State v. Eppinette
| Decision Date | 30 October 1985 |
| Docket Number | No. 17473-KW,17473-KW |
| Parties | STATE of Louisiana, Respondent, v. Charles W. EPPINETTE, Applicant. |
| Court | Court of Appeal of Louisiana — District of US |
Jerry Jones, Monroe, for applicant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, William R. Coenen, Jr., Dist. Atty., Terry A. Doughty, Asst. Dist. Atty., Rayville, for respondent.
Before HALL, FRED W. JONES and SEXTON, JJ.
Defendant, Charles W. Eppinette, was found guilty as charged in a bench trial of driving while intoxicated, LSA-R.S. 14:98; driving left of center, LSA-R.S. 32:71; and resisting arrest, LSA-R.S. 14:108. On the driving while intoxicated conviction, the defendant was sentenced to pay a fine of $500.00 and costs, 60 days in the parish jail upon default, and to a jail term of 30 days. The jail term was suspended and the defendant was placed on unsupervised probation for a period of two years. The court imposed four special conditions of probation being that the defendant: (1) serve 7 days in the parish jail at the pleasure of the sheriff, (2) perform of four 8 hour days of community services under the supervision of the Richland Parish Police Jury, (3) participate in the substance abuse program, and (4) participate in the driver improvement program administered by the Northeast Louisiana Substance Abuse Clinic. For the offense of driving left of center the court sentenced the defendant to pay a fine of $25.00 and costs, in default to serve 30 days in the parish jail. On the resisting arrest charge, the court sentenced the defendant to serve 90 days in the parish jail, suspended execution of the sentence and placed the defendant on unsupervised probation for a period of two years to run consecutively with the previous probation period. The court imposed a special condition of that probation that the defendant complete the alcoholic treatment program at Woodland Hills and submit documentary proof of successful completion of that program.
This court granted defendant's application for a writ of review to determine whether the trial court erred in finding that the police had reasonable cause to stop the defendant, whether the trial court erred when it allowed the state to introduce results of a blood alcohol test, and whether the defendant had a right to a trial by jury and knowingly waived that right. Finding no error on the first two issues but finding that the defendant had a right to a trial by jury and did not waive that right, we reverse the convictions and sentences and remand for a new trial.
At approximately 1:15 on the morning of January 19, 1985, Sam Hesser, a trooper for the Louisiana State Police, observed the defendant in his pick-up truck driving eastbound on Highway 80 in Richland parish. Trooper Hesser, who was travelling west on Highway 80, observed the truck run off the south shoulder of the highway and then come back into the eastbound lane of travel. Trooper Hesser turned his vehicle around, followed the defendant, and observed the defendant cross the center line of the roadway completely into the opposite lane of travel. After the trooper turned on his lights to stop the defendant, the defendant proceeded a couple of hundred yards and turned left into a driveway off of Highway 80. The trooper observed the defendant exit the vehicle, stagger as he got out of the truck, and hold on to the truck as he walked to keep his balance. The defendant staggered as he walked and had a strong odor of alcohol on his breath. As Trooper Hesser attempted to conduct a field sobriety test, the defendant became combative and walked from where they were standing to enter the house. The defendant was told that he was under arrest for driving while intoxicated and when the trooper attempted to handcuff the defendant a struggle took place. The defendant was able to break away from the trooper and enter the house, after which the defendant stated that he was going to get a gun and kill the trooper. After members of the defendant's family spoke with him, the defendant came out of the house. When Trooper Hesser again attempted to place the defendant under arrest and handcuff him another struggle occurred and the defendant was wrestled to the ground by the trooper and several other law enforcement officers who had arrived. During the struggle the defendant sustained a cut near his eye and was taken to the Richland Parish Hospital.
At the hospital, at approximately 2:55 a.m., a blood alcohol test was administered. The blood was determined to contain 0.18 percent alcohol.
