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DWI Drivers License Law

DWI Drivers License Law Art. 894 Louisiana

RS 32:667

§667.  Seizure of license; circumstances; temporary license

A.  When a law enforcement officer places a person under arrest for a violation of R.S. 14:98, R.S. 14:98.1, or a violation of a parish or municipal ordinance that prohibits operating a vehicle while intoxicated, and the person either refuses to submit to an approved chemical test for intoxication, or submits to such test and such test results show a blood alcohol level of 0.08 percent or above by weight or, if the person is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above by weight, the following procedures shall apply:

(1)  The officer shall seize the driver’s license of the person under arrest and shall issue in its place a temporary receipt of license on a form approved by the Department of Public Safety and Corrections.  Such temporary receipt shall authorize the person to whom it has been issued to operate a motor vehicle upon the public highways of this state for a period not to exceed thirty days from the date of arrest or as otherwise provided herein.

(2)  The temporary receipt shall also provide and serve as notice to the person that he has not more than fifteen days from the date of arrest to make written request to the Department of Public Safety and Corrections for an administrative hearing in accordance with the provisions of R.S. 32:668.

(3)  In a case where a person submits to an approved chemical test for intoxication, but the results of the test are not immediately available, the law enforcement officer shall comply with Paragraphs (1) and (2) of this Subsection, and the person shall have fifteen days from the date of arrest to make written request for an administrative hearing.  If after thirty days from the date of arrest the test results have not been received or if the person was twenty-one years of age or older on the date of arrest and the test results show a blood alcohol level of less than 0.08 percent by weight, then no hearing shall be held and the license shall be returned without the payment of a reinstatement fee.  If the person was under the age of twenty-one years on the date of arrest and the test results show a blood alcohol level of less than 0.02 percent by weight, then no hearing shall be held and the license shall be returned without the payment of a reinstatement fee.

(4)  If the vehicle is operable and a passenger in the vehicle who is not under the influence of alcohol has a valid driver’s license, the officer shall allow the passenger to take control of the vehicle and shall not order or procure towing services for the vehicle.  If the vehicle does not create a hazard or obstruction to traffic and the motoring public, and if there is no passenger in the vehicle who possesses a valid driver’s license and who is not under the influence of alcohol, the officer, before ordering or procuring towing services, shall allow the arrestee a reasonable time and opportunity to contact another person to take possession or control of the vehicle on behalf of the arrestee.  Reasonable time to notify and take possession of the vehicle shall be in the sole discretion of the officer.  However, the law enforcement agency, the law enforcement officer, the state, and the political subdivision shall not be liable for damages, injuries, or deaths occasioned by the vehicle not being towed immediately or by another person taking possession or control of the vehicle on behalf of the arrestee.  If a law enforcement officer violates the provisions of this Paragraph, his employing agency rather than the arrestee shall be responsible for the payment of any towing charges incurred.

B.  If such written request is not made by the end of the fifteen-day period, the person’s license shall be suspended as follows:

(1)(a)  Repealed by Acts 2009, No. 288, §2, eff. September 1, 2009.

(b)  On or after September 30, 2003, if the person submitted to the test and the test results show a blood alcohol level of 0.08 percent or above by weight, his driving privileges shall be suspended for ninety days from the date of suspension on first offense violation, without eligibility for a hardship license for the first thirty days, and for three hundred sixty-five days from the date of suspension, without eligibility for a hardship license, on second and subsequent violations occurring within five years of the first offense.  If the person was under the age of twenty-one years on the date of the test and the test results show a blood alcohol level of 0.02 percent or above by weight, his driving privileges shall be suspended for one hundred eighty days from the date of suspension.

(c)  If the person submitted to the test and the test results show a blood alcohol level of 0.20 percent or above by weight, his driving privileges shall be suspended for two years from the date of suspension on first offense violation and for four years from the date of suspension for second offense violation.

(2)  If the person refused to submit to the test, his driving privileges shall be suspended as follows:

(a)  Except as otherwise provided in this Paragraph, one year from the date of suspension on a refusal.

