Opinion
NUMBER 2012 KA 1150
03-26-2013
STATE OF LOUISIANA v. PHIL DANIEL
Hillar C. Moore, III District Attorney Baton Rouge, LA Attorneys for Appellee Plaintiff — State of Louisiana Jesse H. Bankston Jaclyn C. Chapman Assistant District Attorneys Baton Rouge, LA Frederick Kroenke Baton Rouge, LA Attorney for Appellant Defendant - Phil Daniel
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 06-11-0960
Honorable Louis R. Daniel, Judge
Hillar C. Moore, III
District Attorney
Baton Rouge, LA
Attorneys for Appellee
Plaintiff — State of Louisiana
Jesse H. Bankston
Jaclyn C. Chapman
Assistant District Attorneys
Baton Rouge, LA
Frederick Kroenke
Baton Rouge, LA
Attorney for Appellant
Defendant - Phil Daniel
BEFORE: PARRO, WELCH, AND KLINE, JJ
Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
WELCH , J.
The defendant, Phil Glen Daniel, was charged by bill of information with operating a vehicle while intoxicated (DWI), fourth offense, a violation of La. R.S. 14:98E. He initially entered a plea of not guilty and moved to quash the bill. Following the denial of his motion to quash, he pled guilty, reserving his right to seek review of the court's ruling on the motion to quash. See State v. Crosby, 338 So.2d 584, 588 (La. 1976). Pursuant to a plea agreement, the defendant was sentenced to ten years imprisonment at hard labor, with the first three years to be served without benefit of probation, parole, or suspension of sentence. The defendant was also ordered to pay a $5,000 fine. The defendant now appeals, arguing that the district court erred in denying his motion to quash. For the following reasons, we affirm the defendant's conviction and sentence.
Predicate Number One was set forth as the defendant's May 8, 2002 conviction under Baton Rouge City Court Docket Number BR00085402 for DWI. Predicate Number Two was set forth as the defendant's April 4, 2002 conviction under Nineteenth Judicial District Court Docket Number 03-02-0540, for DWI. Predicate Number Three was set forth as the defendant's October 16, 2006 conviction under Nineteenth Judicial District Court Docket Number 08-06-0214 for DWI, third offense.
The defendant filed applications for supervisory writs with this court and with the Louisiana Supreme Court after the denial of his motion to quash, which both courts denied. See State v. Daniel, 2011-2353 (La. App. 1st Cir. 1/27/12) (unpublished writ action);State v. Daniel, 2012-0352 (La. 2/15/12), 82 So.3d 271.
FACTS
The facts surrounding the defendant's instant offense were not fully developed because the defendant pled guilty to the charged offense. According to the bill of information and Boykin colloquy, on April 22, 2011, the defendant was stopped on Highland Road by a Baton Rouge City Police officer because he was driving outside of his lane of travel. The defendant admitted that he had been drinking beer and had a .185 blood-alcohol concentration on the chemical test for intoxication.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969).
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MOTION TO QUASH
In his sole assignment of error, the defendant argues that the district court erred in denying his motion to quash, because one of the predicate offenses was derived from a prosecution based on a city ordinance The defendant contends that the city ordinance conviction is invalid for use as a predicate conviction, because the ordinance does not include the same standards, elements, and sentences as La. R.S. 14:98, as required by La. R.S. 13:1894.1. We disagree.
When a district court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court's discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a district court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501, 504,
Louisiana Revised Statue 13:1894.1, as originally enacted by 1970 La. Acts, No. 233, §1, provided that "all prosecutions in any city, parish, and municipal court based on or arising out of the operation of a vehicle by a person while intoxicated shall be prosecuted solely under the provisions of La, R.S. 14:98." State v. Halford, 536 So.2d 537, 538 (La. App:. 1st Cir. 1988), writ denied, 548 So.2d 319 (La. 1989). The main purpose of La. R.S. 13:1894.1 was to require that all DWI offenses be prosecuted under state law rather than under local ordinances, in order to permit effective statewide enforcement of prosecutions for second and subsequent DWI offenses. State v. Fuller, 312 So 2d 287, 288-89 (La. 1975).
The 1978 amendment to La. R.S. 13:1894.1 (1978 La. Acts, No. 749, §1), added the provisions authorizing and relating to prosecutions under city/parish, and municipal ordinances. La. R.S. 13:1894.1 A provides, in pertinent part:
A. Notwithstanding any other provision of law to the contrary, including the provisions of R,S. 13:1871, on and after July 29, 1970,(Emphasis added).
prosecutions in any city, parish, op municipal court . , . based on or arising out of the operation of a vehicle by a person while intoxicated may be charged and prosecuted under the provisions of R.S. 14:98 or under any applicable city, parish, or municipal ordinance which incorporates the standards, elements, and sentences of the offense of driving while intoxicated contained in R.S. 14:98.
The defendant was arrested on October 4, 2001, and on May 8, 2002, he was convicted of DWI under Baton Rouge City Code 11:140A(l)(b) (Ord. No. 11680, §1, 3/8/00). At the time of the defendant's arrest, Section A of the city ordinance provided:
(1)The crime of operating a vehicle while intoxicated is the operating of any motor vehicle . . . when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator's blood alcohol concentration is 0.10 percent or more by weight, or is 0.04 percent or more by weight if the operator is under the age of eighteen (18) years, based on grams of alcohol per one hundred (100) cubic centimeters of blood; or
(c) The operator is under the influence of any controlled dangerous substance listed in schedule I, II, III, IV, [or] V as set forth in R.S. 40:964.
The relevant text of La. R.S. 14:98, in effect at the time of the defendant's October 4, 2001 arrest, provided:
A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle . . . when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator's blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood;
(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.
(d) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable
with or without a prescription and the label on the container of the prescription drug or the manufacturer's package of the drug contains a warning against combining the medication with alcohol.
(e) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.
The defendant cites City of Lake Charles v. Broussard, 475 So.2d 411 (La. App. 3rd Cir. 1985), in support of his position. In that case, the third circuit held that a city ordinance which established a rebuttable presumption of intoxication if the defendant had a blood-alcohol concentration of .10 percent or more was invalid due to its inconsistency with a statute providing that a blood-alcohol concentration of .10 percent or more established guilt to the offense of DWI. The court found that the ordinance did not "incorporate the same standards or elements" of DWI as contained in La. R.S. 14:98. Broussard, 475 So.2d at 412. However, in Halford, 536 So.2d at 539, this court distinguished Broussard and found that the defendant's predicate DWI conviction based on a violation of a city ordinance was not invalid under the state statute, where the ordinance was substantially consistent with state law.
The two statutory provisions in the instant case are essentially the same, and the Baton Rouge city ordinance is consistent with La. R.S. 14:98 as it existed at the time of the defendant's offense. Although La. R.S. 14:98 had two additional methods by which the offense could be committed that were not included in the city ordinance, the defendant was prosecuted under Baton Rouge City Code 1 l:140A(l)(b), which included the same elements as those in La. R.S. 14:98A(l)(b). As pointed out by the district court during the hearing on the motion to quash, the defendant was not convicted for a crime in city court that he could not have been convicted for under the state statute in district court. Therefore, we find no merit in this assignment of error. See Halford, 536 So.2d at 538-39. Accordingly, we find that the district court correctly denied the defendant's motion to quash.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.