Perry (SB 277) Act No. 385
Prior law defined 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.
(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% or more by weight based
on grams of alcohol per 100 cubic centimeters of blood.
New law retains prior law.
Prior law (Child Endangerment Law) provided 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, second, and third DWI offenses cannot be suspended and at least
two years shall be served without benefit of suspension of sentence for a fourth or
subsequent DWI offense.
New law retains prior law relative to first, second, and third DWI offenses. For fourth and
subsequent DWI offenses, New law amends prior law to provide that the mandatory
minimum sentence imposed for such offenses shall not be suspended.
Prior law provided that a "prior conviction" for purposes of prior law DWI sentencing
provisions includes a conviction for the prior 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. Prior law
further provided that a "prior conviction" does not include a conviction for an offense
committed more than ten years prior to the commission of the crime for which the defendant
is being tried. Prior law further provided 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 ten-year period.
New law retains prior law and adds the prior law crime of third degree feticide to the list of
crimes constituting a prior conviction.
Prior law provided 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. New law retains prior law.
Prior law provided 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. New law retains prior law.
Prior law provided 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 ten days nor more than six
months. Prior law further provided that imposition or execution of sentence can be
suspended under certain circumstances provided for by prior 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.
New law retains prior law but changes the requirement of community service from four
eight-hour days to 32 hours. New 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. New law further provides that the court may
require an ignition interlock device be installed on the offender's vehicle.
Prior law required that on a conviction of a first offense DWI, if the offender had a BAC of
0.15% or more, then at least 48 hours of the sentence must be served without the benefit of parole, probation, or suspension of sentence. Prior law further required that if the offender
had a BAC of 0.20% 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. New law retains prior law.
Prior law provided that on a conviction of a first offense DWI when the offender's BAC was
0.20% or more, the offender's driver's license is to be suspended for two years. Prior law
further allowed the offender to obtain a restricted driver's license upon proof to the Dept. of
Public Safety and Corrections (DPS&C) that he has installed an ignition interlock device on
his vehicle. New law retains prior law.
Prior law provided that all or part of the offender's sentence may be served under home
incarceration. New law retains prior law.
New 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.
Prior law provided 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. Prior law further provides that at least 48 hours of the sentence is to be served
without benefit of parole, probation, or suspension of sentence. Prior law further provided
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 prior 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.
New law requires a minimum of 15 days in jail rather than a fixed period of 15 days in jail
as provided for by prior law. New 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. New law further provides that the substance abuse program provided
for by prior law may include assessment to determine if the offender has a substance abuse
disorder. New 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.
New law otherwise retains prior law.
Prior law required that on a conviction of a second offense DWI, if the offender had a BAC
of 0.15% or more, then at least 96 hours of the sentence must be served without the benefit
of parole, probation, or suspension of sentence. Prior law further required that if the
offender had a BAC of 0.20% 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.
New law retains prior law.
Prior law provided that on a conviction of a second offense DWI when the offender's BAC
was 0.20% or more, the offender's driver's license is to be suspended for four years. Prior
law further required the installation of an ignition interlock device on the offender's vehicle.
Prior law further allowed the offender to obtain a restricted driver's license upon proof to
DPS&C that the ignition interlock device has been installed on the offender's vehicle.
New law retains prior law.
Prior law provided 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.
New law retains prior 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. Prior law provided that all or part of the offender's sentence for a second offense DWI may
be served under home incarceration if otherwise allowed under prior law relative to home
incarceration generally. New law retains prior law.
Prior law provided that on a conviction of a second offense DWI when the first offense was
for the prior 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 not less than
one year nor more than five years, at least six months of which must be without benefit of
parole, probation, or suspension of sentence. Prior law further provided 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.
New law retains prior law and adds the prior law crime of third degree feticide to the list of
crimes resulting in an enhanced sentence for second offense DWI. New law adds that the
substance abuse program provided for by prior law may include an assessment to determine
if the offender has a substance abuse disorder. New law also adds that an offender placed
on probation must be placed in a home incarceration program for at least six months.
Prior law provided 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. Prior
law further provided that the one-year mandatory minimum sentence can be suspended if the
offender is accepted into a drug division program as provided for by prior law.
Prior law further provided that the remainder of the sentence can be suspended and the
offender placed on supervised probation with DPS&C 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 prior law. Prior law further required
an offender placed on probation pursuant to prior law be placed in a home incarceration
program for at least six months. Prior law further provided that the offender's vehicle may
be seized and sold pursuant to prior law.
