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Regular Session, 2014
SENATE BILL NO. 277
BY SENATORS PERRY, DORSEY-COLOMB AND GUI LLORY
DWI. Provides for changes to DWI laws. (1/1/15)
AN ACT1
To amend and reenact R.S. 14:98, 98.1, 98.2, and 98.3, and to enact R.S. 14:98.4, 98.5, 98.6,2
98.7, and 98.8, relative to driving offenses; to provide relative to the crimes of3
operating a motor vehicle while intoxicated, underage operating a vehicle while4
intoxicated, unlawful refusal to submit to chemical tests, and operating a vehicle5
while under suspension; to provide definitions; to provide penalties; and to provide6
for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 14:98, 98.1, 98.2, and 98.3 are hereby amended and reenacted and9
R.S. 14:98.4, 98.5, 98.6, 98.7, and 98.8 are hereby enacted to read as follows: 10
§98. Operating a vehicle while intoxicated11
A.(1) The crime of operating a vehicle while intoxicated is the operating of12
any motor vehicle, aircraft, watercraft, vessel, or other means of conveya nce when13
any of the following conditions exist:14
(a) The operator is under the influence of alcoholic beverages; or.15
(b) The operator's blood alcohol concentration is 0.08 percent or more by16
weight based on grams of alcohol per one hundred cubic centimeters of blood; or.17 SB NO. 277
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(c) The operator is under the influence of any controlled dangerous substance1
listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or.2
(d)(i) The operator is under the influence of a combination of alcohol and one3
or more drugs which that are not controlled dangerous substances and which that4
are legally obtainable with or without a prescription.5
(ii) It shall be an affirmative defense to any charge under this Subparagraph6
pursuant to this Section that the label on the container of the prescription drug or the7
manufacturer's package of the drug does not contain a warning against combining8
the medication with alcohol.9
(e)(i) The operator is under the influence of one or more drugs which that are10
not controlled dangerous substances and which that are legally obtainable with or11
without a prescription.12
(ii) It shall be an affirmative defense to any charge under this Subparagraph13
pursuant to this Section that the operator did not knowingly consume quantities of14
the drug or drugs which that substantially exceed the dosage prescribed by the15
physician or the dosage recommended by the manufacturer of the drug.16
(2) A valid driver's license shall not be an element of the offense, and the lack17
thereof shall not be a defense to a prosecution for operating a vehicle while18
intoxicated.19
B.(1) On a first conviction, notwithstanding any other provision of law to the20
contrary, the offender shall be fined not less than three hundred dollars nor more than21
one thousand dollars, and shall be imprisoned for not less than ten days nor more22
than six months. Imposition or execution of sentence shall not be suspended unless:23
(a) The offender is placed on probation with a minimum condition that he24
serve two days in jail and participate in a court-approved substance abuse program25
and participate in a court-approved driver improvement program; or26
(b) The offender is placed on probation with a minimum condition that he27
perform four eight-hour days of court-approved community service activities, at least28
half of which shall consist of participation in a litter abatement or collection29 SB NO. 277
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program, participate in a court-approved substance abuse program, and participate1
in a court-approved driver improvement program. An offender, who participates in2
a litter abatement or collection program pursuant to this Subparagraph, shall have no3
cause of action for damages against the entity conducting the program or supervising4
his participation therein, including a municipality, parish, sheriff, or other entity, nor5
against any official, employee, or agent of such entity, for any injury or loss suffered6
by him during or arising out of his participation in the program, if such injury or loss7
is a direct result of the lack of supervision or act or omission of the supervisor, unless8
the injury or loss was caused by the intentional or grossly negligent act or omission9
of the entity or its official, employee, or agent.10
(2)(a) If the offender had a blood alcohol concentration of 0.15 percent or11
more by weight based on grams of alcohol per one hundred cubic centimeters of12
blood, at least forty-eight hours of the sentence imposed pursuant to Paragraph13
(B)(1) of this Subsection shall be served without the benefit of parole, probation, or14
suspension of sentence. Imposition or execution of the remainder of the sentence15
shall not be suspended unless the offender complies with Subparagraph (B)(1)(a) or16
(b) of this Subsection.17
(b) If the offender had a blood alcohol concentration of 0.20 percent or more18
by weight based on grams of alcohol per one hundred cubic centimeters of blood, the19
offender shall be fined not less than seven hundred fifty dollars nor more than one20
thousand dollars and at least forty-eight hours of the sentence imposed pursuant to21
Paragraph (B)(1) of this Subsection shall be served without the benefit of parole,22
probation, or suspension of sentence. Imposition or execution of the remainder of the23
sentence shall not be suspended unless the offender complies with Subparagraph24
(B)(1)(a) or (b) of this Subsection.25
C.(1) On a conviction of a second offense, notwithstanding any other26
provision of law to the contrary except as provided in Paragraphs (3) and (4) of this27
Subsection, regardless of whether the second offense occurred before or after the28
first conviction, the offender shall be fined not less than seven hundred fifty dollars,29 SB NO. 277
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nor more than one thousand dollars, and shall be imprisoned for not less than thirty1
days nor more than six months. At least forty-eight hours of the sentence imposed2
shall be served without benefit of parole, probation, or suspension of sentence.3
Nothing herein shall prohibit a court from sentencing a defendant to home4
incarceration, if otherwise allowed under the provisions of Article 894.2 of the Code5
of Criminal Procedure. Imposition or execution of the remainder of the sentence6
shall not be suspended unless:7
(a) The offender is placed on probation with a minimum condition that he8
serve fifteen days in jail and participate in a court-approved substance abuse program9
and participate in a court-approved driver improvement program; or10
(b) The offender is placed on probation with a minimum condition that he11
perform thirty eight-hour days of court-approved community service activities, at12
least half of which shall consist of participation in a litter abatement or collection13
program, and participate in a court-approved substance abuse program, and14
participate in a court-approved driver improvement program. An offender, who15
participates in a litter abatement or collection program pursuant to this16
Subparagraph, shall have no cause of action for damages against the entity17
conducting the program or supervising his participation therein, including a18
municipality, parish, sheriff, or other entity, nor against any official, employee, or19
agent of such entity, for any injury or loss suffered by him during or arising out of20
his participation therein, if such injury or loss is a direct result of the lack of21
supervision or act or omission of the supervisor, unless the injury or loss was caused22
by the intentional or grossly negligent act or omission of the entity or its official,23
employee, or agent.24
(2)(a) If the offender had a blood alcohol concentration of 0.15 percent or25
more by weight based on grams of alcohol per one hundred cubic centimeters of26
blood, at least ninety-six hours of the sentence imposed pursuant to Paragraph (1) of27
this Subsection shall be served without the benefit of parole, probation, or suspension28
of sentence. Imposition or execution of the remainder of the sentence shall not be29 SB NO. 277
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suspended unless the offender complies with Subparagraph (1)(a) or (b) of this1
Subsection.2
(b) If the offender had a blood alcohol concentration of 0.20 percent or more3
by weight based on grams of alcohol per one hundred cubic centimeters of blood, the4
offender shall be fined one thousand dollars and at least ninety-six hours of the5
sentence imposed pursuant to Paragraph (1) of this Subsection shall be served6
without the benefit of parole, probation, or suspension of sentence. Imposition or7
execution of the remainder of the sentence shall not be suspended unless the offender8
complies with Subparagraph (1)(a) or (b) of this Subsection.9
(3) Notwithstanding the provisions of Paragraph (1) of this Subsection, on a10
conviction of a second offense when the first offense was for the crime of vehicular11
homicide in violation of R.S. 14:32.1, or first degree vehicular negligent injuring in12
violation of R.S. 14:39.2, the offender shall be imprisoned with or without hard labor13
for not less than one year nor more than five years, and shall be fined two thousand14
dollars. At least six months of the sentence of imprisonment imposed shall be15
without benefit of probation, parole, or suspension of sentence. Imposition or16
execution of the remainder of the sentence shall not be suspended unless the17
provisions of Subparagraph (1)(a) or (b) of this Subsection are complied with.18
(4) Notwithstanding the provisions of Paragraph (1) of this Subsection, on a19
conviction of a second offense when the arrest for the second offense occurs within20
one year of the commission of the first offense, the offender shall be imprisoned for21
thirty days without benefit of parole, probation, or suspension of sentence and shall22
participate in a court-approved substance abuse program and in a court-approved23
driver improvement program.24
D.(1)(a) On a conviction of a third offense, notwithstanding any other25
provision of law to the contrary and regardless of whether the offense occurred26
before or after an earlier conviction, the offender shall be imprisoned with or without27
hard labor for not less than one year nor more than five years and shall be fined two28
thousand dollars. Except as provided in Paragraph (4) of this Subsection, one year29 SB NO. 277
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of the sentence of imprisonment shall be imposed without benefit of probation,1
parole, or suspension of sentence. The court, in its discretion, may suspend all or2
any part of the remainder of the sentence of imprisonment. If any portion of the3
sentence is suspended, except for a suspension of sentence pursuant to the provisions4
of Paragraph (4) of this Subsection, the offender shall be placed on supervised5
probation with the Department of Public Safety and Corrections, division of6
probation and parole, for a period of time equal to the remainder of the sentence of7
imprisonment, which probation shall commence on the day after the offender's8
release from custody.9
(b) Any offender placed on probation pursuant to the provisions of this10
Subsection shall be required as a condition of probation to participate in thirty eight-11
hour days of court-approved community service activities and to submit to and12
complete either of the following requirements:13
(i) To immediately undergo an evaluation by the Department of Health and14
Hospitals, office of behavioral health to determine the nature and extent of the15
offender's substance abuse disorder and to participate in any treatment plan16
recommended by the office of behavioral health, including treatment in an inpatient17
facility approved by the office for a period of not less than four weeks followed by18
outpatient treatment services for a period not to exceed twelve months.19
(ii) To participate in substance abuse treatment in an alcohol and drug abuse20
program provided by a drug division subject to the applicable provisions of R.S.21
13:5301 et seq. if the offender is otherwise eligible to participate in such program.22
(c) In addition to the requirements set forth in Subparagraph (b) of this23
Paragraph, any offender placed on probation pursuant to the provisions of Subsection24
D of this Section shall be placed in a home incarceration program approved by the25
division of probation and parole for a period of time not less than six months and not26
more than the remainder of the sentence of imprisonment.27
(d) If any offender placed on probation pursuant to the provisions of28
Subsection D of this Section fails to complete the substance abuse treatment required29 SB NO. 277
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by the provisions of this Paragraph or violates any other condition of probation,1
including conditions of home incarceration, his probation may be revoked, and he2
may be ordered to serve the balance of the sentence of imprisonment, without credit3
for time served under home incarceration.4
(2)(a) In addition, the court shall order, subject to the discretion of the5
prosecuting district attorney, that the vehicle being driven by the offender at the time6
of the offense shall be seized and impounded, and sold at auction in the same manner7
and under the same conditions as executions of writ of seizures and sale as provided8
in Book V, Title II, Chapter 4 of the Code of Civil Procedure. If the district attorney9
elects to forfeit the vehicle, he shall file a written motion at least five days prior to10
sentencing stating his intention to forfeit the vehicle. When the district attorney11
elects to forfeit the vehicle, the court shall order it forfeited.12
(b) The vehicle shall be exempt from sale if it was stolen, or if the driver of13
the vehicle at the time of the violation was not the owner and the owner did not know14
that the driver was operating the vehicle while intoxicated. If this exemption is15
applicable, the vehicle shall not be released from impoundment until such time as16
towing and storage fees have been paid.17
(c) In addition, the vehicle shall be exempt from sale if all towing and storage18
