                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #005


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of January, 2018, are as follows:



BY CLARK, J.:


2017-CA-1340      DAVID CARVER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY (Parish of
                  E. Baton Rouge)

                  This case concerns the constitutionality of La. R.S. 32:667,
                  particularly paragraphs La. R.S. 32:667 (H)(3) and (I)(1)(a).
                  Plaintiff, David T. Carver, alleged these paragraphs violated the
                  Due   Process   Clauses   of  the  United   States and   Louisiana
                  Constitutions.    Following the District Court’s finding that the
                  paragraphs violated the Due Process Clauses, the Department of
                  Public Safety and Corrections, Office of Motor Vehicles (the
                  State) directly appealed that finding to this Court.      For the
                  reasons that follow, we find that the applicable paragraphs do
                  not violate the Due Process Clauses of the United States and
                  Louisiana Constitutions. Thus, we reverse the District Court’s
                  judgment of unconstitutionality and remand the matter for
                  proceedings consistent with this holding. For the reasons given,
                  we   find   that   La.   R.S.  32:667(H)(3),   and (I)(1)(a)   are
                  constitutional and the judgment of the District Court is
                  reversed.    The matter is remanded to the District Court for
                  proceedings consistent with this holding.
                  REVERSED AND REMANDED.

                  WEIMER, J., Concurs in the result and assigns reasons.
01/30/18



                      SUPREME COURT OF LOUISIANA

                                 No. 2017-CA-1340

                                 DAVID CARVER

                                      VERSUS

             LOUISIANA DEPARTMENT OF PUBLIC SAFETY

                         ON APPEAL
        FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
            FOR THE PARISH OF EAST BATON ROUGE

CLARK, Justice

      This case concerns the constitutionality of La. R.S. 32:667, particularly

paragraphs La. R.S. 32:667 (H)(3) and (I)(1)(a). Plaintiff, David T. Carver, alleged

these paragraphs violated the Due Process Clauses of the United States and

Louisiana Constitutions. Following the District Court’s finding that the paragraphs

violated the Due Process Clauses, the Department of Public Safety and Corrections,

Office of Motor Vehicles (the State) directly appealed that finding to this Court. For

the reasons that follow, we find that the applicable paragraphs do not violate the Due

Process Clauses of the United States and Louisiana Constitutions. Thus, we reverse

the District Court’s judgment of unconstitutionality and remand the matter for

proceedings consistent with this holding.


                    FACTS AND PROCEDURAL HISTORY

      In 2009, Plaintiff was arrested for driving while intoxicated (DWI) pursuant

to La. R.S. 14:98. Plaintiff refused to submit to a chemical test for intoxication and

his license was suspended for 180 days. The arrest did not result in a conviction, as

Plaintiff participated in a pre-trial diversion program.




                                            1
      In 2014, Plaintiff was again arrested for DWI and charged with a violation of

La. R.S. 14:98. At the time of the arrest, Plaintiff again refused to submit to a

chemical test for intoxication. Plaintiff later pled guilty to the DWI charge. The

District Court deferred Plaintiff’s sentence and placed him on one-year probation.

After more than one year, the District Court dismissed the charge.

      As a result of the arrest and refusal to take the chemical test for intoxication,

the State again suspended Plaintiff’s driver’s license, this time for one year. Plaintiff

presented the District Court dismissal to the State in an attempt to reinstate his

driver’s license privileges. The State denied unrestricted reinstatement based on La.

R.S. 32:667 (H)(3), which prohibits reinstatement of driving privileges if the person

refused to submit to an approved chemical test upon a second or subsequent arrest,

and upon the facts that Plaintiff was twice arrested for DWI and twice refused to

submit to a chemical test for intoxication. The State then required Plaintiff to install

an ignition interlock device on his vehicle as a condition to reinstatement pursuant

to La. R.S. 32:667 (I)(1)(a) on the basis he had refused to submit to the chemical test

for intoxication.

      Plaintiff filed a written request for an administrative hearing to review the

State’s suspension of his driving privileges with the Division of Administration

(DOA). After the hearing, the administrative law judge affirmed the State’s ruling.

