Cole v. State of La., Dept. of Public Safety, Driver's License Div.

• Decision Date: 28 October 1987
• Docket Number: No. 19061-CA,19061-CA
• Citation: 514 So.2d 1205
• Parties: Terry Lee COLE, Plaintiff-Appellee, v. STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY, DRIVER'S LICENSE DIVISION, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1205

514 So.2d 1205

Terry Lee COLE, Plaintiff-Appellee, v. STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY, DRIVER'S LICENSE DIVISION, Defendant-Appellant.

No. 19061-CA.

Court of Appeal of Louisiana Second Circuit.

Oct. 28, 1987.

James R. Phillips, Bossier City, for defendant-appellant.

Arceneaux & Bookter by M. Thomas Arceneaux, Shreveport, for plaintiff-appellee.

Before FRED W. JONES, Jr., SEXTON and LINDSAY, JJ.

LINDSAY, Judge.

This case involves the suspension of a driver's license pursuant to LSA-R.S. 32:661, et seq. The Department of Public Safety, Driver's License Division ("the Department"), filed this appeal complaining of the district court's reversal of an administrative decision which upheld the Department's suspension of the petitioner's driving privileges. For the following reasons, we affirm the trial court judgment.

The petitioner, Terry Lee Cole, was arrested on July 28, 1984, for driving while intoxicated. He submitted to a chemical test by photo electric intoximeter (PEI), which registered a blood alcohol level of .10 percent or above by weight of alcohol in the blood. Consequently, the Department suspended the petitioner's driver's license for ninety days under the provisions of LSA-R.S. 32:667. The petitioner timely applied for an administrative hearing to review the order of suspension. The hearing was held on September 4, 1984. Following the hearing, the suspension was affirmed, effective September 15, 1984. On September 21, 1984, the petitioner filed a petition in the district court seeking judicial review of the administrative decision.

The district court reversed, and ordered that petitioner's driver's license be reinstated. The trial court found that the Department of Public Safety had failed to carry its burden of proof to show the basis for the blood alcohol test results of .10 percent or above by weight of alcohol in the blood. LSA-R.S. 32:668(A)(4). The trial court held that the Department failed to prove that it followed its own promulgated procedures and requirements for admission of the PEI test results as required by Mullens v. Department of Public Safety, Driv. Lic. D., 327 So.2d 492 (La.App.4th Cir.1976), writ denied 331 So.2d 851 (La.1976). The court held that, "The Department of Public Safety has the burden of proving that Terry Cole submitted to an approved chemical test and that the test resulted in a blood alcohol reading of .10% or above by weight of alcohol in the blood. The Department failed in this regard."

The Department filed a suspensive...