fees are paid by a valid lienholder.19
(d) The proceeds of the sale shall first be used to pay court costs and towing20
and storage costs, and the remainder shall be allocated as follows: sixty percent of21
the funds shall go to the arresting agency, twenty percent to the prosecuting district22
attorney, and twenty percent to the Louisiana Property and Casualty Insurance23
Commission for its use in studying other ways to reduce drunk driving and insurance24
rates.25
(3)(a) An offender sentenced to home incarceration during probation shall be26
subject to special conditions to be determined by the court, which shall include but27
not be limited to the following:28
(i) Electronic monitoring.29 SB NO. 277
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(ii) Curfew restrictions.1
(iii) Home visitation at least once per month by the Department of Public2
Safety and Corrections for the first six months. After the first six months, the level3
of supervision will be determined by the department based upon a risk assessment4
instrument.5
(b) The court shall also require the offender to obtain employment and to6
participate in a court-approved driver improvement program at his expense. The7
activities of the offender outside of his home shall be limited to traveling to and from8
work, church services, Alcoholics Anonymous meetings, or a court-approved driver9
improvement program.10
(c) Offenders sentenced to home incarceration required under the provisions11
of this Section shall be subject to all other applicable provisions of Code of Criminal12
Procedure Article 894.2.13
(4) Notwithstanding the provisions of Subparagraph (1)(a) of this Subsection,14
the one-year period described in Paragraph (1) of this Subsection which shall15
otherwise be imposed without the benefit of probation, parole, or suspension of16
sentence, may also be suspended if the offender is accepted into a drug division17
probation program pursuant to R.S. 13:5301 et seq. The provisions of Paragraph (2)18
of this Subsection shall also be applicable to any offender whose sentence is served19
with the benefit of probation, parole, or suspension of sentence pursuant to the20
provisions of this Paragraph.21
E.(1)(a) Except as otherwise provided in Subparagraph (4)(b) of this22
Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any23
other provision of law to the contrary and regardless of whether the fourth offense24
occurred before or after an earlier conviction, the offender shall be imprisoned with25
or without hard labor for not less than ten years nor more than thirty years and shall26
be fined five thousand dollars. Except as provided in Paragraph (5) of this27
Subsection, two years of the sentence of imprisonment shall be imposed without28
benefit of parole, probation, or suspension of sentence. The court, in its discretion,29 SB NO. 277
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may suspend all or any part of the remainder of the sentence of imprisonment. If any1
portion of the sentence is suspended, except for a suspension of sentence pursuant2
to the provisions of Paragraph (5) of this Subsection, the offender shall be placed on3
supervised probation with the Department of Public Safety and Corrections, division4
of probation and parole, for a period of time not to exceed five years, which5
probation shall commence on the day after the offender's release from custody.6
(b) Any offender placed on probation pursuant to the provisions of this7
Subsection shall be required, as a condition of probation, to participate in forty eight-8
hour days of court-approved community service activities and to submit to and9
complete either of the following requirements:10
(i) To immediately undergo an evaluation by the Department of Health and11
Hospitals, office of behavioral health to determine the nature and extent of the12
offender's substance abuse disorder and to participate in any treatment plan13
recommended by the office of behavioral health, including treatment in an inpatient14
facility approved by the office for a period of not less than four weeks followed by15
outpatient treatment services for a period not to exceed twelve months.16
(ii) To participate in substance abuse treatment in an alcohol and drug abuse17
program provided by a drug division subject to the applicable provisions of R.S.18
13:5301 et seq. if the offender is otherwise eligible to participate in such program.19
(c) In addition to the requirements set forth in Subparagraph (b) of this20
Paragraph, any offender placed on probation pursuant to the provisions of Subsection21
E of this Section shall be placed in a home incarceration program approved by the22
division of probation and parole for a period of time not less than one year nor more23
than the remainder of the term of supervised probation.24
(d) If any offender placed on probation pursuant to the provisions of25
Subsection E of this Section fails to complete the substance abuse treatment required26
by the provisions of this Paragraph or violates any other condition of probation,27
including conditions of home incarceration, his probation may be revoked, and he28
may be ordered to serve the balance of the sentence of imprisonment, without credit29 SB NO. 277
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for time served under home incarceration.1
(2)(a) In addition, the court shall order, subject to the discretion of the2
prosecuting district attorney, that the vehicle being driven by the offender at the time3
of the offense be seized and impounded, and be sold at auction in the same manner4
and under the same conditions as executions of writ of seizure and sale as provided5
in Book V, Title II, Chapter 4 of the Code of Civil Procedure. If the district attorney6
elects to forfeit the vehicle, he shall file a written motion at least five days prior to7
sentencing stating his intention to forfeit the vehicle.8
(b) The vehicle shall be exempt from sale if it was stolen, or if the driver of9
the vehicle at the time of the violation was not the owner and the owner did not know10
that the driver was operating the vehicle while intoxicated. If this exemption is11
applicable, the vehicle shall not be released from impoundment until such time as12
towing and storage fees have been paid.13
(c) In addition, the vehicle shall be exempt from sale if all towing and storage14
fees are paid by a valid lienholder.15
(d) The proceeds of the sale shall first be used to pay court costs and towing16
and storage costs, and the remainder shall be allocated as follows: sixty percent of17
the funds shall go to the arresting agency, twenty percent to the prosecuting district18
attorney, and twenty percent to the Louisiana Property and Casualty Insurance19
Commission for its use in studying other ways to reduce drunk driving and insurance20
rates.21
(3)(a) An offender sentenced to home incarceration during probation shall be22
subject to special conditions to be determined by the court, which shall include but23
not be limited to the following:24
(i) Electronic monitoring.25
(ii) Curfew restrictions.26
(iii) Home visitation at least once per month by the Department of Public27
Safety and Corrections for the first six months. After the first six months, the level28
of supervision will be determined by the department based upon a risk assessment29 SB NO. 277
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instrument.1
(b) The court shall also require the offender to obtain employment and to2
participate in a court-approved driver improvement program at his expense. The3
activities of the offender outside of his home shall be limited to traveling to and from4
work, church services, Alcoholics Anonymous meetings, or a court-approved driver5
improvement program.6
(c) Offenders sentenced to home incarceration required under the provisions7
of this Section shall be subject to all other applicable provisions of Code of Criminal8
Procedure Article 894.2.9
(4)(a) If the offender has previously been required to participate in substance10
abuse treatment and home incarceration pursuant to Subsection D of this Section, the11
offender shall not be sentenced to substance abuse treatment and home incarceration12
for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less13
than ten nor more than thirty years, and at least three years of the sentence shall be14
imposed without benefit of suspension of sentence, probation, or parole.15
(b) If the offender has previously received the benefit of suspension of16
sentence, probation, or parole as a fourth offender, after serving the mandatory17
sentence required by Subparagraph (E)(1)(a), no part of the remainder of the18
sentence may be imposed with benefit of suspension of sentence, probation, or19
parole, and no portion of the sentence shall be imposed concurrently with the20
remaining balance of any sentence to be served for a prior conviction for any21
offense.22
(5)(a) Notwithstanding the provisions of Subparagraph (1)(a) of this23
Subsection, the two-year period described in Paragraph (1) of this Subsection which24
shall otherwise be imposed without the benefit of parole, probation, or suspension25
of sentence may also be suspended if the offender is accepted into a drug division26
probation program pursuant to R.S. 13:5301 et seq. The provisions of Paragraph (2)27
of this Subsection shall also be applicable to any offender whose sentence is served28
with the benefit of probation, parole, or suspension of sentence pursuant to the29 SB NO. 277
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provisions of this Subparagraph.1
(b) If the offender has previously participated in a drug division probation2
program pursuant to the provisions of Paragraph (D)(4) of this Section, the offender3
shall not be eligible to serve his sentence with the benefit of probation, parole, or4
suspension of sentence pursuant to the provisions of Subparagraph (a) of this5
Paragraph, but shall be imprisoned at hard labor for not less than ten nor more than6
thirty years, and at least three years of the sentence shall be imposed without benefit7
of suspension of sentence, probation, or parole.8
F.(1) For purposes of determining whether a defendant has a prior conviction9
for violation of this Section, a conviction under either R.S. 14:32.1, vehicular10
homicide, R.S. 14:39.1, vehicular negligent injuring, or R.S. 14:39.2, first degree11
vehicular negligent injuring, or a conviction under the laws of any state or an12
ordinance of a municipality, town, or similar political subdivision of another state,13
which prohibits the operation of any motor vehicle, aircraft, watercraft, vessel, or14
other means of conveyance while intoxicated, while impaired, or while under the15
influence of alcohol, drugs, or any controlled dangerous substance shall constitute16
a prior conviction. This determination shall be made by the court as a matter of law.17
(2) For purposes of this Section, a prior conviction shall not include a18
conviction for an offense under this Section, under R.S. 14:32.1, R.S. 14:39.1, or19
R.S. 14:39.2, or under a comparable statute or ordinance of another jurisdiction, as20
described in Paragraph (1) of this Subsection, if committed more than ten years prior21
to the commission of the crime for which the defendant is being tried and such22
conviction shall not be considered in the assessment of penalties hereunder.23
However, periods of time during which the offender was awaiting trial, on probation24
or parole for an offense described in Paragraph (1) of this Subsection, under an order25
of attachment for failure to appear, or incarcerated in a penal institution in this or any26
other state shall be excluded in computing the ten-year period.27
G. The legislature hereby finds and declares that conviction of a third or28
subsequent DWI offense is presumptive evidence of the existence of a substance29 SB NO. 277
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abuse disorder in the offender posing a serious threat to the health and safety of the1
public. Further, the legislature finds that there are successful treatment methods2
available for treatment of addictive disorders. Court-approved substance abuse3
programs provided for in Subsections B, C, and D of this Section shall include a4
screening procedure to determine the portions of the program which may be5
applicable and appropriate for individual offenders and shall assess the offender's6
degree of alcohol abuse.7
H. "Community service activities" as used in this Section may include duty8
in any morgue, coroner's office, or emergency treatment room of a state-operated9
hospital or other state-operated emergency treatment facility, with the consent of the10
administrator of the morgue, coroner's office, hospital, or facility.11
I. An offender ordered to participate in a substance abuse program in12
accordance with the provisions of this Section shall pay the cost incurred in13
participating in the program. Failure to make such payment shall subject the offender14
to revocation of probation, unless the court determines that the offender is unable to15
pay. If the court determines that the offender is unable to pay, the state shall pay for16
the cost of the substance abuse treatment. An offender sentenced to home17
incarceration and to participate in a driver improvement program shall pay the cost18
incurred in participating in home incarceration and a driver improvement program19
unless the court determines that the offender is unable to pay. However, if the court20
determines that an offender is unable to pay the costs incurred for participating in a21
substance abuse treatment program, driver improvement program, or home22
incarceration, the court may, upon completion of such program or home23
incarceration, require that the offender reimburse the state for all or a portion of such24
costs pursuant to a payment schedule determined by the court.25
J. This Subsection shall be cited as the "Child Endangerment Law". When the26
state proves in addition to the elements of the crime as set forth in Subsection A of27
this Section that a minor child twelve years of age or younger was a passenger in the28
motor vehicle, aircraft, watercraft, vessel, or other means of motorized conveyance29 SB NO. 277
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at the time of the commission of the offense, of the sentence imposed by the court,1
