OWI Laws in Louisiana

THE OFFENSE

Operating a vehicle while intoxicated (OWI)

LSA-R.S. 14:98

Operating is broader than driving. The jurisprudence generally holds that in order to operate a motor vehicle, the driver must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion. It is not necessary that these actions have any effect on the engine, nor is it essential that the car move in order for the state to prove the element of operation. State v. Presson, 43,215 (La. App. 2 Cir. 6/4/08), 986 So. 2d 843, 848; State v. Rossi, 98-1253 (La. App. 5 Cir. 4/14/99), 734 So. 2d 102, 102-03, writ denied, 99-0605 (La. 4/23/99), 742 So. 2d 886; State v. Johnson, 580 So.2d 998, 1001 (La. App. 3d Cir.1991); City of Bastrop v. Paxton, 457 So.2d 168 (La. App. 2d Cir.1984).

A vehicle is any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance.

A driver is intoxicated when any of the following conditions exist:

• under the influence of alcoholic beverages
• blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood
• under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V
• under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription
• (It is an affirmative defense that the label on the container of the prescription drug or the manufacturer's package of the drug does not contain a warning against combining the medication with alcohol.)
• under the influence of one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription
• (It is an affirmative defense that driver did not knowingly consume quantities of the drug or drugs that substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug)

Child Endangerment Enhancement:

If passenger 12 years or younger, mandatory minimums shall not be suspended.

Enhancement (predicates):

Prior conviction includes:

• Vehicular homicide – LSA-R.S. 14:32.1
• Third degree feticide – LSA- R.S. 14:32.8
• Vehicular negligent injuring – LSA-R.S. 14:39.1
• First degree vehicular negligent injuring – LSA-R.S. 14:39.2
• OWI/DUI/DWI violation in any state, municipality, town, or similar political subdivision

The above listed offenses CANNOT be used for enhancement purposes if committed more than 10 years prior to the commission of current offense. The time during which the individual was awaiting trial, under an order of attachment for failure to appear, or on probation or parole, or periods of time during which an individual was incarcerated in a penal institution in this or any other state for any offense shall be excluded in computing the 10 year period.

Underage:

LSA-R.S. 14:98.6

OWI when operator is under age 21

AND

BAC is 0.02 or more

THE PENALTIES

1ST:

LSA-R.S. 14:98.1

Fine – $300.00 to $1,000.00

AND

10 days to 6 months incarceration

Sentence may be suspended if driver is placed on probation AND following conditions:

• 48 hours in jail OR 32 hours of community service (½ in litter abatement)
• Court approved substance abuse program
• Court approved driver improvement program

Court may order ignition interlock device (IID)

BAC 0.15 to 0.20:

At least 48 hours shall be served without the benefit of parole, probation, or suspension of sentence

BAC 0.20 or more:

Fine $750.00 to $1,000.00

AND

At least 48 hours shall be served without the benefit of parole, probation, or suspension of sentence

Any jail time may be served under home incarceration

2ND:

LSA-R.S. 14:98.2

Fine – $750.00 to $1,000.00

AND

Remainder of sentence may be suspended if driver is placed on probation AND following conditions:

• 15 days in jail OR 240 hours of community service (½ in litter abatement)
• Court approved substance abuse program
• Court approved driver improvement program
• IID for not less than 6 months from the date of conviction

BAC 0.15 – 0.20:

At least 96 hours shall be served without the benefit of parole, probation, or suspension of sentence

BAC 0.20 or more:

Fine – $1,000.00

AND

At least 96 hours shall be served without the benefit of parole, probation, or suspension of sentence

Any jail time may be served under home incarceration

3RD:

LSA-R.S. 14:98.3

Fine – $2,000.00

AND

1 to 5 years incarceration; 1 year without the benefit of parole, probation, or suspension of sentence

Mandatory minimum (1 year):

May be served on home incarceration if recommended by the Department of Public Safety and Corrections, Probation and Parole Division (DPSC) OR the district attorney. May be suspended if defendant is in a rehabilitative (drug, alcohol, sobriety) court.

