State Of Louisiana VS Marcus Weber
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STATE OF LC iA UISIAI COURT OF APPEAL FIRST CIRCL d I NLJMBER 2012 KA 2021 STATE OF L ISIANA i VERSiJS MARCUS WEBER CYf Judgment Rendered JUN 2 7 2013 v Appealed from the Eighteenth Juaicial District Court In and far the Parish of West Baton Rouge State of Louisiana Docket Number 083322 Honorable J Robin Free Judge Presiding Richard J Counsel for Plaintiff Appellee Ward Jr District State af Louisiana Attorney Port Allen LA Elizabeth A Engolio Assistant District Attorney Plaquemine LA Counse for Defendant Appellant Thomas C Damico Baton Rouge Marcus Weber LA x BEFORE GUIDRY CRAIN AND THERIOT JJ T i o GUIDRY J The defendant Marcus Weber was charged by bill of information with one count of vehicular homicide count 1 a violation of La R 14 and four S 32 1 counts of first degree vehicular negligent injuring counts 2 violations of La 5 S 39 R 14 The defendant pled not guilty to all counts The defendant filed a 2 motion to suppress the blood and toxicology test Following a hearing on the matter the motion to suppress was denied In a writ application the defendant sought review of the trial court ruling In an unpublished action the writ was s denied State v Weber 11 La App lst Cir 4 The defendant 0125 11 13 subsequently withdrew his not guilty pleas and entered a plea of guilty to the vehicular homicide charge under Crosby reserving the right to appeal the trial s court ruling on the motion to suppress See State v Crosbv 338 Sa2d 584 La 1976 The other charges counts 2 were nol The defendant was 5 prossed sentenced to five years imprisonment at hard labor with two years of the sentence suspended Upon his release the defendant is to be placed on supervised probation for five years The defendant now appeals designating one assignment of errar We reverse the trial court ruling denying the motion to suppress and vacate the s conviction and sentence The matter is remanded to the trial court far further proceedings FACTS The following facts were developed at the motion to suppress hearing On February 10 2008 Louisiana State Trooper Jake Patin was dispatched to a vehicular crash site at the intersection of U Hwy 190 at La Hwy 423 in S Erwinville Trooper Patin observed a Chevrolet pickup truck overturned on its roof and a red car against the shoulder Steven Collins the driver of the red car had been killed and was still in the driver seat The three occupants of the truck s had already been transferred to the hospital Benjamin Wilkinson had been taken 2 to Baton Rouge General Medical Center and the defendant and Donald McGehee had been taken to Our Lady of the Lake Regional Medical Center Through a license plate check Trooper Patin learned the defendant was the owner of the truck There is no evidence in the record that this information was ever communicated to Louisiana State Trooper Jeremy Ballard who was the trooper that ordered the defendant blood drawn It was also determined that the truck had s caused the accident Trooper Patin went to Baton Rouge General to speak to Wilkinson about the crash Trooper Ballard was sent to Our Lady of the Lake to speak to the defendant and McGehee At this point in their investigations the troopers did not know who was driving the truck when it crashed At the hospital Wilkinson was conscious but unable to speak Communicating with Trooper Patin by nodding his head Wilkinson consented to have his blood drawn however Trooper Patin never sought a response from Wilkinson regarding who was driving the truck at the time of the accident At Our Lady of the Lake McGehee was conscious and able to communicate McGehee signed a consent form allowing the withdrawal of his blood Trooper Ballard never asked McGehee who was driving the truck at the time of the accident It appeared the defendant was unconscious when Trooper Ballard visited him According to Trooper Ballard the defendant was in real bad condition in critical condition Despite being unable to have the defendant sign a consent form because of his condition Trooper Ballard had a nurse draw blood from the defendant The defendant blood concentration was 1 grams percent s alcohol Though it was still unknown who the driver of the truck was at the time the blood samples were taken it was subsequently learned days later that the defendant was driving the truck 3 DISCUSSION In his sole assignment of error the defendant argues the trial court erred in denying his motion to suppress Specifically the defendant contends the results of the chemical test of his blood should have been suppressed because his blood was forcibly taken without a warrant consent arprobable cause Trial courts are vested with great discretion when ruling on a motion to suppress State v Lon 03 p 5 9 884 So 1176 1179 cert 2592 La 04 2d denied 544 U 977 125 S 1860 161 L728 2005 When a trial court S Ct 2d Ed denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion iunless s e such ruling is not supported by the evidence See State v Green 94 p 11 0887 La 5 655 So 272 280 However a trial court legal findings are 95 22 2d 81 s subject to a de novo standard of review See State v Hunt 09 p 6 1589 La 09 1 12 25 5o 746 751 3d The Fourth Amendment to the United States Constitution and article I 5 of the Louisiana Constitution protect people against unreasonable searches and seizures Subject only to a few well exceptions a search