, urine, or other
bodily substance for the purpose of determining the presence of any
abused substance or controlled dangerous substance as set forth in R.S.
40:964 or any other impairing substance shall be administered in the
same manner and subject to the provisions of Part XIV of this Chapter.

Louisiana Revised Statutes 32:666 discusses refusal to submit to chemical

testing, in pertinent part, as follows:

A. (1)(a)(i) When a law enforcement officer has probable cause
to believe that a person has violated R.S. 14:98, 98.1, or any other law
or ordinance that prohibits operating a vehicle while intoxicated, that
person may not refuse to submit to a chemical test or tests if he has
refused to submit to such test or tests on two previous and separate
occasions of any previous such violation or in any case wherein a
fatality has occurred or a person has sustained serious bodily injury in
a crash involving a motor vehicle, aircraft, watercraft, vessel, or other
means of conveyance. Serious bodily injury means bodily injury which
involves unconsciousness, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member,
organ, or mental faculty, or a substantial risk of death. The law
enforcement officer shall direct that a chemical test or tests be
conducted of a person’s blood, urine, or other bodily substance, or
perform a chemical test of such person’s breath, for the purpose of
determining the alcoholic content of his blood and the presence of any
abused substance or controlled substance as set forth in R.S. 40:964 in
his blood in such circumstances. The officer may direct a person to
12

submit to a breath test, and if indicated, an additional blood test for the
purpose of testing for the presence of alcohol, abused substances, and
controlled dangerous substances. A refusal of any such test or tests shall
result in the suspension of driving privileges as provided by the
provisions of this Part. A physician, physician assistant, registered
nurse, licensed practical nurse, emergency medical technician, chemist,
nurse practitioner, or other qualified technician shall perform a
chemical test in accordance with the provisions of R.S. 32:664 when
directed to do so by a law enforcement officer.

....

(b) The law enforcement officer shall inform the person who is
required to submit to such testing of the consequences of a refusal to
submit to any testing as required by this Paragraph.

(c) Any person who refuses to submit to a chemical test as
required by the provisions of this Paragraph shall be fined not less than
three hundred dollars nor more than one thousand dollars and
imprisoned for not less than ten days nor more than six months.
Imposition or execution of sentence shall not be suspended unless:

(i) The offender is placed on probation with a minimum
condition that he serve two days in jail and participate in a court-
approved substance abuse program and participate in a court-approved
driver improvement program; or

(ii) The offender is placed on probation with a minimum
condition that he perform four eight-hour days of court-approved
community service activities, at least half of which shall consist of
participation in a litter abatement or collection program, participate in
a court-approved substance abuse program, and participate in a court-
approved driver improvement program. An offender who participates
in a litter abatement or collection program pursuant to this
Subparagraph shall have no cause of action for damages against the
entity conducting the program or supervising his participation therein,
including a municipality, parish, sheriff, or other entity, nor against any
official, employee, or agent of such entity, for any injury or loss
suffered by him during or arising out of his participation in the program,
if such injury or loss is a direct result of the lack of supervision or act
or omission of the supervisor, unless the injury or loss was caused by
the intentional or grossly negligent act or omission of the entity or its
official, employee, or agent.

(2) In all cases other than those in Paragraph (1) of this
Subsection, a person under arrest for a violation of R.S. 14:98, 98.1, or
other law or ordinance that prohibits operating a vehicle while
intoxicated may refuse to submit to such chemical test or tests, after

13

being advised of the consequences of such refusal as provided for in
R.S. 32:661(C), subject to the following:

(a) His license shall be seized under the circumstances provided
in R.S. 32:667.

(b) If he is a resident without a license or permit to operate a
motor vehicle in this state, the department shall deny the issuance of a
license or permit to such person for a period of six months after the date
of the alleged violation.

(c) Evidence of his refusal shall be admissible in any criminal
action or proceeding arising out of acts alleged to have been committed
while the person, regardless of age, was driving or in actual physical
control of a motor vehicle upon the public highways of this state while
under the influence of alcoholic beverages or any abused substance or
controlled dangerous substance as set forth in R.S. 40:964.
Additionally, evidence of his refusal shall be admissible in any criminal
action or proceeding arising out of acts alleged to have been committed
while the person under twenty-one years of age was driving or in actual
physical control of a motor vehicle upon the public highways of this
state after having consumed alcoholic beverages. However, such
evidence shall not be admissible in a civil action or proceeding other
than to suspend, revoke, or cancel his driving privileges.

(3) In all cases where a person is under arrest for a violation of
R.S. 14:98, 98.1, or other law or ordinance that prohibits operating a
vehicle while intoxicated who refuses to submit to a chemical test or
tests if he has refused to submit to a chemical test on two previous and
separate occasions of any previous such violation shall be advised that
the consequences of such refusal shall be subject to criminal penalties
under the provisions of R.S. 14:98.2.

In State v. Weber, 13-1851, p. 2 (La. 5/30/14), 139 So.3d 519, 521, the

Louisiana Supreme Court stated:

When an accident involving motor vehicles results in a fatality,
the police need not have reasonable grounds to suspect that alcohol or
drugs were involved to order a chemical test of the operator’s blood,
urine, or other bodily substances, as to which the operator of the vehicle
is deemed by law to give his consent. La. R.S. 32:681 (A). The officer
authorizing the test must, however, have reasonable grounds to believe
the person to have been driving or in actual physical control of a motor
vehicle upon the public highways of this state. La. R.S. 32:681 (B).

14

In State v. Watts, 14-429 (La.App. 1 Cir. 11/21/14), 168 So.3d 441, writ

denied, 15-146 (La. 11/20/15), 180 So.3d 315, the defendant argued that the trial

court erred in ruling he lawfully submitted to a blood alcohol test. He argued that

pursuant to La.R.S. 32:666, prior to the 2012 amendment thereto, he had the right to

refuse to submit to the blood test because there was no probable cause to believe he

was operating a motor vehicle under the influence of alcoholic beverages at the time

of the accident that killed the driver of the vehicle he struck. The first circuit, noting

there were signs of impairment, discussed La.R.S. 32:681 and found that once police

determined on the scene that defendant was the driver of the truck and a fatality had

occurred, police had reasonable grounds to order defendant’s blood drawn for

analysis. The court stated, “Defendant, as the operator of the vehicle, was ‘deemed

to have given consent’ to the blood test, and the trial court did not err in ruling that

he lawfully submitted to the test.” Id. at 450.

In the instant case, by virtue of La.R.S. 32:681, Defendant, as the operator of

a vehicle involved in a collision resulting in a fatality, is deemed to have given

consent to the blood test conducted. Additionally, under La.R.S. 32:666, Defendant

could not refuse testing. Furthermore, the penalties set forth in La.R.S. 32:666 for

refusal to submit to testing are inapplicable to Defendant. The forms signed by

Defendant list no consequences other than suspension of Defendant’s driver’s

license, and the license revocation procedure is a civil matter. State v. Page, 332

So.2d 427 (La.1975). Moreover, there was no direct testimony by Tagliarino or

Sergeant Raines that they informed Defendant of any penalty regarding implied

consent or refusal to submit to chemical testing. For these reasons, we find the

Supreme Court’s ruling in Birchfield is inapplicable to this matter.

15

The testimony of both Tagliarino and Sergeant Raines did not contain any

evidence that Defendant’s consent in this matter was involuntary. However, as

previously noted, verbal or written consent to testing is not necessary under La.R.S.

32:666 and La.R.S. 32:681.

The trial court did not abuse its discretion in denying Defendant’s motion to

suppress. Accordingly, Defendant’s writ application is denied.

WRIT DENIED.

16