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State v. Feaster3/5/2003
Following a serious traffic accident, the defendant in this criminal case pled guilty to one count of DWI, third offense, and two counts of first degree vehicular negligent injuring. He was sentenced to five years imprisonment at hard labor for each count, to run consecutively. On appeal, the defendant argues that the sentence for the DWI is illegal and that the others are excessive and in violation of La. C.Cr.P. art. 883. For the foregoing reasons, we affirm in part, reverse in part, and remand for re-sentencing on the DWI, third offense, conviction.
Facts
On July 22, 2001, the defendant was driving his vehicle on La. 164 near La. 614 in Bossier Parish, Louisiana. The defendant then lost control of his vehicle and crashed, head-on, with another vehicle. Five other people were seriously injured as a result of the accident, two of whom sustained life-threatening injuries.
The defendant was transported to LSU Medical Center where a blood- alcohol test was performed. His blood-alcohol level was .15 grams of alcohol per one hundred cubic centimeters of blood; he was charged with one count of driving while intoxicated ("DWI"), pursuant to La. R.S.14:98, and five counts of first-degree vehicular negligent injuring, pursuant La. R.S. 14:39.2. As the result of a plea bargain entered on November 19, 2001, the defendant then pled guilty to the DWI, third offense, and to two counts of first-degree vehicular negligent injuring.
The trial judge, at sentencing, considered a pre-sentencing investigation report (PSI). The court noted that the defendant had caused critical injuries to the occupants of both vehicles involved in this traffic collision. Defendant had prior convictions for simple burglary, the probationary sentence for which later was revoked, plus convictions for disturbing the peace, simple battery, the two pertinent DWI offenses, flight from an officer, simple escape, drinking in public, disturbing the peace (drunk) and simple theft. Defendant denied having a problem with alcohol. He had never married but claimed to have four children. The court found that there was an undue risk that the defendant would commit other crimes if granted probation, and that he was in need of correctional treatment in a custodial environment.
The defendant received the maximum amount of time (five years at hard labor) for each count, to run consecutively. On appeal, the defendant argues that the sentences of the trial court were excessive and that the trial court applied the wrong law when sentencing him.
Discussion
In reference to the two counts of first degree vehicular negligent injuring, La. R.S. 14:39.2 provides, in pertinent part, the following:
A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:(1) The offender is under the influence of alcoholic beverages.(2) The offender's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
D. Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.
Since the offenses in this case arise from the same incident, La. C.Cr.P. art. 883 governs the imposition of consecutive sentences, as follows:
If the defendant is convicte
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