(b)  One year, without benefit of eligibility for a hardship license, in the event that a fatality occurred or a person sustained serious bodily injury as a result of an accident and the person’s intoxication is determined by a trier of fact to be the contributing factor of the fatality or serious bodily injury.

(c)(i)  Two years from the date of suspension on the second and subsequent refusal occurring within five years of the date of a refusal to submit to the test.

(ii)  Two years from the date of suspension on the second and subsequent refusal occurring within five years of the date of a refusal to submit to the test, without the benefit of eligibility for a hardship license in the event that a fatality occurred or a person sustained serious bodily injury as a result of an accident and the person’s intoxication is determined by a trier of fact to be the contributing factor of the fatality or serious bodily injury.

(3)(a)  However, any licensee who has had his license suspended for a first or second offense of operating a motor vehicle while under the influence of alcoholic beverages under the provisions of this Subsection and who either refused to submit to the test or who submitted to the test and the test showed a blood alcohol level of less than 0.20 percent shall, upon proof to the Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device, be immediately eligible for and shall be granted a restricted license.  In the event that the department fails or refuses to issue the restricted driver’s license, the district court for the parish in which the licensee resides may issue an order directing the department to issue the restricted license either by ex parte order or after contradictory hearing.

(b)  If the person submitted to the test as a result of a first violation and the test results show a blood alcohol level of 0.20 percent or above by weight, he shall be eligible for a hardship license during the entire period of the imposed two-year suspension after he has provided proof that his motor vehicle has been equipped with an ignition interlock device. A functioning ignition interlock device shall remain installed on his motor vehicle during the first twelve-month period of his driver’s license suspension.

(c)  If the person submitted to the test as a result of a second violation and the test results show a blood alcohol level of 0.20 percent or above by weight, he shall be eligible for a hardship license during the entire four-year period of the suspension after he has provided proof that his motor vehicle has been equipped with an ignition interlock device.  A functioning ignition interlock device shall remain installed on his motor vehicle during the first three-years of the four-year period of his driver’s license suspension.

(4)  Repealed by Acts 2009, No. 288, §2, eff. September 1, 2009.

(5)  For the purposes of this Section, driving privileges shall include, but not be limited to, the operation or physical control of a watercraft upon the waterways of this state.  Any suspension or revocation of driving privileges provided for in this Section shall also prohibit the operation or physical control of a watercraft upon the waterways of this state during the time period of the suspension or revocation.

C.  The department shall develop a uniform statewide form for temporary receipt of licenses which shall be used by all state and local law enforcement officials.  The form shall be issued in duplicate to the person arrested to provide a means for him to request an administrative hearing.

D.(1)  Upon receipt of a request for an administrative hearing, the  Department of Public Safety and Corrections shall issue a document extending the temporary license, which shall remain in effect until the completion of administrative suspension, revocation, or cancellation proceedings.  The Department of Public Safety and Corrections shall forward the record of the case to the division of administrative law for a hearing within sixty days of the date of arrest.

(2)  Oversight review of rules and regulations promulgated by the secretary under the provisions of this Part shall be conducted by the House Committee on Transportation, Highways and Public Works and the Senate Committee on Transportation, Highways and Public Works.

E.  The division of administrative law shall provide for a hearing to determine suspension or revocation of driving privileges.  A continuance may be granted for good cause shown.

F.  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.

G.  Notwithstanding the provisions of any other law, any person whose license has been suspended under the provisions of this Section, shall, after completion of the period of suspension, be required to pay a reinstatement fee of fifty dollars to the department for the return of his license.

H.(1)  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 Article 893 or 894 of the Code of Criminal Procedure, 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.

(2)  If a licensee qualifies for the exemption from the reinstatement fee or for a reimbursement of the reinstatement fee as provided in Paragraph (1) of this Subsection, the licensee shall receive credit for the unexpired portion of the license which was seized, and shall be exempt from the payment of, or shall receive reimbursement for the payment of, the duplicate license fee and the handling fee with regard to the license which was seized.

