Randy K. Schexnaydre VS State of Louisiana, Department of Public Safety and Corrections

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STATE OF LOUISIANA COURT OF APPEAL FYRST CIRCUIT 2011 CA 14 0 RANDY K SCHEXNAYDRE VERSUS STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS Judgment rendered v N 2 Z 2 Appealed from the 22nd Judicial District Court in and for the Parish of Sta Tammany Louisiana Trial Court No 2011 10827 I Honorable Peter J Garcia Judge G BRICE JONES ATfORNEYS FOR ROSS F LAGARDE APPELLEE PLAINTIFF PAUL D HESSE RANDY K SCHEXNAYDRE SLiDELL LA LAURA C HOPES ATTORNEY FOR BATON ROUGE LA APPELLANT DEFENDANT SfATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFEfY AND CORRECTIONS OPFYCE OF MOTOR VEHICLES BEFORE PARRO KUHN PETTIGREW MCCLENDON AND WELCH 77 h C CN 4s 7 SSs a Gca i2a J s a osy n l G Gu s G i PETTIGREW 7 The State of Louisiana through the Department of Public Safety and Corrections Office of Motor Vehicles OMV seeks review of a district court judgment ordering it to reinstate Randy Schexnaydre s license sdriver For the reasons that follow we affirm the district court judgment s FACTS AND PROCEDURAL HISTORY On May 15 2010 Louisiana State Troopers Jeremy Price and Huey Galmiche observed plaintiff Randy Schexnaydre asleep at the wheel of his vehicle with his foot on the brake at the intersection of U 11 and Interstate 12 The troopers woke Mr S Schexnaydre and asked him to step out of the vehicle Schexnaydre displaying signs Trooper Price noticed Mr of impairment including bloodshot eyes unsteady balance and shaking Trooper Price asked Mr Schexnaydre if he was currently taking prescription medication to which Mr Schexnaydre responded that he was taking Methadone Mr Schexnaydre consented and submitted to the Standardized Field Sobriety Test SFST which was administered by Trooper Price in accordance with La R S 661 32 Trooper Price determined that Mr Schexnaydre failed the SFST and arrested him for operating a vehicle while intoxicated in violation of La R 14 and for S 98 simple obstruction of a highway of commerce in violation of La R 14 S 97 Mr Schexnaydre was transported to Ehe Slidell Police Department where Trooper Price advised him of his constitutional right to refuse chemlcal testing and of the consequences of failing to submit to the testing including suspension of his driver s license as required by La R S C 661 32 Mr Schexnaydre Indicated that he understood his rights by signing the Arrestee Rights Form He submitted a breath s sample to test for chemical intoxication Mr Schexnaydre breath sample registered a s blood alcohol content of 0 grams percent on the Intoxilyzer 5000 000 Subsequently Trooper Price requested that Mr Schexnaydre submit a urine sample to test for abused substances and controlled dangerous substances or In response Mr Schexnaydre asked whether he had an option to refuse the test and whether he would be required to pay for the test 2 Trooper Price advised Mr Schexnaydre if he wanted to take the urine test he could take it that was up to him Trooper Price however did not advise Mr Schexnaydre that his license would be revoked for failure to submit to the urine test Thereafter Trooper Price testified that Mr Schexnaydre advised that if it my right to refuse then I going to refuse As a s m result of his refusal to submit the requested urine sample the OMV subsequently suspended Mr Schexnaydre Class D driver license for a period of 365 days in s s accordance with La R 32 S 667 a 2 B Pursuant to La R 32 Mr Schexnaydre timely requested an administrative S 667 hearing to contest the suspension of his license for refusal to submit to a chemical test for intoxication On January 20 2011 the administrative law judge affirmed the suspension On February 8 2011 Mr Schexnaydre filed a petition for judicial review with the district court See La R 32 Following a hearing on March 22 2011 the S 668 C district court ordered the OMV to reinstate Mr Schexnaydre driving privileges s The OMV has appealed the district court judgment s The OMV contends that although Mr Schexnaydre voluntarily submitted to the breath test he was subject to a mandatory suspension of his driving privileges far refusing to submit to the urine test DTSCUSSION On review of the administrative suspension of a driver license pursuant to the s implied consent law the district court is required to conduct a trial de nouo to determine the propriety of the suspension Nlillen v State Dept of Public Safety and Corrections 2007 p 5 App 1 Cir 12 978 So 957 961 0845 La 07 21 2d Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof Further the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff Millen 2007 at 6 978 So at 961 0845 2d Louisiana Revised Statutes 32 provides in pertinent part as follows 1 A 661 Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to a 1 On February 16 2011 the district cour rendeeed an ex temporary restraining order preventiny parte the OMV from enforcing the suspension of Mr Schexnaydre driver license s s 3 chemical test or tests of h bload breath urine or other bodily substance s for the purpose of determining he alcoholic content of his blood and the presence of any abused substance or controlled dangerous substance Louisiana Revised Statutes 32 sets forth the following parameters for a 2 A 1 6 testing The test or tests shall be administered at the direction of a law enforcement officer having reasona graunds to believe the person le regardless of age to have been driving or in aGtual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R 40 S 964 The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered See also Butler v Department of Public Safety and Corrections 609 So 790 2d 792 La 1992 all licensed drivers on state highways have impliedly consented to any number of tests to determine intoxication Louisiana Revised Statutes 32 provides as follows with regard to the C 661 procedure for informing an arrested person of his rights concerning testing 1 When a law enforcement ofFicer requests that a person submit to a chemical test as provided for above he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections The department is authorized to use such language in the form as it in its sole discretion deems proper provided that the form does inform the person of the following a His constitutional rights under Miranda v Arizona b That his driving privileges can be suspended for refusing to submit to the chemical test c That his driving privileges can be suspended if he submits to the chemical test and such test results show a biood alcohol level of 0 08 percent or above or if he is under the age of twenty years a blood one alcohol level of 0 percent or above 02 d That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R 40 S 964 e The name and employing agency of all law enforcement officers involved in the stop detention irvestigation or arrest of the person That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R 14 and the penalties S 98 2 for such crime are the same as the penalties for first conviction of driving while intoxicated 4 2 In addition the arresting officer shall after reading said form request the arrested person to sign the form If tf person is unable or e unwilling to sign the officer shall certify that the arrestee was advised of the information contained in the form and tnat the person was unable to sign or refused to sign In each instance fhat a person submits or refuses to submit ko a chemical test after being advised af the consequences f s refusal or submission as provided for scn in R 32 the officer shall submik a report ir a form approved by the S 661 C secretary which requires the officer to certify among other things that he had followed the procedure in informing such person of his rights under R 32 and S 661 C that such person had submitted to the test or refused to submit to the test upon the request of the officer La R 32 Louisiana Revised Statutes 32 provides S 666 B 667 for the seizure of a person driver license and the su5pension of his driving privileges ss if he refuses to submit to an approved chemical test for intoxication when the grounds set forth in La R 32 exist La R 32 B S 667 S 667 A On appeal the OMV contends that Mr Schexnaydre is subject to a mandatory suspension of his driving privileges based on his refusai to submit to a chemical test for intoxication The OMV notes that Trooper Price arrested Mr Schexnaydre for driving while intoxicated pursuant to La R 14 Trooper Price advised Mr Schexnaydre of S 98 his rights including reading the standardlzed Rignts Relating to the Chemical Test for Intoxication form to Mr Schexnaydre Thereafter Mr Schexnaydre signed the rights form acknowledging that he understood his rights The OMV avers that although Mr Schexnaydre submitted to the breath test he refused to submit to the urine test The OMV contends that the language in La R S 661 32 is clear that by the use of the phrase test or tests a person suspected of operating a vehicle while under the influence of alcoholic beverages or controlled abused dangerous substances can be subject to more than one chemical test The OMV concludes that submission to and passing of a breathalyzer test should not give a motor vehicle operator the right to refuse without consequences additional