the execution of the minimum mandatory sentence provided by Subsection B or C2
of this Section, as appropriate, shall not be suspended. If imprisonment is imposed3
pursuant to the provisions of Subsection D, the execution of the minimum mandatory4
sentence shall not be suspended. If imprisonment is imposed pursuant to the5
provisions of Subsection E, at least two years of the sentence shall be imposed6
without benefit of suspension of sentence.7
K.(1) In addition to any penalties imposed under this Section, upon8
conviction of a first offense if the offender had a blood alcohol concentration of 0.209
percent or more by weight based on grams of alcohol per one hundred cubic10
centimeters of blood the driver's license of the offender shall be suspended for two11
years. Such offender may apply for a restricted license to be in effect during the12
entire period of suspension upon proof to the Department of Public Safety and13
Corrections that his motor vehicle has been equipped with a functioning ignition14
interlock device in compliance with the requirements of R.S. 32:378.2. The ignition15
interlock device shall remain installed and operative on his vehicle during the first16
twelve-month period of suspension of his driver's license following the date of17
conviction.18
(2)(a) In addition to any penalties imposed under this Section, upon19
conviction of a second offense, any vehicle, while being operated by the offender,20
shall be equipped with a functioning ignition interlock device in accordance with the21
provisions of R.S. 15:306. This requirement shall remain in effect for a period of not22
less than six months. In addition, the device shall remain installed and operative23
during any period that the offender's operator's license is suspended under law and24
for any additional period as determined by the court.25
(b) In addition to any penalties imposed under this Section and26
notwithstanding the provisions of Subparagraph (2)(a) of this Subsection, upon27
conviction of a second offense if the offender had a blood alcohol concentration of28
0.20 percent or more by weight based on grams of alcohol per one hundred cubic29 SB NO. 277
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centimeters of blood, the driver's license of the offender shall be suspended for four1
years. The offender may apply for a restricted license to be in effect during the2
period of suspension upon proof to the Department of Public Safety and Corrections3
that his motor vehicle has been equipped with a functioning ignition interlock device4
in compliance with the requirements of R.S. 32:378.2. The ignition interlock device5
shall remain installed and operative on his vehicle during the first three years of the6
four-year period of the suspension of his driver's license.7
(3)(a) Notwithstanding the provisions of Paragraph (1) of this Subsection and8
R.S. 32:414(D)(1)(b), upon conviction of a third or subsequent offense of the9
provisions of this Section, any motor vehicle, while being operated by the offender,10
shall be equipped with a functioning ignition interlock device in accordance with the11
provisions of R.S. 15:306. The ignition interlock device shall remain installed and12
operative until the offender has completed the requirements of substance abuse13
treatment and home incarceration, or, if applicable, the requirements of the drug14
division probation program provided in R.S. 13:5301 et seq., pursuant to the15
provisions of Subsections D and E of this Section.16
(b) Any offender convicted of a third or subsequent offense of the provisions17
of this Section shall, after one year of the suspension required by R.S.18
32:414(D)(1)(a), upon proof of the Department of Public Safety and Corrections that19
the motor vehicles being operated by the offender are equipped with functioning20
interlock devices, be issued a restricted driver's license. The restricted license shall21
be effective for the period of time that the offender's driver's license is suspended.22
The restricted license shall entitle the offender to operate the vehicles equipped with23
a functioning interlock device in order to earn a livelihood and to travel to and from24
the places designated in Paragraphs (D)(3) and (E)(3) of this Section.25
(4) The provisions of this Subsection shall not require installation of an26
ignition interlock device in any vehicle described in R.S. 32:378.2(I).27
B.(1) This Subsection shall be cited as the "Child Endangerment Law".28
(2) When the state proves, in addition to the elements of the crime as set29 SB NO. 277
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forth in Subsection A of this Section, that a minor child twelve years of age or1
younger was a passenger in the motor vehicle, aircraft, watercraft, vessel, or2
other means of motorized conveyance at the time of the commission of the3
offense:4
(a) Except as provided in Subparagraphs (b) and (c) of this Paragraph,5
the execution of the minimum mandatory sentence provided by R.S. 14:98.1 or6
98.2, as appropriate, shall not be suspended.7
(b) Notwithstanding any provision of law to the contrary, if8
imprisonment is imposed pursuant to the provisions of R.S. 14:98.3, the9
execution of the minimum mandatory sentence shall not be suspended.10
(c) Notwithstanding any provision of law to the contrary, if11
imprisonment is imposed pursuant to the provisions of R.S. 14:98.4, the12
execution of the minimum mandatory sentence shall not be suspended.13
C. Prior convictions. (1) For purposes of determining whether a14
defendant has a prior conviction for a violation of this Section, a conviction15
under any of the following shall constitute a prior conviction:16
(a) R.S. 14:32.1, vehicular homicide.17
(b) R.S. 14:32.8, third degree feticide.18
(c) R.S. 14:39.1, vehicular negligent injuring.19
(d) R.S. 14:39.2, first degree vehicular negligent injuring.20
(e) A law of any state or an ordinance of a municipality, town, or similar21
political subdivision of another state that prohibits the operation of any motor22
vehicle, aircraft, watercraft, vessel, or other means of conveyance while23
intoxicated, while impaired, or while under the influence of alcohol, drugs, or24
any controlled dangerous substance.25
(2) The determination under this Subsection shall be made by the court26
as a matter of law.27
(3) For purposes of this Section, a prior conviction shall not include a28
conviction for an offense under this Section or under any offense listed in29 SB NO. 277
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Paragraph (1) of this Subsection if committed more than ten years prior to the1
commission of the crime for which the defendant is being tried, and such2
conviction shall not be considered in the assessment of penalties hereunder.3
However, periods of time during which the offender was awaiting trial, on4
parole or probation for an offense described in Paragraph (1) of this Subsection,5
under an order of attachment for failure to appear, or incarcerated in a penal6
institution in this or any other state shall be excluded in computing the ten-year7
period.8
D. Penalties. (1) On a conviction of a first offense violation of operating9
while intoxicated under this Section, notwithstanding any other provision of law10
to the contrary, the offender shall be sentenced under the provisions of R.S.11
14:98.1.12
(2)(a) Except as provided by Subparagraph (b) of this Paragraph, on a13
conviction of a second offense violation of operating while intoxicated under this14
Section, notwithstanding any other provision of law to the contrary and15
regardless of whether the second offense occurred before or after the first16
conviction, the offender shall be sentenced under the provisions of R.S. 14:98.2.17
(b) If the conviction of a second offense when the first conviction was for18
the crime of vehicular homicide in violation of R.S. 14:32.1, third degree feticide19
in violation of R.S. 14:32.8, or first degree vehicular negligent injuring in20
violation of R.S. 14:39.2, the offender shall be sentenced under the provisions21
of R.S. 14:98.2(D).22
(3) On a conviction of a third offense violation of operating while23
intoxicated under this Section, notwithstanding any other provision of law to the24
contrary and regardless of whether the offense occurred before or after an25
earlier conviction, the offender shall be sentenced under the provisions of R.S.26
14:98.3.27
(4) On a conviction of a fourth or subsequent offense violation of28
operating while intoxicated under this Section, notwithstanding any other29 SB NO. 277
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provision of law to the contrary and regardless of whether the fourth or1
subsequent offense occurred before or after an earlier conviction, the offender2
shall be sentenced under the provisions of R.S. 14:98.4.3
E. The legislature hereby finds and declares that conviction of a third or4
subsequent offense of operating while intoxicated is presumptive evidence of the5
existence of a substance abuse disorder in the offender that poses a serious6
threat to the health and safety of the public. Further, the legislature finds that7
there are successful treatment methods available for treatment of addictive8
disorders.9
F. Vehicle seizure and sale. (1) On a third or subsequent conviction of10
operating while intoxicated pursuant to this Section, in addition to any other11
sentence, the court shall order, upon motion of the prosecuting district attorney,12
that the vehicle being operated by the offender at the time of the offense be13
seized and impounded, and be sold at auction in the same manner and under the14
same conditions as executions of writs of seizure and sale as provided in Book15
V, Title II, Chapter 4 of the Code of Civil Procedure.16
(2) The vehicle shall be exempt from sale if it was stolen, or if the driver17
of the vehicle at the time of the violation was not the owner and the owner did18
not know that the driver was operating the vehicle while intoxicated. If this19
exemption is applicable, the vehicle shall not be released from impoundment20
until such time as towing and storage fees have been paid. In addition, the21
vehicle shall be exempt from sale if all towing and storage fees are paid by a22
valid lienholder.23
(3) If the district attorney elects to forfeit the vehicle, he shall file a24
written motion at least five days prior to sentencing, stating his intention to25
forfeit the vehicle. When the district attorney elects to forfeit the vehicle, the26
court shall order it forfeited.27
(4) The proceeds of the sale shall first be used to pay court costs and28
towing and storage costs, and the remainder shall be allocated as follows:29 SB NO. 277
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(a) Sixty percent of the funds shall go to the arresting agency.1
(b) Twenty percent of the funds shall go to the prosecuting district2
attorney.3
(c) Twenty percent of the funds shall go to the Louisiana Property and4
Casualty Insurance Commission for its use in studying ways to reduce drunk5
driving and insurance rates.6
G.(1) If an offender placed on probation for a conviction of operating7
while intoxicated under this Section fails to complete the required substance8
abuse treatment, or fails to participate in a driver improvement program, or9
violates any other condition of probation, including conditions of home10
incarceration, his probation may be revoked, and he may be ordered to serve11
the balance of the sentence of imprisonment, without credit for time served12
under home incarceration.13
(2) If the offender is found to be in violation of both the terms of his14
release for good behavior by the Department of Public Safety and Corrections,15
committee on parole and probation, and in violation of his probation by the16
court, then the remaining balance of his diminution of sentence shall be served17
first, with the previously suspended sentence imposed by the court to run18
consecutively thereafter.19
§98.1. Underage driving under the influence Operating while intoxicated, first20
offense; penalties21
A. The crime of underage operating a vehicle while intoxicated is the22
operating of any motor vehicle, aircraft, watercraft, vessel, or other means of23
conveyance when the operator's blood alcohol concentration is 0.02 percent or more24
by weight if the operator is under the age of twenty-one based on grams of alcohol25
per one hundred cubic centimeters of blood.26
B. Any underage person whose blood alcohol concentration is found to be in27
violation of R.S. 14:98(A)(1)(b) shall be charged under its provisions rather than28
under this Section.29 SB NO. 277
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C. On a first conviction, the offender shall be fined not less than one hundred1
nor more than two hundred fifty dollars, and participate in a court-approved2
substance abuse and driver improvement program.3
D. On a second or subsequent conviction, regardless of whether the second4
offense occurred before or after the first conviction, the offender shall be fined not5
less than one hundred fifty dollars nor more than five hundred dollars, and6
imprisoned for not less than ten days nor more than three months. Imposition or7
execution of sentence shall not be suspended unless:8
(1) The offender is placed on probation with a minimum condition that he9
serve forty-eight hours in jail and participate in a court-approved substance abuse10
and driver improvement program; or11
(2) The offender is placed on probation with a minimum condition that he12
perform ten eight-hour days of court-approved community service activities, at least13
half of which shall consist of participation in a litter abatement or collection program14
and participate in a court-approved substance and driver improvement program.15
E. Court programs regarding substance abuse provided for in Subsections C16
and D shall include a screening procedure to determine the portions of the program17
which may be applicable and appropriate for individual offenders.18
F. An offender ordered to participate in a substance abuse program shall pay19
the cost incurred in participating in the program. Failure to make such payment shall20
subject the offender to revocation of probation, unless the court determines that the21
