Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 30th day of January, 2018, are as follows:

BY CLARK, J.:

2017-CA-1340 DAVID CARVER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY (Parish of 

E. Baton Rouge)

This case concerns the constitutionality of La. R.S. 32:667, 

particularly paragraphs La. R.S. 32:667 (H)(3) and (I)(1)(a). 

Plaintiff, David T. Carver, alleged these paragraphs violated the 

Due Process Clauses of the United States and Louisiana 

Constitutions. Following the District Court’s finding that the 

paragraphs violated the Due Process Clauses, the Department of 

Public Safety and Corrections, Office of Motor Vehicles (the 

State) directly appealed that finding to this Court. For the 

reasons that follow, we find that the applicable paragraphs do 

not violate the Due Process Clauses of the United States and 

Louisiana Constitutions. Thus, we reverse the District Court’s 

judgment of unconstitutionality and remand the matter for 

proceedings consistent with this holding. For the reasons given, 

we find that La. R.S. 32:667(H)(3), and (I)(1)(a) are 

constitutional and the judgment of the District Court is 

reversed. The matter is remanded to the District Court for 

proceedings consistent with this holding.

REVERSED AND REMANDED. 

WEIMER, J., Concurs in the result and assigns reasons.
1

01/30/18

SUPREME COURT OF LOUISIANA

No. 2017-CA-1340

DAVID CARVER

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY

ON APPEAL

FROM THE NINETEENTH JUDICIAL DISTRICT COURT,

FOR THE PARISH OF EAST BATON ROUGE

CLARK, Justice

This case concerns the constitutionality of La. R.S. 32:667, particularly 

paragraphs La. R.S. 32:667 (H)(3) and (I)(1)(a). Plaintiff, David T. Carver, alleged 

these paragraphs violated the Due Process Clauses of the United States and 

Louisiana Constitutions. Following the District Court’s finding that the paragraphs 

violated the Due Process Clauses, the Department of Public Safety and Corrections, 

Office of Motor Vehicles (the State) directly appealed that finding to this Court. For 

the reasons that follow, we find that the applicable paragraphs do not violate the Due 

Process Clauses of the United States and Louisiana Constitutions. Thus, we reverse 

the District Court’s judgment of unconstitutionality and remand the matter for 

proceedings consistent with this holding.

FACTS AND PROCEDURAL HISTORY

In 2009, Plaintiff was arrested for driving while intoxicated (DWI) pursuant 

to La. R.S. 14:98. Plaintiff refused to submit to a chemical test for intoxication and 

his license was suspended for 180 days. The arrest did not result in a conviction, as 

Plaintiff participated in a pre-trial diversion program.
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In 2014, Plaintiff was again arrested for DWI and charged with a violation of 

La. R.S. 14:98. At the time of the arrest, Plaintiff again refused to submit to a

chemical test for intoxication. Plaintiff later pled guilty to the DWI charge. The 

District Court deferred Plaintiff’s sentence and placed him on one-year probation. 

After more than one year, the District Court dismissed the charge.

As a result of the arrest and refusal to take the chemical test for intoxication, 

the State again suspended Plaintiff’s driver’s license, this time for one year. Plaintiff 

presented the District Court dismissal to the State in an attempt to reinstate his 

driver’s license privileges. The State denied unrestricted reinstatement based on La. 

R.S. 32:667 (H)(3), which prohibits reinstatement of driving privileges if the person 

refused to submit to an approved chemical test upon a second or subsequent arrest, 

and upon the facts that Plaintiff was twice arrested for DWI and twice refused to 

submit to a chemical test for intoxication. The State then required Plaintiff to install 

an ignition interlock device on his vehicle as a condition to reinstatement pursuant 

to La. R.S. 32:667 (I)(1)(a) on the basis he had refused to submit to the chemical test 

for intoxication. 

Plaintiff filed a written request for an administrative hearing to review the 

State’s suspension of his driving privileges with the Division of Administration 

(DOA). After the hearing, the administrative law judge affirmed the State’s ruling.

