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Date: 04-26-2020
Case Style:
State of Louisiana v. Joseph W. Miller
Case Number: 53,356-KA
Judge: D. Milton Moore
Court: COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney: JULIE C. JONES
District Attorney
George Winston, III
Assistant District Attorney
Defendant's Attorney:
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Between 5:30 and 6:30 a.m. on Tuesday, February 9, 2016, Chris
Williamson, a resident of Coushatta, Louisiana, was driving north on La.
Highway 1 headed to work when he saw an oncoming southbound vehicle
drift into the northbound lane and force the vehicle in front of him off the
road. The oncoming southbound vehicle, a green Ford F-150 pickup truck,
continued traveling in the northbound lane and ran Williamson off the road
onto the shoulder to avoid a collision. Williamson testified that the pickup
truck continued traveling south in the northbound lane.
Williamson decided to obtain the license number of the truck to report
the incident to police. He turned around and was heading south to catch the
truck when the same truck passed him, now heading north. Williamson
turned around again, but lost sight of the truck. Minutes later, he saw the
green F-150 truck, which he recognized by the large tool box mounted in the
back, parked in a driveway. Believing that the driver had made it home, he
continued driving to work without reporting the incident.
2
About 10 minutes later, a coworker called him and told him that there
was a bad accident on La. 1 involving a green pickup truck. Williamson
turned around and drove back toward the accident site. When he arrived, the
site was roadblocked by a law enforcement officer. Believing that the truck
in the accident was the same green pickup truck he encountered earlier, he
reported that the driver of the truck had run him off the road earlier, and he
gave a written statement to that effect.
It was not quite daylight when Jimmy Smith, a resident of Homer,
Louisiana, who works in the Coushatta area, was driving north on La. 1
about 100-150 yards behind a car in front of him. He saw the lights of an
oncoming vehicle veer across the centerline toward the car in front of him.
The car in front of him appeared to bounce around, and its taillights went
into the other lane. Smoke and debris evidenced that a collision had
occurred. Smith told his passenger to call 911 while he stopped his vehicle
and approached the scene.
Smith said that he checked on the driver of a small, grey Pontiac and
immediately realized that he was dead. The other vehicle, a dark-colored
Ford F-150 pickup with a big worksite tool box in the back, was lodged
against the Pontiac. There was a man pinned inside, gurgling and gasping
for air. Smith said he later gave his statement to a state trooper.
Red River Parish Sheriff’s Deputy Lee Peterson was on patrol that
morning when he received a call that a black Ford F-150 was being driven
recklessly on La. 1 north. While en route to the area, he received a call
about a two-vehicle, head-on collision involving the Ford pickup on La. 1
just north of La. 177. He arrived at the scene and found the two crashed
vehicles blocking both lanes of the highway. He could see that the driver in
3
the sedan was deceased. The truck’s doors and windows were still intact;
the sole occupant inside was moaning as EMS personnel worked to extricate
him from the truck. Dep. Patterson began setting up a landing zone for a
Life Air Helicopter while EMS was doing their job.
Louisiana State Police Trooper (“LSP”) Karan Sharma was riding
with his training officer, Trooper Matthew Meeks, at the beginning of his
shift that morning. Sharma said they heard on the radio a BOLO (“Be on the
lookout”) advisory for a pickup truck in Red River Parish swerving all over
the roadway. Minutes after the BOLO, another trooper was dispatched to an
accident in the same area involving the same pickup truck.
The collision occurred on La. 1 (a segment of US Highway 84) one
mile north of La. 177 in Red River Parish. The driver of the Pontiac, Carl
Mancil, was killed immediately. The driver of the Ford F-150, Joseph Wade
Miller, defendant herein, was seriously injured.
The exact time of the collision appears to be shortly before the
dispatch at 6:46 a.m. As state troopers began arriving at the accident scene
about 40 minutes later, the unconscious driver of the pickup had been
extricated from his vehicle and EMS personnel were preparing him for a
helicopter airlift to University Health Medical Center (“University Health”)
in Shreveport.
The driver of the pickup, identified as Joseph Wade Miller from his
vehicle license plate and driver’s license, was airlifted at 7:48 a.m. State
troopers continued investigating the accident scene and talking to witnesses.
Meanwhile, Troopers Sharma and Meek were dispatched to the University
Health emergency room where Miller was being treated for the purpose of
4
obtaining a blood draw pursuant to Louisiana’s implied consent statute, La.
R. S. 32:681.1
Subsequently, the chemical test results revealed the presence of
methamphetamine and cannabinoids in Miller’s blood. Miller was
subsequently arrested pursuant to a warrant for vehicular homicide.
Miller was charged by bills of information with operating his vehicle
on a public highway left of the center line, a violation of La. R.S. 32:71B,
and with vehicular homicide, a violation of La. R.S. 14:32.1. The latter bill
alleged that Miller, on February 9, 2016, did kill Carl Mancil, caused
proximately or directly by an offender engaged in the operation of a motor
vehicle while under the influence of controlled dangerous substances listed
in Schedules I, II, III, IV or V as set forth in La. R.S. 40:964.
Miller filed a motion to suppress the chemical test results arguing that
the blood sample used to conduct the test was obtained without a search
warrant in violation of his Fourth Amendment right against unreasonable
searches, and also obtained in violation of the procedures mandated by the
Louisiana implied consent statute. After a hearing, the trial court denied the
motion and the case went to a bench trial.
1 § 681. Postaccident drug testing; accidents involving fatalities, required
A. The operator of any motor vehicle which is involved in a collision . . . in
which a fatality occurs shall be deemed to have given consent to, and shall be
administered, a chemical test or tests of his blood, urine, or other bodily substance for the
purpose determining the presence of any abused substance or controlled dangerous
substance as set forth in R.S. 40:964 or any other impairing substance.
B. 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
which is involved in a collision . . . in which a fatality occurs. The law enforcement
agency by which such officer is employed shall designate in writing under what
conditions the tests shall be administered.
