State v. Cowden11/30/2004
ction for public versus private property. Therefore, the State contends that the trial court did not err in denying the motion for post-verdict judgment of acquittal based on that reason.
After closing arguments, a charge conference was held. The trial judge stated that defense counsel had told him off the record that she objected to the sentence in the jury charges that said, " '[i]t is not necessary for completion of the offense for it to have occurred on a public street, highway or other public property,' " and that she wanted it removed. The trial judge denied the request and noted counsel's objection, stating that it was a correct statement of the law.
Defendant was convicted of third offense DWI, a violation of LSA-R.S. 14:98. LSA-R.S. 14:98 does not include as an element of the crime that the offense must have occurred on public property, roads, or highways. Further, in State v. Landeche, 447 So.2d 1201 (La.App. 5 Cir.1984), this Court held that a person could be charged and convicted under LSA-R.S. 14:98, even if the operation of a motor vehicle was not on a public street or highway. Also, in State v. Smith, 93-1490 (La.App. 1 Cir. 6/24/94), 638 So.2d 1212, 1215, the appellate court stated that, "[t]he DWI statute does not limit the prohibition of driving while intoxicated to driving on state highways, and evidence of operating a vehicle while intoxicated, even in the ditch, constitutes evidence of the offense." The Landeche and Smith cases are similar to the instant case, because the vehicles were being operated in a parking lot and a ditch, respectively, not public streets or highways.
*11 Based on the foregoing, we find that the trial court did not err by giving an improper jury charge or by denying the motion for post-verdict judgment of acquittal based on that reason.
In her fifth assignment of error, the defendant contends that the trial court erred by allowing Officer Imbornone to testify relative to the breathalyzer exam, as Louisiana R.S. 32:661 applies only to "public highways," and the trial court erred in refusing to grant the motion in limine on that issue. The State responds that the trial court did not err in refusing to grant the motion in limine as it was untimely, pursuant to LSA-C.Cr.P. art. 521, and the evidence was relevant and admissible. Alternatively, the State argues that any error in admitting the evidence was harmless.
On January 30, 2004, defendant filed a motion to quash or dismiss or in the alternative, a motion in limine. In that motion, defendant argued that evidence of the breath test or alleged refusal to take the breath test was inadmissible under LSA-R.S. 32:661 because the offense occurred on private property. On February 5, 2004, the morning of trial, the following exchange occurred relative to the motion:
THE COURT:
Secondly, you move to exclude from evidence any chemical, any evidence with regard to chemical tests. First of all, I'm going to deny your motion. It is untimely. Secondly, though, on the merits, so that you will know what I intend to rule, I don't know whether there is going to be a rule needed because my recollection is that the state doesn't have the chemical test. Is that right Mr. Cox?
MR. COX:
That is correct, Your Honor.
THE COURT:
Your most compelling argument is in part two of your memo which I think I've made known to you, I thought, was where you refer to Title 32 in Section 661 and quoted saying that "Tests may only be administered when an officer has reasonable ground to believe that the person has been driving in actual physical control of a motor vehicle on public highways under the influence of alcoholic beverages." Again, like I said, I'm not making a ruling on what I would do if the state offered a test, but as far as I know, they are n
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