The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
25-689
JOSEPH G. RICHARD
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY &
CORRECTIONS, OFFICE OF MOTOR VEHICLES
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2025-2114
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE
**********
SHANNON J. GREMILLION
JUDGE
**********
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Sharon Darville
Wilson, Judges.
Pickett, C.J., dissents and assigns written reasons.
AFFIRMED.
Harrietta J. Bridges
Attorney at Law
7979 Independence Boulevard, Suite 307
Baton Rouge, LA 70806
(225) 922-2311
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, Department of Public Safety & Corrections, Office
of Motor Vehicles
Fred C. LeBleu, III
Andrew T. Leonards
Adam P. Johnson
The Johnson Firm
P.O. Box 849
Lake Charles, LA 70602
(337) 433-1414
COUNSEL FOR PLAINTIFF/APPELLEE:
Joseph G. Richard
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GREMILLION, Judge.
The defendant-appellant, the Louisiana Department of Public Safety and
Corrections (DPSC), Office of Motor Vehicles (OMV), appeals the judgment of the
trial court overturning the administrative hearing officer’s suspension of the
plaintiff’s Class E driver’s license for failure to consent to a chemical test after an
arrest for operating a vehicle while intoxicated. For the reasons that follow, we
affirm.
FACTS
While on patrol just before midnight on November 2, 2024, Louisiana State
Trooper Austen Wright clocked a northbound vehicle on Highway 171 in Calcasieu
Parish traveling twenty-two miles per hour over the posted speed limit. Trooper
Wright pursued the vehicle. While in pursuit, he observed the vehicle commit
several other traffic offenses, including twice failing to activate a turn signal before
turning, failing to stop at a stop sign, and speeding at a rate of fifty-one miles an hour
on a road with a posted speed limit of twenty-five miles per hour. When Trooper
Wright activated his emergency lights to have the vehicle pull over, the driver,
Joseph Richard continued driving several blocks until he pulled into his driveway
and stopped his vehicle.
Once stopped, Trooper Wright noticed behavior that made him suspect
Richard was intoxicated: he swayed from side to side while walking, he used his
vehicle to steady himself, and his speech was slurred. Trooper Wright also noticed
Richard’s eyes were red and glassy, and he noticed a strong smell of alcohol on his
breath. Because Richard had a disability from a work injury, Trooper Wright was
only able to administer a horizontal gaze nystagmus (HGN) test. After conducting
this test, Trooper Wright determined that Richard was impaired and arrested Richard
for operating a vehicle while intoxicated.
Trooper Wright asked Richard to submit to a chemical test (Intoxilyzer 9000),
but Richard refused the test. Trooper Wright seized Richard’s license for failure to
submit to a chemical test pursuant to La.R.S. 32:667. To preserve the ability to
contest the suspension of his license, Richard requested administrative review of the
suspension within thirty days of his arrest as required by La.R.S. 32:668.
The administrative hearing was held on March 26, 2025. At that hearing,
Richard introduced a letter from the Calcasieu Parish District Attorney’s Office
indicating that the district attorney had refused to charge Richard for a violation of
La.R.S. 14:98. Richard argued that because the charge for DWI related to his arrest
would not be prosecuted, the DPSC did not have the authority under La.R.S.
32:667(H)(1)(a) to suspend Richard’s license, citing In re Lafleur, 12-1227 (La.App.
3 Cir. 3/6/13), 129 So.3d 540.
Pursuant to La.R.S. 32:668(A), the scope of this administrative hearing was
limited to the following issues:
(1) Whether a law enforcement officer had reasonable grounds to
believe that the person, regardless of age, had been driving or was in
actual physical control of a motor vehicle upon the public highways of
this state, or had been driving or was in actual physical control of a
motor-powered watercraft upon the public navigable waterways of this
state, while under the influence of either alcoholic beverages or any
drug, combination of drugs, or combination of alcohol and drugs.
(2) Whether the person was placed under arrest.
(3) Whether he was advised by the officer as provided in R.S. 32:661.
(4) Whether he voluntarily submitted to an approved chemical test and
whether the test resulted in a blood alcohol reading of 0.08 percent or
above by weight, or of 0.02 percent or above if he was under the age of
twenty-one years on the date of the test.