Vehicle being driven at time of arrest may be seized and sold at auction

Remainder of sentence may be suspended if driver is placed on probation (not more than 5 years) AND following conditions:

• Remainder of sentence may be suspended if driver is placed on probation (not more than 5 years) AND following conditions:
• Obtain employment
• Court approved driver improvement program
• Evaluation by the Department of Health and Hospitals, office of behavioral health, and participate in recommended treatment plan

OR

Participate in substance abuse treatment through a rehabilitative (drug, alcohol, or sobriety) court

• Home incarceration for a minimum of 6 months

IID must remain until completion of substance abuse treatment and home incarceration or, if applicable, the requirements of the rehabilitative (drug, alcohol, sobriety) court.

4TH:

LSA-R.S. 14:98.4 or subsequent

Fine – $5,000.00

AND

10 to 30 years incarceration; 2 years without the benefit of parole, probation, or suspension of sentence

Mandatory minimum (2 years ):

May be served on home incarceration if recommended by DPSC OR the district attorney. May be suspended if defendant is in a rehabilitative (drug, alcohol, sobriety) court.

Mandatory minimum is 3 years if defendant previously participated in a rehabilitative (drug, alcohol, sobriety) court in connection with a prior OWI.

Vehicle being driven at time of arrest may be seized and sold at auction.

Remainder of sentence may be suspended if driver is placed on probation (5 years) AND following conditions:

• 320 hours of community service
• Obtain employment
• Court approved driver improvement program
• Evaluation by the Department of Health and Hospitals, office of behavioral health, and participate in recommended treatment plan

OR

Participate in substance abuse treatment through a rehabilitative (drug, alcohol, or sobriety) court

• Home incarceration for entirety of supervised probation.

IID must remain until completion of substance abuse treatment and home incarceration or, if applicable, the requirements of the rehabilitative (drug, alcohol, sobriety) court.

Underage:

LSA-R.S. 14:98.6

1st:

Fine – $100.00 to $250.00

AND

10 days to 3 months incarceration

Sentence may be suspended if driver is placed on probation with minimum conditions:

• 32 hours community service (½ in litter abatement)
• Court approved substance abuse program
• Court approved driver improvement program

May serve jail time under home incarceration

2nd:

Fine – $250.00 to $500.00

AND

30 days to 6 months incarceration

Sentence may be suspended if driver is placed on probation with minimum conditions:

• 48 hours in jail OR 80 hours of community service (½ in litter abatement)
• Court approved substance abuse program
• Court approved driver improvement program

May serve jail time under home incarceration

Court may order IID

REFUSAL TO SUBMIT TO CHEMICAL TESTS

LSA-R.S. 14:98.7 (criminal) and LSA-R.S. 32:666 (administrative)

Criminal consequences:

Cannot refuse to submit to chemical test if 2 previous and separate refusals

Fine – $300.00 to $1,000.00

AND

10 days to 6 months incarceration

Sentence may be suspended if driver is placed on probation with minimum conditions:

• 2 days in jail or 32 hours of community service (½ in litter abatement)
• Court approved substance abuse program
• Court approved driver improvement program

Administrative (DL) consequences:

May not refuse to submit to a chemical test or tests if 2 prior and separate refusals

OR

Where a fatality has occurred

OR

Where a person has sustained serious bodily injury (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).

Refusal under these circumstances will result in the criminal penalties described above.

In all other cases, an individual may refuse subject to the following:

• DL will be seized and driving privileges will be suspended for 1 year on 1st refusal (without eligibility for a restricted DL if fatality or serious bodily injury).
• 2 years on 2nd and subsequent refusal occurring within 10 years of previous refusal (without eligibility for a restricted DL if fatality or serious bodily injury).
• If Louisiana resident without a DL, DPSC will deny the issuance of a DL or permit for 6 months after the date of the alleged violation
• Evidence of refusal is admissible in any criminal proceeding

IMPLIED CONSENT

LSA-R.S. 661

Motor vehicles (article 661), watercraft (article 661.1), and locomotive (article 661.2)

"Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent … 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 … 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 … ."

Toxicology screen on victim(s) in all traffic fatalities

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 and the test or tests may be administered.