5
At trial, Miller contended that the evidence was insufficient to prove
beyond a reasonable doubt that the blood introduced into evidence was his
blood because the toxicology results of the Louisiana State Crime
Laboratory showed a different result from the blood taken and tested by
University Health. He argued that the state’s witnesses, such as the state
troopers and the nurse who drew his blood, had memory lapses and could
not positively identify Miller in court. Finally, he contended that the
evidence was insufficient to exclude the reasonable “probability”2 of
innocence that the accident was not due to the presence of methamphetamine
and marijuana in his system, but rather due to fatigue.
Miller assigned two errors on appeal, challenging the trial court’s
denial of his motion to suppress the evidence obtained from the blood draw,
and challenging the court’s conclusion that the evidence at trial was
sufficient to convict him of vehicular homicide.
As a matter of judicial economy, when an assignment of error is
raised on appeal that alleges that the evidence at trial was insufficient to
convict along with one or more other assignments of error, the reviewing
court always evaluates the sufficiency of the evidence question first,
irrespective of the specific order of assignments of error raised and argued
by the appellant. State v. Hearold, 603 So. 2d 731 (La. 1992). Therefore,
we will consider Miller’s second assignment first.
SUFFICIENCY OF EVIDENCE
By his second assignment of error, Miller alleges that the trial court
erred when it found the defendant guilty of vehicular homicide because (1)
2 We are unsure if Miller intended “hypothesis” here.
6
the verdict was contrary to the law and evidence and (2) the evidence failed
to prove beyond a reasonable doubt that defendant was under the influence
of a controlled dangerous substance that was a contributing factor to the
killing.
First, Miller contends that the state failed to prove beyond a
reasonable doubt that the blood admitted into evidence was actually his
blood. Although the state introduced blood that was purportedly drawn from
Miller, there were significant discrepancies and lapses in the identification
process by the people involved in taking the blood sample.
Jeremy Neal, a Red River EMS employee, responded to the accident.
He and a paramedic extricated Miller from his truck, and then cut open his
clothes while the unconscious Miller was on a stretcher. His partner
removed Miller’s wallet and placed Miller’s driver’s license on his bare
chest, where it remained when he was loaded onto the helicopter.
Miller was unconscious when he arrived at the emergency room at
University Health. The blood was drawn by Nurse Phillip Mullins at
Trooper Sharma’s request. At trial, Nurse Mullins could not recall whether
Miller had a driver’s license on him, and stated that “we don’t usually have a
driver’s license on these people.” When asked how he determined the
identity of the patient Joseph Miller, he replied, “That’s – not a job I would
have. We don’t identify any patients.” If a trauma patient does not have a
hospital bracelet with his name on it, he said, the patient would be identified
by a Greek letter with the number 51, e.g. Eta 51 or Beta 51.
Trooper Sharma testified that when he ordered the blood to be drawn,
he relied on Nurse Mullins and the hospital staff to identify Miller for
purposes of drawing blood. He never saw Miller’s face. Miller argues that
7
Trooper Sharma’s testimony is at odds with Nurse Mullins’s testimony,
characterizing the latter as stating that he would not have known the identity
of the person whose blood he was drawing, but only as “Alpha 51.”
To cast further doubt on the authenticity of the blood sample, Miller
argues that the state blood sample test results admitted at trial differed
materially from a hospital test of blood drawn from him for treatment
purposes.
3
The blood drawn by University Health contained amphetamines,
cannabinoids, and benzodiazepines, whereas the blood drawn at Trooper
Sharma’s request from the patient purportedly identified as Miller contained
only methamphetamine and cannabinoids. The state’s test did not contain
benzodiazepines, and, Miller argues, the state could not explain the different
results.
The second sufficiency of evidence argument Miller makes is that the
evidence failed to exclude the reasonable hypothesis that it was fatigue and
not drugs that caused him to fall asleep while driving and veer into the
oncoming lane of traffic, causing the collision that killed Mr. Mancil. The
drugs present in his system, he maintains, were ingested more than two days
prior to the accident, and did not contribute to the accident. He argues that
the state’s forensic toxicologist, Dr. Fleming, could not rule out the
possibility that Miller last ingested marijuana and methamphetamine 36
hours prior to the accident and fatigue could have produced the same effects
as those two drugs, causing him to drift outside his lane.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
3 The ER staff performed a blood test for drug interaction purposes since Miller
was in a coma and unconscious.
8
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658
(La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,
158 L. Ed. 2d 248 (2004); State v. Carter, 42,894 (La. App. 2 Cir. 1/9/08),
974 So. 2d 181, writ denied, 08-0499 (La. 11/14/08), 996 So. 2d 1086. This
standard, now legislatively embodied in La. C. Cr. P. art. 821 is applicable in
cases involving both direct and circumstantial evidence. An appellate court
reviewing the sufficiency of evidence in such cases must resolve any conflict
in the direct evidence by viewing that evidence in the light most favorable to
the prosecution. When the direct evidence is thus viewed, the facts
established by the direct evidence and inferred from the circumstances
established by that evidence must be sufficient for a rational trier of fact to
conclude beyond a reasonable doubt that the defendant was guilty of every
essential element of the crime. State v. Sutton, 436 So. 2d 471 (La. 1983);
State v. Robinson, 50,643 (La. App. 2 Cir. 6/22/16), 197 So. 3d 717, writ
denied, 16-1479 (La. 5/19/17), 221 So. 3d 78. Where a conviction is based
on circumstantial evidence, as is the case here, the evidence “must exclude
every reasonable hypothesis of innocence.” La. R.S. 15:438.
The requirement that jurors reasonably reject the hypothesis of
innocence advanced by the defendant in a case of circumstantial evidence
presupposes that a rational rejection of that hypothesis is based on the
evidence presented, not mere speculation. Id.; State v. Schwander, 345 So.
2d 1173, 1175 (La. 1978). The Jackson standard of review does not allow a
jury to speculate on the probabilities of guilt where rational jurors would
9
necessarily entertain a reasonable doubt. State v. Leger, 17-2084 (La.
