Harry J. Millen, Jr. VS State of Louisiana Department Public Safety & Corrections
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0845 HARRY J MILLEN JR VERSUS If p STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS DATE OF JUDGMENT DEe 2 1 2007 ON APPEAL FROM THE TWENTY THIRD JUDICIAL DISTRICT COURT 1BER NUJ 84090 Div D PARISH OF ASCENSION STATE OF LOUISIANA HONORABLE PEGRAM J MIRE JR JUDGE Alan J Robert Counsel for Plaintiff Appellee Gonzales Louisiana Harry Michael C Barron Counsel for Defendant Baton Rouge Louisiana BEFORE Disposition REVERSED J Millen Jr Appellant State of Louisiana Department of Public Safety and Corrections P ARRO KUHN AND DOWNING JJ ADMINISTRATIVE LAW JUDGE DECISION REINSTATED Kuhn J The Louisiana Motor Vehicles recalled the of Public Department the appeals the district Department suspension of Harry Safety and Corrections J Millen Jr and reinstate the administrative law judge s judgment that s We driving privileges decision that s court upheld Office of reverse the Department s suspensIOn I Based was PROCEDURALANDFACTUALBACKGROUND affidavit of on an arrested on May 5 2006 arrest for vehicle while intoxicated After of chemical refusing submit to submit to the test to a Mr Millen s signed by the arresting violation of La a advised of his being RS 14 98 rights and the operating license s was a consequences for blood alcohol Mr Millen refused test driver officer Mr Millen seized and he was to issued a temporary receipt of license in accordance with La R S 32 667 A 1 Mr Millen suspension of his requested a hearing to driving privileges challenge the Department During hearing captioned Department of Public Safety of Harry J Millien Jr over the administrative law proposed suspension July 24 of Mr Millen Mr Millen judge 2006 administrative ALJ s Department introduced objection l Based affirmed the driving privileges in s proposed and Corrections in the Matter Docket No 2006 2488 PS the the arrest affidavit into evidence arrest affidavit a s a on the Department s July 25 2006 decision and order I Although our appeal record does not contain the administrative hearing the parties acknowledged during oral arguments this testimony was adduced at the hearing and only evidence 2 record or a transcription before this court that the arrest affidavit was of no introduced into Mr Millen then filed final order of the which 2 suspension affidavit had arrest a petition He in the district court challenged the suspension seeking on review of the the sole basis that been notarized in accordance with La R S not specifies various information that a must notary 35 12 include in notarized documents During the district district court on court the record parties stipulated to the hearing evidence that along with list of items that a submitted the parties were we ve submitted offered as the matter to today The evidence The Department introduced The 1 arrest affidavit which and notarized by Sgt was ML signed by the arresting officer Calamia The affidavit includes the notary s name both printed and signed and the number 3 40771 which appears after Sgt Calamia s signature 2 An October 3 of State is a 2006 certification from the Louisiana which certifies that valid Ex Lynn Calamia ID 40771 Officio Notary Public for the Department of Public Calamia was appointed and commissioned on Safety September Mr 15 1993 The ALl s 3 July Millen introduced 25 2006 decision and order a decision and order in proceeding Department of Thomas Rodney Docket Public No Safety The district court suspending 3 granted Mr Millen An affidavit is s a 2006 0712 PS temporary restraining inadmissible to constitutes substantive evidence 2d So 788 807 cert denied as hearsay See State US unrelated administrative wherein the ALJ recalled upon a finding that the order that driving privileges prior to the generally an and Corrections in the Matter proposed suspension of driving privileges based 2 Secretary Manuel hearsay evidence that is not a arrest prohibited the Department district comi hearing but of from objected Allen 03 2418 p 25 La 6 29 05 913 126 S Ct 2023 164 L 2d Ed 787 2006 v 18 2d So 491 494 During Bourque Bouillion 95 909 p 5 La App 3d Cir 10 95 663 the district court hearing Mr Millen did not raise any objection to the arrest affidavit being v admitted into evidence thus it was properly considered 3 as substantive evidence affidavit did comport with the provisions of La R S 35 12 B not ALl found it neither bore the notary identification number person who notarized the document In the instant Millen and driving privileges requires or an ex ordered officio notary in favor of Mr judgment authority considering the Mr affidavit complied with La Millen should R S in addition to s not 35 12 C clearly indicate his actual position to notarize is derived to The not arrest the identified the nor Department recalling the suspension of officio notary identification number erred in not court