(5) Whether he refused to submit to the test upon the request of the
officer.
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(6) Such additional matters as may relate to the legal rights of the
person, including compliance with regulations promulgated by the
Department of Public Safety and Corrections and rights afforded to the
person by law or jurisprudence.
The hearing officer found that Trooper Wright had reasonable grounds to believe
Richard was operating his vehicle on a public highway while intoxicated. Richard
was placed under arrest. The hearing officer further found that Richard was advised
of his rights and the consequences of his failure to submit to a chemical test when
Trooper Wright read the same from the approved form provided by DPSC. Richard
did not submit to a chemical test; thus, the fourth question was deemed inapplicable
and the fifth question deemed proven.
As to the sixth factor, the hearing officer acknowledged the evidence
submitted by Richard that the district attorney had refused to charge Richard with
DWI. In his reasons for ruling, the hearing officer stated:
Counsel for Respondent’s reliance on the reinstatement
provisions of La.R.S. 32:667(H)(1)(a) is misplaced. This tribunal has
no jurisdiction over the reinstatement of driving privileges as required
by that statute. This tribunal’s sole inquiry is whether the suspension
of driving privileges by DPS was proper at the time those driving
privileges were suspended. The issue of reinstatement of those driving
privileges falls under the umbrella of issues that a district court has
jurisdiction over. The issue of suspension of driving privileges, which
is tasked to this tribunal, is distinct from the issue of the reinstatement
of those driving privileges. It is why the Lafleur court made special
mention of that distinction in its decision and did not comment on the
validity of the administrative law judge’s decision to affirm the
suspension by DPS.
It follows that the underlying suspension’s validity, and
consequently the relevance of the instant hearing, is not affected by the
dismissal or other disposition of criminal charges. The suspension,
when upheld by the administrative tribunal, may be used to enhance
any future suspensions of Respondent’s driving privileges if he is
arrested for future DWIs, even though Respondent may be eligible to
have his driving privileges reinstated.
Richard filed an Application for Judicial Review of the hearing officer’s
ruling pursuant to La.R.S. 32:668(C). The district court issued an order staying the
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enforcement of the suspension pending judicial review. The district court conducts
a de novo review of the findings of the hearing officer. Clark v. Louisiana Dep’t of
Pub. Safety, 13-1431 (La.App. 3 Cir. 5/17/14), 139 So.3d 635. At the hearing in the
district court, OMV called Trooper Wright to the stand to testify to the circumstances
surrounding Richard’s arrest and his refusal of the chemical test. During the cross-
examination of Trooper Wright, Richard introduced the response to the public
records request from the Calcasieu Parish District Attorney’s Office. The letter
related to the charges against Richard states as follows:
DA File No. 019-1355455; Arrest 11/03/2024: 14th JDC Docket
#18314-24
Charge: 32:61 Speeding
Status: Closed – Charge dismissed with cost 01/24/2025
Charge: 32:104 Failure to Use Signal
Charge: Failure to Stop at Stop Sign
Status: Closed – Charge dismissed 01/14/2025
Charge: 14:98 Operating a Vehicle While Intoxicated
Status: Closed – Charge refused 12/11/2024
Richard argued that La.R.S. 32:667(H)(1)(a) mandates that his license be reinstated
because the charges against him did not result in a conviction, guilty plea, or bond
forfeiture.
OMV argued that the suspension should be upheld. It further argued that
Richard should be required to install an ignition interlock device as a condition of
reinstatement of his license pursuant to La.R.S. 32:667(I)(1)(a) as amended by 2024
La.Acts, 2d Ex.Sess., No. 9, § 2, which became effective July 1, 2024.
At the conclusion of the hearing, the district court gave oral reasons for his
ruling:
The Court is reinstating Mr. Richard’s license for these reasons:
I do not find that his arrest was prosecuted. There is no
conviction of record, there is no plea of guilty, and there has been no
bond forfeiture. Under 32:667H.(1)(a), he is entitled to a reinstatement
by the written law. The Court is bound by In Re Lafleur, 129 So.3rd,
540, it’s already been mentioned. And it is exactly on point if the
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underlying arrest does not result in conviction, then there is no other
course of action for the State, for the Department of Public Safety with
regard to any suspension, because there is no suspension. Without
suspension, you don’t get interlock, without suspension you don’t get
any fees, costs, or whatsoever. It’s as if the arrest did not happen.