6/26/2019), 284 So. 3d 609, 617.
The appellate court does not assess the credibility of witnesses or
reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
A reviewing court accords great deference to the jury’s decision to accept or
reject the testimony of a witness in whole or in part. State v. Casaday,
49,679 (La. App. 2 Cir. 2/27/15), 162 So. 3d 578, writ denied, 15-0607 (La.
2/5/16), 186 So. 3d 1162.
Vehicular homicide is defined by La. R.S. 14:32.1 which provides, in
pertinent part:
A. Vehicular homicide is the killing of a human being caused
proximately or caused directly by an offender engaged in the
operation of, or in actual physical control of, any motor
vehicle, aircraft, watercraft, or other means of conveyance,
whether or not the offender had the intent to cause death or
great bodily harm, whenever the following condition existed
and such condition was a contributing factor to the killing:
* * *
(3) The operator is under the influence of any controlled
dangerous substance listed in Schedule I, II, III, IV, or V as
set forth in R.S. 40:964.
* * *
(7) the operator’s blood has any detectable amount of any
controlled dangerous substance listed in Schedule I, II, III,
or IV as set forth in R.S. 40:964, or a metabolite of such
controlled dangerous substance, that has not been medically
ordered or prescribed for the individual.
After review, we conclude that Miller’s argument that lapses and
inconsistencies in the testimony cast doubt on whether the state actually
tested Miller’s blood is without merit.
10
Jeremy Neal, the Red River EMS paramedic team worker who
responded to the accident, testified that once he and the paramedic removed
the driver from the Ford F-150, they placed him on the backboard, then onto
a stretcher, and loaded him into the back of the ambulance. He said that the
driver was unresponsive. Once in the ambulance, Neal and the paramedic
began cutting the driver’s clothes off; the paramedic removed the driver’s
wallet. He took photographs of Miller’s driver’s license and placed the
driver’s license on Miller’s chest where it remained while he (Miller) was
loaded into the helicopter.
Phillip Mullins Jr., R.N., testified that he has worked at University
Health for 25 years, the last 11 in the ER where he performed 11 to 15 blood
draws a day, both routine and for law enforcement. He was working on
February 9, 2016, and he identified Ex. 13 as a blood draw kit used by police
and which was introduced into evidence at the suppression hearing. He
identified his signature on the blood vials inside the kit. He stated that the
police are always present when blood is drawn.
All evidence from the suppression hearing was admitted into evidence
without objection. Mullins identified Ex. 11, which is a slip or form that
comes with the blood draw kit and which was signed and dated by him for
the subject, Joseph Miller.4
He identified Ex. 12, a police form that stated
that the blood was drawn by him.
Nurse Mullins said that he did not remember from three years ago
how he identified Miller. Since then, he had seen Miller a number of times
4 At the motion to suppress hearing, Mullins identified Ex. 11 as a slip that comes
with the police blood collection kit and identified the signature on the slip, “P. Mullins,”
as his own.
11
(at the motion to suppress), so he could not say one way or the other whether
he recognized Miller now based solely on the February 9, 2016, blood draw.
He also could not remember if Miller had a driver’s license on his chest;
unconscious patients typically do not have their driver’s license with them.
Patients usually have a hospital wrist band for identification, or, as noted
above, unknown patients were designated by a Greek alphabet and number,
e.g., “Eta-51.”
Trooper Sharma had never seen Miller when he went to the hospital
for the blood draw. He testified that he requested the blood draw, and he
was present when Nurse Mullins drew the blood sample. He did not
remember if he saw Miller’s face. He relied on the nursing and hospital staff
to identify Miller for purposes of the blood draw; he assumed they identified
him as Miller from his ID in his wallet. He further said that he relied on
Nurse Mullins who told him that the patient in the room was Joseph Miller.
Frankly, we do not find Nurse Mullins’s inability to say that he
recognized Miller in court based solely on his faded memory of a particular
blood draw three years ago – one among hundreds of the blood draws since
– creates any identity issue. The question is not whether Mullins
remembered Miller’s face in court solely from the blood draw, but whether
the patient from whom Nurse Mullins drew the blood was Miller. Nurse
Mullins simply could not remember how he knew the patient was Miller.
He testified that Miller would either have had a hospital bracelet identifying
his name or a Greek letter/number assigned to him until identified by name.
Nurse Mullins clearly explained the protocol for law enforcement blood
draws. Based on the exhibits in the blood draw kit, Mullins clearly followed
12
that protocol, identifying his own name, handwriting, and signature on the
forms and tubes. These procedures have proven to be reliable.
Although Trooper Sharma testified that from where he was standing
in the room he did not see Miller’s face when the blood was drawn, he relied
on Nurse Mullins to draw the blood from the patient identified as Miller and
said Mullins told him it was Miller. Nurse Mullins did not recall either way.
We do not find Nurse Mullins’s testimony problematic when he said that “it
was not his job to identify patients.” Nurse Mullins was simply stating that,
as an ER nurse, it was not his job to determine the name of a patient, e.g., for
purposes of making an ID bracelet. Miller is equivocating two different uses
of the word “identify,” namely, (1) to establish the identity (i.e., name) of an
unknown person or thing, or (2) to recognize someone, e.g., as the person
who robbed him in a lineup.
Miller also argues that a discrepancy between the state lab and
hospital lab reports casts doubt on the authenticity of the state’s blood draw
sample. The hospital blood screen test showed positive for amphetamines,
benzodiazepines, and cannabis. The state lab drug screen showed
methamphetamine and tetrahydrocannabinol (THC or cannabis) in the
specimen of blood labeled Joseph Wade Miller. Miller argues that the state
could not account for absence of benzodiazepines in the state tests and
contends that this discrepancy in the state lab test casts doubt whether the
blood tested was his blood. The testimony in this regard is inconclusive.
Derrick Morgan, an LSP crime lab (“crime lab”) employee at the time
the tests were performed, testified that the test would have screened for
benzodiazepines, but there is no such indication on the state test that was put
into evidence.