or seizure established conducted without a warrant issued upon probable cause is constitutionally prohibited Once a defendant makes an initial showing that a warrantless search or seizure occurred the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant See La C Cr P art 703 A trial court ruling on a motion to D s suppress the evidence is entitled to great weight because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony State v Youne 06 p 6 App lst Cir 9 943 So 1118 1122 0234 La 06 15 2d writ denied 06 La 5 956 So 606 2488 07 4 2d 4 In denying the motion to suppress at the suppression hearing the trial court stated in pertinent part I have a fifty chance of getting this right I believe I m going to make we making new law here and Pm going to rule re what I believe the Louisiana Supreme Court is going to rule because I believe they going to say but far this ruling and my rationale that re they could have zeroed in on in sic or two or three but they didn t know They would have lost that opportunzty to have learned whether the driver which I believe I believe ttiere a belief that he was s driving maybe not Of course that needs to be proved beyond a reasonable doubt just like the intoxication The two statutory provisions addressed by the State and the defendant in their briefs are La R 32 and La R 32 Following are the relevant S 661 S 666 portions of those provisions as they appeared on the date ofthe incident 661 Operating a vehicle under the influence of alcoholic beverages or illegal substance or controlled dangerous substances implied consent to chemical tests administering of test and presumptions A 1 Any person regardless of age who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent subject to the provisions of R 32 to a chemical S 662 test or tests of his blood breath urine or other bodily substance for the purpose of determining the alcoholic content of his blood and the presence of any abused substance or controlled dangerous substance as set forth in R 40 in his blood if arrested for any offense S 964 arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in S 964 R 40 a 2 The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person regardless of age to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages ar any abused substance or controlled dangerous substance as set forth in R S 964 40 B Any person who is dead unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section and the test or tests may be administered subject to the provisions of S 662 R 32 5 I 666 Refusal to submit to chemical test submission to chemical tests exception effects of A 1Wh law enforcement officer has probable cause i ana to believe that a persQn has violated R 14 R 14 any S 98 S 98 1ar other law or ordinance that prohibits operating a vehicle while intoxicated that person ma not refuse to submit to a chemical test if y he has refused to submit to suc test on t previous and separate i c occasions ofany previous such vir or in any case wherein a on lat fatality has occurred or a person has sustained serious bodily injury in a crash involving a motor vehicle A physician physician assistant registered nurse emergency medical technician chemist nurse practitioner or other qualified technician shall perform a chemical test in accordance with the provisions of R 32 when S 664 directed to do so by a law enforcement officer The defendant in brief argues that the blood test administered on him was an unlawful violation of his person According fo the defendant the prosecution had the burden of establishing the police had probabie cause to believe he was the driver involved in the accident and that he was under the influence of alcohol or drugs In support of this proposition the defendant cites State v Wells 08 2262 La 7 45 So3d 577 A public into case we find Wells has no 10 6 ication applicability to the instant matter The defendant in Wells who was charged and convicted of possession of cocaine was initially arrested for public intoxication and upon a search incident to arrest the arresting officer found crack cocaine on the defendant Thus the issue in Wells was whether the officer had probable cause to arrest the defendant based on the officer observation that the defendanf appeared very intoxicated In other s words unlike the unconscious defendant who was in a hospital before even being approached by a police officer and who had been involved in a vehicular crash the defendant in Wells while walking along the sidewalk eall of the outward ibited signs and manifestations of being intoxicated thereby giving the police officer probable cause to arrest him on the spot far public intoxication Wells 08 at 2262 p 3 45 So at 579 3d 80 6 In any event the defendant points out correctly that law enforcement personnel did not determine who the driver of the truck was before having blood drawn from each of the occupants of that vehicle The defendant also notes that under La R 32 a police officer must have probable cause to believe that a S 666 person has violated R 14 98 or any other law or ordinance that prohibits S 98 1 operating a vehicle while intoxicated before submitting that person to a chemical test The defendant asserts the State reliance on La R 32 is misplaced s S 666 because by their own admission the troopers indicated they did not have probable cause to believe the defendant was intoxicated at the time his blood was drawn There is