Opinion
No. CA 90 2309.
March 6, 1992.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA, STATE OF LOUISIANA, HONORABLE GORDON E. CAUSEY, J.
Frank J. Ferrara, Jr., Walker, for plaintiff-appellee.
Paul Schexnayder, Baton Rouge, for defendant-appellant.
Before LOTTINGER, EDWARDS and GONZALES, JJ.
This is an appeal from a judgment granting the plaintiff/appellee, Terance Hauck, a restricted driver's license under the provisions of LSA-R.S. 32:415.1 and 32:668(B). Defendant appeals; we reverse.
LSA-R.S. 32:415.1 provides, in pertinent part: A. (1) Upon suspension, revocation, or cancellation of a person's drivers license for the first time only as provided for under R.S. 32:414 and R.S. 32:415 said person, after initial notice from the department, shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. (emphasis added).
LSA-R.S. 32:668 B.(1) provides, in pertinent part: In a case of first refusal or submission to a test for intoxication and when there has been no prior suspension of the driver's license, if suspension is otherwise proper, upon a showing of proof satisfactory to the department that the suspension of driving privileges would prevent the person from earning a livelihood, the department may: (a) Require the licensee to surrender his regular license and issue in its stead . . . a special restricted operator's license . . . to be effective for the remaining period of suspension. (emphasis added.)
Terance Hauck was arrested for a first offense DWI on August 30, 1985, and he received a ninety-day suspension of his driver's license based on that offense in accordance with LSA-R.S. 32:667 B.(1). On or about May 15, 1989, Terance Hauck was arrested for second offense DWI and he received a one year suspension of his driver's license based on that offense, also in accordance with LSA-R.S. 32:667 B.(1).
LSA-R.S. 32:667 B.(1) provides: If the person submitted to the test and the test results show a blood alcohol level of .10 percent or above by weight of alcohol in the blood, his driving privileges shall be suspended for ninety days from the date of suspension on first offense violation without eligibility for a hardship license, for the first thirty days and for three hundred sixty-five days, from the date of suspension without eligibility for a hardship license on second and subsequent violations occurring within five years of the first offense.
In order for a restricted license to be granted, it must be the driver's first offense. LSA-R.S. 32:667 B.(1) and 32:668 B.(1). The record reveals that Hauck has had at least two DWI offenses within the same five year period. Therefore, he is ineligible for a restricted driver's license. See: McLean v. Department of Public Safety and Corrections, State of Louisiana, 572 So.2d 1066 (La.App. 5th Cir. 1990). The judgment of the trial court is reversed at appellee's cost.
The same is true under LSA-R.S. 32:415.1. However, section 415.1 is inapplicable to this case as it allows restricted permits for first-time offenders whose licenses were revoked under the narrow and specified provisions of LSA-R.S. 32:414 or :415. Kilbert v. State of Louisiana, Department of Public Safety and Corrections, 557 So.2d 447, 448 (La.App. 5th Cir. 1990).
REVERSED.