CHANGES IN DWI & DRUG COURT LEGISLATION

Navigating the Legislative Highway By: Carla S. Sigler Assistant District Attorney, Calcasieu Parish 14th Judicial District Adult Drug & DWI Court Coordinator

DWI Legislation  SB 277 provides for major changes  It will not be effective until 1/1/2015  Essentially, major changes to the law to make it easier

to understand  It is basically a complete re-organization of LSA-R.S. 14:98, the DWI statute  It 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 State  Exemptions 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. 14:98.5  Lots

of exceptions and conditions for home incarceration; read them thoroughly  For 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. 14:85  Ignition interlock devices addressed  Community service activities defined  Again, lots of conditions so make sure your sentences

comply with it

LSA-R.S. 14:85 conditions continued  If 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 change  HB 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 Legislation  Act No. 377, impacted LSA-R.S. 13:5304(B)  Effective date: August 1, 2014  A 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 violence  Crime 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 discussed  No prior homicide convictions pursuant to LSA-R.S.

14:29  That 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 base  More people we can try to help  Countervailing concerns: screen very carefully when

you put someone with a prior violent conviction in your program  Be prepared to justify your reasons  Public safety and perception of your program will be an even greater concern

Miscellaneous laws of import  HB 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 laws  HB 370---drivers cannot use certain cellular devices

during school zones (effective date August 1, 2014)  Requires posting of a sign in the school zone  There 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 courtapproved 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 laws  HB 229; added 15 substances to the Schedule I 

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controlled dangerous substances list Effective date: August 1, 2014 HB 212; added new substances to Schedule II, III, & IV Effective date: August 1, 2014 HB 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, 2014  Before this statute was enacted, State often did not know of changes/termination of probation

Re-entry courts  HB 274; authorizes the 1st and 26th Judicial District

Courts to establish re-entry courts  Effective date: August 1, 2014  Statute now allows re-entry courts in the 1st, 11th, 15th, 19th, 22nd, 24th, 26th, and Orleans Criminal District Court

Veteran’s Courts  SB 532; authorizes creation of Veteran’s Courts  LSA-R.S. 13:5361 et seq.  Effective date: August 1, 2014

 Modeled after the Drug Court statutes, so a familiar

methodology to implement