13
Blake Stutzman testified that he also worked for the crime lab as a
forensic scientist in the toxicology section. He participated in Miller’s drug
screen test. He said that he believes that he screened for benzodiazepines;
however, he no longer works for the crime lab and does not have access to
the file. He stated, however, “if there was a positive benzodiazepine
detected in the confirmation[,] that would have shown as well.”
The state argues that because the hospital record does not list the
amounts of CDS in Miller’s system, or give a reference range for the amount
of each drug it tests, it does not present an issue. It is possible, the state
contends, that the hospital tested for a lower level of benzodiazepines than
did LSP’s crime lab (i.e., a more sensitive test), and that is why
benzodiazepines did not show up in the crime lab report. The state further
argues that Miller did not flesh this issue out at trial, and the trial court did
not believe this “discrepancy” called into question the chain of custody or
the reliability of the evidence.
We conclude that the apparent absence of benzodiazepines on the
state test and their presence on the hospital blood screen, without any expert
testimony explaining the significance of the discrepancy, if any, does not
raise an issue of fact regarding the authenticity of the blood sample. For this
reason, we rely on the established protocol and chain of custody of Miller’s
blood sample to authenticate the blood sample as that of the defendant, as
did the trial court. We find no error in the trial court’s conclusion that the
LSP crime lab blood sample test results were authenticated.
In the second part of his sufficiency of evidence assignment, Miller
argues that the evidence failed to exclude the reasonable hypothesis that it
14
was fatigue, not the presence of a CDS, that caused him to veer into the
oncoming lane of traffic.
The plain text of the statute requires the state to prove four elements
in this case: (1) the killing of a human being; (2) caused proximately or
caused directly by an offender engaged in the operation of, or in actual
physical control of, any motor vehicle; (3) intoxication or impairment from a
CDS on the operator or the presence of a CDS in the bloodstream; and, (4) a
link between the influence or presence of the CDS and the killing. Most
importantly, the link between the influence of the CDS or its presence in the
bloodstream does not have to be a “proximate cause,” but simply a
“contributing factor.” State v. Leger, supra at 616 (“the link between the
intoxication and the killing does not have to be a ‘proximate cause,’ but
simply a ‘contributing factor.’”); State v. Beene, 49,612 (La. App. 2 Cir.
4/15/15), 164 So. 3d 299, writ denied, 15-0944 (La. 4/4/16),190 So. 3d
1200; State in the Interest of R.V., 11-0138 (La. App. 5 Cir. 12/13/11), 82
So. 3d 402.
At trial, Miller gave his account of his drug use and the events leading
up to the accident. He testified that he smoked marijuana and
methamphetamine at a party that lasted from Saturday night through Sunday
morning. He took a Xanax on Sunday afternoon to help him sleep. On
Monday, he left for work at 5:00 a.m. and drove to Many, where worked a
12-hour shift doing “welding and connecting” until 6:00 p.m.
Sometime between 9:00 and 9:30 p.m. Monday night, Miller went to
visit his girlfriend, Brittany Duque, who lived with her grandmother, Linda
Bryant. He spoke with Ms. Bryant for a while, “fixed himself a plate” and
brought it to Brittany’s bedroom to eat. He fell asleep watching a movie
15
about 11:00 or 11:30 p.m. Ms. Bryant awakened him at 4:30 a.m. to go to
work.
Miller testified that he stopped for breakfast at a truck stop, ate, and
then resumed driving south on La. 1. While driving, he fell asleep at the
wheel, but awoke finding himself driving in the oncoming lane from which
he swerved over hard. To gather his wits, he pulled into the first driveway
he saw, parked his truck, got out, and smoked a cigarette. He called his boss
informing him that he would be a little late. He remained parked for about
10 minutes until he felt “good to go.” Then he got back in the truck and
resumed driving. His next memory, Miller said, was waking up in the
hospital.
Ms. Bryant, Brittany’s grandmother, corroborated Miller’s account of
the night before. She was familiar with Miller’s behavior when he was high
on or coming off methamphetamine, and she said he exhibited none of those
behavioral symptoms Monday night. His speech was perfect and his gait
was normal, she testified. She ruled out any possibility that Miller and
Brittany could have smoked methamphetamine or marijuana during the
night.
Miller’s hypothesis of innocence is that it was fatigue that caused him
to fall asleep at the wheel of his truck and veer over into the lane of
oncoming traffic, causing the death of the victim. He does not dispute that
the state established the first two elements of vehicular homicide, namely,
the killing of a human being caused proximately or directly while he was
engaged in the operation of a motor vehicle.
Miller admits that he ingested the two drugs found in his bloodstream,
but maintains that this usage occurred two days prior to the accident and
16
they no longer affected him; he worked a 12-hour day on Monday; Ms.
Bryant corroborated that he did not exhibit behavior symptomatic of coming
off a methamphetamine high – behavior she was familiar with – Monday
night, the evening before the accident. Hence, the lingering presence of
CDS in his bloodstream two days after ingestion does not exclude the
reasonable hypothesis that it was fatigue from working long hours at work
and getting relatively little sleep, and not drugs, that caused him to fall
asleep at the wheel.
In State v. Leger, supra, the Louisiana Supreme Court reversed an
appeals court judgment that modified a defendant’s conviction of five counts
of vehicular homicide to negligent homicide after concluding the state did
not establish that the defendant’s intoxication was a contributing factor to
the fatal accident as required by R.S. 14:32.1. After review, the Leger court
found that the state’s evidence established the link between defendant’s
intoxication and the killing sufficient to support the convictions for vehicular
homicide and reinstated the convictions. A detailed discussion of this recent
case from our supreme court is useful for our consideration here.
In Leger, the defendant’s westbound pickup truck crossed the I-10
median into oncoming eastbound traffic, colliding with an 18-wheeler and
then colliding with the victims’ vehicle, killing all its occupants. Prior to the
collision, Leger was engaged in a high speed, “cat and mouse” chase with
another vehicle driven by Kelsye Hall, apparently arising from road rage.