also no evidence in the record that Trooper Ballard who ordered that the s defendant blood be drawn was ever told that the defendant was the owner of the truck that had caused the accident Therefore Trooper Ballard did not know at the time that the defendant owned the vehicle At the motion to suppress hearing the troopers testified that at the time the blood was drawn they had no knowledge or information of which of the three occupants of the truck had been driving at the time of the crash They made no inquiry of the two conscious occupants of the vehicle about who was the driver The troopers did not testify during the suppression hearing that they had any information or any evidence that alcohol or drugs were involved in the crash For example because the tl injured occupants had all been moved to the hospital ree prior to the arrival of the troopers at the scene there was no testimony about the driver being found or removed from the driver seat s Further there was no testimony about beer cans or any other kind of alcohol or drug container being found in or near the truck and no testimony about the smell of alcohol or drugs in the truck or the smell of alcohol on the occupants person or breath when the troopers went to the hospital to interview the occupants of the truck Additionally there is no evidence in the record that it was ever communicated to Trooper 7 Ballard who ordered that the defendant blood be drawn that the defendant s owned the truck Thus it is clear that Trooper Ballard could not have had probable cause to believe that the defendant in particular was the driver of the truck nor that the driver had been intoxicated at the time he ordered the defendant blood to be s drawn Under La R 32 implied consent to submit to a chemical test occurs S 661 only afrer the person has been arrested for any offense arising out of acts alleged to have been committed while the person was driving ar in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages Section 661 is not applicable here because no one was arrested at the time the blood was taken and as just noted the officers had no reason to believe the driver was intoxicated The State in brief argues the defendant was in effect placed under arrest at the hospital because of his extended restraint In support of this position the State cites State v Caccioppo 10 La App Sth Cir 385 11 15 2 61 So 61 3d Aside from the factual similarity in Caccioppo wherein the defendant was taken to the hospital and had blood withdrawn while unconscious we find this case inapposite In Caccioppo the defendant svehicle was stopped in the middle of the street blocking unresponsive the right lane The defendant was in the driver s seat and The police officer at the scene found the defendant breathing s shallow and her pulse slow There was a strong odor of alcohol in the vehicle The officer also found a water bottle in the center console that smelled highly of vodka All this information led the officer to believe the defendant was intoxicated He did not arrest her because of her medical condition and because he believed he did not have enough to arrest her at that point The defendant was taken to the hospitaL The officer went to the hospital with a blood alcohol kit and a nurse drew blood from the defendant Her BAC level was in excess of 5 grams 8 percent The officer obtained an arrest warrant and arrested her Caccioppo 10 385 at p 3 61 So3d at 63 Despite the officer having arrested the defendant after her BAC level was determined the fifth circuit in Caccioppo found that the defendant was effectively placed under arrest by the officer at the hospital befare her blood was drawn because even though unconscious the defendant was effectively under the s officer restraint at the hospital Moreover the officer had testified that had the defendant regained consciousness at the scene he would have Mirandized her and given her a field sobriety test Thus according to the fifth circuit the defendant was under arrest within the meaning of La R 32 when her blood was S 661 drawn Caccioppo 10 at p 7 61 So at 65 385 3d As noted there were no such indices of intoxication either at the scene or in the hospital in the instant matter The Caccioppo court seemed to suggest the s defendant prolonged restraint may have constituted a de facto arrest but only because of the officer testimony and the overwhelming signs of the defendant s s intoxication for which the officer in the first instance had probable cause to arrest The defendant cites a similar case State v Sherer 354 So 1038 La 1978 on 2d which the Caccioppo court relied But Sherer like Caccioppo involved those determining factors that make it readily distinguishable from the instant matter The defendant in Sherer after his truck crashed was found by a trooper still in his truck unconscious His breath smelled like alcohol there were beer cans in the truck and prior to the defendant being removed from the scene by ambulance the trooper told the ambulance driver he was filing charges against the defendant based on the evidence which indicated he had been driving while intoxicated Sherer 354 So at 1040 2d 42 See Miranda v Arizona 384 U 436 86 S 1602 16 L694 1966 S Ct 2d Ed 9 Having no evidence of intoxication in the instant matter the troopers could not have had reasonable grounds as required under Section b61 to believe the defendant was under the influence of alcoholic