Home Blood Alcohol Content Harmful Effects Machine Testing Helpful Links Advertise
 
  

Louisiana

RS 32:661

PART XIV.  TESTS FOR SUSPECTED DRUNKEN DRIVERS

§661.  Operating a vehicle under the influence of alcoholic beverages or illegal substance or controlled dangerous substances; implied consent to chemical tests; administering of test and presumptions

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

(2)(a)  The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964.  The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.

(b)  In the case of all traffic fatalities, the coroner, or his designee, shall perform or cause to be performed a toxicology screen on the victim or victims of all traffic fatalities for determining evidence of any alcoholic content of the blood and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 which shall include the extracting of all bodily substance samples necessary for such toxicology screen.  The coroner, or his designee, shall be responsible for ensuring the body is not removed from his custody until such time as the bodily substance samples are extracted.  The coroner's report shall be made available to the investigating law enforcement agency and may be admissible in any court of competent jurisdiction as evidence of the alcoholic content of the blood and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 at the time of the fatality.  The coroner, or his designee, shall determine, by the most current and accepted scientific method available, whether the presence of alcoholic content in the blood of the deceased is the result of pre-death ingestion of alcoholic beverages or the postmortem synthesis of ethanol.  Nothing herein shall be construed to limit the authority of the investigating law enforcement agency from conducting an investigation of the accident scene concurrently with the coroner or his designee.

(3)  If the person is under twenty-one years of age, the test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state after having consumed alcoholic beverages.  The law enforcement agency by which the officer is employed shall designate in writing and under what conditions which of the tests shall be administered.

B.  Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section, and the test or tests may be administered subject to the provisions of R.S. 32:662.

C.(1)  When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections.  The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:

(a)  His constitutional rights under Miranda v. Arizona.

(b)  That his driving privileges can be suspended for refusing to submit to the chemical test.

(c)  That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.

(d)  That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.

(e)  The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.

(f)  That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.

(2)  In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form.  If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

Added by Acts 1968, No. 273, §14.  Amended by Acts 1972, No. 534, §2; Acts 1983, No. 632, §1, eff. Jan. 1, 1984; Acts 1984, No. 409, §1; Acts 1985, No. 382, §1, eff. July 10, 1985; Acts 1987, No. 338, §1; Acts 1994, 3rd Ex. Sess., No. 20, §2; Acts 1997, No. 1296, §3, eff. July 15, 1997; Acts 1997, No. 1297, §1, eff. July 15, 1997; Acts 1999, No. 1354, §1; Acts 2001, No. 781, §4, eff. Sept. 30, 2003; Acts 2003, No. 543, §2; Acts 2004, No. 318, §1.

NOTE:  Section 6 of Acts 2001, No. 781, provides that the provisions of the Act shall become null and of no effect if and when Section 351 of P.L. 106-346 regarding the withholding of federal highway funds for failure to enact a 0.08 percent blood alcohol level is repealed or invalidated for any reason.

 

  

More Information:

 

Request a Lawyer
  Louisiana OMV


 

DWI Notes for Louisiana (LA)

Driving while intoxicated known as DWI, DUI (driving under the influence) or OUI (operating under the influence) is a serious offense in Louisiana. Losing your license to operate a vehicle in LA is just one of the penalties. It is in your best interest to hire an experienced criminal defense attorney to handle your case. A lawyer who specializes in drunken driving cases will be able to defend your constitutional rights. The field sobriety tests, the breathalyzer or Alcotest blood alcohol content (BAC) readings may be flawed and could result in a not guilty verdict in court. Only an experienced DWI lawyer will know how these tests should be administered and whether they were performed according to the guidelines provided by the National Highway Traffic Safety Administration (NHTSA).

Standardized Field Sobriety Testing

The National Highway Traffic Safety Administration has created a set of Standardized Field Sobriety Test (SFST). These three tests have to be administered and evaluated in a standardized manner to obtain accurate indicators of impairment. Most police officers fail to administer these tests correctly. Your DWI attorney may be able to challenge the validity of the stop and arrest by reading the report submitted by the police officer or trooper or by the testimony provided in court.