Witnesses said that over a distance of several miles, Hall prevented Leger
from passing her, while Hall testified that Leger was closely tailing her with
his high beams on her. The accident was triggered when Leger tried to pass
Hall on the interstate shoulder. The left rear of Leger’s pickup truck
17
collided with the right front of Hall’s vehicle, causing the truck to change
direction, cross the interstate toward the median, rotate counterclockwise
through the median, and exit into the oncoming eastbound lanes where he
collided with two vehicles.
Leger voluntarily gave a blood sample at the hospital two hours after
the crash. The blood test showed a blood alcohol concentration (“BAC”) of
0.10 percent. Police found a capped bottle of Captain Morgan rum in the
mangled pickup truck. A state trooper investigating the accident could not
articulate any facts such as an odor of alcohol or behavioral manifestations
of intoxication. Leger submitted to a breathalyzer test that showed no
indication of alcohol consumption. However, he stipulated at trial that a test
showed his BAC was 0.10. On the other hand, Hall’s BAC was clear.
Defendant’s sole witness was an expert in accident reconstruction
who opined that the sudden redirection of defendant’s truck was caused by
the collision with Hall’s vehicle and that no person, drunk or sober, could
avoid the change in direction that resulted. In other words, Leger’s handling
of the vehicle after the collision did not cause the truck to cross over to the
median, rotate counterclockwise, and enter the eastbound lane.
Nevertheless, the jury found Leger guilty of five counts of vehicular
homicide. The court of appeal, however, concluded that the state failed to
carry its burden of proving that the defendant’s intoxication was a
contributing factor to the deaths of the five victims. Although the defendant
was intoxicated, “it found that the jury did not have further evidence as to
defendant’s appearance, observable signs of impairment, the effect of such a
blood alcohol level upon a reasonable person, or other evidence from which
to reasonably infer beyond a reasonable doubt that the defendant’s
18
intoxication was a contributing factor to this collision.” Id. at 612.
Concluding that the defendant’s actions were sufficient to support
convictions for the lesser crime of negligent homicide, it modified the
verdicts and vacated the sentences accordingly. The supreme court granted
the state’s writ application.
On review, the court emphasized that under the vehicular homicide
statute, the link between the intoxication and killing does not have to be a
proximate cause – only a contributing factor. A proximate cause is one that
directly produces an event and without which the event would not have
occurred. A contributing cause or factor is not a primary cause but plays a
part in producing a result. Id.
The court stated that in a vehicular homicide case, the exact nature of
the proof will vary on a case-by-case basis. In a case involving a prohibited
substance other than alcohol, the state would likely need to introduce expert
testimony concerning the physiological effects of the intoxicant ingested. Id.
at 616. In other cases, e.g., loss of consciousness while driving causing an
accident – proof of the BAC and associated acts would almost certainly
prove sufficient. Id.; cf. State v. Heins, 51,763 (La. App. 2 Cir. 1/10/18).
245 So. 3d 1165.
The appellate court said it modified Leger’s vehicular homicide
convictions to negligent homicide because the state did not introduce any
evidence of the defendant’s behavioral manifestations after the collision with
Hall’s vehicle that sent his truck across the median. The same result from
that collision would have ensued even had Leger been sober, the expert
evidence showed. Hence, since Leger was no more negligent than the
unintoxicated Hall up to and including the collision with her vehicle, the
19
appellate court concluded that the evidence did not causally link Leger’s
intoxication to the killing.
On review, however, the supreme court stated that the compelling
circumstantial evidence of Leger’s aggressive behavior prior to the collision
with Hall, including driving erratically and at a high speed, flashing his
bright lights, and his ill-fated attempt to pass Hall on the right partially on
the shoulder, created the link between intoxication and the accident. The
jury could have reasonably inferred that Leger’s intoxication was a
contributing factor in the sequence of events that led to his truck colliding
with Hall’s vehicle, crossing the median, slamming into two vehicles and
killing five persons.
Leger’s hypothesis of innocence was that his intoxication could be
forgiven and was not a contributing factor to the deaths because the
unintoxicated Hall engaged in equally combative behavior. The jury, the
court said, rejected this hypothesis when it rationally concluded that Leger’s
intoxication spurred his aggressive behavior or refusal to back off from the
dangerous situation, or both.
Accordingly, the evidence was sufficient to show that Leger’s
intoxication was a contributing factor in the deaths of the five victims. The
jury’s finding that Leger’s intoxication led to that aggressive behavior was
reasonable. It vacated the judgment of the court of appeal, reinstated the
trial court judgment, and remanded to the court of appeal to consider the
pretermitted assignments of error.
In this case, Miller presents arguments closely analogous to those in
Leger, supra. Miller contends that the presence of CDS in his bloodstream
could be forgiven and was not a contributing factor because negligent
20
driving while fatigued (like the negligent driving of the unintoxicated Kelsye
Hall) could not be ruled out as the factor that caused him to fall asleep at the
wheel, leave his lane, and collide with Mr. Mancil’s vehicle. At trial,
however, the state introduced circumstantial evidence of Miller’s behavioral
manifestations of impairment from witnesses, and introduced expert
testimony concerning the effects of the intoxicants he ingested.
The state tendered Dr. Steven Wayne Fleming, of the North La. Crime
Laboratory, as an expert in the field of forensic toxicology. Dr. Fleming
testified that he reviewed the LSP crime lab report and the NMS Lab of
Pennsylvania report, 12 of the motion to suppress exhibits, and Miller’s
medical records. Dr. Fleming testified regarding the analysis and reports run
by LSP crime lab and NMS lab and findings therein.
Dr. Fleming testified that the levels of THC, the main psychoactive
component of marijuana, in Miller’s bloodstream were consistent with
recent use of marijuana. Dr. Fleming testified that THC has about a fourhour window, where it is noticed above 1 nanogram per milliliter (ng/mL).
Miller had 2.4 ng/mL.