PRESUMPTIONS (PER SE):

LSA-R.S. 32:662

Age 21 and over:

• BAC of 0.05 or less – not under the influence of alcoholic beverages
• BAC of 0.05 to 0.08 – no presumption but may be considered
• BAC of 0.08 or more – under the influence

Under age 21:

• BAC of 0.02 or more – under the influence of alcoholic beverages
• BAC based upon grams of alcohol per one hundred cubic centimeters of blood.

Individuals measured through breath shall be afforded the timely option of a blood test

VALIDITY OF TEST OR TESTS:

LSA-R.S. 32:663

Must be performed according to methods approved and promulgated by the DPSC

AND

Performed by an individual or laboratory, including out of state, possessing a valid permit issued by the DPSC

The DPSC may use an individual's or a laboratory's certification by one or more of the following professional organizations in its determination of the qualifications and competence of individuals prior to the issuance of a permit:

1. College of American Pathologists (CAP)
2. American Board of Forensic Toxicology (ABFT)
3. Forensic Quality Services (FQS)
4. American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)
5. American Association for Laboratory Accreditation (A2LA)

Issuance of a permit to such a certified individual or laboratory makes all laboratory forensic test results conducted on a person's blood, urine, or other bodily substance by such individual or laboratory valid, admissible and competent evidence of intoxication in any court of law or administrative hearing.

BLOOD TEST STATUTE:

LSA-R.S. 32:664

Only by a physician, physician assistant, registered nurse, licensed practical nurse (only pursuant to a subpoena or court order), emergency medical technician, chemist, nurse practitioner, or other qualified technician.

Driver may request independent test at his/her cost

No criminal or civil liability for qualified individual or hospital at which individual is employed

RESULTS OF CHEMICAL TEST OR TESTS:

LSA-R.S. 32:665

Available to operator or his attorney upon request

ADMINISTRATIVE (DL SUSPENSION) HEARINGS:

LSA-R.S. 32:667-668

Upon arrest for OWI, arresting officer shall seize operator's DL and issue a temporary receipt of license which serves as a temporary DL and notice to operator that he/she has 30 days to apply for an administrative hearing. Upon receipt by DPSC of request for hearing, temporary DL will be extended until completion of administrative proceedings.

Hearing conducted by administrative law judge and based upon DPSC records or other evidence admitted at the hearing except that no law enforcement officer shall be compelled to appear or testify

Scope of hearing:

• Whether a law enforcement officer had reasonable grounds to believe 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 abused substance or controlled dangerous substance
• Whether the person was placed under arrest
• Whether he/she was advised by the officer
• Constitutional rights under Miranda v. Arizona
• That driving privileges can be suspended for refusing to submit to the chemical test
• That driving privileges can be suspended if submit and results show BAC of 0.08 percent or above or, if under age 21, BAC of 0.02 percent or above
• That driving privileges can be suspended if submit and results show the presence of any controlled dangerous substance
• The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest
• That refusal to submit if 2 prior and separate refusals is a crime and the penalties are the same as the penalties for first conviction of OWI
• 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
• Whether he refused to submit to the test upon the request of the officer
• 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
• If dissatisfied with administrative result, can file a petition in district court for de novo review

Discovery:

LSA-R.S. 32:668.1

Can take place; but CANNOT depose law enforcement witnesses

ADMINISTRATIVE SUSPENSION (ARREST):

LSA-R.S. 32:667

If suspension is affirmed by administrative law judge OR no request is made for an administrative hearing:

• 1st submit AND BAC of 0.08 or above – 90 days; eligible for restricted DL after 30 days
• 2nd and subsequent submit (within 5 years of 1st submit) – 365 days without eligibility for a restricted DL
• 1st submit AND under age 21 AND BAC of 0.02 or more – 180 days
• 1st submit AND BAC of 0.20 or more – 2 years – eligible for restricted DL during entirety of suspension with IID for 1st 12 months
• 2nd submit AND BAC of 0.20 or more – 4 years – eligible for restricted DL during entirety of suspension with IID for 1st 3 years

Eligible for restricted DL with IID on 1st or 2nd offense on refusal or BAC of less than 0.20

Any suspension relative to a conviction for an offense arising out of the same occurrence shall run concurrently with administrative suspension

If no conviction (dismissal or acquittal), DL will be immediately reinstated

Vehicular Homicide:

LSA-R.S. 32:667.1

If a written request is not made within the 15 days OR district court affirms the administrative suspension, the operator's DL shall be suspended for 1 year, without benefit of eligibility for a hardship license.