offender is unable to pay.22
A.(1) Except as modified by the provisions of Paragraphs (2) and (3) of23
this Subsection, on a conviction of a first offense violation of R.S. 14:98, the24
offender shall be fined not less than three hundred dollars nor more than one25
thousand dollars, and shall be imprisoned for not less than ten days nor more26
than six months. Imposition or execution of sentence under this Paragraph shall27
not be suspended unless the offender is placed on probation with the minimum28
conditions that he:29 SB NO. 277
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(a) Serve forty-eight hours in jail, which shall not be suspended, or in lieu1
thereof, perform no less than thirty-two hours of court-approved community2
service activities, at least half of which shall consist of participation in a litter3
abatement or collection program.4
(b) Participate in a court-approved substance abuse program, which may5
include an assessment by a licensed clinician to determine if the offender has a6
diagnosis of substance abuse disorder. Nothing herein shall prohibit the court7
from modifying the portions of the program as may be applicable and8
appropriate to an individual offender as shown by the assessment.9
(c) Participate in a court-approved driver improvement program.10
(d) Except as provided by Subparagraph (3)(c) of this Subsection, the11
court may order that the offender not operate a motor vehicle during the period12
of probation, or such shorter time as set by the court, unless any vehicle, while13
being operated by the offender, is equipped with a functioning ignition interlock14
device in compliance with the requirements of R.S. 14:98.5(C) and R.S.15
32:378.2.16
(2) If the offender had a blood alcohol concentration of 0.15 percent or17
more but less than 0.20 percent by weight based on grams of alcohol per one18
hundred cubic centimeters of blood, at least forty-eight hours of the sentence19
imposed pursuant to Paragraph (1) of this Subsection shall be served without20
the benefit of parole, probation, or suspension of sentence, and is to be served21
in addition to any sentence of imprisonment imposed pursuant to Subparagraph22
(1)(a) of this Subsection, provided that the total period of imprisonment upon23
conviction of the offense, including imprisonment for default in payment of a24
fine or costs, shall not exceed six months.25
(3)(a) If the offender had a blood alcohol concentration of 0.20 percent26
or more by weight based on grams of alcohol per one hundred cubic centimeters27
of blood, the offender shall be fined not less than seven hundred fifty dollars nor28
more than one thousand dollars and at least forty-eight hours of the sentence29 SB NO. 277
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imposed pursuant to Paragraph (1) of this Subsection shall be served without1
the benefit of parole, probation, or suspension of sentence, and is to be served2
in addition to any sentence of imprisonment imposed pursuant to Subparagraph3
(1)(a) of this Subsection, provided that the total period of imprisonment upon4
conviction of the offense, including imprisonment for default in payment of a5
fine or costs, shall not exceed six months.6
(b) In addition to any penalties imposed under this Section, upon7
conviction of a first offense, if the offender had a blood alcohol concentration8
of 0.20 percent or more by weight based on grams of alcohol per one hundred9
cubic centimeters of blood, the driver's license of the offender shall be10
suspended for two years.11
(c) The court shall require that the offender not operate a motor vehicle12
during the period of probation unless any vehicle, while being operated by the13
offender, is equipped with a functioning ignition interlock device in compliance14
with the requirements of R.S. 14:98.5(C) and R.S. 32:378.2. The ignition15
interlock device shall remain installed and operative on his vehicle during the16
first twelve-month period of suspension of his driver's license following the date17
of conviction.18
B. Nothing herein shall prohibit a court from sentencing an offender to19
serve any portion of the sentence under home incarceration pursuant to R.S.20
14:98.5, either in lieu of, or in addition to, a term of imprisonment if otherwise21
allowed under the provisions of Code of Criminal Procedure Article 894.2 and22
R.S. 14:98.5(B).23
C. An offender may apply for a restricted driver's license to be in effect24
during the entire period of suspension upon proof to the Department of Public25
Safety and Corrections that his motor vehicle has been equipped with a26
functioning ignition interlock device in compliance with the requirements of27
R.S. 32:378.2.28
§98.2. Unlawful refusal to submit to chemical tests; arrests for driving while29 SB NO. 277
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intoxicated Operating while intoxicated, second offense; penalties1
A. No person under arrest for a violation of R.S. 14:98, 98.1, or any other law2
or ordinance which prohibits operating a vehicle while intoxicated may refuse to3
submit to a chemical test when requested to do so by a law enforcement officer if he4
has refused to submit to such test on two previous and separate occasions of any5
previous such violation.6
B.(1) Whoever violates the provisions of this Section shall be fined not less7
than three hundred dollars nor more than one thousand dollars, and shall be8
imprisoned for not less than ten days nor more than six months.9
(2) Imposition or execution of sentence shall not be suspended unless one of10
the following circumstances occurs:11
(a) The offender is placed on probation with a minimum condition that he12
serve two days in jail and participate in a court-approved substance abuse program13
and participate in a court-approved driver improvement program.14
(b) The offender is placed on probation with a minimum condition that he15
perform four eight-hour days of court-approved community service activities, at least16
half of which shall consist of participation in a litter abatement or collection17
program, participate in a court-approved substance abuse program, and participate18
in a court-approved driver improvement program. An offender who participates in19
a litter abatement or collection program pursuant to this Subparagraph shall have no20
cause of action for damages against the entity conducting the program or supervising21
his participation therein, including a municipality, parish, sheriff, or other entity, nor22
against any official, employee, or agent of such entity, for any injury or loss suffered23
by him during or arising out of his participation in the program, if such injury or loss24
is a direct result of the lack of supervision or act or omission of the supervisor, unless25
the injury or loss was caused by the intentional or grossly negligent act or omission26
of the entity or its official, employee, or agent.27
A.(1) Except as modified by the provisions of Paragraphs (2), (3), and (4)28
of this Subsection, or as provided by Subsection D of this Section, on a29 SB NO. 277
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conviction of a second offense violation of R.S. 14:98, regardless of whether the1
second offense occurred before or after the first conviction, the offender shall2
be fined not less than seven hundred fifty dollars nor more than one thousand3
dollars, and shall be imprisoned for not less than thirty days nor more than six4
months. At least forty-eight hours of the sentence imposed shall be served5
without benefit of parole, probation, or suspension of sentence. Imposition or6
execution of the remainder of sentence shall not be suspended unless the7
offender is placed on probation with the minimum conditions that he:8
(a) Serve at least fifteen days in jail, without benefit of parole, probation,9
or suspension of sentence, or in lieu thereof, perform two hundred forty hours10
of court-approved community service activities, at least half of which shall11
consist of participation in a litter abatement or collection program. If12
imprisonment is imposed under this Subparagraph, the sentence is to be served13
in addition to the sentence of imprisonment imposed pursuant to Paragraph (1)14
of this Subsection, provided that the total period of imprisonment upon15
conviction of the offense, including imprisonment for default in payment of a16
fine or costs, shall not exceed six months.17
(b) Participate in a court-approved substance abuse program, which may18
include an assessment by a licensed clinician to determine if the offender has a19
diagnosis of substance abuse disorder. Nothing herein shall prohibit the court20
from modifying the portions of the program as may be applicable and21
appropriate to an individual offender as shown by the assessment.22
(c) Participate in a court-approved driver improvement program.23
(d) Except as the period of time may be increased in accordance with24
Subparagraph (3)(c) of this Subsection, the court shall order that the offender25
not operate a motor vehicle during the period of probation unless any vehicle,26
while being operated by the offender, is equipped with a functioning ignition27
interlock device in compliance with the requirements of R.S. 14:98.5(C), R.S.28
15:306, and R.S. 32:378.2, which requirement shall remain in effect for a period29 SB NO. 277
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of not less than six months from the date of conviction. In addition, the device1
shall remain installed and operative during any period that the offender's2
driver's license is suspended under law and for any additional period as3
determined by the court.4
(2) If the offender had a blood alcohol concentration of 0.15 percent or5
more but less than 0.20 percent by weight based on grams of alcohol per one6
hundred cubic centimeters of blood, at least ninety-six hours of the sentence7
imposed pursuant to Paragraph (1) of this Subsection shall be served without8
the benefit of parole, probation, or suspension of sentence.9
(3)(a) If the offender had a blood alcohol concentration of 0.20 percent10
or more by weight based on grams of alcohol per one hundred cubic centimeters11
of blood, the offender shall be fined one thousand dollars and at least ninety-six12
hours of the sentence imposed pursuant to Paragraph (1) of this Subsection13
shall be served without the benefit of parole, probation, or suspension of14
sentence.15
(b) In addition to any penalties imposed under this Section, upon16
conviction of a second offense if the offender had a blood alcohol concentration17
of 0.20 percent or more by weight based on grams of alcohol per one hundred18
cubic centimeters of blood, the driver's license of the offender shall be19
suspended for four years.20
(c) The court shall require that the offender not operate a motor vehicle21
during the period of probation unless any vehicle, while being operated by the22
offender, is equipped with a functioning ignition interlock device in compliance23
with the requirements of R.S. 14:98.5(C), R.S. 15:306, and R.S. 32:378.2. The24
ignition interlock device shall remain installed and operative on his vehicle25
during the first three years of the four-year period of the suspension of his26
driver's license.27
(4) If the arrest for the second offense occurs within one year of the28
commission of the first offense, at least thirty days of the sentence imposed29 SB NO. 277
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pursuant to Paragraph (1) of this Subsection shall be served without benefit of1
parole, probation, or suspension of sentence. In addition, if the offender had a2
blood alcohol concentration of 0.20 percent or more by weight based on grams3
of alcohol per one hundred cubic centimeters of blood, he shall be fined one4
thousand dollars and also be subject to the provisions of Subparagraphs (3)(b)5
and (c) of this Subsection.6
B. Nothing herein shall prohibit a court from sentencing an offender to7
serve any portion of the sentence under home incarceration pursuant to R.S.8
14:98.5, either in lieu of, or in addition to, a term of imprisonment if otherwise9
allowed under the provisions of Code of Criminal Procedure Article 894.2 and10
R.S. 14:98.5(B).11
C. An offender may apply for a restricted driver's license to be in effect12
during the entire period of suspension upon proof to the Department of Public13
Safety and Corrections that his motor vehicle has been equipped with a14
functioning ignition interlock device in compliance with the requirements of15
R.S. 32:378.2.16
D. Notwithstanding any other provision of law to the contrary, on a17
conviction of a second offense violation of R.S. 14:98, and regardless of whether18
the second offense occurred before or after the first conviction, when the offense19
was for the crime of vehicular homicide in violation of R.S. 14:32.1, third degree20
feticide in violation of R.S. 14:32.8, or first degree vehicular negligent injuring21
in violation of R.S. 14:39.2, the offender shall be fined two thousand dollars and22
imprisoned, with or without hard labor, for not less than one year nor more23
than five years. At least six months of the sentence of imprisonment imposed24
shall be without benefit of parole, probation, or suspension of sentence except25
in compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot26
be served on home incarceration.27
(1) Imposition or execution of the remainder of the sentence shall not be28
suspended unless the offender is placed on probation with the minimum29 SB NO. 277
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conditions that he:1
(a) Perform two hundred forty hours of court-approved community2
service activities, at least one-half of which shall consist of participation in a3
litter abatement or collection program.4
(b) Participate in a court-approved substance abuse program, which may5
include an assessment by a licensed clinician to determine if the offender has a6
diagnosis of substance abuse disorder. Nothing herein shall prohibit the court7
from modifying the portions of the program as may be applicable and8
appropriate to an individual offender as shown by the assessment.9
(c) Participate in a court-approved driver improvement program.10
(2) In accordance with the provisions of R.S. 14:98.5(B), any offender11
placed on probation pursuant to the provisions of Subsection D of this Section12