because the notary had an ex from which his notary a The district court reasoned that the have been admitted which either the district case the against as and C or title his notary Department has appealed asserting the district court arrest affidavit and in recalling the suspension II ANALYSIS Part XIV of Regulation of Louisiana Drunken Drivers vehicle upon the chemical of acts vehicle of a See La R S state Any driving a person deemed are Tests for driving Suspected operating a motor to have consented to or arising out in control of the The tests shall be administered at the direction 1 having motor reasonable dangerous substance requests that the person submit grounds vehicle upon the under the influence of either alcoholic controlled seq have been committed while La R S 32 661 A have been et regulates usage if arrested for any offense drug or law enforcement officer to 32 661 public highways of the to of the Motor Vehicles and Traffic Revised Statutes s testing for alcohol alleged 3 of Title 32 Chapter beverages or public highways a chemical 4 test while any abused substance La R S 32 661 A to to believe the person 2 he a When must an or officer follow certain that include procedures the driver that his advising suspended for refusing to submit to the chemical Louisiana Revised Statutes refuses to submit of such refusal reasonable in actual to the chemical 32 666 B after test the officer shall submit grounds to sworn vehicle upon motor while under the influence of alcoholic dangerous substance seizure of his license and be motorist provides that if the being informed of the a can test La R S 32 661 C consequences report stating that he had believe that the arrested person had been physical control of a controlled driving privileges driving or was public highways of this beverages any abused or The consequences of such a state illegal or refusal are the subsequent automatic suspension for a period of time unless the person requests an administrative hearing within days 15 La R S 32 666 and 667 When the driver requests reasonable upon the was grounds excess of the Public Safety a statutory limit 01 0103 district for court judicial is review suspension Flynn v submit test driving to the as test a motor vehicle in La provided on request and the blood alcohol Henry 3d Cir 6 27 01 App v See La Dep a R S trial de t 32 668 C novo State 5 R S that he was t Dep 788 So 2d 1286 right in of 1288 to file On such review the to detennine the of Public Safety or reading been exhausted the driver has the to conduct State by the officer See La R S 32 668 A p 2 La required to the chemical departmental remedies have petition the advised and that the driver refused to the officer had state must prove while under the influence of alcohol that the person arrest and voluntarily submitted After hearing the believe the person had been public highways placed under 32 661 to a Corr propriety of 608 2d So 994 995 96 La 1992 rules of 4 Such and Driver law on administrative an action for hearing does the instant unrelated administrative introduced the 32 666 B of his of Public Safety License So 2d 289 292 La 1975 change the burden of proof placed by the arresting officer arresting officer case the officer fonn which includes basic affidavit by the arresting officer indicates that the qualified to to when Trooper Bergeron after being duly was a several times since still remains intact 32 414 is Flynn findings of testimony and language was a judicial trial de D decided the and sworn on provides blanks a a be filled in arrest The form or other person May appeared before 5 at 2116 2006 Calamia hours Mr while intoxicated 14 98 by Sgt La RS 32 668 C which these statutes have been amended a the Flynn holding review of the ALl s encompass the calling ofwitnesses the 2d So at 997 98 Flynn 608 6 In statement Although can form to notary the district court is not restricted to review R S grounds supporting his statutory language supporting the introduction ofevidence an Bergeron used the approved review authorized novo in vehicle while intoxicated is to appear before said that Accordingly s judicial the district court Trooper a violation of La R S The court determined that the references La RS driving report in a sworn the reasonable providing his sworn arrested for submit to affidavit states that he s evidence Pursuant to La provide the details of the individual arresting officer give oath no support of its action the Department required establishing arresting introduced notarized affidavit s is In belief that the arrested person had been the instant Millen Mr suspension other than a decision and order proceeding approved by the secretary 4 312 t ordinary judicial review of a decision resulting not however case challenging the propriety Millen Dep all of the to the plaintiff Id In and State v Div Improvement Further the fact that this is an civil action amenable a procedure and proof Meyer Control from