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State v. Barber

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

STATE OF LOUISIANA
v.
ROGER BARBER

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE SECOND PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. S1287425, DIVISION "A" HONORABLE ROY M. CASCIO, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand, Lonnie Taix

          COUNSEL FOR DEFENDANT/RELATOR, ROGER BARBER J. Thomas Beasley

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER, JUDGE

         This is a post-conviction misdemeanor writ application in which defendant/relator, Roger Barber, seeks review of his conviction and sentence on a misdemeanor charge of driving while intoxicated, first offense, in violation of La. R.S. 14:98. For reasons that follow, we grant the writ and reverse the conviction and sentence.

         Defendant was charged by bill of information with the offense of driving while intoxicated, first offense, in violation of La. R.S. 14:98, and convicted as charged after a bench trial on the merits.[1] The court sentenced defendant to 60 days in parish prison, suspended, and placed defendant on active probation for a term of 11 months. Special conditions of the probation included the completion of a driver improvement program, substance abuse program, 32 hours of community service, and attendance at a victim impact panel. The court further ordered defendant to serve 48 hours of home incarceration and imposed a $500.00 fine plus court costs.

         Defendant filed this timely writ application seeking review of his conviction and sentence on June 17, 2019. On June 21, 2019, this Court ordered that defendant supplement his writ application with the trial transcript within fifteen days of this Court's order. The writ application has been supplemented as ordered and will now be considered.

         FACTS

         On February 8, 2015, two Jefferson Parish police deputies, Jesse Dormoy and Paul Carmouche, were dispatched to the 300 block of Westmeade in the Bellemeade Subdivision to investigate a report that a male driver was passed out, sleeping behind the wheel of his parked car. Upon arrival, the deputies found a vehicle parked partially in the roadway and partially on the curb in front of a residence. The driver was asleep at the wheel, the engine was running, and the door of the vehicle was unlocked. Deputy Carmouche opened the door, turned off the engine and removed the keys for safety. After some effort, Deputy Carmouche was able to awaken the driver and discovered that he had a can of beer in his lap. Once outside of his vehicle, defendant refused a standardized field sobriety test. Deputy Carmouche testified that the smell of alcohol was present in the vehicle and defendant appeared intoxicated because his speech was slurred and his eyes were bloodshot. A subsequent test revealed a blood alcohol content of .160%. Defendant stipulated to his intoxication level at trial.

         Defendant testified at trial. In his testimony, he explained that he parked his truck earlier in the day in front of his father's house on Westmeade Drive. His friend, Carrie Dufrene, picked him up in the early afternoon and drove them to a Mardi Gras parade in Metairie. Ms. Dufrene drove back to defendant's parents' home on the Westbank at about midnight. Defendant explained that his vehicle was parked at a strange angle because when he arrived at noon there were several cars parked in and near the driveway. He further explained that the placement of a storm drain and a light pole necessitated that he park at an angle. Defendant testified that this was not a problem because the street is not a through street and his vehicle was not obstructing traffic. It was also revealed at trial that Ms. Dufrene had passed away since the incident and consequently there was no one to corroborate defendant's testimony.

         Defendant testified that, although he lived nearby, he did not want to drive home drunk after the parade at midnight. Defendant explained that he intended to sleep in his truck and wait until he was sober in the morning to go into his father's home for coffee. He also stated that he had done this many times before to avoid confrontation with his father who became angry on prior occasions when his son came home drunk.

         Defendant admitted to being intoxicated and stated that he did not drive, and never intended to drive that night. He stated that he turned on the engine so that he could heat the vehicle as it was a cold night in February. He never put the car in gear. He pointed out that if he had engaged the transmission, the doors would have locked automatically and Deputy Carmouche would not have been able to open the door after he was asleep.

         Essentially, the State proved that defendant was intoxicated, that he got into his car, started the engine, turned on the radio and the heater. In closing at trial, the State argued that that activity constituted control and ...


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