Dr. Fleming testified that Miller’s blood had 470 ng/mL of
methamphetamine. Methamphetamine abuse is evident, he said, whenever
the levels are about 200 ng/mL. Importantly, methamphetamine intoxication
has two phases: first, a euphoric phase that occurs upon ingestion of the
drug, heart rate and pulse are increased, pupils dilate and the user is more
excited; second, commonly called the crash, or the withdrawal phase, the
drug presents itself more like a CNS (central nervous system) depressant,
where the user is hypersomnolent (uncontrollably falling asleep), tired,
fatigued, and lethargic, akin to taking Xanax, a depressant. While there are
21
no published reports regarding dosage studies, Dr. Fleming testified that in
studies of case histories, a majority of drivers on the drug typically went
across the lane, and swept out of the lane. Drifting into the other lane, as
Miller did, is consistent with methamphetamine impairment. Dr. Fleming
confirmed that driving behavior associated with methamphetamine
concentrations above 200 ng/mL includes driving in the other lane,
decreased hand-eye coordination, and a slower ability to react.
Dr. Fleming testified that one’s blood concentration would change
significantly between 6:46 and 9:04 a.m., with respect to THC and
methamphetamine. Miller’s blood concentration levels were consistent with
abuse. Given the level of methamphetamines, he said that it is likely that
use definitely occurred within the previous 24- to 48-hour period, but was
unlikely within a 72-hour period. Dr. Fleming testified that “within a
reasonable degree of scientific certainty that this level of methamphetamine
with the reports from the individual in the arresting reports, crossing the lane
is consistent with the withdrawal effects in the second phase.”
Dr. Fleming testified that it is possible that Miller last ingested
marijuana and methamphetamines 36 hours before the accident. He said,
however, that having 470 mg/mL of methamphetamines in the system, as
Miller did, would have an effect on a driver, and that it has been shown that
at that concentration it may cause impairment. Even the manufacturer of
methamphetamines suggests that a person should not be operating a vehicle
with 470 mg/mL of methamphetamine in their system. Dr. Fleming testified
that, with a reasonable degree of scientific certainty, he believed that
methamphetamine and marijuana abuse played a role in the accident.
22
The state offered testimony from Chris Williamson, who observed
Miller’s truck run a driver off the road by entering the lane of oncoming
traffic and then remained in that oncoming lane both before and after he also
ran Williamson off the road.
Trooper Sharma testified that the BOLO for a pickup truck driving
erratically in Red River Parish indicated that someone other than Williamson
had also witnessed Miller’s erratic driving.
Finally, Jimmy Smith testified that he was behind the victim’s vehicle
when he saw Miller’s pickup truck swerve over into the oncoming lane and
was witness to the accident.
As previously stated, Miller contends that the presence of fatigue, and
not CDS impairment, caused him to fall asleep, swerve into oncoming
traffic, and kill the victim. Falling asleep at the wheel caused by fatigue, he
argues, cannot be distinguished from falling asleep at the wheel due to the
crash phase of methamphetamine abuse, and therefore does not rule out his
reasonable hypothesis of innocence.
To find the defendant guilty beyond a reasonable doubt, the factfinder
must reasonably reject the hypothesis of innocence advanced by the
defendant based on the evidence presented, not mere speculation. State v.
Leger, supra; State v. Schwander, supra. The factfinder has the discretion in
deciding what inferences to draw from the evidence, subject to the
requirement that the inferences drawn are reasonable. Coleman v. Johnson,
566 U.S. 650, 655, 132 S. Ct. 2060, 2064, 182 L. Ed. 2d 978 (2012); State v.
Leger, supra.
Miller testified that he attended a party held on the Saturday through
Sunday morning two days prior to the accident early Tuesday morning,
23
smoking marijuana and methamphetamine at the party, and then took a
Xanax on Sunday to help him sleep. He went to work on Monday morning
and spent the night with his girlfriend, getting approximately 5½ hours’
sleep before going to work. He stopped and had breakfast on the way. After
breakfast, he continued to drive to work. He realized he was falling asleep
at the wheel and pulled off the highway to gather himself. After he resumed
driving, his next memory was waking up in the hospital.
The state introduced expert testimony regarding the levels of
methamphetamine and THC in Miller’s bloodstream and the effects of those
levels. Some of the prominent symptoms Dr. Fleming testified about 24 to
48 hours following ingestion included hypersomnolence and fatigue. Other
evidence included testimony that Miller ran several vehicles off the road; he
continued driving on the wrong side of the road even after running Mr.
Williamson off the road; he decided to continue driving after he stopped to
pull himself together after previous incidents occurred, and shortly afterward
caused a collision killing Mr. Mancil by leaving his lane and swerving into
oncoming traffic. This latter testimony alone could easily have led the
factfinder to conclude that Miller’s behavior was not solely, if at all, the
result of fatigue from getting only 5½ hours of sleep after working 12 hours
the day before, but the likely result of mental impairment from the crash
phase of methamphetamine. Miller’s blood samples taken 2 hours after the
accident showed the presence of CDS in Miller’s blood at a level showing
abuse. The analysis of the results by Dr. Fleming revealed the presence of
THC in quantity that indicated Miller recently (within 4 hours) smoked
marijuana and that he ingested methamphetamine within 36 hours, although
in a highly concentrated amount.
24
Based on the evidence of Miller’s behavioral manifestations while
driving and expert testimony regarding the CDS found in the blood analyses,
we conclude that the court reasonably rejected Miller’s hypothesis of
innocence that the presence of fatigue caused the collision that killed Mr.
Mancil.
The state presented sufficient evidence for the factfinder to find that
the presence of CDS in Miller’s bloodstream was a contributing factor in the
death of Mr. Mancil beyond a reasonable doubt where Miller swerved his
pickup truck into the oncoming traffic lane causing the fatal head-on
collision.
Accordingly, this assignment is without merit.
MOTION TO SUPPRESS
By his first assignment of error, Miller argues that the trial court erred
in denying his motion to suppress the warrantless search and seizure of the
defendant’s blood in violation of the Fourth Amendment protections against
unreasonable searches. Miller presents two main arguments. First, he
argues that the failure to obtain a warrant to obtain a blood sample from him
violates the Fourth Amendment where there are no exigent circumstances.
