Or…do you have to give a breath sample when you’re pulled over for DWI?

The short answer: Yes and no.

Louisiana Revised Statutes §32:661 states: "Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964." La. R.S. § 32:661(A)(1).

The rest of this statute contains the requirements a law enforcement officer must meet (including advising an arrestee of the consequences of submitting to or refusing the requested chemical test for intoxication) in order for the subsequent test to be admissible in court and also for that test to be used to suspend the arrestee’s driver’s license.

In Louisiana, if a person under arrest for DWI who is asked to submit to a chemical test refuses to provide one, her driver’s license will be suspended. For the first refusal, her license will be suspended for 365 days. For the second or subsequent refusal (within 10 years of each other), her license will be suspended for 730 days.

If a person submits to a chemical test and the result is below .08 (for a person 21 years or older) or below .02 (for a person under 21 years old), his license will not be suspended.

If a person 21 years old or older submits to a chemical test for the first time and the result is over .08, depending on the additional circumstances (whether this was a first, second, or subsequent submission to a chemical test within 10 years; whether the results were above .08 or above .20; etc…), his license will be suspended for a period ranging from 90 days to 4 years, depending on the circumstances. (The DMV puts all of their regulations online here and the specific regulation governing chemical tests can be found here.)

Also, any test results that comply with the procedural requirements laid out in Louisiana Revised Statutes, Title 32, Chapter 3, Part XIV, are admissible in court and many allow the State a presumption that the driver whose test results they are was intoxicated at the time she was driving.

The longer answer to the question posed above, then, is that, no, you do not have to give a breath sample when you are arrested for driving while intoxicated; however, there may be serious consequences to your driving privileges if you do not. That said, if you do give a breath sample, there may be serious criminal consequences and consequences to your driving privileges if the results are above the legal limit.

If you or someone you know has been arrested for driving while intoxicated and you would like to schedule a consult, please give us a call at (318) 459-9111.

Since it is the season for holiday parties, it seemed prudent to remind you all that DWI Checkpoints are legal in Louisiana and have been determined to be so by the Louisiana Supreme Court since 2000. In State v. Jackson, 2000-0015 (La. 7/6/00); 764 So.2d 64, the Louisiana Supreme Court found that DWI checkpoints could satisfy the limitations of the Louisiana constitution if they met certain requirements:

[W]e set forth the following guidelines for evaluating whether the checkpoint's intrusiveness will withstand constitutional muster under the Fourth Amendment and Louisiana's Article I, § 5:17

(1) the location, time and duration of a checkpoint, and other regulations for operation of the checkpoint, preferably in written form, established by supervisory or other administrative personnel rather than the field officers implementing the checkpoint;

(2) advance warning to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;

(3) detention of the motorist for a minimal length of time; and

(4) use of a systematic nonrandom criteria for stopping motorists.

In evaluating a checkpoint under this test, the guiding principle must be that the procedures utilized curtail the unbridled discretion of the officer in the field. Prouse, 440 U.S. at 662, 99 S.Ct. 1391; **12 Brown, 443 U.S. at 51, 99 S.Ct. 2637.

State v. Jackson, 2000-0015 (La. 7/6/00, 11–12); 764 So.2d 64, 72–73.

Subsequently, the Louisiana Fourth Circuit Court of Appeal held that the act of attempting to avoid a checkpoint was sufficient to establish reasonable suspicion to detain a driver and conduct further investigation.

If you are out celebrating the holidays with friends and loved ones, please drive carefully and safely.

And if you would like to set up a consult, give us a call at (318) 459-9111.

In Louisiana, when a person is arrested for Driving While Intoxicated (DWI), his driver’s license will also be suspended in an administrative proceeding that is entirely separate from the criminal prosecution.

The first step in this process occurs during the arrest, itself. During the arrest, law enforcement will read a series of instructions and regulations to the arrested person advising him of his rights related to the breathalyzer.

The law at the time of this writing requires a person operating a motor vehicle on the public highways of Louisiana to submit to a chemical test of his blood, breath, or other bodily substance if an officer believes he is operating or “in actual physical control” of a motor vehicle and a law enforcement officer has “reasonable grounds to believe he is under the influence of alcohol beverages or “any abused substance or controlled dangerous substance.” (La. R.S. 32:661).