The Standardized Field Sobriety Tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). NHTSA then developed a training regimen for law enforcement officers to provide a consistent way of evaluating the results from DWI suspects. Although police officers use a variety of tests when they pull someone over for suspected driving under the influence of alcohol, the three that are NHTSA accepted are:

  • Horizontal Gaze Nystagmus
  • Walk and Turn
  • One Leg Stand

Other tests, like counting backwards or saying the alphabet from one letter to another have not been proven to be reliable indicators of being intoxicated or under the influence. Keep in mind that even the reliable tests must be administered correctly for them to be valid indicators of DWI.
Horizontal Gaze Nystagmus (HGN) Testing

The horizontal gaze nystagmus test checks if you have involuntary twitching of the eyeball. This occurs naturally as the eyes gaze at a right angle towards the side. When someone is under the influence of alcohol, nystagmus (twitching of the eyeballs) occurs at lesser angles. During this test, the officer will have the subject follow a pen or light with his eyes. The officer must observe the subject eyes. The three indicators that the officer looks for in each eye are:

  • If the subject is smoothly following of the moving object with his/her eyes
  • If the eye begins to jerk distinctly at the maximum range (right angle)
  • If the angle of jerking begins within 45 degrees of center

According to the National Highway Traffic Safety Administration has determined that if between both eyes, four or more indicators are present the subject is probably under the influence. This test is therefore allowed for the purpose of making a DWI/DUI arrest and requiring a breath test at the police station.


Walk & Turn and One Leg Stand Tests

The other two tests that the National Highway Traffic Safety Administration believes are accurate predictors of DWI are the so called, “divided attention” tests. These tests can supposedly be done by most sober people. Although many police officers will tell you that they hear people say, “I can’t do that when I’m sober.” (By the way, this is not the wisest thing to say if you are a DWI suspect.) According to NHTSA, suspects cannot usually follow instructions and perform physical tests when they are impaired.

Walk & Turn

In the Walk & Turn test, the police officer will ask the DWI suspect to take nine steps placing the heel to the toe in a straight line. Someone suspected of DWI should follow instructions carefully for this test. The seven indicators of failure in the walk and turn are:

  • Failure to maintain balance while listening to instructions
  • Starting before the instructions are completely stated
  • Stopping while walking to regain balance
  • Lack of heel to toe touching
  • Using arms to regain or maintain balance
  • Loss of balance while turning
  • Taking an incorrect number of steps

NHTSA research indicates that the majority of DUI suspects who fail two or more of the above items are operating under the influence. You will be arrested and charged with DUI/DWI and required to provide a breath sample.

One Leg Stand

The one leg stand test requires the DWI suspect to stand with one foot approximately six inches off the ground and count aloud starting with one thousand and increasing by one (one thousand-one, one thousand-two, one thousand three, etc…) until told to lower the foot by the police officer. The officer is required to time the subject for 30 seconds. The four indicators of DWI impairment are:

  • Swaying while balancing
  • Using arms to balance
  • Hopping to maintain balance
  • Placing the foot down

NHTSA research indicates that the majority of DWI suspects who exhibit two or more of these indicators are under the influence.

Probable Cause

The field tests that are administered on the side of the road are used by police officers to establish probable cause for the arrest. Your DWI attorney may be able to challenge these tests as well as the reason you were stopped in the first place. In order for these tests to yield valid results they have to be administered in the proscribed manner and must be evaluated based on a total number of indicators. The more indicators are present, the more likely that the person is operating under the influence.

Because most people charged with DWI do not understand what these tests are looking for or how they should be administered, it is extremely important that a lawyer that specializes in DWI defense be used to examine all the evidence and provide a recommendation on how to proceed.

Designed and Hosted by Alonso Consulting, Inc.

   

 

 
 
DUI Books at Amazon

Copyright © 2007-2008 Alonso Consulting, Inc. – All Rights Reserved.
Duplication of the content, design or navigation of this site is forbidden and is the exclusive property of the copyright holder.

Listings in this site are either free or paid attorney advertisements. They have not been tested or endorsed by any organization including the publisher of this site. Do not send any incriminating or confidential information to this site, since there is no attorney-client privilege.