Second, he argues that the state police failed to comply in two ways with the
requirements of the implied consent statute, namely, La. R.S. 32:681(B) and
La. R.S. 32:681(D).
The U.S. Supreme Court held that a blood draw is a “search” for
Fourth Amendment protection purposes that requires a warrant absent
certain exceptions, one of which is the “exigent circumstances” exception.
Birchfield v. North Dakota, 136 S. Ct. 2160, __ U.S. __, 136 S. Ct. 2160,
195 L. Ed. 2d 560 (2016). Under the exception for exigent circumstances, a
25
warrantless search is allowed when “there is compelling need for official
action and no time to secure a warrant.” Missouri v. McNeely, 569 U.S. 141,
133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (quoting Michigan v. Tyler, 436
U.S. 499, 509-510, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978)). Miller argues
that in the instant case, the LSP elected to forgo a warrant application simply
because they believed a warrant was not legally necessary under Louisiana’s
implied consent law, even though a warrant could have been easily obtained.
Thus, the seizure of his blood without a search warrant was not justified by
time constraints or other pressing needs, and therefore constituted an
unreasonable search and seizure under the Fourth Amendment.
We review a trial court’s ruling on a motion to suppress under the
manifest error standard with regard to factual determinations, as well as
credibility and weight determinations, while applying a de novo review to
findings of law. State v. Manning, 51,450 (La. App. 2 Cir. 8/9/17), 244 So.
3d 600, writ denied, 17-1575 (La. 5/18/18), 242 So. 3d 575. A trial court’s
denial of a motion to suppress is afforded great weight and will not be set
aside unless a preponderance of the evidence clearly favors suppression. Id.;
State v. Prince, 50,548 (La. App. 2 Cir. 4/13/16), 195 So. 3d 6. The
appellate court must look at the totality of the evidence presented at the
hearing on the motion to suppress and may review the entire record,
including testimony at trial. State v. Bates, 51,890 (La. App. 2 Cir. 2/28/18),
246 So. 3d 672; State v. Howard, 49,965 (La. App. 2 Cir. 6/24/15), 169 So.
3d 777, aff’d, 15-1404 (La. 5/3/17), 226 So. 3d 419.
The state troopers investigating this accident, namely Troopers Cobb,
Meek, and Sharma, testified that they believed a warrant was not necessary
under Louisiana’s implied consent law in motor vehicle accidents where a
26
fatality occurs. The Birchfield decision, on which the defendant relies, was
decided five months after the fatal accident in this case occurred.5
At the
time of this accident, pursuant to the implied consent law, licensed Louisiana
motorists were deemed to have consented to blood alcohol, drug screening
tests, and blood draws under certain conditions such as an arrest for
intoxication or a fatal motor vehicle accident. A warrant for a police search
is not necessary when consent is obtained, whether express or implied.
Accordingly, the state troopers were not required to secure a warrant to draw
blood from Miller, who was operating a motor vehicle involved in a
collision in which a fatality resulted. For this reason, the state contends that
the state troopers reasonably relied on the law that authorized the warrantless
blood draw from Miller. We agree.
In Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed.
2d 285 (2011), the court held that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the
exclusionary rule.” This good-faith exception also extends to statutes. In
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), the
court extended the good-faith exception to searches conducted in reasonable
reliance on subsequently invalidated statutes. Id., at 349-350, 107 S. Ct.
1160.
The good-faith exception to the exclusionary rule and reasonable
reliance on the implied consent statute by police officers was applied by this
court in granting the state’s writ application in State v. Knaebel, 51,580 (La.
5 Birchfield held that North Dakota’s implied consent statute was unconstitutional
where the defendant was arrested for driving while intoxicated, and he was informed that
his refusal to submit to a blood draw test after an arrest for intoxication could result in
criminal sanctions under the implied consent statute.
27
App. 2 Cir. 4/20/17) (unpub.), writ denied 2017-0829 (La. 9/29/17), 227 So.
3d 282. The trial court had granted the defendant’s motion to suppress
based on the holding in Birchfield, supra. We granted relief, holding:
[W]e find that although the decision in Birchfield is
retroactively applicable to the facts of this case, the officer
conducting the blood test acted in objectively reasonable
reliance on the implied consent statute. As such, the good faith
exception to the exclusionary rule applies and suppression of
the results of the blood test is not warranted. Illinois v. Krull,
supra.
After review, we conclude that the state troopers who investigated this
case acted in objectively reasonable reliance on the implied consent statute.
For this reason, the good-faith exception to the exclusionary rule applies and
suppression of the blood test results is not warranted.
Even without applying the good-faith exception in this case, we
further conclude that the warrantless blood draw from Miller was not an
unreasonable search that violated the Fourth Amendment.
For the reasons that follow, we also hold that the exigent
circumstances and other pressing needs arising from the fatal collision
would cause unnecessary delay and require police to cause a blood test to be
administered without a warrant under Mitchell v. Wisconsin, 139 S. Ct.
2525, __ U.S. __, 204 L. Ed. 2d 1040 (2019).
The accident occurred at about 6:46 a.m. When EMS arrived, Miller
lay moaning and gurgling on the floorboard in his truck. The EMS team was
attempting to extricate him from the jammed doors when the first officers
(sheriff’s deputies) arrived on the scene. Once they removed the
unconscious Miller from his truck, they prepared him for an emergency
airlift to University Health in Shreveport, while the two deputies were
preparing a landing zone for the helicopter and rerouting traffic with a
28
roadblock. State troopers began to arrive from 7:28 to 7:48 a.m., one just
minutes before the unconscious Miller was airlifted to Shreveport. Hospital
records show that Miller arrived unconscious or in a coma. He was on
breathing support and had to be intubated with a ventilator as they prepared
him for surgery. The blood test was requested and performed at 9:04 a.m.,
only minutes before surgery. When Trooper Cobb arrived at the hospital
after leaving the accident scene to interview Miller, he was told Miller was
in surgery. When he returned later, Miller was still under sedation and could
not be interviewed.