(3)  Paragraph (1) of this Subsection shall not apply to a person who refuses to submit to an approved chemical test upon a second or subsequent arrest for R.S. 14:98 or 14:98.1, or a parish or municipal ordinance that prohibits driving a motor vehicle while operating a vehicle.  However, this Paragraph shall not apply if the second or subsequent arrest occurs more than ten years after the prior arrest.

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 second violation of R.S. 14:98 or 98.1 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.

(b)  Any person who has submitted to an approved chemical test for intoxication where the results indicate a blood alcohol level of 0.08 percent or above and whose driver’s license has been suspended in accordance with the law for a violation occurring within five years of the first violation.

(c)  Any person who is arrested for a violation of R.S. 14:98, R.S. 14:98.1, or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated and is involved, as a driver, in a traffic crash which involves moderate bodily injury or serious bodily injury as defined in R.S. 32:666(A).

(d)  Any person who is arrested for a violation of R.S. 14:98, R.S. 14:98.1, or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated and a minor child twelve years of age or younger was a passenger in the motor vehicle at the time of the commission of the offense.

(2)  As to any person enumerated in Paragraph (1) of this Subsection, the ignition interlock device shall remain on the motor vehicle for a period of not less than six months.  The ignition interlock device may be installed either prior to the reinstatement of the driver’s license, if the person has lawfully obtained a restricted driver’s license, or as a condition of the reinstatement of the driver’s license.  When the driver’s license is suspended as described in this Subsection, the ignition interlock device shall remain on the motor vehicle for the same period as the suspension, with credit for time when the interlock device was installed and functioning as part of a restricted driver’s license.

(3)  The provisions of this Subsection shall not abrogate any other provision of law regarding the installation and maintenance of ignition interlock devices.

(4)  When an ignition interlock device is required as a condition of reinstatement, the office of motor vehicles shall designate a restriction code and place such code on the license of a driver who is required to have an ignition interlock installed and maintained as a condition of reinstatement.

J.  Upon notice to the department that a driver has prematurely removed or disabled, or caused to be prematurely removed or disabled, an ignition interlock device required as condition of reinstatement pursuant to Subsection I of this Section, the department shall mail notice to the driver that his license is suspended until such time as the department receives sufficient proof  that the driver has had the ignition interlock device properly reinstalled and paid all applicable reinstatement fees.  Upon reinstatement, the driver shall receive credit only for the time period when the ignition interlock device was installed and functioning.

It had been Esther Centeno’s wish to be buried in an open casket, and when she died at just 20 years old — and six months pregnant — her family tried its best to make it so. But the injuries Centeno sustained in the car crash that took her life May 26 inflicted so much damage to her face and body that she was nearly unrecognizable.

“Her forehead was swollen, her bones were smushed … I had to stand next to her casket for eight hours to make sure nobody touched her face, because the skin would come off,” said Centeno’s cousin, Mercedes Diaz.

In the casket, in Centeno’s arms, lay her unborn child, taken post-mortem.

“I’ve known Esther since she was 1 year old. I remember when I used to bathe her, and do her hair,” Diaz said, “and I remember when I had to bury her.”

The pregnant Centeno and two other adults were killed in a crash caused by Jennifer Englade, a 40-year-old LaPlace woman who authorities say was driving drunk. Tests also showed Englade had cocaine and methamphetamine in her system, as well as a blood alcohol level of .15, when she crossed the center line on Airline Highway and slammed into oncoming traffic. She was booked with three counts of vehicular homicide, one count of third-degree feticide, one count of negligent injury and second-offense DWI.

Englade vehicle.jpegJennifer Englade was driving this vehicle when it crossed the center line of Airline Highway and struck the car driven by Esther Centeno, killing all of its occupants. Tests showed Englade had cocaine and methamphetamine in her system, and a blood alcohol level of .15.

But it wasn’t really Englade’s second DWI. A repeat offender, she had racked up four other DWI arrests before the deadly crash last month. One of those arrests came in 2012, less than a year before the collision that claimed the lives of Centeno, her unborn child, Romishe Mejia-Fequier and Joshua Jones, who was in the front seat of Englade’s car.

But for Diaz and the rest of Centeno’s family, the fact that Englade had a valid driver’s license at the time of the wreck is incomprehensible.