shall be placed in a home incarceration program approved by the division of13
probation and parole for a period of time not less than six months and not more14
than the remainder of the sentence of imprisonment.15
(3) Except as the period of time may be increased in accordance with16
Subparagraph (A)(3)(b) and (c) of this Section, in addition to any penalties17
imposed under this Section, the court shall order that the offender not operate18
a motor vehicle during the period of probation unless any vehicle, while being19
operated by the offender, is equipped with a functioning ignition interlock20
device in compliance with the requirements of R.S. 14:98.5(C), R.S. 15:306, and21
R.S. 32:378.2, which requirement shall remain in effect for a period of not less22
than six months from the date of conviction. In addition, the device shall23
remain installed and operative during any period that the offender's driver's24
license is suspended under law and for any additional period as determined by25
the court.26
§98.3. Operating a vehicle while under suspension for certain prior offenses27
Operating while intoxicated, third offense; penalties28
A. It is unlawful to operate a motor vehicle on a public highway where the29 SB NO. 277
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operator's driving privileges have been suspended under the authority of R.S.1
32:414(A)(1), (B)(1) or (2), (D)(1)(a), or 667. It shall not be a violation of the2
provisions of this Section when a person operates a motor vehicle to obtain3
emergency medical care for himself or any other person.4
B. Whoever violates the provisions of this Section shall be imprisoned for not5
less than fifteen days nor more than six months without benefit of suspension of6
imposition or execution of sentence, except as provided in Subsection C.7
C. When the operator's driving privileges were suspended for manslaughter,8
vehicular homicide, or negligent homicide, the offender shall be imprisoned for not9
less than sixty days nor more than six months without benefit of suspension of10
imposition or execution of sentence.11
A.(1) Except as provided in Subsection B of this Section, on a conviction12
of a third offense violation of R.S. 14:98, regardless of whether the third offense13
occurred before or after a previous conviction, the offender shall be fined two14
thousand dollars and shall be imprisoned, with or without hard labor, for not15
less than one year nor more than five years. Except as provided in Paragraph16
(2) of this Subsection, at least one year of the sentence imposed shall be served17
without benefit of parole, probation, or suspension of sentence. Except in18
compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot19
be served on home incarceration.20
(2) The one-year period described in Paragraph (1) of this Subsection,21
which shall otherwise be imposed without the benefit of parole, probation, or22
suspension of sentence, may be suspended if the offender is accepted into a drug23
division probation program pursuant to R.S. 13:5301 et seq. The provisions of24
R.S. 14:98(F) relative to vehicle seizure and sale shall also be applicable to any25
offender whose sentence is served with the benefit of parole, probation, or26
suspension of sentence pursuant to the provisions of this Paragraph.27
(3)(a) The court, in its discretion, may suspend all or any part of the28
remainder of the sentence of imprisonment imposed pursuant to Paragraph29 SB NO. 277
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(A)(1) of this Section. If any of the remainder of the sentence is suspended, the1
offender shall be placed on supervised probation with the Department of Public2
Safety and Corrections, division of probation and parole, for not more than a3
period of five years but not less than a period of time equal to the remainder of4
the sentence of imprisonment, which probation shall commence on the day after5
the offender's release from imprisonment after serving the mandatory sentence6
required by this Section, unless the offender was released by diminution of7
sentence for good behavior pursuant to R.S. 15:571.3, in which case the8
probation shall commence simultaneously with the period of supervision9
provided by R.S. 15:571.5 and shall run concurrently therewith. The offender10
must comply with both the conditions of his release as set by the parole board11
in accordance with R.S. 15:571.5 and with the conditions of probation set by the12
sentencing court.13
(b) Any offender placed on probation pursuant to this Paragraph shall14
be required as a condition of probation to participate in two hundred forty15
hours of court-approved community service activities, obtain employment,16
participate in a court-approved driver improvement program at his expense,17
and submit to and complete either of the following requirements:18
(i) Immediately undergo an evaluation by the Department of Health and19
Hospitals, office of behavioral health, to determine the nature and extent of the20
offender's substance abuse disorder and to participate in any treatment plan21
recommended by the office of behavioral health, including treatment in an22
inpatient facility approved by the office for a period of not less than four weeks,23
followed by outpatient treatment services for a period not to exceed twelve24
months.25
(ii) Participate in substance abuse treatment in an alcohol and drug26
abuse program provided by a drug division subject to the applicable provisions27
of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such28
program.29 SB NO. 277
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(c) In addition to the requirements set forth in Subparagraphs (a) and1
(b) of this Paragraph, any offender placed on probation pursuant to the2
provisions of this Subsection shall be placed in a home incarceration program3
approved by the division of probation and parole for a period of time not less4
than six months and not more than the remainder of the sentence of5
imprisonment. The terms of home incarceration shall be in compliance with the6
provisions of R.S. 14:98.5(B) and Code of Criminal Procedure Article 894.2.7
(d)(i) Notwithstanding any law to the contrary and the provisions of R.S.8
32:414(D)(1)(b), upon conviction of a third offense violation of R.S. 14:98, any9
motor vehicle, while being operated by the offender, shall be equipped with a10
functioning ignition interlock device in accordance with the provisions of R.S.11
15:306. The ignition interlock device shall remain installed and operative until12
the offender has completed the requirements of substance abuse treatment and13
home incarceration, or, if applicable, the requirements of the drug division14
probation program provided in R.S. 13:5301 et seq.15
(ii) Any offender convicted of a third offense violation of R.S. 14:98 shall,16
after one year of the suspension required by R.S. 32:414(D)(1)(a), upon proof17
to the Department of Public Safety and Corrections that the motor vehicles18
being operated by the offender are equipped with functioning ignition interlock19
devices, be issued a restricted driver's license. The restricted license shall be20
effective for the period of time that the offender's driver's license is suspended.21
The restricted license shall entitle the offender to operate the vehicles equipped22
with a functioning ignition interlock device in order to earn a livelihood and to23
travel to and from the places designated in R.S. 14:98.5(B)(1)(e).24
(e) If an offender placed on probation pursuant to the provisions of this25
Paragraph fails to complete the substance abuse treatment required by this26
Subsection or violates any other condition of probation, including conditions of27
home incarceration, his probation may be revoked, and he may be ordered to28
serve the balance of the sentence of imprisonment, without credit for time29 SB NO. 277
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served under home incarceration.1
B.(1) If the offender has previously received the benefit of parole,2
probation, or suspension of sentence on a conviction of a third or subsequent3
offense violation of R.S. 14:98, or if the offender has previously participated in4
a drug division probation program pursuant to R.S. 13:5301 et seq., pursuant5
to a sentence imposed on a conviction of a third or subsequent offense violation6
of R.S. 14:98, or if the offender has previously been required to participate in7
substance abuse treatment or home incarceration pursuant to a sentence8
imposed on a conviction of a third or subsequent offense violation of R.S. 14:98,9
then on a conviction of a subsequent third offense violation of R.S. 14:98,10
notwithstanding any other provision of law to the contrary and regardless of11
whether the offense occurred before or after an earlier conviction, the offender12
shall be fined two thousand dollars and imprisoned, with or without hard labor,13
for not less than two nor more than five years. At least two years of the14
sentence imposed shall be served without benefit of parole, probation, or15
suspension of sentence. Except in compliance with R.S. 14:98.5(B)(1), the16
mandatory minimum sentence cannot be served on home incarceration.17
(2) Except where inconsistent with the provisions of this Subsection, the18
conditions of probation shall include but not be limited to the conditions of19
probation provided by Paragraph (A)(3) of this Section, except that the offender20
shall not be sentenced to substance abuse treatment provided for by Items21
(A)(3)(b)(i) and (ii) of this Section. Nothing herein shall prohibit the court from22
ordering substance abuse treatment if it determines that the offender is able to23
pay for the substance abuse treatment.24
C. In addition to any other penalty, the court shall order, upon motion25
of the prosecuting district attorney, that the vehicle being operated by the26
offender at the time of the offense be seized and impounded, and sold at auction27
in accordance with the provisions of R.S. 14:98(F).28
§98.4. Operating while intoxicated, fourth offense; penalties29 SB NO. 277
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A.(1) Except as modified by Subparagraphs (a) and (b) of this1
Subsection, or as provided by Subsections B and C of this Section, on a2
conviction of a fourth or subsequent offense violation of R.S. 14:98, regardless3
of whether the fourth offense occurred before or after an earlier conviction, the4
offender shall be fined five thousand dollars and imprisoned, with or without5
hard labor, for not less than ten years nor more than thirty years. Two years6
of the sentence of imprisonment shall be imposed without benefit of parole,7
probation, or suspension of sentence. Except in compliance with R.S.8
14:98.5(B)(1), the mandatory minimum sentence cannot be served on home9
incarceration.10
(a) Except as prohibited by Subparagraph (b) of this Paragraph, the two-11
year period, which shall otherwise be imposed without benefit of parole,12
probation, or suspension of sentence, may be suspended if the offender is13
accepted into a drug division probation program pursuant to R.S. 13:5301 et14
seq. The provisions of R.S. 14:98(F) relative to vehicle seizure and sale shall15
also be applicable to any offender whose sentence is served with the benefit of16
parole, probation, or suspension of sentence pursuant to the provisions of this17
Paragraph.18
(b) If the offender has previously participated in a drug division19
probation program pursuant to R.S. 13:5301 et seq., pursuant to a sentence20
imposed on a third or subsequent offense conviction under R.S. 14:98, three21
years of the sentence imposed in Paragraph (1) of this Subsection shall be22
imposed without benefit of parole, probation, or suspension of sentence.23
Notwithstanding any other law to the contrary, the offender shall not be eligible24
to have the mandatory portion of his sentence suspended because of his25
participation in a drug division program under Item (2)(b)(ii) of this Subsection.26
(2)(a) The court, in its discretion, may suspend all or any part of the27
remainder of the sentence of imprisonment. If any of the sentence is suspended,28
the offender shall be placed on supervised probation with the Department of29 SB NO. 277
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Public Safety and Corrections, division of probation and parole, for a period of1
five years, which probation shall commence on the day after the offender's2
release from imprisonment after serving the mandatory sentence required by3
this Section, unless the offender was released by diminution of sentence for good4
behavior pursuant to R.S. 15:571.3, in which case the probation shall commence5
simultaneously with the period of supervision provided by R.S. 15:571.5 and6
shall run concurrently therewith. The offender must comply with both the7
conditions of his release as set by the parole board in accordance with R.S.8
15:571.5 and with the conditions of probation set by the sentencing court.9
(b) Any offender placed on probation pursuant to this Paragraph shall10
be required as a condition of probation to participate in three hundred twenty11
hours of court-approved community service activities, obtain employment,12
participate in a court-approved driver improvement program at his expense,13
and submit to and complete either of the following requirements:14
(i) Immediately undergo an evaluation by the Department of Health and15
Hospitals, office of behavioral health, to determine the nature and extent of the16
offender's substance abuse disorder, and participate in any treatment plan17
recommended by the office of behavioral health, including treatment in an18
inpatient facility approved by the office for a period of not less than four weeks19
followed by outpatient treatment services for a period not to exceed twelve20
months.21
(ii) Except as provided in R.S. 14:98(A)(1)(b), participate in substance22
abuse treatment in an alcohol and drug abuse program provided by a drug23
division subject to the applicable provisions of R.S. 13:5301 et seq. if the24
offender is otherwise eligible to participate in such program.25
(c) In addition to the requirements set forth in Subparagraphs (a) and26
(b) of this Paragraph, any offender placed on probation pursuant to the27