      Plaintiff then filed a petition for judicial review of the State’s ruling

suspending his driver’s license. The petition alleged that the DOA ruling violated

constitutional and statutory provisions, exceeded the DOA’s authority, and

constituted an arbitrary and capricious exercise of discretion.

      Thereafter, Plaintiff filed a motion for declaratory judgment, seeking to have

La. R.S. 32:667 (H)(3) and (I)(1)(a) declared unconstitutional.



                                           2
      Prior to the hearing, the District Court informed the parties that any

constitutional challenge would be preserved until after a ruling on the merits of the

case, and only if necessary. After a hearing, the District Court affirmed the

administrative judge’s decision to suspend Plaintiff’s driving privileges, ordered

Plaintiff’s driver’s license suspended for 730 days pursuant to La. R.S. 32:667,

ordered Plaintiff was eligible for a hardship driver’s license, and required Plaintiff

to have an interlock ignition device for the duration of the suspension period. The

District Court also declined to declare La. R.S. 32:667 (H)(3) unconstitutional and

refused to declare La. R.S. 32:667 (I)(1)(a) unconstitutional as an ex post facto law.

      Plaintiff then filed a motion for consideration of the constitutional challenge,

re-urging his constitutional challenge of La. R.S. 32:667 (I)(1)(a) based on the

District Court’s decision to defer a ruling on the issues of due process and double

jeopardy until after a ruling on the merits.

      On May 19, 2017, the District Court declared La. R.S. 32:667 (I)(1)(a)

unconstitutional on the ground it violated due process. On May 25, 2017, the District

Court amended its judgment to hold that both La. R.S. 32:667 (H)(3) and (I)(1)(a)

were unconstitutional, as violating the Due Process Clauses of the United States and

Louisiana Constitutions, as these provisions “mandate punitive duplicitous measures

based entirely on a previous arrest, rather than on previous illegal conduct proven

by any recognized burden.” The District Court expressly declined to address the

issue of whether La. R.S. 32:667 (H)(3) and (I)(1)(a) violate the Double Jeopardy

Clause of the United States and Louisiana Constitutions.

      The State directly appealed the District Court’s ruling to this Court as allowed

by Article V, § 5, Paragraph D of the Louisiana Constitution.

                              LAW AND ANALYSIS



                                           3
      Plaintiff contended at the District Court that various aspects of La. R.S. 32:667

are unconstitutional, namely La. R.S. 32:667 (H)(3) and (I)(a). Louisiana R.S.

32:667 provides in pertinent part:

      (H). (1.) When any person's driver's license has been seized, suspended,
      or revoked, and the seizure, suspension, or revocation is connected to a
      charge or charges of violation of a criminal law, and the charge or
      charges do not result in a conviction, plea of guilty, or bond forfeiture,
      the person charged shall have his license immediately reinstated and
      shall not be required to pay any reinstatement fee if at the time for
      reinstatement of driver's license, it can be shown that the criminal
      charges have been dismissed or that there has been a permanent refusal
      to charge a crime by the appropriate prosecutor or there has been an
      acquittal. If, however, at the time for reinstatement, the licensee has
      pending against him criminal charges arising from the arrest which led
      to his suspension or revocation of driver's license, the reinstatement fee
      shall be collected. Upon subsequent proof of final dismissal or
      acquittal, other than under Article 893 or 894 of the Code of Criminal
      Procedure, the licensee shall be entitled to a reimbursement of the
      reinstatement fee previously paid. In no event shall exemption from this
      reinstatement fee or reimbursement of a reinstatement fee affect the
      validity of the underlying suspension or revocation.
                                       * * *
      (3). Paragraph (1) of this Subsection shall not apply to a person who
      refuses to submit to an approved chemical test upon a second or
      subsequent arrest for R.S. 14:98 or 98.1, or a parish or municipal
      ordinance that prohibits driving a motor vehicle while intoxicated.
      However, this Paragraph shall not apply if the second or subsequent
      arrest occurs more than ten years after the prior arrest.
                                       * * *
      (I). (1)(a). Any person who has refused to submit to an approved
      chemical test for intoxication, after being requested to do so, for a
      second arrest of R.S. 14:98 or 98.1 or a parish or municipal ordinance
      that prohibits operating a vehicle while intoxicated and whose driver's
      license has been suspended in accordance with law.