Scope of contradictory hearing:

Whether a chemical test was performed (blood, urine, or other bodily substance)

AND

Whether the test indicates the PRESENCE of alcohol, an abused substance, a controlled dangerous substance, or any other substance which causes impairment

2 years if convicted (following release from incarceration) with credit for suspension time prior to conviction

Nonresident drivers:

LSA-R.S. 32:669

DPSC will notify nonresident driver's state of residence and any state in which he/she has a DL to report a refusal and/or a Louisiana suspension.

Underage submits:

LSA-R.S. 32:670

BAC submit of 0.02 to 0.08 shall not be included on official driving record

SUSPENSION (CONVICTIONS):

LSA-R.S. 32:414

Upon conviction:

• 12 months for 1st (if refusal or BAC 0.08 or less) – eligible for restricted DL with IID
• 2 years for 1st (if BAC 0.20 or more) – eligible for restricted DL for entire period of suspension with IID for first 12 months
• 4 years for 2nd (if BAC 0.20 or more) – eligible for restricted DL after 45 days for remainder of suspension period with IID for first 3 years
• 36 months for 3rd or subsequent (if within five years from date of 1st to date of 3rd) – eligible for restricted DL after 12 months with IID and must remain for at least 6 months
• 3rd or 4th offense – if enrolled and in good standing in rehabilitative (drug, alcohol, or sobriety) court, eligible for restricted DL after 45 days with IID

ADMISSIBILITY OF CERTIFICATES:

LSA-R.S. 32:662.1

In all criminal cases where intoxication is an issue, any certificate or writing made in accordance with the procedures promulgated by the DPSC, including but not limited to intoxilyzer instrument recertification forms, and other certificates or writings made with respect to the chemical analyses of a person's blood, urine, breath, or other bodily substance, shall be admissible as evidence.

COMMERCIAL DRIVER'S LICENSE:

LSA-R.S. 32:414.2

1 year disqualification if:

• First submit with BAC of .04 or more or under the influence of controlled dangerous substances
• 1st conviction (OWI)
• 1st refusal

Lifetime disqualification if:

• 2nd submit with BAC of .08 or more OR under the influence of controlled dangerous substances
• 2nd conviction (OWI)
• 2nd refusal

Conviction includes:

• Failure to request an administrative hearing
• Affirmed suspension after an administrative hearing
• Guilty after trial – "unvacated adjudication"
• Unvacated bond forfeiture
• Guilty or no contest plea (even if conviction set aside or dismissed pursuant to LSA-C.Cr.P. article 894)
• Payment of fine or court costs
• Violation of a condition of release without bail, regardless of whether the penalty is rebated, suspended, or probated
• Pre-trial diversion/intervention

Includes offenses in Louisiana or any other state

Not imposed if conviction set aside or dismissed after appeal

No restricted CDL

EXPUNGEMENT

LSA-C.Cr.P. Art. 894 and LSA-C.Cr.P. Art. 971 et seq

Statutory law allows for deferral of sentence in certain misdemeanors, including OWI 1st and 2nd. If sentence is deferred and individual successfully completes conditions of probation, can file for expungement (removal from public view with exceptions) but never destruction. Even if expunged can still be used as a predicate.

LOUISIANA DRIVERS LICENSE COMPACT

LSA-R.S. 32:1420 et seq

The DPSC will report OWI convictions occurring in Louisiana to the licensing authority of the home state of the licensee.

The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported as it would if such conduct had occurred in the home state.

LINKS

Louisiana Highway Safety Commission www.lahighwaysafety.org

Louisiana Office of Motor Vehicles www.omv.dps.state.la.us

Louisiana State Bar Association www.lsba.org

Louisiana Supreme Court www.lasc.org