“This isn’t the first time a family has lost a loved one to a drunk driver,” Diaz said. “How could this happen? Why, in the state of Louisiana, did she have a driver’s license?”

The answer to those questions sheds light on the unintended – and in this case, deadly — consequences of an obscure 2009 amendment to a little-known law that has put driver’s licenses back into the hands of some DWI offenders long before they complete their court-ordered probation.

In Englade’s case, that probation included drug and alcohol treatment for the 2012 arrest. But Englade failed to comply, checking out of a 12-month drug and alcohol treatment program the same day she checked in in April.

Still, on May 26, she had a valid driver’s license, due to a confluence of opaque laws with dangerous repercussions.

The most important, and widely used, law in the mix is Article 894 – a state statute that allows people arrested on certain charges, including DWI, to plead guilty but have the conviction set aside and sentence suspended. Instead, the driver is placed on active probation imposed by the district court where the DWI occurred.

A driver can only plead under Article 894 once a decade; if a driver stays out of trouble for 10 years, prior traffic arrests and convictions are wiped clean. Louisiana law also allows DWI convictions to be wiped clean after 10 years.

That’s why Englade – who was arrested for DWI in St. John Parish in 1996, and twice in St. John and St. Charles parishes in 1999 – was charged as a first offender when she was arrested again for DWI in St. Charles Parish on June 12, 2012, St. Charles Parish District Attorney Joel Chaisson said.

Prior to 2009 drivers using Article 894 were required to complete the court-ordered probation – often including alcohol counseling or drug treatment, as well as community service – before the state Office of Motor Vechicles would reinstate the driver’s license, unless the license suspension was served before the probation was complete.

But in 2009, state Rep. Henry Burns, R-Haughton, introduced legislation he thought would make it more difficult for DWI offenders to get licenses back. Instead of a notice being sent to the OMV only after the terms of the probation are complete and the conviction is set aside, his amendment mandates that a notice be sent within 30 days of the plea itself. Burns thought that by making the office aware of people who have admitted to DWIs soon after they occurred, it would ensure they were off the road.

Instead, the OMV interpreted that notice to mean the conviction had been set aside. As a result, within 30 days of pleading guilty under 894, a first offender – like Jennifer Englade – can have her license reinstated.

“When a person pleads under 894, the law says we must reinstate their driving privileges,” said Kelly Simmons, manager of the Department of Public Safety’s Impaired Driver Withdrawal Unit. “894 just has to be invoked for us to reinstate the license.”

Jennifer Englade.jpgJennifer Englade

Englade invoked 894 on Oct. 24, 2012, St. Charles Parish court records show. Her arraignment hearing was originally set for August, two months after her arrest, but was continued until October due to Hurricane Isaac. Her license was reinstated on Dec. 4, 2012 — six months before her one-year license suspension was set to expire, and before the court received proof of completion of her probation.

Mike Barron, a lawyer who spent 33 years as counsel for the Department of Public Safety before becoming a consultant for the Louisiana Highway Safety Commission, said that because historically so many drivers who pleaded guilty under 894 successfully completed their probation, it made sense to begin reinstating driving privileges before they finish, and assume they will fulfill their court-ordered obligations.

“In 98 percent of the cases, people were successfully serving the probationary period. People thought it was a waste of time and paper-pushing to go back to court; it was really unnecessary to go through all of those steps,” Barron said. “So, the law was changed to where, when you plead (guilty under) 894, the clerk of court has 30 days to send that plea to Motor Vehicles. Motor Vehicles then, by law, must assume that the 894 has been served, probation served, conviction set aside and prosecution dismissed.

“It’s presumed up front when you plead guilty under 894 that you will serve the probationary period,” Barron added. “(The 2009 amendment) changed the presumption: rather than a wait and see attitude, you get the driver’s license benefit up front. If you don’t complete your probation, it’s up to the judge.”

Chaisson and Burns said reissuing a license upon invoking 894 is a misinterpretation of the law. Chaisson said he was unaware that the statute was being used this way.