beverages or any abused substance or controlled dangerous substance r Moreov Section 661 is inapplicable because the troopers did not k who was ihe driver of the truck In both n o Caccioppo and Sherer the driver was still in the vehicle when approached by the police Under the applicable part of La R 32 that addresses S 666 t a 1 A implied consent when a fatality or serious bodily injury occurs in a crash involving a motor vehicle a mandatory test for alcohol is required w a law hen enforcement officer has probable cause to believe that a person has violated R S 98 S 98 14 R 14 or any other law or ordinance that prohibits operating a 1 vehicle while intoxicated Thus just as with the inapplicability of Section 661 to this matter so too is Section 666 inapplicable because the officers had no probable cause to believe the driver was intoxicated a threshold finding to Section 666 being triggered Prior to tt 2009 amendment La R 32 provided in pertinent part e S 681 681 Postaccident drug testing accidents involving fatalities required A The operator of any motar vehicle which is inv in a lved collision in which a fatality occurs shall be deemed to have given consent to and shall be administered a chemical test or tests of his blood urine or other bodily substance for the purpose of determining the presence of any abused substance or controlled dangerous substance as set forth in R 40 or any other impairing substance S 964 B The test or tests shall be administered at the direction of a law enforcement officer having reasc grounds to believe the nable person to ha been driving or zn actual physical control of a motor e vehicle upon the public highways of this state which is involved in a collision in which a fatality occurs A central issue that runs throughout the defendant argument in brief with s respect to La R 32 and La R 32 is whether Trooper Ballard who S 661 S 666 had blood drawn from the unconscious defendant the other twa occupants of the 10 truck had consented to have blorrd rawn had reasonable grounds to believe he was the driver of the truck VVhi La R L is not mentioned in either the e S 687 s State or the defendant briefs the argument set forth by the defendant namely s that Trooper Ballard had no wa of knowing the deferzdant was the driver and therefore could not pr hace had blood drawn from him pursuant to Sections perly 661 and 666 is equally applicable to Seetior 681 given the similar purpose language and construction ofthese three sections The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it Courts should give effect to aUparts of a statute and should not adopt a statutory construciion that makes any part superfluous or meaningless if that result can be avoided Champagne v American Alternative Insurance Corporation 12 p 6 1697 La 13 19 3 112 So 3d 179 183 emphasis added citations omitted 184 The triggering event for the application of paragraph A of Section 681 requiring the administration of a cherriical test t9 determine the presence of any drug or other impairing substance is that the operator of a vehicle is involved in a crash involving a fatality regardless of whether intoxication was involved However paragraph B of Section 681 further provides an additional requirement for administration of the chemical test and that is when the offzcer has reasonable grounds to befieve that the person to be tested vas the driver or person in actual physical control of the vehicle Reasonable grownds is something less than probable cause See Henrv v State Department of Public Safety 01 p 4 0103 La App 3d Cir 6 788 So 1286 1289 O1 27 2d Z An Attorney General opinion has stated with regazd to Section 681 while there is no A jurisprudence or statutory provisions that specifically define the phrase impairing substance we opine that alcohol could be defined as an impairing substance La Atty Gen Op No 08 0058 11 Based on the evidence presented at the suppression hearing it was clear that Trooper Ballard the officer who ordered the blood test did not have reasonable grounds to believe the defendant in particular was the driver of the truck Trooper Patin testified that through the truck license plate registration and insurance he i Trooper Patin learned the defendant was the owner of the e truck However Trooper Patin did not testify that he shared this information with Trooper Ballard and Trooper Ballard never testified that he knew who was the owner of the truck The troopers never inquired of the other two occupants as to who was driving the vehicle Thus the only information Trooper Ballard had regarding the defendant was that he was one of the tlu people in the truck that ee crashed Based on this evidence the record clearly does not establish that Trooper Ballard had reasonable grounds to believe that the unconscious person before him at the hospital was the driver of the truck any more than either of the other two persons at the scene As such he lacked the authority to invoke La R 32 as S 681 grounds for ordering that the defendant blood be drawn and tested s Therefare we conclude that Trooper Ballard the law enfarcement officer ordering the blood test did not have probable or reasonable cause to believe that the defendant in particular was the driver of the truck or that he was intoxicated Accordingly the defendant sblood could not have been drawn legally under either La R 32 La R 32 or La R 32 and such seizure of the S 661 S 666 