tests for abused or controlled dangerous substances I 5 Louisiana Revised Statukes 32 authorizes law enforcement officers to 661 administer multiple tests to determine whether a driver is under the influence of alcoholic beverages abus suostances and controlled dangerous substances As d or noted by the QMV law enforcer officers are faced wikh situations where a motorist ent may have consume alcohoiic beverages and drugs Although the ir or vestigating officer has authority to use mul tests h river must be informed of the tiple e consequences of his failure to submit to the tests See State v Edwards 525 So 2d 308 313 La App 1 Cir 1988 We recognize that it is within the discretion of the investigating officer to select the appropriate test or tests to determine the source of impairment However we further note that La R 32 clearly mandates by the use of the word shall S 661 1 C that when a law enforcement officer requests that a person submit to a chemical test he shall first read to the person a standardized form approved by the Department which informs that person of his rights As stated by the Louisiana Supreme Court in State v Alcazar 2000 p 8 5 784 So 1276 1281 We find that 0536 La 15 O1 2d any holding which allows the test results to be admitted into evidence when a defendant has not firstbeen advised that he had a right to refuse to the test effectively renders La R 32 and 32 meaningless S 661 1 C A 666 Prior to the breathalyzer test being administered Trooper Price read the approved form which included all the requirements set forth in La R 32 S 661 1 C to Mr Schexnaydre Although the Department form properly advises a driver of the s consequences arising from his failure to submit to the frst chemical test sought to be administered the form is ambiguous and contains inherent contradictions if utifized to administer subsequent tests insofar as the form ontinually references a singular test While the introductory paragraph of the form provides that the driver may be required to submit to a chemical test or tests the remainder of the one page form references the chemical test a number of times and the consequences for failure to submit ta the chemical test Specifically it indicates that if the driver refuse the chemical s Z The OMV avers that the breathalyzer is the ieast invasive test but notes that the breathalyzer does not determine if a driver is under the influence of an abused or controlled dangerous substance 6 test his refusal driving privileges shall be suspenderl fQr one year if this is his first Mr Schexnaydre also notes that the only other test referenced on the form is one the driver can choose to take at his own expense if he so desire s Mr Schexnaydre avers that his understanding of the form only required him to submit to the test oc face suspensior ef his iicense the breathalyzer chemical test and the He notes that he submitted to results of that test were negative Mr Schexnaydre apparently confused due o the ambiguity in the form asked Trooper Price whether he had an option to take the urine test and whether he would be required to pay for the test Although Trooper Price informed Mr Schexnaydre that taking the test was up to him Trooper Price did not advise Mr Schexnaydre that his license would be revoked for failure to submit to the urine test or who would bear the cost of the additionai test In Swan v Department of Public Safety 311 So 498 La App 4 Cir 2d 1975 officers instructed the offending driver of his right to counsel pursuant to Miranda v Arizona but did not make it clear that the right to counsel had no application under the implied consent statute In affirming a district court judgment s enjoining and prohibiting the Department of Public Safety from suspending the driver s license because the driver refused to sub a chemical test prior to speaking to his itto lawyer the fourth circuit after noting inherent contradictions in the form utilized by the officers reasoned Here It appears that the commingiing of the snformation concerning the demands of the implied conse statute with the Mirar warnings t da resulted in the driver asserteng a roght ne had earlier been told he was free to assert 3 Moreover Mr Schexnaydre avers that the Certification of Arrest form a separate form forwarded to the OMV did not comply with La R 32 insofar as the staYute requires a separate report be S 666 B made i each instar of test administration or ijn each instance of test refusal Mr Schexnaydre n ce notes that in this instance only one Certificate of Arrest form was utilized He also avers that because only one Certificate of Arrest form was used the form itself is ambiguous