New law retains prior law but changes the community service requirement from 30 eight-
hour days to 240 hours.
Prior law required that an ignition interlock device be installed on the offender's vehicle and
allows the offender to obtain a restricted driver's license. New law retains prior law.
New 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. New law further provides that at least two years of the sentence must be
served without benefit of parole, probation, or suspension of sentence. New law further
provides that such offender cannot be sentenced to home incarceration unless certain new
law conditions are met.
Prior law provided 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 prior law. Prior law further provided 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 law. New law retains prior law.
Prior law provided 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 10 and 30 years, with two years of the sentence served without benefit of parole,
probation, or suspension of sentence. Prior law further provided that the two-year
mandatory minimum sentence can be suspended if the offender is accepted into a drug
division program as provided for by prior law. New law retains prior law and adds that the mandatory minimum sentence of two years for
fourth offense DWI cannot be served on home incarceration.
Prior law provided that if the offender has previously participated in a drug division
probation program pursuant to prior 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.
New law retains prior 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.
Prior law provided 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
DPS&C 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 prior law.
New law retains prior law but changes the requirement of community service from 40 eight-
hour days to 320 hours.
Prior law required the installation of an ignition interlock device on the offender's vehicle.
Prior law further allowed the offender to obtain a restricted driver's license after one year of
suspension upon proof to DPS&C that the ignition interlock device has been installed on the
offender's vehicle. New law retains prior law.
Prior law provided 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 10 nor more than 30
years, at least three years of which are to be imposed without benefit of parole, probation,
or suspension of sentence. Prior law further provided 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.
New law retains prior law except to change the mandatory minimum sentence from three
years to five years and adds a fine of $5,000.
Prior law provided that if the remainder of the sentence is suspended, the offender is to be
placed on supervised probation with DPS&C for a period of five years but the offender
cannot be sentenced to substance abuse treatment.
New law retains prior law and adds that nothing in new law prohibits the court from ordering
substance abuse treatment if it determines that the offender is able to pay for the substance
abuse treatment.
Prior law provided 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.
New law retains prior law and adds a fine of $5,000.
Prior law provided that the offender's vehicle may be seized and sold pursuant to prior law.
New law retains prior law.
Prior law provided that the state will pay the costs of substance abuse treatment.
New 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.
New law provides that for felony DWI violations, the mandatory minimum sentence
imposed by the court cannot be served on home incarceration unless either DPS&C recommends home incarceration and specific conditions of that home incarceration, or the
district attorney recommends home incarceration.
Prior law provided that except as otherwise provided by prior 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. Prior law further
provided 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 employm ent, and participation in a court-approved driver
improvement program.
New law retains prior 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.
Prior law provided that the activities of the offender outside of his home are to be limited to
traveling to and from work, church services, Alcoholics Anonymous meetings, and a court-
approved driver improvement program.
New law retains prior 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.
New 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.
Prior law provided 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 DPS&C 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. New law retains
prior law.
Prior law provided 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.
New law retains prior law and adds the condition that the offender cannot violate the
conditions of his restricted driver's license as set by DPS&C.
New 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. New law
retains prior law.
Prior law defined "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. New
law retains prior law.
Prior law provided 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. New law retains prior law. Prior law defined 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% or more, if the operator is under the age of 21. New law
retains prior law.
Prior law provided that if the offender's BAC is 0.08 % or more, he is to be charged under
Prior law relative to DWI rather than underage DWI.
Prior law provided 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.
New law retains prior 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.
Prior law provided 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 10 eight-hour days of community
service and participates in a substance abuse and driver improvement program.
New law increases the minimum fine from $150 to $250 and increases the minimum term
of imprisonment from 10 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.
New law retains these provisions but authorizes the court to sentence an offender to home
incarceration for underage DWI and authorizes the court to order the offender to install an
ignition interlock device on his vehicle.
Prior law provided, relative to the crime of refusal to submit to chemical tests, 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.
New law retains prior law.
Prior law provided that whoever violates prior law is to be fined between $300 and $1,000
and imprisoned for between 10 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. New law retains prior law.
Prior law provided, relative to the crime of operating a vehicle while under suspension for
certain prior offenses, 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 prior law, unless the person is operating the vehicle to obtain emergency
medical care for himself or any other person. New law retains prior law.
Prior law provided that whoever violates prior law is to be imprisoned for between 15 days
and six months without benefit of suspension of imposition or execution 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. New law
retains prior 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)