CHANGES IN DWI & DRUG COURT LEGISLATION

Navigating the Legislative HighwayBy: Carla S. Sigler

Assistant District Attorney, Calcasieu Parish14th Judicial District Adult Drug & DWI Court Coordinator

DWI LegislationSB 277 provides for major changesIt will not be effective until 1/1/2015Essentially, major changes to the law to make

it easier to understandIt is basically a complete re-organization of

LSA-R.S. 14:98, the DWI statuteIt was the product of combined efforts of

prosecution, defense, courts, and others

After LSA-R.S. 14:98(A), which defines DWI elements of the offense and still does, the entirety of the statute is re-organized.

Current provisions (B) through (K) are being deleted

The new (B) is going to be the “Child Endangerment Law” of the DWI statute

The new (C) will define what to look at to see if the defendant has prior convictions

The new (D) will be penalties. It is designed to be easier to read and follow.

The new (E) will provide that the legislature finds that conviction for a third or subsequent operating while intoxicated offense is “presumptive evidence of the existence of a substance abuse disorder that poses a serious threat to the health and safety of the public. Further, the legislature finds that there are successful treatment methods available for treatment of addictive disorders.”

The new (F) will address vehicle seizure and sale, and makes it mandatory on third or subsequent conviction under LSA-R.S. 14:98 if the prosecutor makes a motion for this

Major bargaining power for the StateExemptions from seizure and sale include a

stolen vehicle, driver of vehicle was not its owner and owner did not know the driver was driving the vehicle while intoxicated, and if there is a valid lienholder

This will create interesting court scenarios

The new (G) provides that if offender on probation under this article does not complete required substance abuse treatment, or violates any other probation condition, which includes home incarceration conditions, his probation may be revoked, and he can be ordered to serve the rest of the sentence of imprisonment without being given credit for time served on home incarceration

LSA-R.S. 14:98.1 will become the penalty statute for operating a vehicle while intoxicated, first offense

LSA-R.S. 14:98.2 becomes the penalty statute for operating a vehicle while intoxicated, second offense

LSA-R.S. 14:98.3 will be the penalty statute for operating a vehicle while intoxicated, third offense

LSA-R.S. 14:98.4 contains the penalties for operating a vehicle while intoxicated, fourth and subsequent offense

LSA-R.S. 14:98.5 contains special provisions and definitions

It states that an offender shall pay the costs of any substance abuse program, home incarceration, or driver improvement program, and if such payment is not made the offender shall be subject to revocation unless the court determines the person cannot pay

If there is a conviction for a third or subsequent offense, and if the court determines that the offender cannot pay these costs, then the state pays

On completion of the program or programs in question, the court can require the defendant to reimburse the state for all or a portion of the costs

The court does so via a payment schedule that it determines

This does not apply to substance abuse treatment imposed as a probation condition under LSA-R.S. 14:98.3(B)(2) or LSA-R.S. 14:98.4(B)(3)

Home incarceration is also addressed by LSA-R.S. 14:98.5

If there is a felony violation of LSA-R.S. 14:98, the mandatory minimum sentence the court imposes cannot be served on home incarceration unless either:

(1) the Department of Public Safety and Corrections (via Probation and Parole) recommends the defendant’s home incarceration and specific conditions for it;

(2) The District Attorney recommends home incarceration.

More conditions of LSA-R.S. 14:98.5Lots of exceptions and conditions for home

incarceration; read them thoroughlyFor instance, special conditions the court must

impose include: (a) electronic monitoring (unless less than 5 days of home incarceration ordered on a first or second conviction); (b) curfew restrictions; (c) employment must be obtained; (d) participation in court-approved driver improvement program, if not already a condition of probation; and (e) activities outside of the home specifically limited to work, church, etc.

More LSA-R.S. 14:85Ignition interlock devices addressedCommunity service activities definedAgain, lots of conditions so make sure your

sentences comply with it

LSA-R.S. 14:85 conditions continuedIf offender is convicted of a second violation

of an operating while intoxicated crime committed within 5 years of the commission of any prior such offense, he is not eligible for home incarceration until he has served 48 consecutive hours minimum of imprisonment

If the offender is on probation for a third or subsequent offense or a second offense of LSA-R.S. 14:98

LSA-R.S. 14:98.6 is now the offense of underage operating while intoxicated

Blood alcohol limit for minors is still .02 percent or more per 100 cc of blood if the operator is under age 21