Plaintiff then filed a petition for judicial review of the State’s ruling 

suspending his driver’s license. The petition alleged that the DOA ruling violated 

constitutional and statutory provisions, exceeded the DOA’s authority, and 

constituted an arbitrary and capricious exercise of discretion.

Thereafter, Plaintiff filed a motion for declaratory judgment, seeking to have

La. R.S. 32:667 (H)(3) and (I)(1)(a) declared unconstitutional. 
3

Prior to the hearing, the District Court informed the parties that any 

constitutional challenge would be preserved until after a ruling on the merits of the 

case, and only if necessary. After a hearing, the District Court affirmed the 

administrative judge’s decision to suspend Plaintiff’s driving privileges, ordered 

Plaintiff’s driver’s license suspended for 730 days pursuant to La. R.S. 32:667, 

ordered Plaintiff was eligible for a hardship driver’s license, and required Plaintiff

to have an interlock ignition device for the duration of the suspension period. The 

District Court also declined to declare La. R.S. 32:667 (H)(3) unconstitutional and 

refused to declare La. R.S. 32:667 (I)(1)(a) unconstitutional as an ex post facto law.

Plaintiff then filed a motion for consideration of the constitutional challenge, 

re-urging his constitutional challenge of La. R.S. 32:667 (I)(1)(a) based on the 

District Court’s decision to defer a ruling on the issues of due process and double 

jeopardy until after a ruling on the merits.

On May 19, 2017, the District Court declared La. R.S. 32:667 (I)(1)(a) 

unconstitutional on the ground it violated due process. On May 25, 2017, the District 

Court amended its judgment to hold that both La. R.S. 32:667 (H)(3) and (I)(1)(a)

were unconstitutional, as violating the Due Process Clauses of the United States and 

Louisiana Constitutions, as these provisions “mandate punitive duplicitous measures 

based entirely on a previous arrest, rather than on previous illegal conduct proven 

by any recognized burden.” The District Court expressly declined to address the 

issue of whether La. R.S. 32:667 (H)(3) and (I)(1)(a) violate the Double Jeopardy 

Clause of the United States and Louisiana Constitutions.

The State directly appealed the District Court’s ruling to this Court as allowed 

by Article V, § 5, Paragraph D of the Louisiana Constitution.

LAW AND ANALYSIS
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Plaintiff contended at the District Court that various aspects of La. R.S. 32:667 

are unconstitutional, namely La. R.S. 32:667 (H)(3) and (I)(a). Louisiana R.S. 

32:667 provides in pertinent part: 

(H). (1.) When any person's driver's license has been seized, suspended, 

or revoked, and the seizure, suspension, or revocation is connected to a 

charge or charges of violation of a criminal law, and the charge or 

charges do not result in a conviction, plea of guilty, or bond forfeiture, 

the person charged shall have his license immediately reinstated and 

shall not be required to pay any reinstatement fee if at the time for

reinstatement of driver's license, it can be shown that the criminal 

charges have been dismissed or that there has been a permanent refusal 

to charge a crime by the appropriate prosecutor or there has been an 

acquittal. If, however, at the time for reinstatement, the licensee has 

pending against him criminal charges arising from the arrest which led 

to his suspension or revocation of driver's license, the reinstatement fee 

shall be collected. Upon subsequent proof of final dismissal or 

acquittal, other than under Article 893 or 894 of the Code of Criminal 

Procedure, the licensee shall be entitled to a reimbursement of the 

reinstatement fee previously paid. In no event shall exemption from this 

reinstatement fee or reimbursement of a reinstatement fee affect the 

validity of the underlying suspension or revocation. 

* * *

(3). Paragraph (1) of this Subsection shall not apply to a person who 

refuses to submit to an approved chemical test upon a second or 

subsequent arrest for R.S. 14:98 or 98.1, or a parish or municipal 

ordinance that prohibits driving a motor vehicle while intoxicated. 

However, this Paragraph shall not apply if the second or subsequent 

arrest occurs more than ten years after the prior arrest. 