As to the particular 668 areas, the Court must review as part of
this de novo review, we will go through them. I do believe that under,
one, Trooper Wright had reasonable grounds to believe that Mr.
Richard was driving a vehicle on a public highway and was driving
under the influence. He put on his testimony, and I found his testimony
credible. He saw speeding, he saw some left turns.
Now, without -- just that by itself would not be suspected DWI;
but with the odor that Trooper Wright detected with the positive HGN
test, that would be sufficient for the Court. So I find that at least there
was reasonable grounds to suspect that he was drinking while driving.
He was placed under arrest. That is Category 2. There is no debate
about that. That is a fact, he was arrested. And whether he was advised
as right as 661 of his right, the Court finds that Mr. Richard was advised
of his rights. We had a refusal. We have Exhibit 1; and we have Exhibit
2, in globo, State in globo; and we have the credible testimony of
Trooper Wright as to that point. Whether he voluntarily submitted, that
is Category 4, we have testimony. We already stated, he refused. And
then, of course, five, he did refuse to submit to the test. And with
Trooper Wright stating his words of why he was refusing with the
difficulty of the forms.
Now, as to six, such additional matters as may relate to the legal
rights of the person. That’s clearly what the Court is interpreting under
H.(1). These charges were not prosecuted. So the State -- the
department is asking that despite an arrest, which is just merely a
probable cause determination; and then the prosecutor makes the
decision whether to proceed to a conviction which they didn’t, doesn’t
invalidate the arrest, it just makes it null and void. Mr. Richard is
restored to his rights as existed before he was arrested.
That is the such additional matters as the Court is reviewing and
interpreting under 6. For the life of me, I don’t see how anybody has
interpreted H.(1) without a conviction any other way. Whether that’s
the State department or ALJ, but that is for another day for the Court. I
don’t find with a proper record that the D.A.’s office did not prosecute
this case. This is a classic example of what the Court feels like someone
not bearing down, interpreting the statutes. You cannot get to
suspension. You cannot get to other rights. You cannot get to any
penalty of a person, who is not convicted for what they were arrested
for, and the statute says that. Yet, we are here.
The district court signed a judgment reinstating Richard’s driving privileges
and rescinding the proposed suspension. The judgment further ordered that Richard
5
was not required to install an ignition interlock device as a condition of
reinstatement.
OMV now appeals.
ASSIGNMENTS OF ERROR
OMV asserts two assignments of error:
1. The trial court erred in finding that the dismissal of the DWI charge
pursuant to La.R.S. 14:98 removed the mandatory suspension
conditions under La.R.S. 32:661 et seq., (Implied Consent Law)
because the charges did not result in a conviction, guilty plea, or bond
forfeiture.
2. The trial court erred by failing to adhere to the mandatory language set
forth in La.R.S. 32:667(I)(1)(a) regarding ignition interlock as a
condition of reinstatement.
DISCUSSION
On an appeal from a district court’s review of an administrative hearing
officer’s determination concerning a suspension of a driver’s license, we review the
findings of fact under the manifest error standard of review. Roland v. Louisiana
Dep’t of Pub. Safety & Corr., 24-865 (La. 5/9/25), 408 So.3d 926. We review
questions of law on a de novo basis. Id. In this case, the parties do not dispute the
operative facts. The only issue before this court is the correct interpretation and
application of La.R.S. 32:667(H)(1) and (I). Thus, we consider the matter de novo.
The Louisiana Implied Consent Law, La.R.S. 32:661(A)(1), states:
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 drug 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, any drug, combination of drugs,
or combination of alcohol and drugs.
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Any person arrested for a first-offense DWI who refuses to submit to a chemical test
is subject to a one-year suspension of his driving privileges. La.R.S.
32:667(B)(2)(a).