This statute has the penalties for underage operating listed in it

LSA-R.S. 14:98.7 is unlawful refusal to submit to chemical tests and penalties for it

LSA-R.S. 14:98.8 is operating a vehicle while under suspension for certain prior offenses

Why choose Drug or DWI Court?Under LSA-R.S. 14:98.3 (third offense

operating while intoxicated penalties), there is a mandatory minimum term of imprisonment of one year with or without hard labor which cannot be suspended unless offender is accepted into a Drug Court Program

Under LSA-R.S. 14:98.4 (fourth offense), there is a mandatory minimum of two years of imprisonment unless offender is accepted into Drug Court Program (exception: third or subsequent with prior participation in such a program)

Other notable DWI law changeHB 511; there is no longer a ten-year

cleansing period for convictions of vehicular homicide and first degree vehicular negligent injuring; a conviction for either one now counts as a prior conviction no matter what date it occurred relative to the current crime

Effective date: August 1, 2014

Changes to Drug Court LegislationAct No. 377, impacted LSA-R.S. 13:5304(B)Effective date: August 1, 2014A defendant with a prior felony conviction for a

defined crime of violence (listed in LSA-R.S. 14:2), except for a homicide, is now eligible for Drug Court participation

The crime currently before the court cannot be a defined crime of violence listed in LSA-R.S. 14:2, or an offense of domestic abuse battery punishable by imprisonment at hard labor as provided by LSA-R.S. 14:35.3

What stayed the same?No pending criminal proceedings against the

defendant alleging a crime of violenceCrime before the court cannot be one of

driving under the influence of alcohol or any other drug that resulted in a person’s death

Exceptions discussedNo prior homicide convictions pursuant to LSA-

R.S. 14:29That means no convictions for first degree

murder, second degree murder, manslaughter, negligent homicide, and vehicular homicide

LSA-R.S. 14:35.3 hard labor sentence is a third conviction or fourth or subsequent conviction for domestic abuse battery

List of violent crimes in LSA-R.S. 14:2: Check the current version of the statute; proposed changes and changes to it every year

What does this mean for us?A greater potential client baseMore people we can try to helpCountervailing concerns: screen very

carefully when you put someone with a prior violent conviction in your program

Be prepared to justify your reasonsPublic safety and perception of your program

will be an even greater concern

Miscellaneous laws of importHB 1020---licenses plates can now be

removed on motor vehicles driven by persons with suspended or revoked driver’s licenses (effective date August 1, 2014)

HB 364---driver’s license is suspended for 24 months for those convicted of DWI 2ND (effective date August 1, 2014)

Length of suspension is dependent on number of priors within last 10 years

Vehicular negligent injuring is treated like a DWI conviction

More lawsHB 370---drivers cannot use certain cellular

devices during school zones (effective date August 1, 2014)

Requires posting of a sign in the school zoneThere are multiple exceptions to law,

including emergencies and “hands free” devices

Applies to calls, texts, and emails

HB 150; amended LSA-R.S. 32:57, the careless operation statute, to provide for 250 hours of court-approved community service and a potential driver’s license suspension of 2 years when careless operation of a motor vehicle proximately or directly causes a human being’s death when the operator fails to maintain control of the vehicle due to falling asleep

Effective date: August 1, 2014

HB 1024; now there are enhanced penalties for violations of the Uniform Controlled Dangerous Substances Law when the offense occurs on any property used by a school for its activities, or within 2,000 feet of it

Effective date: August 1, 2014

Controlled dangerous substances lawsHB 229; added 15 substances to the Schedule

I controlled dangerous substances listEffective date: August 1, 2014HB 212; added new substances to Schedule

II, III, & IVEffective date: August 1, 2014HB 514; prohibits the sale, purchase, or

attempt to purchase products containing dextromethorphan by minors (these are non-prescription products)

Effective date: August 1, 2014

Probation and Parole HB 1257; State entitled to contradictory

hearing for probation termination/modification if it wants one

Effective date: August 1, 2014Before this statute was enacted, State often

did not know of changes/termination of probation

Re-entry courtsHB 274; authorizes the 1st and 26th Judicial

District Courts to establish re-entry courtsEffective date: August 1, 2014Statute now allows re-entry courts in the 1st,

11th, 15th, 19th, 22nd, 24th, 26th, and Orleans Criminal District Court

Veteran’s CourtsSB 532; authorizes creation of Veteran’s

CourtsLSA-R.S. 13:5361 et seq.Effective date: August 1, 2014Modeled after the Drug Court statutes, so a

familiar methodology to implement