      Plaintiff's allegations stem from his plea of guilty to driving while intoxicated

on November 17, 2014. His charge was dismissed on January 8, 2016. He applied to

have his driving privileges reinstated by the Office of Motor Vehicles. The Office

of Motor Vehicles denied his reinstatement because he had a prior arrest for driving

while intoxicated in 2009. Following a hearing, the District Court held that La. R.S.

32:667 (H)(3) and (I)(l)(a) violated the Due Process Clauses of the United States and

Louisiana Constitutions.

                                          4
      Questions of law, such as the proper interpretation of a statute, are reviewed

by this Court under the de novo standard of review, and this Court is not required to

give deference to the lower court in interpreting the constitutionality of a statute. La.

Municipal Ass'n v. State, 04-0227 (La. 1/19/05), 893 So.2d 809, 836.

      All statutory enactments are presumed constitutional, and every presumption

of law and fact must be indulged in favor of legality. Moore v. RLCC Technologies,

Inc., 95-2621 (La. 2/28/96), 668 So.2d 1135. In the case of City of Shreveport v.

Pedro, 170 La. 351, 127 So. 865 (La. 1930), this Court explained the basic

requirements of a constitutional challenge: "It is elementary that all laws are

presumed to be constitutional until the contrary is made clearly to appear, and that

he who urges the unconstitutionality of a law must specially plead its

unconstitutionality, and show specifically wherein it is unconstitutional.” Pedro,

170 La. 351, 127 So. 865. Similarly, in Johnson v. Welsh, 334 So.2d 395, 396 (La.

1976), the court stated:     “It is well settled that all laws are presumed to be

constitutional until the contrary is made to appear, and that as a general rule a litigant

cannot raise the unconstitutionality of a statute unless its unconstitutionality is

specially pleaded and the grounds particularized.” The presumption is especially

forceful in the case of statutes enacted to promote a public purpose. Polk v. Edwards,

626 So.2d 1128, 1132 (La. 1993). The legislature is given great deference in the

judicial determination of a statute's constitutionality, and legislators are presumed to

have weighed the relevant constitutional considerations in enacting legislation.

Greater New Orleans Expressway Commission v. Olivier, 04-2147 (La. 1/19/05),

892 So.2d 570, 573. Because a state statute is presumed constitutional, the party

challenging the statute bears the burden of proving it is unconstitutional. State v.

Brenan, 99-2291 (La. 5/16/00), 772 So.2d 64, 67. The burden plaintiffs carry in

challenging the constitutionality of a statute is a heavy burden. It is not enough for a

                                            5
person challenging a statute to show that its constitutionality is fairly debatable; it

must be shown clearly and convincingly that it was the constitutional aim to deny

the legislature the power to enact the statute. Hite v. Larpenter, 04-1821 (La.App. 1

Cir. 9/23/05), 923 So.2d 140, 145, writ denied, 05-2255 (La. 3/10/00), 925 So.2d

511.

       The legislature's powers are derived from the citizens of the state who freely

elect their legislative representatives; in other words, the provisions of the Louisiana

Constitution serve as limitations on the otherwise plenary power exercised by the

legislature, which may enact any legislation not prohibited by the Constitution. Polk,

626 So.2d at 1132.

       Because of the presumption of constitutionality, in determining the validity of

a constitutional challenge, a Court "must construe a statute so as to preserve its

constitutionality when it is reasonable to do so." M.J. Farms, Ltd. v. Exxon Mobil

Corporation, 07-2371, p. 22 (La. 7/1/08), 998 So.2d 16, 31. In addition, when

deciding whether a particular legislative enactment is unconstitutional, this Court

has repeatedly stated that it is not the court's "duty to determine the wisdom behind

the enactment of [the] legislation." M.J. Farms, 998 So.2d at 34. Thus, so-called

"policy considerations" are not relevant to the decision, as such considerations are

more appropriately presented to the legislature, in the first instance, when the pros

and cons of a proposed law are being debated. M.J. Farms, 998 So.2d at 34.