provisions of this Subsection shall be placed in a home incarceration program28
approved by the division of probation and parole for the remainder of the term29 SB NO. 277
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of supervised probation. The terms of home incarceration shall be in1
compliance with the provisions of R.S. 14:98.5(B) and Code of Criminal2
Procedure Article 894.2.3
(d)(i) Notwithstanding any law to the contrary and the provisions of R.S.4
32:414(D)(1)(b), upon conviction of a fourth or subsequent offense, any motor5
vehicle, while being operated by the offender, shall be equipped with a6
functioning ignition interlock device in accordance with the provisions of R.S.7
15:306. The ignition interlock device shall remain installed and operative until8
the offender has completed the requirements of substance abuse treatment and9
home incarceration or, if applicable, the requirements of the drug division10
probation program provided for in R.S. 13:5301 et seq.11
(ii) Any offender convicted of a fourth or subsequent offense shall, after12
one year of the suspension required by R.S. 32:414(D)(1)(a), upon proof to the13
Department of Public Safety and Corrections that the motor vehicles being14
operated by the offender are equipped with functioning ignition interlock15
devices, be issued a restricted driver's license. The restricted license shall be16
effective for the period of time that the offender's driver's license is suspended.17
The restricted license shall entitle the offender to operate the vehicles equipped18
with a functioning ignition interlock device in order to earn a livelihood and to19
travel to and from the places designated in R.S. 14:98.5(B)(1)(e).20
(e) If an offender placed on probation pursuant to the provisions of this21
Paragraph fails to complete the substance abuse treatment required by this22
Subsection or violates any other condition of probation, including conditions of23
home incarceration, his probation may be revoked, and he may be ordered to24
serve the balance of the sentence of imprisonment, without credit for time25
served under home incarceration.26
B.(1) If the offender has previously been required to participate in27
substance abuse treatment or home incarceration pursuant to a sentence28
imposed on a conviction of a third offense violation of R.S. 14:98, then on a29 SB NO. 277
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conviction of a fourth or subsequent offense, notwithstanding any other1
provision of law to the contrary and regardless of whether the fourth offense2
occurred before or after an earlier conviction, the offender shall be fined five3
thousand dollars and imprisoned at hard labor for not less than ten nor more4
than thirty years, at least three years of which shall be imposed without benefit5
of parole, probation, or suspension of sentence. Notwithstanding any provision6
of law to the contrary, the offender shall not be eligible to have the mandatory7
portion of his sentence suspended because of his participation in a drug division8
program under Item (2)(b)(ii) of Subsection A of this Section, and except in9
compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot10
be served on home incarceration.11
(2) After serving the mandatory sentence, if any of the remainder of the12
sentence is suspended, the offender shall be placed on supervised probation with13
the Department of Public Safety and Corrections, division of probation and14
parole, for a period of five years, which probation shall commence on the day15
after the offender's release from imprisonment after serving the mandatory16
sentence required by this Section, unless the offender was released by17
diminution of sentence for good behavior pursuant to R.S. 15:571.3, in which18
case the probation shall commence simultaneously with the period of19
supervision provided by R.S. 15:571.5 and shall run concurrently therewith.20
The offender must comply with both the conditions of his release as set by the21
parole board in accordance with R.S. 15:571.5 and with the conditions of22
probation set by the sentencing court.23
(3) Except where inconsistent with the provisions of this Subsection, the24
conditions of probation shall include but not be limited to the conditions of25
probation provided by Paragraph (A)(2) of this Section, but the offender shall26
not be sentenced to substance abuse treatment provided for by Items27
(A)(2)(b)(i) and (ii) of this Section. Nothing herein shall prohibit the court from28
ordering substance abuse treatment if it determines that the offender is able to29 SB NO. 277
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pay for the substance abuse treatment.1
C. If the offender has previously received the benefit of parole,2
probation, or suspension of sentence on a conviction of a fourth or subsequent3
offense violation of R.S. 14:98, then on a subsequent conviction of a fourth or4
greater offense, notwithstanding any other provision of law to the contrary and5
regardless of whether the offense occurred before or after an earlier conviction,6
the offender shall be fined five thousand dollars and imprisoned at hard labor7
for not less than ten nor more than thirty years. No part of the sentence shall8
be imposed with benefit of parole, probation, or suspension of sentence, and no9
portion of the sentence shall be imposed concurrently with the remaining10
balance of any sentence to be served for a prior conviction for any offense.11
D. In addition to any other penalty, the court shall order, upon motion12
of the prosecuting district attorney, that the vehicle being operated by the13
offender at the time of the offense be seized and impounded, and sold at auction14
in accordance with the provisions of R.S. 14:98(F).15
§98.5. Special provisions and definitions16
A. Substance abuse programs. (1) An offender ordered to participate in17
a substance abuse program, home incarceration, or a driver improvement18
program in accordance with the penalty provisions of R.S. 14:98, 98.1, 98.2,19
98.3, and 98.4 shall pay the cost incurred in participating in the program.20
Failure to make such payment shall subject the offender to revocation of21
probation, unless the court determines that the offender is unable to pay.22
(2) On a conviction of a third or subsequent offense violation of R.S.23
14:98, if the court determines that the offender is unable to pay, the state shall24
pay for the cost of the substance abuse treatment. If the court determines that25
an offender is unable to pay the costs incurred for participating in a substance26
abuse treatment program, driver improvement program, or home27
incarceration, the court may, upon completion of such program or home28
incarceration, require that the offender reimburse the state for all or a portion29 SB NO. 277
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of such costs pursuant to a payment schedule determined by the court. This1
Paragraph shall not apply to substance abuse treatment imposed as a condition2
of probation under R.S. 14:98.4(B)(3).3
B. Home incarceration. (1) For felony violations of R.S. 14:98, the4
mandatory minimum sentence imposed by the court shall not be served on5
home incarceration unless either:6
(a) The Department of Public Safety and Corrections, through the7
division of probation and parole, recommends home incarceration of the8
defendant and specific conditions of that home incarceration.9
(b) The district attorney recommends home incarceration.10
(2) Except as provided by Paragraph (B)(4) of this Section and unless11
otherwise authorized or prohibited, on a misdemeanor violation of R.S. 14:9812
or on a felony violation of R.S. 14:98 after the offender has served the13
mandatory minimum sentence, the court may sentence the offender to home14
incarceration.15
(3) Except as modified by Paragraph (B)(5) of this Section, when the16
court sentences an offender to home incarceration, the offender shall be subject17
to special conditions to be determined by the court, which shall include but not18
be limited to the following:19
(a) Electronic monitoring. However, nothing herein shall prohibit a20
court from ordering nonelectronic monitored home incarceration as a condition21
of probation for a first or second conviction where the period of home22
incarceration is less than five days.23
(b) Curfew restrictions.24
(c) The court shall require the offender to obtain employment.25
(d) The court shall require the offender to participate in a court-26
approved driver improvement program, if not already a condition of his27
probation.28
(e) The activities of the offender outside of his home shall be limited to29 SB NO. 277
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traveling to and from work, church services or other religious services,1
Alcoholics Anonymous meetings, Narcotics Anonymous meetings, other secular-2
based addiction recovery group meetings, accredited educational institutions,3
meetings with his probation or parole officer, court-ordered community service4
activities, court-ordered substance abuse treatments, and a court-approved5
driver improvement program.6
(f) Except as inconsistent with the provisions of this Subsection, an7
offender sentenced to home incarceration shall be subject to all other applicable8
provisions of Code of Criminal Procedure Article 894.2.9
(4) An offender who has been convicted of any second violation of any10
state or local law or ordinance prohibiting operating a vehicle while intoxicated,11
committed within five years of the commission of any prior operating while12
intoxicated violation, shall not be eligible for home incarceration until the13
offender has first served a minimum of forty-eight consecutive hours of14
imprisonment.15
(5) When the offender is on probation for a third or subsequent offense,16
or on a second offense under R.S. 14:98.2(D), a home visitation shall be17
conducted at least once per month by the Department of Public Safety and18
Corrections for the first six months. After the first six months, the level of19
supervision shall be determined by the department based upon a risk20
assessment instrument.21
C. Ignition interlock devices. (1) No offender who is ordered to install an22
ignition interlock device as a condition of probation shall:23
(a) Fail to comply with all applicable provisions of R.S. 15:306 and 30724
and R.S. 32:378.2 and 414(D)(1)(b).25
(b) Violate the conditions of his restricted driver's license as set by the26
Department of Public Safety and Corrections.27
(c) Operate, rent, lease, or borrow a motor vehicle unless that vehicle is28
equipped with a functioning ignition interlock device.29 SB NO. 277
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(d) Request or solicit any other person to blow into an ignition interlock1
device or to start a motor vehicle equipped with the device for the purpose of2
providing the offender with an operable motor vehicle.3
(2) If the court imposes the use of an ignition interlock device as a4
condition of probation, the offender shall provide proof of compliance to the5
court or the probation officer within thirty days. If the offender fails to provide6
proof of installation within that period, absent a finding by the court of good7
cause for the failure that is entered into the court record, the court shall revoke8
the offender's probation.9
(3) The provisions of this Subsection shall not require installation of an10
ignition interlock device in any vehicle described in R.S. 32:378.2(I).11
D.(1) "Community service activities" as used in this Section and R.S.12
14:98.1, 98.2, 98.3, and 98.4, in addition to participation in a litter abatement or13
collection program, may include duty in any morgue, coroner's office, or14
emergency treatment room of a state-operated hospital or other state-operated15
emergency treatment facility, with the consent of the administrator of the16
morgue, coroner's office, hospital, or facility.17
(2) An offender who participates in a litter abatement or collection18
program pursuant to this Subsection shall have no cause of action for damages19
against the entity conducting the program or supervising the offender's20
participation therein, including a municipality, parish, sheriff, or other entity,21
nor against any official, employee, or agent of such entity, for any injury or loss22
suffered by him during or arising out of his participation therein, if such injury23
or loss is a direct result of the lack of supervision or act or omission of the24
supervisor, unless the injury or loss was caused by the intentional or grossly25
negligent act or omission of the entity or its official, employee, or agent.26
§98.6. Underage operating while intoxicated27
A. The crime of underage operating a vehicle while intoxicated is the28
operating of any motor vehicle, aircraft, watercraft, vessel, or other means of29 SB NO. 277
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conveyance when the operator's blood alcohol concentration is 0.02 percent or1
more by weight based on grams of alcohol per one hundred cubic centimeters2
of blood, if the operator is under the age of twenty-one.3
B. Any underage person whose blood alcohol concentration is found to4
be in violation of R.S. 14:98(A)(1)(b) shall be charged under the provisions of5
that Subparagraph rather than under this Section.6
C.(1) On a first conviction, the offender shall be fined not less than one7
hundred dollars nor more than two hundred fifty dollars, and imprisoned for8
not less than ten days nor more than three months. Imposition or execution of9
sentence shall not be suspended unless the offender is placed on probation with10
the minimum conditions that he:11
(a) Perform thirty-two hours of court-approved community service12
activities, at least half of which shall consist of participation in a litter13
abatement or collection program.14
(b) Participate in a court-approved substance abuse and driver15
improvement program.16
(2) On a second or subsequent conviction, regardless of whether the17
second offense occurred before or after the first conviction, the offender shall18
be fined not less than two hundred fifty dollars nor more than five hundred19
dollars, and imprisoned for not less than thirty days nor more than six months.20
Imposition or execution of sentence under this Paragraph shall not be21
