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State v. Joseph1/29/2003
own by the man with the boy until he dropped them off in the Lakehurst area. It is highly unlikely that the appellant could have consumed enough alcohol in the short time period remaining to raise his blood alcohol to 0.155.
Based on the evidence presented at trial, a rational trier of fact could have concluded, and in fact did conclude, that the defendant was indeed driving while intoxicated. Through his own videotaped admissions, the defendant placed himself as the driver of the vehicle which caused the accident and admitted to drinking the morning of the accident. The defendant was located within approximately twenty-five minutes following the accident through information from witnesses and the information on the vehicle registration papers. Officers detected an odor of alcohol about the defendant, and alcohol was found in the defendant's vehicle. Finally, the results of the field sobriety tests and the Intoxilyzer established the defendant to be under the influence of alcohol. Viewing this evidence in the light most favorable to the prosecution, we conclude that the trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. This claim is therefore without merit.
Error Patent Review
On May 20, 2002, the defendant was sentenced to serve three years at hard labor, six months without benefit of parole, probation, or suspension of sentence. Further, the defendant's sentence was suspended except for six months, and he was placed on active supervised probation for three years.
This sentence was imposed in accordance with La. R.S. 14:98(D) as it existed at the time of the offense. However, in 2001, the legislature amended La. R.S. 14:98 to change the way in which an offender serves the sentence imposed by the court. In State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, the Louisiana Supreme Court determined that, with regard to La. R.S. 14:98 and its 2001 amendments, the law in effect at the time of conviction governs sentencing. Under the 2001 amendments, the appellant's sentence is illegal.
La. R.S. 14:98, in pertinent part, now provides:
D. (1)(a) On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender's substance abuse disorder.
(b) The treatment professional performing the evaluation shall recommend appropriate treatment modalities which shall include substance abuse treatment at an inpatient facility recommended by the Department of Health and Hospitals, office for addictive disorders and approved by the Department of Public Safety and Corrections for a period of not less than four weeks nor more than six weeks.
(c) The offender may be sentenced to additional outpatient substance abuse treatment services to meet the offender's needs if determined to be necessary by the offender's treating physician, for a period not to exceed twelve months. The follow-up treatment shall be provided in a manner to gradually decrease the intensity of treatment services.
(d) Upon successful completion of the inpatient substance abuse treatment required by this Paragraph, the offender shall be sentenced
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