Hulin v. State, Dept. of Public Safety

Full title: MARK HULIN, PLAINTIFF-APPELLEE, v. STATE OF LOUISIANA, DEPARTMENT OF…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Mar 2, 1988

525 So. 2d 101 (La. Ct. App. 1988)

Opinion

No. 87-40.

March 2, 1988.

APPEAL FROM 16TH JUDICIAL DISTRICT COURT, IBERIA PARISH, STATE OF LOUISIANA, HONORABLE RICHARD T. HAIK, J.

David Groner, New Iberia, for plaintiff-appellee.

Michael C. Barron, Baton Rouge, for defendant-appellant.

Before DOMENGEAUX and LABORDE, JJ., and CULPEPPER^_, J. Pro Tem.

_ Honorable William A. Culpepper, Judge, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

DOMENGEAUX, Judge.

Plaintiff-appellee, Mark Hulin sued defendant-appellant, the State of Louisiana, Through the Department of Public Safety, for the return of his driver's license after it had been suspended because he allegedly refused to take a breath test. The trial on this matter was heard on September 25, 1986, and the Trial Judge, after viewing all of the evidence presented, ruled in favor of Mr. Hulin and reinstated his driving privileges. The Trial Judge found that the plaintiff did not refuse to take the breath test and therefore, the State unlawfully suspended plaintiff's license. The State has devolutively appealed this ruling.

The record lodged on appeal contains no transcript of the trial proceedings. Also, no evidence viewed by the Trial Court is before us except for State Exhibit No. 1, which is a copy of the Advice of Rights form completed by the police after the plaintiff's arrest indicating that the plaintiff refused a breath test. Additionally, the parties have not joined in filing a written narrative of the facts as authorized by Louisiana Code of Civil Procedure article 2133. Hence, this Court is required under article 2133, to view the Trial Judge's written narrative of facts as conclusive.

The Trial Judge found that Mr. Hulin did not refuse to take the breath analysis test when the arresting officer offered it to him. La.R.S. 32:666 requires that a person under arrest for operating while under the influence will have his driver's license seized if he refuses to take a chemical test. Based on the conclusive findings of fact of the Trial Judge that Mr. Hulin did not refuse to take the test, his license was improperly suspended on this basis.

For the above and foregoing reasons, the ruling of the Trial Court is affirmed. Costs on appeal are assessed against the defendant.

AFFIRMED.