If the arrested person refuses to submit to testing or submits to testing and his results are above the legal limit of .08 (or .02 in the event the arrested person is under the age of 21), his driver’s license will be suspended for a period ranging from 90 days to 365 days. In order to reinstate his driver’s license after a DWI arrest, an arrested person usually must provide proof of additional auto insurance (SR-22) and install an ignition interlock device in any vehicle he operates. 

The arrested person has 30 days to appeal the suspension of his driver’s license.

If you have been arrested for DWI and are concerned about the status of your driver’s license, please call us for a consult at (318) 459-9111.

In Louisiana, when a person is arrested for Driving While Intoxicated (DWI), his driver’s license will also be suspended in an administrative proceeding that is entirely separate from the criminal prosecution.

The first step in this process occurs during the arrest, itself. During the arrest, law enforcement will read a series of instructions and regulations to the arrested person advising him of his rights related to the breathalyzer.

The law at the time of this writing requires a person operating a motor vehicle on the public highways of Louisiana to submit to a chemical test of his blood, breath, or other bodily substance if an officer believes he is operating or “in actual physical control” of a motor vehicle and a law enforcement officer has “reasonable grounds to believe he is under the influence of alcohol beverages or “any abused substance or controlled dangerous substance.” (La. R.S. 32:661).

If the arrested person refuses to submit to testing or submits to testing and his results are above the legal limit of .08 (or .02 in the event the arrested person is under the age of 21), his driver’s license will be suspended for a period ranging from 90 days to 365 days. In order to reinstate his driver’s license after a DWI arrest, an arrested person usually must provide proof of additional auto insurance (SR-22) and install an ignition interlock device in any vehicle he operates. 

The arrested person has 30 days to appeal the suspension of his driver’s license. 

If you have been arrested for DWI and are concerned about the status of your driver’s license, please call us for a consult at (318) 459-9111.

Yes.

Driving While Intoxicated in Louisiana prohibits the 

operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:

1. The operator is under the influence of alcoholic beverages.

2. The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

3. The operator is under the influence of any controlled dangerous substances listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

4. (i) The operator is under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

5. (i) The operator is under the influence of one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

La. R.S. 14:98A(1). Further, if you are under the age of 21, it is illegal to operate a motor vehicle with a BAC of .02. La. R.S. 14:98.6.

What all of the above means is that, in order to prove a person is operating a vehicle while intoxicated, the State of Louisiana must prove: (1) that the person was operating a motor vehicle and (2) that the person was “under the influence” of alcoholic beverages. This can be done in a number of ways: via presumption if the driver submits to a breath test, blood test, or urine test, and the results show a BAC of .08 or above; or if the driver performs poorly on Standardized Field Sobriety Tests (SFSTs) and sufficient other evidence shows that the driver is under the influence of alcohol, controlled dangerous substances, or other drugs.

This New Year’s Eve, if you are going to celebrate, please drink responsibly and arrange for alternate transportation.

Happy New Year from Gilmer & Giglio!

In Louisiana, when a person is arrested for Driving While Intoxicated (DWI), his driver’s license will also be suspended in an administrative proceeding that is entirely separate from the criminal prosecution.

The first step in this process occurs during the arrest, itself. During the arrest, law enforcement will read a series of instructions and regulations to the arrested person advising him of his rights related to the breathalyzer.

The law at the time of this writing requires a person operating a motor vehicle on the public highways of Louisiana to submit to a chemical test of his blood, breath, or other bodily substance if an officer believes he is operating or “in actual physical control” of a motor vehicle and a law enforcement officer has “reasonable grounds to believe he is under the influence of alcohol beverages or “any abused substance or controlled dangerous substance.” (La. R.S. 32:661).

If the arrested person refuses to submit to testing or submits to testing and his results are above the legal limit of .08 (or .02 in the event the arrested person is under the age of 21), his driver’s license will be suspended for a period ranging from 90 days to 365 days. In order to reinstate his driver’s license after a DWI arrest, an arrested person usually must provide proof of additional auto insurance (SR-22) and install an ignition interlock device in any vehicle he operates. 

The arrested person has 30 days to appeal the suspension of his driver’s license. 

If you have been arrested for DWI and are concerned about the status of your driver’s license, please call us for a consult at (318) 459-9111.