The bill was not (intended) to permit the issuance of licenses to people with pending DWIs. … I will definitely review this.” — Rep. Henry Burns

“Their interpretation of the law passed by Rep. Burns is just wrong,” Chaisson, a former president of the state Senate, said. “If they do not correct this erroneous application of this statue, then I will be in Baton Rouge next session asking the Legislature to make them understand it.”

According to court documents, by April 30 – four months after Englade’s license had been reinstated – she had failed to complete both a court-ordered substance abuse evaluation and DWI driving school.

According to Simmons, the district judge overseeing the case is ultimately responsible for reporting any failures to comply with the terms of the deal.

A note written by a St. Charles Parish probation officer regarding Englade’s case dated April 29 states that “Jennifer stayed in [the court-ordered 12-month program] for one day then left … her brother said he is officially done with Jennifer and will not help her again. He then said he gave Jennifer money and the keys to her car. He said she was heading for Texas.”

The next day, April 30, Chaisson filed a motion to revoke. The revocation hearing was set for June 18, but was continued in the wake of the deadly Memorial Day weekend crash.

Between 2008 and 2009, 2,595 drivers pleaded guilty to DWI charges under Article 894 in Louisiana. Between 2011 and 2012, well after the law was amended, that number more than doubled, climbing to 5,376

Chaisson said that if judges knew that by simply invoking 894 an offender would get his license back, they would be much more careful about accepting the pleas.

As a senator, Chaisson said he worked to toughen drunk driving laws.

“After I fixed the law to make sure that Article 894 pleas could always be used to enhance future DWI charges, it became a useful tool, with little downside, to get offenders to comply with their probation,” he said. “This current misinterpretation of the law passed by Rep. Burns changes that. Until it is corrected, don’t look for many judges to give 894s to individuals who still have time to run on their license suspensions.”

JChaisson.jpgSt. Charles Parish District Attorney Joel Chaisson

St. Charles Parish District Judge Michele Morel presided over Englade’s case, and allowed the 894 plea. Morel said she cannot discuss pending cases.

Even Burns was unaware of the ramifications of his 2009 amendment, and was disturbed to learn of the OMV’s interpretation of it.

“It was my understanding that the bill was not to permit the issuance of licenses to people with pending DWIs,” Burns said. “If it’s taken on a life of its own, there’s a chance there are repercussions that aren’t expected, and they need to be addressed. I will definitely review this.”

Chaisson’s office has also raised questions about Englade’s refusal to submit to a breath test.

When she was pulled over in 2012, Englade refused to take a breath test, according to the arrest report. In Louisiana – an implied consent state – that results in a mandatory one-year license suspension by the Department of Public Safety.

That one-year suspension was set aside when she invoked 894, according to the Office of Motor Vehicles.

Bill Starr, an assistant St. Charles Parish district attorney who specializes in DWI and vehicular homicide cases, said that was wrong, and that the OMV cannot set aside the Department of Public Safety’s suspension. Starr said he has now advised the district judges in St. Charles Parish to issue 894s only to drivers whose license suspensions have already run out.

“The plea under 894 should not have affected that [Department of Public Safety] suspension whatsoever,” Starr argued.

But Stephen Quidd, attorney supervisor over legal affairs for the Office of Motor Vehicles, said when 894 is invoked, all suspensions are set aside.

“The Legislature tied the two processes together,” Quidd said, referring to Department of Public Safety suspensions and court-ordered suspensions. “We get the court minutes, the order from the court, they send it to the Supreme Court database. It then automatically sends a notice to us that they pled under 894. After that, when we receive that, as quick as we can, we reinstate them.”

Englade, who left the hospital last week and is in custody in St. Charles Parish under $500,000 bond, faces 30 years in prison for each count of vehicular homicide, as well as additional time for the other charges against her.

But others like Englade, who plead guilty under 894, are on the road, licenses legally in hand.

For Centeno’s family, the damage has already been done. But Diaz said that something has to change.

“We never should have lost Esther the way that we did. Her daughter is going to grow up without a mother because [she] passed away because of a drunk driver,” Diaz said. “The system messed up, and they need to start making it harder for these people.”