S 681 s defendant blood by a nurse at the behest of Trooper Ballard violated the sright to privacy under Article I Section 5 of the Louisiana Constitution defendant and the right against an unreasonable search and seizure under both the Fourth Amendment to the United States Constitution and Article I Section 5 of the 12 Louisiana Constitution The trial court erred in denying the rnotion to suppress Accordingly the trial court ruling on the motion to suppress is reversed and the defendant s s conviction and sentence are vacated The matter is remanded to the trial court for further proceedings RULING ON MOTION TO SUPPRESS REVERSED CONVICTION SENTENCE AND REMANDED VACATED FOR FURTHER PROCEEDINGS 3 Similar to the matter before us in a recent U Supreme Court opinion involving a S nonconsensual warrantless blood draw the police officer in that case ordered that the defendant s blood be drawn over the defendant sobjection and without a warrant only because he believed it S U 133 S Ct legally necessary to obtain a warrant Missouri v McNeelv 1552 1567 2d Ed L 2013 VJhile the Court acknowledged that i is true that as a t was not result of the human body natural metabolic processes the alcohol level in a person blood s s begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated the Court nevertheless held that i those drunk driving investigations where n police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undennining the efficacy of the search the Fourth Amendment mandates that they do so McNeelv S U at 133 S at 1560 Ct 61 Further with respect to searches involving intrusions beyond the body surface the U s S Supreme Court has recognized that t interests in human dignity and privacy which the he Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained In the absence of a clear indication that in fact such evidence will be found these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search Schmerber v California 384 U 757 770 86 S Ct S 1826 1835 1966 Finally the Court recognized in Mapu v Ohio 367 U 643 647 81 S 1684 1687 S Ct 6 L 1081 1961 that in holding the exclusionary rule applicable to states constitutional 2d Ed provisions for the security of person and property should be liberally construed It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon Therefoxe t criminal goes free if he must but it is the law that he sets him free Nothing can destroy a government mare quickly than its failure to observe its own laws or worse its disregard of the charter of its own existence Maup 367 U at 659 81 S Ct S at 1694 13 FIRST CIRCUIT STATE OF LOUISIANA COtiRT OF APPEAL VERSUS STATE OF LOUISIANA 2012KA2021 MARCUS WEBER JUL o i 2013 CRAIN J dissenteng For the privilege of driving in Louisiana the driver of a vehicle involved in a collision in which a fatality occurs is deemed to have given consent to the administration of a blood test to determine the presence of a controlled dangerous or impairing substance La R 32 In this case the majority concludes that S 681 because the police officer did not know when the blood was drawn for testing which of the three occupants of the truck was the driver there was no implied consent by the driver I respectfully disagree The occupants of defendant truck including the defendant had been s evacuated from the scene of the fatality before the investigating officers arrived However by the time that defendant blood was drawn the officers knew there s had been a fatality that the truck had caused the fatality and that three people including the defendant occupied the truck at the time of the collision The officers candidly acknowledged that they did not know which of the three occupants was driving the truck at the time of the collision The only prerequisite for administration of the blood test is that the law enforcement officer directing that the test be done ha reasonable grounds to believe the person to have been e driving the vehicle See La R 32 S 681 1 I believe that under the unique circumstances of this case the belief that oYie oT the occupants was the driver constituted reasonable grounds to draw td defendant e sblood Importantly the defendant wha is obj to the results of the blood test ating was in fact the driver Consequently the 1 deems him to have consented to the w administration of the blood test It is not necessary to address the legal implications of the use of a non sbloud drawn pursuant to this statute driver The defendant pled guilty to vehicular homicide that is causing the death of another person while driving impaired after the trial court refused to suppress the results of the blood test I believe the trial court was correct based upon the implied consent conveyed by Louisiana Revised Statute 32 and would affirm 681 For these reasons I respectfully dissent 1 Reasonable grounds is something less than probable cause Henry v State Dept of Public Safety 01 La App 3 Cir 6788 So 2d 1286 1288 Musso v Louisiana Dept of 0103 O1 27 Public Safety 632 So 2d 826 827 La App 4 Cir 1994 Z Applying the majority logic if the defendant was unconscious and his guest passengers had s been killed the implied consent statute would not apply but if he was driving alone and killed tluee people it would apply In my opinion undex these circumstances the uvknown identity of the driver should not be used to circumvent the application of the statute 2
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