Louisiana Revised Statutes 32:667(H)(1)(a) states:
When any person’s driver’s license has been seized, suspended,
or revoked, and the seizure, suspension, or revocation is connected to a
charge or charges of violation of a criminal law, and the charge or
charges do not result in a conviction, plea of guilty, or bond forfeiture,
the person charged shall have his license immediately reinstated and
shall not be required to pay any reinstatement fee if at the time for
reinstatement of driver’s license, it can be shown that the criminal
charges have been dismissed or that there has been a permanent refusal
to charge a crime by the appropriate prosecutor or there has been an
acquittal. If, however, at the time for reinstatement, the licensee has
pending against him criminal charges arising from the arrest which led
to his suspension or revocation of driver’s license, the reinstatement fee
shall be collected. Upon subsequent proof of final dismissal or
acquittal, other than under Code of Criminal Procedure Article 893 or
894, the licensee shall be entitled to a reimbursement of the
reinstatement fee previously paid. In no event shall exemption from this
reinstatement fee or reimbursement of a reinstatement fee affect the
validity of the underlying suspension or revocation.
According to the evidence presented in the district court, it is undisputed that
Trooper Wright had reasonable grounds to believe that Richard was driving while
impaired, that he was arrested and charged with a violation of La.R.S. 14:98, and
that he refused to submit to a chemical test for intoxication. It is also undisputed that
the district attorney declined to prosecute Richard for DWI. The only issue before
this court is a legal determination: the application of La.R.S. 32:667(H)(1)(a) to the
facts of this case.
Trooper Wright properly seized Richard’s license on November 3, 2024,
according to the clear language of La.R.S. 32:667(A)(1), and he was issued a
temporary license. Because Richard requested an administrative hearing within
thirty days, he was entitled to a continuation of the temporary license pending the
disposition of the administrative process. La.R.S. 32:667(D). As noted above, the
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district court stayed the imposition of the suspension of Richard’s license pending
judicial review in the district court. Since the district court determined that Richard’s
license should not be suspended because the charge against him for DWI was
dismissed, his suspension never took effect.
OMV argues that La.R.S. 32:667(H)(1)(a) “refers only to the placement of
responsibility for the payment of the fees for reinstatement by establishing that a
person, who has put on proof that the criminal charges have been dismissed, will not
be required to pay the reinstatement fee.” We disagree. While the subsection does
address responsibility for fees, it also provides for the immediate reinstatement of
the license when there has been an acquittal or a permanent refusal to prosecute.
This circuit’s jurisprudence consistently holds to this interpretation. In
Brooks v. Louisiana Department of Public Safety & Corrections, 11-71 (La.App. 3
Cir. 6/1/11), 66 So.3d 1236, writ denied, 11-1977 (La.11/14/11), 75 So.3d 948,
Brooks, who held a commercial driver’s license, was arrested for DWI and his
commercial driver’s license was seized. Brooks’ charges were dismissed prior to
the administrative hearing. After his suspension was upheld, Brooks requested a
new trial arguing that La.R.S. 32:667 requires a conviction before suspension. The
trial court granted the new trial and ruled in Brooks’ favor. This court determined
that, “seizure of the driver’s license is mandated by subsection (A) upon his arrest.
The suspension under subsection (B) is premised upon the driver’s failure to request
an administrative hearing, or upon an adjudication that the license should be
suspended.” Id at 1238. Thus, Brooks was incorrect that a conviction was required
for a suspension. However, the court found that because the charges against Brooks
were dismissed by the district attorney, the State was required to immediately
reinstate his license under the plain terms of subsection (H). This reasoning was
followed in In re Lafleur, 129 So.3d at 546, where the court held,
8
The record indicates that Mr. Lafleur’s license was seized
pursuant to La.R.S. 32:667 after his arrest for operating a vehicle while
intoxicated. However, the district attorney declined to pursue criminal
charges against Mr. Lafleur on May 24, 2012. Accordingly, Mr.
Lafleur was entitled to reinstatement of his driving privileges pursuant
to La.R.S. 32:667(H)(1) at that time.
In Nunnally v State of Louisiana, Department of Public Safety and
Corrections, 95-356, (La.App. 3 Cir. 10/4/95), 663 So.2d 254, a driver refused
chemical testing. His privileges were suspended, and that suspension was upheld by
the administrative hearing officer. He then sought judicial review. The trial court
issued a restraining order against OMV during the pendency of the judicial review.