trial is a taking The affidavit further states the arrest was believe the offense had been committed by made upon reasonable Mr Millen based on grounds the to following information Subject turned left in front of an Ascension Parish Sheriffs Office deputy vehicle from LA 431 onto LA Deputy had to hit brakes 934 hard to keep from hitting subject s vehicle Upon coming into personal contact with Mr Millen b lood shot glassy eyes slow slurred to stand without holding onto speech and that Mr Millen which provides s in was unable side of truck The district court determined that the ALJ had arresting officer Trooper Bergeron detected affidavit because it did pertinent part as not improperly considered the comply with La RS follows A 1 Notaries shall insert in their acts the Christian names and surnames of the parties in full and not their initial letters alone or the full names of the parties and not their initial letters alone together with the permanent mailing addresses of the parties and shall print or type the full names of the witnesses and of themselves under their respective signatures 2 For the purposes of this Section a full name or a name in full shall include at least one given name and other initials in addition to the surname and middle initial initial and at It may be any combination of first name initials if any and the surname or the first least one middle name and the surname or the or complete first and middle name or names and the surname The notary shall type print or stamp his or her name as it appears on his or her commission Every document notarized in this state shall bear the notary identification number assigned by the secretary of state except that if the notary is an attorney licensed to practice law in B this state he may use his Louisiana state bar roll number in lieu of his notary identification number The number shall be typed or placed next to the typed printed or stamped of the notary as required by Subsection A of this Section printed legibly name C and No person other than public shall use regularly commissioned notary the title Notary Public Every person other than a 7 35 12 a regularly or powers his actual commissioned notary who is otherwise given notarial authorized as a notary ex officio shall clearly indicate position derived in addition D title from which his or authority to notarize is his notary identification number to Any document notarized in this state on or after January 1 2005 submitted for filing or recording in the office of notarial records register of conveyances or recorder of mortgages in and for the parish of Orleans or in the office of any clerk of court or recorder of mortgages or conveyances may be refused by the clerk or his employee ifthe document fails to contain the notary 1 identification stamped attorney bar roll number and the typed printed or of the notary and the witnesses However or name documents filed in the civil shall not be subject to or criminal suit records of any court the provisions of this Subsection 2 Except as otherwise provided in this Section no state agency department or political subdivision shall accept office file record any document notarized in this or January 1 2005 identification stamped On attorney or of the name appeal either his full first signature as a the document contains bar roll number and the or notary either a notary Sgt Calamia who notarized the form did middle or ex name in addition to his officio notary 3 indicate that court certificate from the Sgt Calamia or surname is a proceeding Secretary valid ex 8 comply with not 2 insert 1 designate identify the five numbers after his bar roll number notary number During the district a notary typed printed or badge number of State officio or Sgt Calamia did in his notarization of the arrest affidavit that he introduced the notary and the witnesses specify the parish and the length of his commission specify after on or Mr Millen asserts the arrest affidavit does not La R S 35 12 because whether he is unless state however was the confirming an ex 4 not officio Department that its records notary for the Department and that he appointed was contrast we Sgt Calamia note s that Mr Millen did status because it does as an ex as not such clearly printed Revised Statutes 35 12 B require as a to notary does not Likewise La R S on the notary notary identification number bar roll number is derived or to 35 12 does not indicate his actual position See La R S designate his title from which his affidavit does deficiency not does Petroleum ex officio notary authority to or we find no merit in the affidavit Louisiana to specifically delineate an attorney specifically require title from which his the Corp comply not authority or middle with all of the p 11 12 La Further appointment of ex 934 although the La R S See Hamilton 2 22 06 Sgt Calamia also However name requirements of invalidate the affidavit 05 846 Sgt Calamia did in fact which would