                              Procedural Due Process

       Procedural due process requires that before an individual is deprived of a

property or liberty right, the individual must be provided with notice and an

opportunity to be heard. State v. Golston, 10-2804 (La. 7/1/11), 67 So.3d 452, 463.

Louisiana R.S. 32:667 (A)(2) provides that an arrestee has thirty days from the date

of arrest to make a written request for an administrative hearing. At this hearing, in

                                           6
order to prove that license suspension is appropriate, the State must prove (among

other things): (1) whether the arresting officer had reasonable grounds to believe the

arrestee had been driving, or was in actual physical control of a motor vehicle upon

the public highways of the state; (2) whether the arrestee was placed under arrest;

(3) whether the arrestee was advised by the officer of his Miranda rights and that his

driving privileges could be suspended for refusing to submit to the chemical test;

and (4) whether he refused to submit to the test upon the request of the officer. La.

R.S. 32:668 (A). If the administrative hearing officer upholds the suspension, the

arrestee then has the right to appeal the decision of the administrative hearing to a

judicial court. La. R.S. 32:668 (C)(1).

      La. R.S. 32:667 (H)(3) prohibits someone who refuses a chemical test for a

second arrest of driving while intoxicated from being exempt from paying fees. This

provision does not deprive one who refuses a chemical test of due process. As La.

R.S. 32:667 (G) provides, "[n]otwithstanding the provisions of any other law, any

person whose license has been suspended under the provisions of this Section, shall,

after completion of the period of suspension, be required to pay a reinstatement fee

of fifty dollars to the department for the return of his license." Anyone whose license

is suspended under this section is required to pay the fee, and anyone whose license

is suspended has the right to an administrative hearing pursuant to the provisions of

La. R.S. 32:667. This administrative hearing provides the notice and opportunity to

be heard. Therefore, La. R.S. 32:667 (H)(3) affords procedural due process.

      Plaintiff argued during oral argument that the process was flawed, in that an

arrestee who was wrongly arrested would be deprived of the early reinstatement

opportunity contained in La. R.S. 32:667 (H)(1). This argument is baseless, as the

State must prove during the administrative hearing that an arresting officer “had

reasonable grounds” for the arrest. La. R.S. 32:668 (A)(1).

                                          7
                              Substantive Due Process

       "Substantive due process rights are balanced against the police power of a

governing authority to protect the health, safety, morals and general welfare of the

people. Governments have an inherent need 'to protect the safety and welfare of their

citizens from the unrestrained liberty of some individuals.'" Golston, 67 So.3d at

467.

       The Louisiana Highway Regulatory Act, established in La. R.S. 32:1 et seq.,

was enacted pursuant to the police power of the State and governs those traveling on

roads throughout Louisiana. The Louisiana Highway Regulatory Act created two

primary departments to serve this purpose, the Department of Transportation and

Development, created by La. R.S. 32:2, and the Department of Public Safety, created

by La. R.S. 32:3.

       The police power of the State was further explained in Polk, 626 So.2d at

1142, which held: La. Const. Art. VI, § 9 (B) provides that "notwithstanding any

provisions of this Article, the police power of the state shall never be abridged."

While this Court has acknowledged that the term "police power" is best defined on

a case by case basis, this term is generally described as the inherent power of the

state to govern persons and things for the promotion of general security, health,

morals, and welfare. Polk, 626 So.2d at 1142. Louisiana R.S. 32:667, in particular

La. R.S. 32:667 (H)(3) and (I)(1)(a), simply serves as an exercise of the legislature's

right to regulate the operation of motor vehicles in Louisiana for the benefit of public

health, safety, morals and general welfare of the citizens of the State, and the statute

is rationally related to such a purpose.