Also during the pendency of judicial review, the driver pleaded guilty to
driving while intoxicated. He was sentenced pursuant to La.Code Crim.P. art. 894,
which provides for suspension of sentence and unsupervised probation in
misdemeanor cases. He obtained an early termination of his probation and his
prosecution was dismissed. The trial court found that, given that his conviction was
set aside pursuant to La.Code Crim.P. art. 894, the driver’s license was required to
be reinstated.
This court construed La.R.S. 32:667(H)(1) in accordance with the rules
governing penal statutes. Thus, any doubt or ambiguity is resolved in favor of the
driver. The driver’s sentencing pursuant to La.Code Crim.P. art. 894 resulted in an
acquittal; therefore, his license was subject to immediate reinstatement.
Accordingly, we find that Richard’s license is subject to immediate
reinstatement.
OMV also argues that at the end of Richard’s period of suspension, he is
required to install an ignition interlock device on his vehicle pursuant to La.R.S.
32:667(I)(2). We disagree.
La.R.S. 32:667(I)(1)(a) provides:
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I. (1) In addition to any other provision of law, an ignition interlock
device shall be installed in any motor vehicle operated by any of the
following persons whose driver’s license has been suspended in
connection with the following circumstances as a condition of the
reinstatement of such person’s driver’s license:
Any person who has refused to submit to an approved chemical
test for intoxication, after being requested to do so, for a first, second,
or subsequent arrest of R.S. 14:98 or 98.6 or a parish or municipal
ordinance that prohibits operating a vehicle while intoxicated and
whose driver’s license has been suspended in accordance with law.
Suspension of driving privileges is not automatic upon an arrest for DWI.
Under La.R.S 32:667(A), once an arrest is made, the license is seized and a
temporary license is issued for a period of thirty days. Under La.R.S. 32:667(B), if
written request for a hearing is not made, then the license is suspended in accordance
with law. However, if a hearing is requested, the temporary license is extended
throughout the proceedings. La.R.S. 32:667(D)(1). Louisiana Revised Statutes.
32:667(E) (emphasis added) states, “The division of administrative law shall provide
for a hearing to determine suspension or revocation of driving privileges.” Thus,
prior to an adjudication, there is no underlying suspension, only a proposed
suspension. The hearing officer affirmed the suspension, but when Richard
requested judicial review with the trial court, the imposition of his suspension was
stayed. Therefore, his suspension never took effect. The trial court reversed the
decision of the hearing officer and ordered that the proposed suspension be recalled
and rescinded. Accordingly, he ordered that the ignition interlock device was not
required.
At the time of Richard’s hearing, the district attorney had already formally
refused his charges for DWI. Under La.R.S. 32:668(A)(6), the scope of the
administrative hearing includes “[s]uch additional matters as may relate to the legal
rights of the person, including compliance with regulations promulgated by the
Department of Public Safety and Corrections and rights afforded to the person by
10
law or jurisprudence.” Louisiana Revised Statutes 32:667(H) granted Richard the
legal right to an immediate reinstatement of his license when his charges were
refused. Accordingly, at the time of the initial hearing, there was no basis for
suspending Richard’s license, and no suspension should have been ordered. The
trial court was correct to reverse the order and recall the proposed suspension.
Louisiana Revised Statutes 32:667(I)(1)(a) applies to a person “whose
driver’s license has been suspended in accordance with law.” Because the proposed
suspension was recalled, Richard’s license was never suspended. At all points in
these proceedings, Richard was operating under a temporary license. No ignition
interlock requirement is imposed that is not connected to a suspension. If Richard’s
suspension had been affirmed and he later sought reinstatement because of a
subsequent refusal or dismissal of charges, then there would be an underlying
suspension with which to attach the requirements of La.R.S. 32:667(I). Accordingly,
because Richard’s license was not suspended, the installation of an ignition interlock
device is not required. Given that Richard’s license was never suspended there can
be no reinstatement or conditions for reinstatement. There was only a proposed
suspension which never became effective.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal in the amount
of $3,664.79 are assessed to the Louisiana Department of Public Safety and
Corrections, Office of Motor Vehicles.
AFFIRMED.
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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
25-689
JOSEPH G. RICHARD
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY &
CORRECTIONS, OFFICE OF MOTOR VEHICLES
Pickett, Chief Judge, dissents and assigns reasons.