suspended unless the offender is placed on probation with the minimum22
conditions that he:23
(a) Serve forty-eight hours in jail without benefit of parole, probation,24
or suspension of sentence, or in lieu thereof, perform no less than eighty hours25
of court-approved community service activities, at least half of which shall26
consist of participation in a litter abatement or collection program.27
(b) Participate in a court-approved substance abuse program.28
(c) Participate in a court-approved driver improvement program.29 SB NO. 277
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(3) Nothing herein shall prohibit a court from sentencing an offender to1
serve any portion of the sentence under home incarceration either in lieu of, or2
in addition to, a term of imprisonment if otherwise allowed under the provisions3
of Code of Criminal Procedure Article 894.2 and R.S. 14:98.5(B).4
(4) The court may require that the offender not operate a motor vehicle5
during the period of probation unless any vehicle, while being operated by the6
offender, is equipped with a functioning ignition interlock device in accordance7
with R.S. 14:98.5(C).8
D. Court programs regarding substance abuse as provided for by9
Subsection C of this Section shall include a screening procedure to determine10
the portions of the program that may be applicable and appropriate for11
individual offenders.12
§98.7. Unlawful refusal to submit to chemical tests; arrests for driving while13
intoxicated14
A. No person under arrest for a violation of R.S. 14:98, 98.6, or any other15
law or ordinance that prohibits operating a vehicle while intoxicated may refuse16
to submit to a chemical test when requested to do so by a law enforcement17
officer if he has refused to submit to such test on two previous and separate18
occasions of any such violation.19
B.(1) Whoever violates the provisions of this Section shall be fined not20
less than three hundred dollars nor more than one thousand dollars, and shall21
be imprisoned for not less than ten days nor more than six months.22
(2) Imposition or execution of sentence shall not be suspended unless one23
of the following occurs:24
(a) The offender is placed on probation with the minimum conditions25
that he serve two days in jail and participate in a court-approved substance26
abuse program and participate in a court-approved driver improvement27
program.28
(b) The offender is placed on probation with the minimum conditions29 SB NO. 277
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that he perform thirty-two hours of court-approved community service1
activities, at least half of which shall consist of participation in a litter2
abatement or collection program, participate in a court-approved substance3
abuse program, and participate in a court-approved driver improvement4
program. An offender who participates in a litter abatement or collection5
program pursuant to this Subparagraph shall have no cause of action for6
damages against the entity conducting the program or supervising his7
participation therein, as provided by R.S. 14:98.5(D).8
§98.8. Operating a vehicle while under suspension for certain prior offenses9
A. It is unlawful to operate a motor vehicle on a public highway where10
the operator's driving privileges have been suspended under the authority of11
R.S. 32:414(A)(1), (B)(1) or (2), (D)(1)(a), or R.S. 32:667. It shall not be a12
violation of the provisions of this Section when a person operates a motor13
vehicle to obtain emergency medical care for himself or any other person.14
B. Whoever violates the provisions of this Section shall be imprisoned for15
not less than fifteen days nor more than six months without benefit of16
suspension of imposition or execution of sentence, except as provided in17
Subsection C.18
C. When the operator's driving privileges were suspended for19
manslaughter, vehicular homicide, or negligent homicide, the offender shall be20
imprisoned for not less than sixty days nor more than six months without21
benefit of suspension of imposition or execution of sentence.22
Section 2. The provisions of this Act shall become effective on January 1, 2015.23
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
Perry (SB 277)
Present law defines the crime of operating a vehicle while intoxicated (DWI) as the
operating of any motor vehicle under any of the following conditions:
(1)The operator is under the influence of alcoholic beverages. SB NO. 277
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(2)The operator is under the influence of a controlled dangerous substance.
(3)The operator is under the influence of one or more drugs that are not controlled
dangerous substances, whether alone or in combination with alcohol.
(4)The operator's blood alcohol concentration (BAC) is 0.08 percent or more by weight
based on grams of alcohol per 100 cubic centimeters of blood.
Proposed law retains present law.
Present law (Child Endangerment Law) provides that when the state proves that a minor
child 12 years of age or younger was a passenger in the vehicle, the mandatory minimum
sentences for DWI first and subsequent offenses cannot be suspended.
Proposed law retains present law.
Present law provides that a "prior conviction" for purposes of present law DWI sentencing
provisions includes a conviction for the present law crimes of DWI, vehicular homicide,
vehicular negligent injuring, first degree vehicular negligent injuring, or a conviction under
the laws of any other jurisdiction that prohibits the operation of a vehicle while impaired or
under the influence of alcohol, drugs, or any controlled dangerous substance. Present law
further provides that a "prior conviction" does not include a conviction for an offense
committed more than 10 years prior to the commission of the crime for which the defendant
is being tried. Present law further provides that periods of time during which the offender
was awaiting trial, on parole or probation, under an order of attachment for failure to appear,
or incarcerated are to be excluded in computing the 10-year period.
Proposed law retains present law and adds the present law crime of third degree feticide to
the list of crimes constituting a prior conviction.
Present law provides that a conviction of a third or subsequent offense DWI is presumptive
evidence of the existence of a substance abuse disorder in the offender that poses a serious
threat to the health and safety of the public.
Proposed law retains present law.
Present law provides that if an offender placed on probation for a conviction of DWI fails
to complete required substance abuse treatment, or fails to participate in a driver
improvement program, or violates any other condition of probation, the offender's probation
may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment
without credit for time served under home incarceration.
Proposed law retains present law.
Present law provides that on a conviction of a first offense DWI, the offender is to be fined
between $300 and $1,000, and imprisoned for not less than 10 days nor more than six
months. Present law further provides that imposition or execution of sentence can be
suspended under certain circumstances provided for by present law, including serving 48
hours in jail or performing at least four eight-hour days of community service, half of which
must consist of litter abatement or collection.
Proposed law retains present law but changes the requirement of community service from
four eight-hour days to 32 hours. Proposed law also adds the requirement of participation
in a court-approved substance abuse program, which may include an assessment to
determine if the offender has a substance abuse disorder. Proposed law further provides that
the court may require an ignition interlock device be installed on the offender's vehicle.
Present law requires that on a conviction of a first offense DWI, if the offender had a BAC SB NO. 277
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of 0.15 percent or more, then at least 48 hours of the sentence must be served without the
benefit of parole, probation, or suspension of sentence. Present law further requires that if
the offender had a BAC of 0.20 percent or more, then he is to be fined between $750 and
$1,000 and serve at least 48 hours of the sentence without the benefit of parole, probation,
or suspension of sentence.
Proposed law retains present law.
Present law provides that on a conviction of a first offense DWI when the offender's BAC
was 0.20 percent or more, the offender's driver's license is to be suspended for two years.
Present law further allows the offender to obtain a restricted driver's license upon proof to
the Dept. of Public Safety and Corrections (DPSC) that he has installed an ignition interlock
device on his vehicle.
Proposed law retains present law.
Present law provides that all or part of the offender's sentence may be served under home
incarceration.
Proposed law retains present law.
Proposed law provides that the total period of imprisonment for first offense DWI, including
imprisonment for default in payment of a fine or costs, cannot exceed six months.
Present law provides that on a conviction of a second offense DWI, regardless of whether
the second offense occurred before or after the first conviction, the offender is to be fined
between $750 and $1,000, and imprisoned for not less than 30 days nor more than six
months. Present law further provides that at least 48 hours of the sentence is to be served
without benefit of parole, probation, or suspension of sentence. Present law further provides
that the offender may be sentenced to home incarceration, and provides that imposition or
execution of the remainder of the sentence over 48 hours can be suspended under certain
circumstances provided for by present law, including serving 15 days in jail or performing
at least 30 eight-hour days of community service, half of which must consist of litter
abatement or collection, participating in a court-approved substance abuse program, and
participating in a court-approved driver improvement program.
Proposed law requires a minimum of 15 days in jail rather than a fixed period of 15 days in
jail as provided for by present law. Proposed law provides that the total period of
imprisonment for first offense DWI, including imprisonment for default in payment of a fine
or costs, cannot exceed six months. Proposed law further provides that the substance abuse
program provided for by present law may include assessment to determine if the offender
has a substance abuse disorder. Proposed law further provides that the court is to require an
ignition interlock device be installed on the offender's vehicle for at least six months.
Proposed law otherwise retains present law.
Present law requires that on a conviction of a second offense DWI, if the offender had a
BAC of 0.15 percent or more, then at least 96 hours of the sentence must be served without
the benefit of parole, probation, or suspension of sentence. Present law further requires that
if the offender had a BAC of 0.20 percent or more, then he is to be fined $1,000 and serve
at least 96 hours of the sentence without the benefit of parole, probation, or suspension of
sentence.
Proposed law retains present law .
Present law provides that on a conviction of a second offense DWI when the offender's BAC
was 0.20 percent or more, the offender's driver's license is to be suspended for four years.
Present law further requires the installation of an ignition interlock device on the offender's SB NO. 277
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vehicle. Present law further allows the offender to obtain a restricted driver's license upon
proof to DPSC that the ignition interlock device has been installed on the offender's vehicle.
Proposed law retains present law.
Present law provides that on a conviction of a second offense DWI when the arrest for the
second offense occurs within one year of the commission of the first offense, the offender
is to be imprisoned for 30 days without benefit of parole, probation, or suspension of
sentence and must participate in a court-approved substance abuse program and in a court-
approved driver improvement program.
Proposed law retains present law and clarifies that the defendant convicted of a second
offense within one year of the first offense is also to be fined $1,000.
Present law provides that all or part of the offender's sentence for a second offense DWI may
be served under home incarceration if otherwise allowed under present law relative to home
incarceration generally.
Proposed law retains present law.
Present law provides that on a conviction of a second offense DWI when the first offense
was for the present law crime of vehicular homicide or first degree vehicular negligent
injuring, the offender is to be fined $2,000 and imprisoned, with or without hard labor, for
between one year and five years, at least six months of which must be without benefit of
parole, probation, or suspension of sentence. Present law further provides that the remainder
of the sentence may be suspended if the offender is placed on probation with the
requirements that he serve 15 days in jail and participate in a court-approved substance abuse
program and a court-approved driver improvement program, or perform 30 eight-hour days
of community service.
Proposed law retains present law and adds the present law crime of third degree feticide to
the list of crimes resulting in an enhanced sentence for second offense DWI. Proposed law
adds that the substance abuse program provided for by present law may include an
assessment to determine if the offender has a substance abuse disorder. Proposed law also
adds that an offender placed on probation must be placed in a home incarceration program
for at least six months.
Present law provides that on a conviction of a third offense DWI, regardless of whether the
third offense occurred before or after an earlier conviction, the offender is to be fined $2,000
and imprisoned, with or without hard labor, for between one and five years, with one year
of the sentence served without benefit of parole, probation, or suspension of sentence.
Present law further provides that the one-year mandatory minimum sentence can be
suspended if the offender is accepted into a drug division program as provided for by present
law.