By this assignment, the defendant contends that Trooper Hesser did not have reasonable cause to stop the defendant as required by LSA-C.Cr.P. Art. 215.1. Under Art. 215.1, a law enforcement officer may stop a person in a public place whom he reasonably expects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
Defendant contends that the observations of the trooper in which the defendant swerved partially off the shoulder of the road and then later swerved across the center line of the highway completely onto the opposing westbound lane only constituted minor deviations insufficient to establish reasonable cause to stop a motorist. Defendant relies upon the case of State v. Vaughn, 448 So.2d 915 (La.App.3d Cir.1984) in support of this position. In Vaughn, a police officer observed the defendant's vehicle sway in a southbound lane of travel several times and observed the defendant's vehicle pass approximately six inches to the left of the center line for approximately 10 feet. The Third Circuit in Vaughn found that such minor deviations observed by the police officer in that case were insufficient to establish reasonable cause to stop a motorist.
Trooper Hesser had reasonable cause to stop the defendant based upon his observations. Swerving onto the shoulder and then later completely crossing the center line of the highway into the opposing lane of traffic constitute more than minor traffic deviations. Such observations by the trooper constituted reasonable and articulable suspicion that the defendant was driving his vehicle while intoxicated. This assignment of error is without merit.
By this assignment, the defendant contends that the trial court erred in allowing the state to introduce results of defendant's blood alcohol test into evidence because the defendant was not properly advised of the consequences if the test result shows .10 percent or above as required by LSA-R.S. 32:661 C. 1
Prior to defendant's consent to the blood alcohol test, Officer Hesser read to the defendant his rights relating to the chemical test for intoxication from a form provided by the Louisiana Department of Public Safety. The form states in pertinent part:
A. These are the CONSEQUENCES AND EFFECTS OF SUBMISSION OR REFUSAL TO SUBMIT TO THE CHEMICAL TEST.
1. Refusal to submit to this chemical test shall result in the suspension of your driver's license for a minimum period of six (6) months.
2. Refusal to submit to this chemical test may also result in the loss of your vehicle registration and license plates.
3. Evidence of your refusal to submit to this chemical test or test results
of .10 percent or above will be used against you in court.
NOTE: If a traffic fatality has occurred or a person has been seriously injured you may not refuse the chemical test, if you have refused or are unable to participate in a field sobriety test.
Relying upon State v. Downer, 460 So.2d 1184 (La.App.2d Cir.1984) and State v. Cole, 466 So.2d 66 (La.App.2d Cir.,1985), defendant contends that the form did not adequately advise him of the consequences of a result of .10 percent or above in that such a result creates a conclusive presumption of intoxication.
For reasons more fully discussed in State v. Fortner, 478 So.2d 673 (La.App.2d Cir.1985), decided this day, the test results are admissible even though the warning required by the statute was not adequately given. The 1984 amendment to the statute deleted the provision that the results of the test not be admissible if the warning is not followed. Exclusion of the evidence is no longer required.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3--RIGHT TO A JURY TRIAL
By this assignment, defendant contends that the consolidation of the charges against him in one trial limited defendant's sentencing exposure to $500.00 or six months in jail pursuant to LSA-C.Cr.P. Art. 493.1 or, in the alternative, triggered the right to a jury trial.
The defendant was charged in separate bills of information with driving while intoxicated and resisting an officer and was charged in a separate affidavit with the offense of driving left of center. Under LSA-R.S. 14:98 whoever is convicted of driving while intoxicated, first offense, may be fined not more than $500.00 and imprisoned for not more than six months. Under LSA-R.S. 14:108, whoever commits the crime of resisting an officer may be fined not more than $500.00 and/or be imprisoned for not more than six months. Under LSA-R.S. 32:57, whoever commits the traffic violation of driving left of center for a first violation may be fined not more than $175.00 and/or imprisoned for not more than 30 days. Upon the defendant's motion, and without objection by the state, the three charges were consolidated for trial.
Under LSA-C.Cr.P. Art. 493.1, whenever two or more misdemeanors are joined in accordance with Art. 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than $500.00, or both. In State v. Odell, 458 So.2d 1304 (La.1984), the Supreme Court held that it is only when the prosecuting attorney exercises discretion...
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