I respectfully dissent. I agree that issue before this court is the correct
interpretation and application of La.R.S. 32:667(H)(1) and (I). Thus, we consider
the matter de novo.
As the majority points out, the Louisiana Implied Consent Law, La.R.S.
32:661(A)(1) states:
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 drug 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, any drug,
combination of drugs, or combination of alcohol and drugs.
Under the plain language of La.R.S. 32:667(B)(2), any person arrested for a first-
offense DWI who refuses to submit to a chemical test when an officer has a
reasonable grounds to believe that the person was intoxicated and had been driving
or had actual physical control of a vehicle is subject to a one-year suspension of his
driving privileges. The hearing officer determined that Trooper Wright had such
reasonable suspicion that Mr. Richard was operating his vehicle while intoxicated
and that Mr. Richard refused to submit to a chemical test. On de novo review, the
district court made the same finding – Trooper Wright had reasonable groounds to
believe that Mr. Richard was intoxicated and Mr. Richard refused the chemical
test.
Louisiana Revised Statutes 32:667(H)(1)(a) states:
When any person’s driver’s license has been seized, suspended,
or revoked, and the seizure, suspension, or revocation is connected to
a charge or charges of violation of a criminal law, and the charge or
charges do not result in a conviction, plea of guilty, or bond forfeiture,
the person charged shall have his license immediately reinstated and
shall not be required to pay any reinstatement fee if at the time for
reinstatement of driver’s license, it can be shown that the criminal
charges have been dismissed or that there has been a permanent
refusal to charge a crime by the appropriate prosecutor or there has
been an acquittal. If, however, at the time for reinstatement, the
licensee has pending against him criminal charges arising from the
arrest which led to his suspension or revocation of driver’s license, the
reinstatement fee shall be collected. Upon subsequent proof of final
dismissal or acquittal, other than under Code of Criminal Procedure
Article 893 or 894, the licensee shall be entitled to a reimbursement of
the reinstatement fee previously paid. In no event shall exemption
from this reinstatement fee or reimbursement of a reinstatement fee
affect the validity of the underlying suspension or revocation.
OMV argues that La.R.S. 32:667(H)(1)(a) “refers only to the placement of
responsibility for the payment of the fees for reinstatement by establishing that a
person, who has put on proof that the criminal charges have been dismissed, will
not be required to pay the reinstatement fee,” citing Perrodin v. Dep’t of Pub.
Safety & Corr., 98-1599 (La.App. 3 Cir. 6/2/99), 741 So.2d 809. In Perrodin, the
plaintiff was arrested for a second offense DWI seventeen months after his first
arrest. In both instances, he consented to chemical testing, which indicated a blood-
alcohol level higher than 0.10. Mr. Perrodin filed a rule to show cause why he
should not be issued a restricted license. His rule did not mention his previous
arrest for DWI. The trial court, relying on La.R.S. 44:9(B) (now repealed), which
related to the expungement of arrest records, was not applicable because La.R.S.
44:9(A) (also repealed) specifically excluded first and second offense DWI arrests
2
from its coverage. Judge Peters, in the opinion for the en banc court, stated that
“[i]n this case, we are only concerned with the effect of a suspension as a result of
the arrest.” Id. at 810. The court in Perrodin, quoting Murphy v. Dept. of Pub.
Safety, 93-1228 (La.App. 3 Cir. 5/4/94), 640 So.2d 546, 548 (citations omitted),
stated:
We must read Subs. H in conjunction with the other subsections
of La.R.S. 32:667. Subsection B(1) refers only to a suspension and
does not qualify that it be in conjunction with a conviction, guilty plea
or bond forfeiture. It states that on second suspensions there shall be
no hardship license issued for three hundred sixty five days. La.R.S.
32:414 and 415.1 are invoked upon conviction and sentence.
Subs. H contemplates that a person whose license has been
suspended will be entitled to have his license reinstated. It refers only
to placement of the responsibility for payment of the fees for
reinstatement. It simply establishes that a person who has put on proof
that the criminal charges have been dismissed, or there has been a
permanent refusal to charge a crime by the appropriate prosecutor, or
there has been an acquittal, will not be required to pay the
reinstatement fee. The last sentence of Subs. (H)(1) clearly establishes
that exemption from the reinstatement fee or reimbursement does not
affect the validity of an underlying suspension or revocation. The
legislature obviously did not intend to do away with the mandate that
a person whose license has been suspended for a second offense DWI
shall be denied restricted driving privileges.
