 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Campbell7/6/2004
uspended sentence, sentenced to home **5 incarceration and ordered to pay a fine of two thousand dollars, all in accordance with La.Rev.Stat. 14:98 D(1)(a).
Before we address the State's argument and our resolution of the conflict between La.Rev.Stat. 15:529.1 and La.Rev.Stat. 14:98, an error patent review reveals the district court allowed the defendant to *116 keep the car he was driving at the time of the offense, ordering him to pay an extra four hundred dollars to the criminal court fund before the end of his probation. However, this appears to be in contravention of La.Rev.Stat. 14:98 D(2)(a), which orders that the vehicle being driven by the offender at the time of the offense shall be impounded and sold at auction. The district court apparently took notice of the fact that the defendant's girlfriend was a co-owner of the vehicle. The vehicle is exempt from sale if the owner was not the driver and did not know the driver was operating the vehicle while intoxicated. La.Rev.Stat. 14:98 D(2)(b). Even though the State apparently acquiesced in this judgment and does not complain of this potential error, we do not ignore patent errors favorable to the defendant when the State does not complain about them. State v. Williams, 2000-1725, p. 9-10 (La.11/28/01), 800 So.2d 790, 798. Under the provisions of La.Code Cr. Pro. art. 882, "[a]n illegal sentence may be corrected at any time by ... an appellate court on review."
However, we find there are questions that need to be answered before determining the car co-owned by the defendant and his girlfriend should be seized and sold. First, the vehicle "shall be exempt from sale if ... the owner did not know that the driver was operating the vehicle while intoxicated." La.Rev.Stat. 14:98 D(2)(b). There was no determination by the court below as to whether the defendant's girlfriend, co-owner of the subject vehicle, knew the defendant was driving the vehicle while intoxicated. If it is proven the co-owner had knowledge the defendant was **6 driving the vehicle while intoxicated, then the vehicle must be seized and sold, in accordance with the clear dictates of La.Rev.Stat. 14:98 D(2). Second, if it is proven the co-owner did not have knowledge the defendant was driving the car while intoxicated, it should then be determined whether the statutory exemption provided by La.Rev.Stat. 14:98 D(2)(b) applies to a co-owner who does not have knowledge the other co-owner is driving the vehicle while intoxicated. These factual determinations are best made by a trial court after a hearing in which the judge has the benefit of full briefing and argument. Therefore, we will remand this matter to the district court, for it to determine whether the co-owner of the vehicle had knowledge the defendant was driving the vehicle while intoxicated. If she did, then the court must refund any portion of the four hundred dollars paid by the defendant and order the car to be seized and sold in accordance with La.Rev.Stat. 14:98. Should the district court find the co-owner did not have knowledge the defendant was driving while intoxicated, then the court must decide whether the vehicle is subject to seizure and sale, considering the statutory exemption from sale when an owner of the car does not know the driver is driving while drunk.
Turning to the issue for which we granted writs, we must now determine whether the provisions of La.Rev.Stat. 14:98 preclude a third DWI offender, who has two prior felony convictions for non-DWI offenses, from being sentenced under Louisiana's Habitual Offender Law. The State argues the defendant is subject to the recidivist punishment provisions of La.Rev.Stat. 15:529.1 A(1)(b)(i), which provide for a mandatory punishment of not less than two-thirds of the longest possible sentenc
Page 1 2 3 4 5 6 Louisiana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|