ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-1732, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX GAIL D. SCHLOSSER JEFFREY HUFFT ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR PLAINTIFF/APPELLEE
CYNTHIA K. MEYER ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER JUDGE
“Defendant, Kathleen Wall, appeals her conviction and sentence for operating" a vehicle while under the influence of a controlled dangerous substance, having been previously convicted three times, in violation of La. R.S. 14:98(A)(E). For the following reasons, we affirm defendant's conviction but vacate the sentence imposed and remand for resentencing in compliance with La. R.S. 14:98(E).
STATEMENT OF THE CASE
On April 3, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with operating a vehicle while intoxicated, having been previously convicted three times, in violation of La. R.S. 14:98(A)(E). Defendant was arraigned and pled not guilty.
Defendant proceeded to trial and a six-person jury unanimously found defendant guilty as charged. On May 9, 2014, defendant filed a motion for new trial, which the trial court denied. On that same date, the trial court sentenced defendant under La. R.S. 14:98(E) to ten years imprisonment at hard labor with eight years of the sentence suspended. The trial court further ordered that defendant be placed on active probation for five years upon her release with the first year of probation on home incarceration. In addition to the general conditions of probation, the trial judge ordered that defendant pay a $5, 000.00 fine, participate in 40 eight-hour days of community service, immediately undergo an evaluation and complete any recommended treatment, submit to inpatient treatment for a period of not less than three months followed by outpatient treatment for not less than one year, and not drive for the duration of probation. This timely appeal follows.
Detective Roy Lambert with the Jefferson Parish Sheriffs Office testified that on Saturday, October 20, 2012, at approximately 7:00 a.m. or 8:00 a.m., he received a call regarding a female asleep at the wheel of a vehicle parked at a Shell gas station located at 5900 West Metairie Avenue in Jefferson Parish. After locating the vehicle matching the description provided by the dispatch, Detective Lambert observed defendant "slumped over the wheel" of the vehicle. He explained that the vehicle was "running" and was "pressed up against a raised sidewalk" at the gas station, as if the vehicle was unable to move any further. According to Detective Lambert, defendant appeared to be asleep and the vehicle was in the drive gear. He testified that the only thing preventing the vehicle from "running into" the business was the raised sidewalk.
Detective Lambert expressed that he was concerned for the welfare of defendant and knocked on the vehicle's window several times, attempting to wake defendant. After several attempts to wake defendant, she appeared to slightly awaken but still appeared disoriented and tired. Detective Lambert instructed defendant to open the door but defendant had much difficulty locating the locking mechanism on the seat belt and had trouble orienting her finger directly to the button she was attempting to press.
Detective Lambert stated that he and other officers who had arrived on the scene asked defendant to exit the vehicle and, with much difficulty, she stepped out of the vehicle and nearly fell. Detective Lambert testified that, after defendant exited the vehicle, he entered the vehicle to apply the brakes and place the vehicle in the park position.
Detective Lambert explained that defendant had difficulty standing and more difficulty walking. After noticing defendant's swayed balance, difficulty standing and walking without assistance, bloodshot eyes, and slurred speech, he decided to conduct a standardized field sobriety test. According to Detective Lambert, he checked defendant's pupil size and looked for any involuntary jerking of the eyes, also known as nystagmus, while in a resting position. Detective Lambert conducted an actual nystagmus test and explained that defendant exhibited six out of the six clues he looks for during the horizontal nystagmus test and two out of the two clues he looks for in the vertical nystagmus test—which he stated indicates the influence of certain types of narcotics or high levels of alcohol.
Detective Lambert stated that he also attempted to conduct the "Walk-and-Turn Test." He explained that, while administering the test, defendant attempted to proceed with the test prior to receiving instructions on how many steps to take and that it appeared as if defendant was about to fall. Detective Lambert stated that, given defendant's unsteady balance, he decided that it was too dangerous for defendant to proceed with the test. According to Detective Lambert, he believed that he had sufficient probable cause at that point to arrest defendant.
After he arrested defendant, Detective Lambert informed her of her Miranda rights and transported her to the Harahan lockup facility, where he further advised defendant of her rights pertaining to chemical testing. Detective Lambert then obtained defendant's verbal and written consent to conduct a blood test.
Captain Manuel Adams Jr. of the Harahan Police Department testified that he worked at the Harahan lockup on the date of defendant's arrest. Captain Adams testified that he is certified in Advanced Roadside Impaired Driving Enforcement (ARIDE) and explained that the ARIDE test checks for impairment due to any narcotic or drugs within the system. Captain Adams advised defendant of her rights and then conducted the Lack of Convergence test, which he explained identifies the possible presence of a narcotic in the system based on whether her eyes would properly cross when following a stimulus. According to Captain Adams, defendant exhibited a lack of convergence both times, indicating possible presence of narcotics in her system. On cross-examination, Captain Adams acknowledged that an unknown percentage of people are unable to cross their eyes. Captain Adams testified that he also conducted the Rhomberg Balance Test, which checks for swaying, eye tremors, and "internal clock." According to Captain Adams, defendant was sluggish, exhibited droopy eyelids, and stumbled. Further, he explained that defendant's "internal clock" was extremely short as she indicated that only fifteen seconds had passed when actually thirty seconds had elapsed. Captain Adams testified that he believed he observed signs of impairment. Captain Adams further testified that, after he advised defendant of the results of the Rhomberg Balance Test, she admitted to taking a half a Lortab, a half a Xanax, and a Soma at approximately 5:00 a.m. that morning.
Nam Tran, a toxicology analyst for the State Police Crime Lab, testified on behalf of the state that he received a request to perform a toxicological screen on a blood alcohol kit labeled as defendant's blood. Mr. Tran stated that he performed testing on the blood alcohol kit and generated a report for the toxicology analysis. He testified that three controlled dangerous substances, Carisopodol (also known as Soma), Meprobamate (a metabolite of Soma), and Hydrocodone (also known as Vicodin or Lortab, depending on the manufacturer), were detected in defendant's blood. Mr. Tran stated that Carisoprodol and Meprobamate are both Schedule IV controlled dangerous substances and that Hydrocodone is a Schedule II controlled dangerous substance.
During cross-examination, Mr. Tran explained that the report does not indicate the quantity of the substances in defendant's system but only that the substances were present. He also stated that the report did not determine the amount of time that had elapsed since defendant ingested the substances. On redirect, Mr. Tran explained the difference between drugs found in urine and drugs found in blood. He testified that urine indicates the back history of the substances in an individual's system for a longer period of time but explained that it is common knowledge that if the drug is circulating in the bloodstream, then it is "immediate."
Sergeant Joel O'Lear of the Jefferson Parish Sheriffs Office was accepted as an expert in latent print examination by stipulation. Sergeant O'Lear testified on behalf of the state and explained that he compared defendant's fingerprints to the arrest print cards attached to the three certified conviction packets introduced into evidence. He testified that the defendant's fingerprints from the date of trial matched the ...