* * *

(I). (1)(a). Any person who has refused to submit to an approved 

chemical test for intoxication, after being requested to do so, for a 

second arrest of R.S. 14:98 or 98.1 or a parish or municipal ordinance 

that prohibits operating a vehicle while intoxicated and whose driver's 

license has been suspended in accordance with law.

Plaintiff's allegations stem from his plea of guilty to driving while intoxicated 

on November 17, 2014. His charge was dismissed on January 8, 2016. He applied to 

have his driving privileges reinstated by the Office of Motor Vehicles. The Office 

of Motor Vehicles denied his reinstatement because he had a prior arrest for driving 

while intoxicated in 2009. Following a hearing, the District Court held that La. R.S. 

32:667 (H)(3) and (I)(l)(a) violated the Due Process Clauses of the United States and 

Louisiana Constitutions. 
5

Questions of law, such as the proper interpretation of a statute, are reviewed 

by this Court under the de novo standard of review, and this Court is not required to 

give deference to the lower court in interpreting the constitutionality of a statute. La. 

Municipal Ass'n v. State, 04-0227 (La. 1/19/05), 893 So.2d 809, 836. 

All statutory enactments are presumed constitutional, and every presumption 

of law and fact must be indulged in favor of legality. Moore v. RLCC Technologies, 

Inc., 95-2621 (La. 2/28/96), 668 So.2d 1135. In the case of City of Shreveport v. 

Pedro, 170 La. 351, 127 So. 865 (La. 1930), this Court explained the basic 

requirements of a constitutional challenge: "It is elementary that all laws are 

presumed to be constitutional until the contrary is made clearly to appear, and that 

he who urges the unconstitutionality of a law must specially plead its 

unconstitutionality, and show specifically wherein it is unconstitutional.” Pedro, 

170 La. 351, 127 So. 865. Similarly, in Johnson v. Welsh, 334 So.2d 395, 396 (La. 

1976), the court stated: “It is well settled that all laws are presumed to be 

constitutional until the contrary is made to appear, and that as a general rule a litigant 

cannot raise the unconstitutionality of a statute unless its unconstitutionality is 

specially pleaded and the grounds particularized.” The presumption is especially 

forceful in the case of statutes enacted to promote a public purpose. Polk v. Edwards, 

626 So.2d 1128, 1132 (La. 1993). The legislature is given great deference in the 

judicial determination of a statute's constitutionality, and legislators are presumed to 

have weighed the relevant constitutional considerations in enacting legislation. 

Greater New Orleans Expressway Commission v. Olivier, 04-2147 (La. 1/19/05), 

892 So.2d 570, 573. Because a state statute is presumed constitutional, the party 

challenging the statute bears the burden of proving it is unconstitutional. State v. 

Brenan, 99-2291 (La. 5/16/00), 772 So.2d 64, 67. The burden plaintiffs carry in 

challenging the constitutionality of a statute is a heavy burden. It is not enough for a 
6

person challenging a statute to show that its constitutionality is fairly debatable; it 

must be shown clearly and convincingly that it was the constitutional aim to deny 

the legislature the power to enact the statute. Hite v. Larpenter, 04-1821 (La.App. 1 

Cir. 9/23/05), 923 So.2d 140, 145, writ denied, 05-2255 (La. 3/10/00), 925 So.2d 

511.

The legislature's powers are derived from the citizens of the state who freely 

elect their legislative representatives; in other words, the provisions of the Louisiana 

Constitution serve as limitations on the otherwise plenary power exercised by the 

legislature, which may enact any legislation not prohibited by the Constitution. Polk, 

626 So.2d at 1132. 

Because of the presumption of constitutionality, in determining the validity of 

a constitutional challenge, a Court "must construe a statute so as to preserve its 

constitutionality when it is reasonable to do so." M.J. Farms, Ltd. v. Exxon Mobil 

Corporation, 07-2371, p. 22 (La. 7/1/08), 998 So.2d 16, 31. In addition, when 

deciding whether a particular legislative enactment is unconstitutional, this Court 

has repeatedly stated that it is not the court's "duty to determine the wisdom behind 

the enactment of [the] legislation." M.J. Farms, 998 So.2d at 34. Thus, so-called 

"policy considerations" are not relevant to the decision, as such considerations are 

more appropriately presented to the legislature, in the first instance, when the pros 

and cons of a proposed law are being debated. M.J. Farms, 998 So.2d at 34.

