Schott v. State, Through Dept. of Public Safety

• Decision Date: 07 February 1990
• Docket Number: No. 88-1014,88-1014
• Citation: 556 So.2d 999
• Parties: Robert A. SCHOTT, Plaintiff-Appellee, v. STATE of Louisiana, through DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant. 556 So.2d 999
• Court: Court of Appeal of Louisiana — District of US

Page 999

556 So.2d 999

Robert A. SCHOTT, Plaintiff-Appellee, v. STATE of Louisiana, through DEPARTMENT OF PUBLIC SAFETY,

Defendant-Appellant.

No. 88-1014.

556 So.2d 999

Court of Appeal of Louisiana, Third Circuit.

Feb. 7, 1990.

Elvin Fontenot, Jr., Leesville, for plaintiff-appellee.

Robert Roshton, Wayne R. Crouch, Paul Schexnayder, Baton Rouge, for defendant-appellant.

Before GUIDRY, STOKER and YELVERTON, JJ.

STOKER, Judge.

The Department of Public Safety has appealed the judgment of the trial court which granted a hardship license to the plaintiff, Robert A. Schott. The sole issue on appeal is plaintiff's entitlement to a hardship license.

Robert A. Schott was arrested and charged with driving while intoxicated, a violation of LSA-R.S. 14:98, on October 10, 1987. He was given his constitutional warnings and asked to submit to a breath test which he refused to do. Plaintiff's 30-day temporary license expired on November 9, 1987. Pursuant to LSA-R.S. 32:667 B(2), plaintiff's driving privileges were suspended for 180 days beginning November 10, 1987. Plaintiff then filed a petition for restricted driving privileges and a temporary restraining order in the district court pursuant to LSA-R.S. 415.1 A(1). On December 15, 1987 the Department was enjoined from any further suspension of plaintiff's driving privileges pending the outcome of the litigation. At the time the temporary restraining order was issued, the period during which plaintiff's license had been suspended was only 36 days. The parties stipulated that plaintiff has a definite economic necessity for a license.

On August 11, 1988 the trial court ordered judgment in favor of plaintiff granting him restricted driving privileges. The trial court's reasons for granting judgment in plaintiff's favor were economic necessity and reliance on Noustens v. State of Louisiana, Department of Public Safety, 524 So.2d 235 (La.App. 5th Cir.), writ denied, 531 So.2d 476 (La.1988). The Department has appealed the trial court's judgment.

The Department argues on appeal that plaintiff is not entitled to a hardship license because LSA-R.S. 32:668 B(1)(c) mandates that a person who has refused to submit to a test for intoxication is not eligible for a restricted license for the first 90 days of the suspension and plaintiff was not eligible after only 36 days. The Department asserts that the Noustens case is inapplicable to the case before us. Plaintiff maintains that the Noustens case is controlling.

As we read the statutes involved, LSA-R.S. 32:414, 32:415.1, 32:667 and 32:668, ¹ we find that two different circumstances are presented which determine the applicability of each. LSA-R.S. 32:414 and 415.1 are invoked upon conviction and sentence for DWI, while LSA-R.S. 32:667 and 668 come into play upon arrest for suspicion of DWI. They are parallel statutory schemes as we see it. LSA-R.S. 32:667 F provides that, "When a license has been suspended under the provisions of this Section and the person is also convicted of or pleads guilty to an offense arising out of the same occurrence, any suspension of license imposed for such offense shall run concurrently with the suspension provided by this Section and the total period of suspension shall not exceed the longer of the two periods." LSA-R.S. 32:414 and 668 clearly provide for two separate periods of suspension which may be imposed by the Department and the corresponding avenues to obtain relief from those suspensions are found in LSA-R.S. 32:415.1 and 668, respectively.

Plaintiff herein was not convicted of the offense with which he was charged and was simply under suspension pursuant to LSA-R.S. 32:667 B(2). LSA-R.S. 32:668 B(1)(c) renders one such as plaintiff ineligible for restricted driving privileges for the first 90 days of the 180-day period of suspension. Even under LSA-R.S. 32:668 C, which provides for judicial review of an order of suspension, the court may only order the Department to grant restricted driving privileges where appropriate under LSA-R.S. 32:668 B. Plaintiff is not eligible under LSA-R.S. 32:668 B for restricted driving privileges. We find that plaintiff is not entitled to relief under LSA-R.S. 32:415.1. See Bamburg v. State, Department of Public Safety, 499 So.2d 215 (La.App. 2d Cir.1986); Hendryx v. State, Department of Public Safety, 311 So.2d 547 (La.App. 3d Cir.1975); Spencer v. State, Department of Public Safety, 315 So.2d 912 (La.App. 4th Cir.1975); Allen v. State of Louisiana, Department of Public Safety 54 So.2d 207 (La.App. 2d Cir.1989), No. 20,972-CA on the docket of the Court of Appeal for the Second Circuit, State of Louisiana. We disagree with the rationale and holding of the Noustens case and decline to follow it.

We conclude and so hold that plaintiff was ineligible for restricted driving privileges at the time he petitioned the court below. The trial court erred in granting restricted driving privileges to plaintiff. Accordingly, we reverse and set aside the judgment of the trial court. Costs of this appeal are assessed to the plaintiff-appellee.

REVERSED.

1 The pertinent parts of those statutes are:

Sec. 414. Suspension, revocation, and cancellation of licenses; judicial review

A. (1) The department shall suspend the license of any person for a period of sixty days upon receiving, from any district, city, or municipal court having traffic jurisdiction, or from any federal court or magistrate having traffic jurisdiction, within the territorial limits of the state, satisfactory evidence of the conviction or of the entry of a plea of guilty or nolo contendere and sentence thereupon or of the forfeiture of bail of any such person charged with the first offense for operating a motor vehicle while under the influence of beverages of high alcoholic content, of...