I find that this court’s en banc opinion in Perrodin settles the issue before
us. I have reviewed the jurisprudence from this court and the supreme court cited
by the parties regarding the interpretation and application of La.R.S.
32:667(H)(1)(a) since this court’s opinion in Perrodin. I find that none of these
cases squarely present the issue that is before this court. Those cases either involve
the suspension of a commercial driver’s licenses, submission to a chemical test, a
failure to seek an administrative hearing after the arrest, or an acquittal after a trial.
“It is presumed the Legislature acts with full knowledge of well-settled
principles of statutory construction. It is also presumed that every word, sentence
or provision in a statute was intended to serve some useful purpose, that some
3
effect be given to each such provision, and that the Legislature used no
unnecessary words or provisions.” Sultana Corp. v. Jewelers Mut. Ins. Co., 03-360,
p. 9 (La. 12/3/03), 860 So.2d 1112, 1119 (citations omitted).
The majority is focused on the word “immediately” in Subsection H and
totally ignores the words “if at the time for reinstatement of driver’s license” in
concluding the driver is entitled to return of his driver's license with no suspension.
This renders the implied consent law meaningless. Their interpretation also renders
La.R.S. 32:667(H)(1)(a) meaningless.
The majority cites Brooks v. La. Dep’t of Pub. Safety & Corr., 11-71
(La.App. 3 Cir. 6/1/11), 66 So.3d 1236, writ denied, 11-1977 (La. 11/14/11), 75
So.3d 948, but that case is distinguishable because it involved the suspension of a
commercial driver’s license, not a Class E license. Further, Mr. Brooks submitted
to a chemical test which indicated a blood alcohol level above the legal limit. In
the case before us, the issue is the failure to submit to a chemical test.
Likewise, in Lafleur, 129 So.2d 540, the plaintiff also submitted to a
chemical test, so La.R.S. 32:667(B)(2) was not implicated. Again, the only issue in
that case was the suspension of Mr. Lafleur’s commercial driver’s license, not his
Class E license.
The final case cited by the majority is Nunnally v. State of Louisiana,
Department of Public Safety and Corrections, 93-356 (La.App. 3 Cir. 10/4/95),
663 So.2d 254. Nunnally was overruled by this court’s en banc opinion in
Perrodin.
Mr. Richard’s license was seized by Trooper Wright because he refused to
submit to a chemical test. Mr. Richard was charged with first-offense DWI. That
charge was dismissed. Applying Subsection H(1)(a), Mr. Richard “shall have his
license immediately reinstated and shall not be required to pay any reinstatement
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fee if at the time for reinstatement of driver’s license it can be shown that the
criminal charges have been dismissed.” Mr. Richard’s license was suspended
because he refused to consent to a chemical test. Louisiana Revised Statutes
32:667(B)(2)(a) does not include an exception for those whose charges are
dismissed. It is the refusal to take the test that triggers the suspension – not the
issue of guilt or innocence. As this court concluded in Perrodin, because he was
not prosecuted for DWI, Mr. Richard will not be required to pay a reinstatement
fee when he has completed his suspension. But he must serve his suspension. We
find merit in OMV’s first assignment of error.
As to the ignition interlock device, the relevant provisions of La.R.S.
32:667(I)(1)(a) are much clearer:
I. (1) In addition to any other provision of law, an ignition interlock
device shall be installed in any motor vehicle operated by any of the
following persons whose driver’s license has been suspended in
connection with the following circumstances as a condition of the
reinstatement of such person's driver’s license:
(a) Any person who has refused to submit to an approved chemical
test for intoxication, after being requested to do so, for a first, second,
or subsequent arrest of R.S. 14:98 or 98.6 or a parish or municipal
ordinance that prohibits operating a vehicle while intoxicated and
whose driver's license has been suspended in accordance with law.
I would find that, at the conclusion of Mr. Richard’s period of suspension of his
driver’s license, or sooner as described in La.R.S. 32:667(I)(2), Mr. Richard is
required to install an ignition interlock device on his vehicle.
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