Procedural Due Process

Procedural due process requires that before an individual is deprived of a 

property or liberty right, the individual must be provided with notice and an 

opportunity to be heard. State v. Golston, 10-2804 (La. 7/1/11), 67 So.3d 452, 463. 

Louisiana R.S. 32:667 (A)(2) provides that an arrestee has thirty days from the date 

of arrest to make a written request for an administrative hearing. At this hearing, in 
7

order to prove that license suspension is appropriate, the State must prove (among 

other things): (1) whether the arresting officer had reasonable grounds to believe the 

arrestee had been driving, or was in actual physical control of a motor vehicle upon 

the public highways of the state; (2) whether the arrestee was placed under arrest;

(3) whether the arrestee was advised by the officer of his Miranda rights and that his 

driving privileges could be suspended for refusing to submit to the chemical test; 

and (4) whether he refused to submit to the test upon the request of the officer. La.

R.S. 32:668 (A). If the administrative hearing officer upholds the suspension, the 

arrestee then has the right to appeal the decision of the administrative hearing to a 

judicial court. La. R.S. 32:668 (C)(1). 

La. R.S. 32:667 (H)(3) prohibits someone who refuses a chemical test for a 

second arrest of driving while intoxicated from being exempt from paying fees. This 

provision does not deprive one who refuses a chemical test of due process. As La. 

R.S. 32:667 (G) provides, "[n]otwithstanding the provisions of any other law, any 

person whose license has been suspended under the provisions of this Section, shall, 

after completion of the period of suspension, be required to pay a reinstatement fee 

of fifty dollars to the department for the return of his license." Anyone whose license 

is suspended under this section is required to pay the fee, and anyone whose license 

is suspended has the right to an administrative hearing pursuant to the provisions of 

La. R.S. 32:667. This administrative hearing provides the notice and opportunity to 

be heard. Therefore, La. R.S. 32:667 (H)(3) affords procedural due process. 

Plaintiff argued during oral argument that the process was flawed, in that an 

arrestee who was wrongly arrested would be deprived of the early reinstatement 

opportunity contained in La. R.S. 32:667 (H)(1). This argument is baseless, as the 

State must prove during the administrative hearing that an arresting officer “had 

reasonable grounds” for the arrest. La. R.S. 32:668 (A)(1). 
8

Substantive Due Process

"Substantive due process rights are balanced against the police power of a 

governing authority to protect the health, safety, morals and general welfare of the 

people. Governments have an inherent need 'to protect the safety and welfare of their 

citizens from the unrestrained liberty of some individuals.'" Golston, 67 So.3d at

467.

The Louisiana Highway Regulatory Act, established in La. R.S. 32:1 et seq., 

was enacted pursuant to the police power of the State and governs those traveling on 

roads throughout Louisiana. The Louisiana Highway Regulatory Act created two 

primary departments to serve this purpose, the Department of Transportation and 

Development, created by La. R.S. 32:2, and the Department of Public Safety, created 

by La. R.S. 32:3.

The police power of the State was further explained in Polk, 626 So.2d at 

1142, which held: La. Const. Art. VI, § 9 (B) provides that "notwithstanding any 

provisions of this Article, the police power of the state shall never be abridged." 

While this Court has acknowledged that the term "police power" is best defined on 

a case by case basis, this term is generally described as the inherent power of the 

state to govern persons and things for the promotion of general security, health, 

morals, and welfare. Polk, 626 So.2d at 1142. Louisiana R.S. 32:667, in particular 

La. R.S. 32:667 (H)(3) and (I)(1)(a), simply serves as an exercise of the legislature's 

right to regulate the operation of motor vehicles in Louisiana for the benefit of public 

health, safety, morals and general welfare of the citizens of the State, and the statute

is rationally related to such a purpose.