Present law further provides that the remainder of the sentence can be suspended and the
offender placed on supervised probation with DPSC for the remainder of the sentence, with
the conditions that the offender participate in 30 eight-hour days of court-approved
community service and either undergo an evaluation by the Dept. of Health and Hospitals
(DHH) to determine the nature and extent of the offender's substance abuse disorder and
participate in any recommended treatment plan, or participate in substance abuse treatment
in a program provided by a drug division pursuant to present law. Present law further
requires an offender placed on probation pursuant to present law be placed in a home
incarceration program for at least six months. Present law further provides that the
offender's vehicle may be seized and sold pursuant to present law.
Proposed law retains present law but changes the community service requirement from 30
eight-hour days to 240 hours. SB NO. 277
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words in boldface type and underscored are additions.
Present law requires that an ignition interlock device be installed on the offender's vehicle
and allows the offender to obtain a restricted driver's license.
Proposed law retains present law.
Proposed law provides that if the offender convicted of a third offense DWI has previously
received the benefit of parole, probation, or suspension of sentence, then on a subsequent
conviction the offender is to be fined $2,000 and imprisoned at hard labor for between two
and five years. Proposed law further provides that at least two years of the sentence must
be served without benefit of parole, probation, or suspension of sentence. Proposed law
further provides that such offender cannot be sentenced to home incarceration unless certain
proposed law conditions are met.
Present law provides that on a third or subsequent conviction of DWI, in addition to any
other sentence, the court is to order, upon motion of the prosecuting district attorney, that
the vehicle being operated by the offender at the time of the offense be seized and
impounded, and sold at auction in accordance with present law. Present law further provides
that the proceeds of the sale are to be used first to pay court costs and towing and storage
costs, and the remainder is to be allocated pursuant to present law.
Proposed law retains present law.
Present law provides that on a conviction of a fourth offense DWI or subsequent DWI
offense, regardless of whether the fourth or subsequent offense occurred before or after an
earlier conviction, the offender is to be fined $5,000 and imprisoned, with or without hard
labor, for between ten and 30 years, with two years of the sentence served without benefit
of parole, probation, or suspension of sentence. Present law further provides that the two-
year mandatory minimum sentence can be suspended if the offender is accepted into a drug
division program as provided for by present law.
Proposed law retains present law and adds that the mandatory minimum sentence of two
years for fourth offense DWI cannot be served on home incarceration.
Present law provides that if the offender has previously participated in a drug division
probation program pursuant to present law pursuant to a sentence imposed on a third or
subsequent offense DWI conviction, then three years of the sentence must be imposed
without benefit of parole, probation, or suspension of sentence.
Proposed law retains present law and adds that the offender is not to be eligible to have the
mandatory portion of his sentence suspended because of his participation in a drug division
program.
Present law provides that the court may suspend all or any part of the remainder of the
sentence of imprisonment, provided that the offender is placed on supervised probation with
DPSC for a period of five years, participate in 40 eight-hour days of court-approved
community service, be placed in a home incarceration program, and submit to either an
evaluation by DHH and participate in any treatment plan recommended or participate in
substance abuse treatment in a program provided by a drug division pursuant to present law.
Proposed law retains present law but changes the requirement of community service from
40 eight-hour days to 320 hours.
Present law requires the installation of an ignition interlock device on the offender's vehicle.
Present law further allows the offender to obtain a restricted driver's license after one year
of suspension upon proof to DPSC that the ignition interlock device has been installed on
the offender's vehicle.
Proposed law retains present law. SB NO. 277
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words in boldface type and underscored are additions.
Present law provides that if the offender has previously been required to participate in
substance abuse treatment or home incarceration pursuant to a sentence imposed on a
conviction of a third offense DWI violation, then on a conviction of a fourth or subsequent
offense the offender is to be imprisoned at hard labor for not less than ten nor more than 30
years, at least three years of which are to be imposed without benefit of parole, probation,
or suspension of sentence. Present law further provides that the offender is not eligible to
have the mandatory portion of his sentence suspended because of his participation in a drug
division program and the mandatory minimum sentence cannot be served on home
incarceration.
Proposed law retains present law except to change the mandatory minimum sentence from
three years to five years and adds a fine of $5,000.
Present law provides that if the remainder of the sentence is suspended, the offender is to be
placed on supervised probation with DPSC for a period of five years but the offender cannot
be sentenced to substance abuse treatment.
Proposed law retains present law and adds that nothing in proposed law prohibits the court
from ordering substance abuse treatment if it determines that the offender is able to pay for
the substance abuse treatment.
Present law provides that if the offender has previously received the benefit of suspension
of sentence, probation, or parole on a conviction of a fourth or subsequent offense DWI, then
on a subsequent conviction of a fourth or greater offense, the offender is to be imprisoned
at hard labor for between ten and 30 years.
Proposed law retains present law and adds a fine of $5,000.
Present law provides that the offender's vehicle may be seized and sold pursuant to present
law.
Proposed law retains present law.
Present law provides that the state will pay the costs of substance abuse treatment.
Proposed law provides that the state will pay the costs of substance abuse treatment only on
third and subsequent DWI convictions, except where imposed as a condition of probation.
Proposed law provides that for felony DWI violations, the mandatory minimum sentence
imposed by the court cannot be served on home incarceration unless either DPSC
recommends home incarceration and specific conditions of that home incarceration, or the
district attorney recommends home incarceration.
Present law provides that except as otherwise provided by present law, on a misdemeanor
DWI violation or on a felony DWI violation after the offender has served the mandatory
minimum sentence, the court may sentence the offender to home incarceration. Present law
further provides that when the court sentences an offender to home incarceration, the
offender is subject to special conditions to be determined by the court, including electronic
monitoring, curfew restrictions, obtaining employment, and participation in a court-approved
driver improvement program.
Proposed law retains present law and adds that the court may also order nonelectronic
monitored home incarceration as a condition of probation for a first or second conviction
where the period of home incarceration is less than five days.
Present law provides that the activities of the offender outside of his home are to be limited
to traveling to and from work, church services, Alcoholics Anonym ous meetings, and a
court-approved driver improvement program. SB NO. 277
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words in boldface type and underscored are additions.
Proposed law retains present law and adds Narcotics Anonymous meetings and other
secular-based addiction recovery group meetings, accredited educational institutions,
meetings with a probation or parole officer, court-ordered community service activities, and
court-ordered substance abuse treatments to the list of approved activities outside the home
during the period of home incarceration.
Proposed law provides that an offender who has been convicted of any second violation of
any state or local law or ordinance prohibiting operating a vehicle while intoxicated,
committed within five years of the commission of any prior DWI violation, is not eligible
for home incarceration until the offender has first served a minimum of 48 consecutive hours
of imprisonment.
Present law provides that when the offender is on probation for a third or subsequent offense,
or on a second offense with home incarceration, a home visitation is to be conducted at least
once per month by DPSC for the first six months, and after the first six months, the level of
supervision is to be determined based upon a risk assessment instrument.
Proposed law retains present law.
Present law provides that an offender who is ordered to install an ignition interlock device
as a condition of probation cannot operate, rent, lease, or borrow a motor vehicle unless that
vehicle is equipped with a functioning ignition interlock device, or request another person
to blow into an ignition interlock device or to start a vehicle equipped with the device to
provide an operable vehicle.
Proposed law retains present law and adds the condition that the offender cannot violate the
conditions of his restricted driver's license as set by DPSC.
Proposed law provides that if the court imposes the use of an ignition interlock device as a
condition of probation, the offender must provide proof of compliance to the court or the
probation officer within 30 days, or the court is to revoke the offender's probation.
Proposed law retains present law.
Present law defines "community service activities" to include participation in a litter
abatement or collection program and duty in any morgue, coroner's office, or emergency
treatment room of a state-operated hospital or other state-operated emergency treatment
facility, with the consent of the administrator of the morgue, coroner's office, hospital, or
facility.
Proposed law retains present law.
Present law provides that an offender who participates in a litter abatement or collection
program has no cause of action for damages against the entity conducting the program or
supervising the offender's participation therein, nor against any official, employee, or agent
of such entity, for any injury or loss suffered during his participation in the program, if such
injury is a direct result of the lack of supervision or act or omission of the supervisor, unless
the injury or loss was caused by the intentional or grossly negligent act or omission of the
entity or its official, employee, or agent.
Proposed law retains present law.
Present law defines the crime of underage operating while intoxicated (underage DWI) as
the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance
when the operator's BAC is 0.02 percent or more, if the operator is under the age of 21.
Proposed law retains present law. SB NO. 277
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words in boldface type and underscored are additions.
Present law provides that if the offender's BAC is 0.08 percent or more, he is to be charged
under present law relative to DWI rather than underage DWI.
Present law provides that on a first conviction of underage DWI the offender is to be fined
between $100 and $250 and participate in a court-approved substance abuse and driver
improvement program.
Proposed law retains present law and adds a term of imprisonment of between ten days and
three months, which sentence can be suspended if the offender performs 32 hours of
community service and participates in a court-approved substance abuse and driver
education program.
Present law provides that on a second or subsequent conviction of underage DWI the
offender is to be fined between $150 and $500 and imprisoned for between ten days and
three months, which sentence can be suspended if the offender performs ten eight-hour days
of community service and participates in a substance abuse and driver improvement
program.
Proposed law increases the minimum fine from $150 to $250 and increases the minimum
term of imprisonment from ten days to 30 days and increases the maximum sentence from
three months to six months, which sentence can be suspended if the offender is placed on
probation with the minimum conditions that he serve 48 hours in jail or perform at least 80
hours of community service, participate in a driver improvement program, and participate
in a substance abuse program, which is to include a screening procedure to determine the
portions of the program that may be applicable to an individual offender.
Proposed law adds that the court may sentence an offender to home incarceration for
underage DWI and that the court may order the offender to install an ignition interlock
device on his vehicle.
Proposed law otherwise retains present law.
Present law provides relative to the crime of refusal to submit to chemical tests, and provides
that no person under arrest for DWI or any other similar law or ordinance may refuse to
submit to a chemical test when requested to do so by a law enforcement officer, if he has
refused to submit to such test on two previous and separate occasions of any such violation.
Proposed law retains present law.
Present law provides that whoever violates the provisions of present law is to be fined
between $300 and $1,000 and imprisoned for between ten days and six months, which
sentence can be suspended only if the offender is either placed on probation with the
minimum conditions that he serve two days in jail and participate in substance abuse and
driver improvement programs, or perform 32 hours of community service and participate in
substance abuse and driver improvement programs.
Proposed law retains present law.
Present law provides relative to the crime of operating a vehicle while under suspension for
certain prior offenses, and provides that it is unlawful to operate a motor vehicle on a public
highway where the operator's driving privileges have been suspended under the authority of
certain provisions of present law, unless the person is operating the vehicle to obtain
emergency medical care for himself or any other person.
Proposed law retains present law.
Present law provides that whoever violates the provisions of present law is to be imprisoned
for between 15 days and six months without benefit of suspension of imposition or execution SB NO. 277
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of sentence, except that when the operator's driving privileges were suspended for
manslaughter, vehicular homicide, or negligent homicide, the offender is to be imprisoned
for between 60 days and six months without benefit of suspension of imposition or execution
of sentence.
Proposed law retains present law.
Effective January 1, 2015.
(Amends R.S. 14:98, 98.1, 98.2, and 98.3; adds R.S. 14:98.4, 98.5, 98.6, 98.7, and 98.8)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the
original bill
1. Adds screening procedure to determine applicability of substance abuse
treatment programs to individual underage offenders.