       As this Court has said regarding driving while intoxicated:

       We have already determined that the right to operate a motor vehicle in
       Louisiana is a privilege granted by the state and not a constitutional


                                           8
      right. Consequently, the state has and can enact numerous conditions
      on that privilege.

      Our constitution wisely provides for separation of powers, and
      authorizes the legislature to make public policy determinations of
      controversial issues. Therefore, under our constitution, the legislature
      has determined that the public policy of Louisiana is to keep drunk
      drivers off the state highways. [The propriety of such] public policy []
      should not be determined by this court.

      Moreover, the state's interests are immediately apparent: (1) the lack of
      compliance with the law . . .; (2) the high incidence of motor-vehicle
      accidents involving drunk drivers; (3) the reduction of deaths and
      injuries that usually result from motor vehicle accidents involving
      drunk drivers; and (4) the evident risk of the defendant continuing to
      drive while intoxicated . . . . The state's interests are significant.

State v. Edwards, 00-1246 (La. 6/1/01, 15), 787 So.2d 981, 992–93 (citations

omitted). As a means of identifying drunk drivers, the above is applicable to

requiring chemical testing.     Thus, requiring motorists reasonably suspected of

driving while intoxicated to undergo chemical testing is directly and reasonably

related to the health, safety, morals and general welfare of the citizens of the State.

      Further, Louisiana has an “implied consent” law, and this Court has

previously recognized that the United States Supreme Court has declared that such

laws are constitutional. See Monroe v. High, 223 So.2d 834, 838 (La. 1969) (citing

Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and

Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908

(1966). In Monroe, which dealt with the refusal to give permission to secure a

sample of blood by venipuncture for the performance of blood alcohol

determination, this Court noted that the implied consent law provides that any person

who operates a motor vehicle upon the public highways of Louisiana shall be

deemed to have given consent to a chemical test to measure his blood alcohol

content. Monroe, 223 So.2d at 838. Given this implied consent, the legislature,

again, clearly has a rational basis for penalizing the refusal of an arrestee for


                                           9
declining to consent to a chemical test by either charging an enhanced administrative

fee for license reinstatement, or by withholding reinstatement altogether. Further,

charging an administrative fee, or withholding reinstatement, to those suspected of

driving while intoxicated is, likewise, clearly within the police power of the state,

and thus does not violate substantive due process.

                                 CONCLUSION

      For the reasons given, we find that La. R.S. 32:667 (H)(3) and (I)(1)(a) are

constitutional, and the judgment of the District Court is reversed. The matter is

remanded to the District Court for proceedings consistent with this holding.



REVERSED AND REMANDED




                                         10
01/30/18

                      SUPREME COURT OF LOUISIANA


                                     NO. 2017-CA-1340

                                      DAVID CARVER

                                           VERSUS

                LOUISIANA DEPARTMENT OF PUBLIC SAFETY

             ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
                      FOR THE PARISH OF EAST BATON ROUGE


WEIMER, J., concurring.

         I concur in the result and write separately to point out that the district court

focused on the defendant’s arrest in holding the statute unconstitutional. While the

arrest is a prerequisite to offering the test for alcohol consumption to one charged

with driving while intoxicated, and the defendant is innocent until proven guilty, the

defendant’s refusal to consent to the test should be the focal point.

         Of course, as recognized by the majority,1 driving is a privilege and not a right.

State v. Jackson, 00-0015, p. 10 (La. 7/6/00), 764 So. 2d 64, 72. The state can

impose reasonable requirements on a driver to exercise that privilege. See id. Under

the statutory provisions in question, after the arrest, the defendant is faced with a

choice–to take or to refuse the test. A difficult choice is still a choice. Ultimately,

the consequences imposed result from the refusal to take the test in this matter, not

from the arrest itself. Therefore, the statutory provisions in question satisfy the due

process requirements.

         Accordingly, I respectfully concur in the result in this matter.




1
    Carver v. Louisiana Department of Public Safety, 17-1340 (La. 1/30/18), slip op. at 8.