As this Court has said regarding driving while intoxicated:

We have already determined that the right to operate a motor vehicle in 

Louisiana is a privilege granted by the state and not a constitutional 
9

right. Consequently, the state has and can enact numerous conditions 

on that privilege.

Our constitution wisely provides for separation of powers, and 

authorizes the legislature to make public policy determinations of 

controversial issues. Therefore, under our constitution, the legislature 

has determined that the public policy of Louisiana is to keep drunk 

drivers off the state highways. [The propriety of such] public policy []

should not be determined by this court.

Moreover, the state's interests are immediately apparent: (1) the lack of 

compliance with the law . . .; (2) the high incidence of motor-vehicle 

accidents involving drunk drivers; (3) the reduction of deaths and 

injuries that usually result from motor vehicle accidents involving 

drunk drivers; and (4) the evident risk of the defendant continuing to 

drive while intoxicated . . . . The state's interests are significant. 

State v. Edwards, 00-1246 (La. 6/1/01, 15), 787 So.2d 981, 992–93 (citations 

omitted). As a means of identifying drunk drivers, the above is applicable to 

requiring chemical testing. Thus, requiring motorists reasonably suspected of 

driving while intoxicated to undergo chemical testing is directly and reasonably 

related to the health, safety, morals and general welfare of the citizens of the State.

Further, Louisiana has an “implied consent” law, and this Court has 

previously recognized that the United States Supreme Court has declared that such 

laws are constitutional. See Monroe v. High, 223 So.2d 834, 838 (La. 1969) (citing 

Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and 

Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 

(1966). In Monroe, which dealt with the refusal to give permission to secure a 

sample of blood by venipuncture for the performance of blood alcohol 

determination, this Court noted that the implied consent law provides that any person 

who operates a motor vehicle upon the public highways of Louisiana shall be 

deemed to have given consent to a chemical test to measure his blood alcohol 

content. Monroe, 223 So.2d at 838. Given this implied consent, the legislature, 

again, clearly has a rational basis for penalizing the refusal of an arrestee for 
10

declining to consent to a chemical test by either charging an enhanced administrative 

fee for license reinstatement, or by withholding reinstatement altogether. Further, 

charging an administrative fee, or withholding reinstatement, to those suspected of 

driving while intoxicated is, likewise, clearly within the police power of the state, 

and thus does not violate substantive due process. 

CONCLUSION

For the reasons given, we find that La. R.S. 32:667 (H)(3) and (I)(1)(a) are 

constitutional, and the judgment of the District Court is reversed. The matter is 

remanded to the District Court for proceedings consistent with this holding.

REVERSED AND REMANDED
01/30/18

SUPREME COURT OF LOUISIANA

NO. 2017-CA-1340

DAVID CARVER

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT,

FOR THE PARISH OF EAST BATON ROUGE

WEIMER, J., concurring.

I concur in the result and write separately to point out that the district court

focused on the defendant’s arrest in holding the statute unconstitutional. While the

arrest is a prerequisite to offering the test for alcohol consumption to one charged

with driving while intoxicated, and the defendant is innocent until proven guilty, the

defendant’s refusal to consent to the test should be the focal point.

Of course, asrecognized by the majority,

1

driving is a privilege and not a right. 

State v. Jackson, 00-0015, p. 10 (La. 7/6/00), 764 So. 2d 64, 72. The state can

impose reasonable requirements on a driver to exercise that privilege. See id. Under

the statutory provisions in question, after the arrest, the defendant is faced with a

choice–to take or to refuse the test. A difficult choice is still a choice. Ultimately,

the consequences imposed result from the refusal to take the test in this matter, not

from the arrest itself. Therefore, the statutory provisions in question satisfy the due

process requirements.

Accordingly, I respectfully concur in the result in this matter.

1

 Carver v. Louisiana Department of Public Safety, 17-1340 (La. 1/30/18), slip op. at 8.