have indicated the status notarize is derived Various revised statutes authorize the or is deficient question 35 12 C failed to include either his full first 5 In challenging differentiate it from A review of the affidavit however reveals that to 5 specify the parish and the length of his commission although it does require the notary fail 1993 officio notary specify the notary identification number not 15 introduce any evidence this argument because the number is the number September on Millen argues that the affidavit in Mr Although and cOlmnissioned v 35 12 Royal So 2d 25 that Intern 33 eert officio notaries to administer oaths exercise any or all of the functions powers and authority of a notary insofar as they are to and required for the operation of the office agency or department under which the related 1 392 et seq Pursuant to La RS 35 393 and 1 393 the granted La RS 35 Department is authorized to designate certain officers and appoint them as ex public These ex officio notaries are authorized to perform specified acts administering oaths and receiving sworn statements without the necessity of giving authority is secretary ofthe officio notaries such bond as La R S 35 392 A Department 393 B and 393 1 B and terminates the powers of the ex C officio notary and 393 1 D 9 Separation public from the employ ofthe See La RS 35 392 1 A denied US Adler 334 So 2d 799 Co Michael v La 800 258 La 368 246 So 2d 685 In the present the penalties should Subsections A Insofar court may applicable to La case RS 35 12 D notary fail and C refuse Revised provided on or after a identification or A otherwise In only applicable 11 to or I comply in this Section with the is further office states agency Except as department or record any document notarized in this unless the document contains the notary We as interpret the referencing in the civil or the words exception or stamped Except in the as previous criminal suit records of any court sale based upon the tax collector s failure to provide a post tax sale notice to the taxpayer as required by La RS 47 2180 the Hamilton court detennined the statute did not provide any penalty or remedy upon the tax collector s failure to reversing perform word the annulment of that court attorney bar roll number and the typed printed provided provides penalty provision however 2 state no under 934 So 2d at 33 Subsection D This 35 12 D 2005 paragraph for documents filed 6 the civil suit record of any a Statutes 1 llnposes 05 846 at p case and B of the notary and witnesses name writ not considered notarized document if it fails in this Section January of Trust perform his mandatory duties to political subdivision shall accept file state American Bank 1st Cir App See Hamilton documents filed in Louisiana otherwise La Succession 1971 of Subsections requirements not B 884 it is relevant to the facts of this as clerk of a App 4th Cir 1976 244 So 2d 882 6 166 L Ed 2d 704 2007 127 S Ct 937 this mandatory duty a tax The court reasoned in part We are not unmindful that the shall for purposes of statutory construction denotes a mandatory duty However statutes classified as mandatory prescribe in addition to requiring the doing of the thing specified judicial the result that will follow if branch in statutes where the a civilian legislature they legal system are to not done I t is not the function of the legislate by inserting penalty provisions has chosen not to do at 33 10 so Hamilton 05 846 at p 11 934 into 2d So Thus we conclude that the of Subsection penalty provisions consideration of the affidavit in the present civil suit include his full name and his failure not invalidate the affidavit La Thus under the facts of this case affidavit in La R S determining to RS specify his ex whether Mr Millen s court do Sgt Calamia officio notary 35 12 does not the district D prescribe erred in suspension not was s not failure status this bar to does penalty considering the warranted under 32 661 et seq We find the arresting affidavit sets forth sufficient facts Trooper Bergeron had reasonable grounds to establishing that believe that Mr Millen had been driving while under the influence of alcohol had been arrested and had been advised submit by Trooper Bergeron to the chemical introduce any test as See La countervailing evidence imposed by the Department was not III For these the his to reasons suspension of Mr RS to law with such REVERSED Mr Millen failed to to support his claim that the suspension s the district court s judgment that recalled The ALl s driving privileges suspension by the Department Appeal 32 668 A Millen refused CONCLUSION upholding the Department s suspension hereby reinstated before Mr warranted we reverse Millen rights costs are of Mr 11 s driving privileges to be administered in accordance assessed ADMINISTRATIVE REINSTATED Millen decision against LAW is with Mr Millen JUDGE DECISION
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