The executed form reflects that Mr Schexnaydre submitted to and passed the chemical test and it includes only one blank for test results which reflects a 0 reading from the breathalyzer test and makes no reference to the refused 00 test However the form also acknowledges Mr Schexnaydre receipt of a temporary license the s arresting officer seizure of Mr Schexnaydre license and Mr Schexnaydre receipt of his notice of s s s rights to have a hearing and the requirements thereto all apparently arising from Mr Schecnaydre s failure to submit to the urine test Mr Schexnaydre concludes that had separate forms been utilized as required by La R 32r666 there would have been no such ambiguity or intemal inconsistency in the SB form 7 Apparently the driver mES the warning and thought he onceived was entitled to consult an attorney The dr request came after he s ver had first been told by Officar H2avey wit qualification that he had a out right to consult an attorney Either fficer eavey or Ortiz should have then elaborated by stating the right to counsel was inapplicable to the blood alcohol test but applied only to the criminal charge of driving while intoxicated Under such circ sic the driver is not deemed to mstance have refused to submit to a chemical test within contemplation of La S 66f R 32 et seq Swan 311 So at 5 Addifiona9iy sG as c prevent any confusfon concerning a 2d 0 srights this court has recognized that a efendant is entitled to certain defendant warnings clarifying that he has no onstitutioral right to refuse to submit to such a test Edwards 525 So at 313 n 2d 5 Under these circumstances due to the ambiguity in the form coupled with Trooper Price response to Mr Schexnaydre iry regarding his right to refuse the s sinqu urine test we conclude that Mr Schexnaydre was not adequately informed regarding the consequences from his failure to submit to the urine test Accordingly the district court did not err in ordering the OMV to reinstate Mr Schexnaydre slicense DECREE For the above and foregoing reasons we affirm the district court judgment and s assess appeal costs in the amount of 503 against the OMV 40 AFFIRMED 8 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1420 RANDY SCHEXNAYDRE K VERSUS STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS McCLENDON J dissents and assigns reasons I respectfully disagree with the majority conclusion that Mr Schexnaydre s was not adequately informed regarding the consequences arising from his failure to submit to the urine test Louisiana Revised Statutes 661 32 authorizes law enforcement to administer multiple tests to determine whether a driver is under the influence of alcoholic beverages illegal substances and controlled dangerous substances or When an officer requests the driver to submit to a chemicai test the officer is required to read the standardized form approved by the Department Herein prior to submission of any test being administered Trooper Price read the approved form which included all requirements set forth in S R LSA 1 C 661 32 and tracked the language set forth in the statute Although Mr Schexnaydre avers that the Rights Relating to the Chemical Test for Intoxication form is ambiguous because it refers to the tesY as opposed to a test the introductory language plainly indicates that the driver can be required to submit to test or tests specifically including tests of his blood breath urine or other bodily substances The introductory language does not limit the investigating officer to utilizing only one test to determine if the driver is intoxicated and provides the driver with notice that he may be asked to submit to multiple tests Further the waiver need not be an intelligent waiver but merely voluntary State v Clark 446 So 293 297 La 1984 2d Prior to any test being administered Trooper Price informed Mr Schexnaydre of the consequences for failing to submit to the referenced testing Trooper Price also testified that Mr Schexnaydre never conveyed to him that he did not understand his rights Moreover nothing in the record suggests that Trooper Price intentionally misled or deceived Mr Schexnaydre Accordingly I conclude that Trooper Price reasonably conveyed the implied consent warnings in accordance with statutory requirements Therefore I would reverse the district court judgment ordering the OMV to reinstate Mr Schexnaydre sdriving privileges While the rights form could be drafted more ar I cannot say it is legally insufficient fully Further given that the form trecks the language of SA 32 this issue may be ripe SC R 661 1 for consideration by the legislature 2

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