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Jacobs v. State, Department of Public Safety

Court of Appeals of Louisiana, Second Circuit

January 15, 2020

BARRY L. JACOBS Plaintiff-Appellant
v.
STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION Defendant-Appellee

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2017-3022 Honorable B. Scott Leehy, Judge

          HUDSON, POTTS & BERNSTEIN, LLP By: G. Adam Cossey Counsel for Appellant

          LAURA C. HOPES Counsel for Appellee

          Before MOORE, PITMAN, and STEPHENS, JJ.

          PITMAN, J.

         Plaintiff-Appellant Barry L. Jacobs appeals the trial court's ruling in favor of Defendant-Appellee the State of Louisiana, Department of Public Safety, License Control and Driver Improvement Division (the "Department"). For the following reasons, we reverse the judgment of the trial court and reinstate Jacobs's commercial driver's license.

         FACTS

         On September 13, 2017, Jacobs filed a petition for judicial review. He stated that on the evening of March 10, 2017, he was driving on Highway 165 in Monroe and was pulled over by a Ouachita Parish Sheriff's Deputy. After a field sobriety test, he was transported to the Ouachita Correctional Center ("OCC") to take a chemical alcohol test. He attempted to provide two breath samples, but was unable to provide a satisfactory one. He was charged with DWI first offense, which was amended to reckless operation. He pled guilty to the amended charge, an associated speeding violation was dismissed and he was sentenced to a fine of $750 and costs. Pursuant to La. R.S. 32:666, his commercial driver's license was suspended for refusing to submit to a chemical alcohol test. He requested an administrative hearing, and the Department issued a ruling affirming the suspension of his license. He sought a review of this administrative suspension of his license and requested that the suspension be denied and that he be awarded all driving privileges.

         On October 12, 2017, the Department filed an answer denying the allegations.

         A trial was held on May 14, 2019. The Department called Lt. Paul Knight of the Ouachita Parish Sheriff's Office as a witness. Lt. Knight testified that he was on duty on March 10, 2017; at 10:34 p.m., he stopped Jacobs's vehicle for traveling at a speed of 66 miles per hour in a 50 m.p.h. speed zone. While speaking to Jacobs, he noticed a smell of alcohol on his breath and asked him to step out of his vehicle. Jacobs stated that he drank alcohol with his dinner that night. Lt. Knight noticed that Jacobs was unsure of his balance and swayed a bit, so he administered a field sobriety test. At 10:47 p.m., he advised Jacobs that he was under arrest and seized his commercial driver's license. He then transported Jacobs to OCC and took him to the DWI interview room. He testified that he advised Jacobs of his rights regarding the chemical test for intoxication, and Jacobs refused to sign the rights form. He left the room for 21 minutes; and, when he returned, he offered Jacobs a chemical breath test to be conducted on the Intoxilyzer 9000 (the "Intoxilyzer").[1] He recalled that Jacobs hesitated at first, but then began the test by blowing into the tube of the Intoxilyzer. He explained that the Intoxilyzer displays a person's blood alcohol content as the person blows into the tube. He stated that when Jacobs saw his blood alcohol content increasing on the display as he blew into the tube, he stopped blowing and then would start blowing again once the number decreased. He stated that Jacobs did not provide a proper sample during the initial test, so it was registered as a refusal to submit to the test. At Jacobs's request, he attempted a second test, but he again stopped blowing into the Intoxilyzer when the number increased. Jacobs did not provide a proper sample during the second test, so it was also registered as a refusal to submit to the test. He then booked Jacobs into jail for DWI based on the refusal to submit to the chemical breath test.

         On cross-examination, Lt. Knight testified that Jacobs was very cooperative during the traffic stop and field sobriety test. He did not preserve or retrieve any recording of Jacobs performing the chemical breath test. He agreed that although Jacobs's test results were registered as a refusal due to insufficient samples, he did blow into the Intoxilyzer. He opined that Jacobs was trying to beat the Intoxilyzer by watching the display of his blood alcohol content and ceasing to blow into the tube before his blood alcohol content was displayed at .08. He stated that he did have the option to administer a blood or urine test, but did not offer these options to Jacobs. He also explained that the rights form is on the online LADRIVE system, and he prints off the form from the system and has the person sign the rights form after he reads it. The person can either electronically sign the form or he can note on the form that the person refused to sign.

         Jacobs testified on his own behalf. He stated that he is required to have a commercial driver's license for his job and that he had been able to keep his license pending the court's decision. He recalled that on March 10, 2017, he and his girlfriend were driving home from a restaurant when the traffic stop occurred. He told Lt. Knight that he had drinks at the restaurant and then cooperated with a field sobriety test. He stated that at the OCC he did the chemical breath test twice and that during the first test, the Intoxilyzer beeped around .07. He contended that he passed the test, but that Lt. Knight still thought he was intoxicated, so he did the test again with the same result. He stated that he asked Lt. Knight if he could do the test a third time because his livelihood depended on him having a commercial driver's license, but Lt. Knight refused. He testified that he did not see the display of his blood alcohol content on the Intoxilyzer while he was performing the test. He demonstrated how he blew into the Intoxilyzer and noted that he had had breathing problems, including bronchitis, since he was a child. He further testified that he did not refuse the chemical breath test and did not purposefully give an insufficient sample. He did not sign the rights form presented to him by Lt. Knight because he was offended that after he had been cooperative, Lt. Knight still arrested him for DWI. Reviewing an exhibit of the tests, Jacobs agreed that his first test began at 11:17 p.m. and ended at 11:21 p.m., that the second test began at 11:27 p.m. and ended at 11:31 p.m. and that he refused to sign the rights form at 12:02:41 a.m. On cross-examination, he testified that he did not remember Lt. Knight reading him the rights form.

         Counsel for both parties then provided arguments. The trial court raised questions about the timeline of events, specifically about when Lt. Knight read Jacobs the rights form. It noted that while it did not matter when Jacobs signed the form, it did matter that Lt. Knight read the rights to Jacobs prior to administering the chemical breath test. It pointed out that the exhibits showed that Lt. Knight read the rights form at 10:50 p.m. and that the first chemical breath test began at 11:17 p.m. After taking a recess to review Lt. Knight's testimony, it noted that Lt. Knight was emphatic that he advised Jacobs of his rights related to the chemical test for intoxication before the test was administered.

         The trial court found by a preponderance of the evidence that all of the requirements had been met to support the revocation of Jacobs's commercial driver's license. It stated that Jacobs voluntarily submitted to the chemical breath test, but that he stopped blowing into the Intoxilyzer based on the display of his blood alcohol content. It was not convinced that Jacobs had any type of infirmity on ...


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