In Mitchell v. Wisconsin, supra, the court held that (1) the exigentcircumstances exception to the Fourth Amendment’s warrant requirement
almost always permits a blood test without a warrant where the driver
suspected of drunk driving is unconscious and therefore cannot be given a
breath test; (2) the State of Wisconsin (which relied solely on its implied
consent statute to obtain the blood test without a warrant) did not waive the
argument that exigent circumstances almost always permitted a warrantless
blood test on an unconscious drunk-driving suspect;6
and, (3) the decreased
time required to obtain a search warrant did not preclude warrantless blood
draws from unconscious drunk-driving suspects. The Mitchell court
specifically considered the recent holdings in Birchfield, supra, and
McNeely, supra, essentially reviving the well-known exigent-circumstances
exception of Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.
Ed. 2d 908 (1966). Schmerber held that the evanescent nature of blood
6 Wisconsin never argued exigent circumstances at the trial level, the appellate
level, the state supreme court level, and at the U.S. Supreme Court level even though the
facts of the case supported it. Nevertheless, the court ruled that it was not waived.
29
alcohol and the time delays in obtaining a warrant along with other pressing
needs in the midst of an accident investigation created exigent circumstances
for police such that obtaining blood tests without a warrant is not an
unreasonable search under the Fourth Amendment.
In this case, several factors heightened the exigency for police to
obtain a blood test without going through the process of obtaining a warrant.
Miller was unconscious and could not perform a breath test or speak to
police so that they could assess his condition; the accident occurred in a rural
part of the parish at 6:46 a.m. shortly before a shift change, both of which
must have contributed to the 45-to-60 minute delay before troopers arrived
at the site. As soon as deputies and troopers arrived, they had to secure the
accident site, and Miller was unconscious and critically injured. He was
airlifted to Shreveport. Meanwhile, troopers quickly learned from witnesses
that Miller crossed the yellow line into oncoming traffic and caused the
collision that killed Mr. Mancil. They also learned that Miller had been
driving in the wrong lane of the highway earlier that morning, which would
alert someone that he was likely driving while intoxicated or impaired in
some way. Miller’s unconscious condition and serious injuries deprived
police of an opportunity to administer a breath test or conduct any other tests
that would raise the suspicion that he was intoxicated. However, because
there was a fatality, they were confident that they would be able to promptly
obtain a blood test by virtue of the implied consent law as soon as Miller
arrived at the hospital for medical treatment.
The ER resident physician’s medical report showed that Miller was
treated at 8:47 a.m. The report says that Joseph Wade Miller, age 29 male,
30
was involved in a MVC. He was reportedly ‘GSC 3’7
(in a deep coma) on
arrival to the hospital and intubation was attempted three times. The EMS
unit had placed an LMA prior to arrival.8
The report indicated that Miller
was sedated and on a ventilator.
Troopers Sharma and Meeks were dispatched to the hospital for a
blood draw pursuant to Louisiana’s implied consent law in cases of
accidents that result in a fatality or serious injury. The blood draw occurred
at 9:04 a.m. Miller went into surgery shortly thereafter.
Both Sharma and Cobb testified that they ordered the blood draw
under the authority of the informed consent statute, La. R.S. 32:681.
The Mitchell court noted that the exigency is even more acute in
unconscious driver cases involved in a crash. The accident can give officers
a slew of urgent tasks beyond that of securing medical care. They may have
to deal with fatalities, preserve evidence at the scene, block and redirect
traffic, all of which will put off applying for a warrant. The testimony of
officers tasked in this case bears out the Mitchell court’s concerns in this
case.
We therefore conclude that the search or blood draw by law
enforcement in this case without a warrant was reasonable and did not
constitute an unreasonable search under the Fourth Amendment.
The second part of Miller’s first assignment of error alleges that LSP
failed to comply with all the mandates of Louisiana’s implied consent
7 Glasgow Coma Scale. The GCS measures three different components: eye
opening (E), verbal responses (V), and motor responses (M). The summation of the
individual score (i.e., E + V + M) classifies the person into mild (score = 13–15),
moderate (score = 9–12), severe (score = 3–8), and vegetative state (score <3).
8 A laryngeal mask airway (LMA) — also known as laryngeal mask — is a
medical device that keeps a patient’s airway open during anesthesia or unconsciousness.
31
statute. He maintains that LSP failed to comply with the requirements for
postaccident drug testing involving fatalities and pretesting procedures. In
order for the state to avail itself of the implied consent law, he maintains that
the state bears the burden of showing that it has complied with all the
mandated statutory provisions, including promulgated procedures. State v.
Tanner, 457 So. 2d 1172 (La. 1984).
Miller argues that La. R.S. 32:681(B) mandates that “the law
enforcement agency by which such officer is employed shall designate in
writing under what conditions the tests shall be administered.” He contends
that Trooper Sharma could have used the “Department of Public Safety and
Corrections Notice to Withdraw Blood for Chemical Test for Intoxication”
(Ex. 1-Motion to Suppress) (hereinafter “DPS Blood Test Form”) that was
available to him, which provided a “check-box” listing conditions under
which the test could be administered, one of which must be present.
Although all the remainder of the form is completed, including the
“Voluntary Submission to Chemical Test” separate section at the bottom of
the page, Trooper Sharma failed to check off any one or more of the “checkbox” conditions listed. Miller argues that the lack of documentation not only
violates the statute but also its underlying purpose, which is to create a
contemporaneous written record of everything that was observed and done
so that the memory of details would not be lost to time. Additionally, Miller
argues that LSP failed to comply with La. R.S. 32:681(D), which
specifically implicates the provisions applicable to the pretesting procedures
found in La. R.S. 32:661(C).
Miller argues that LSP failed to read aloud the standardized forms
approved by the Department of Public Safety and Corrections (“DPSC”)
32
before drawing his blood. He claims that Trooper Cobb backdated forms
certifying that he actually read the forms to Miller, creating a misconception
that Cobb timely complied with the notice requirement of La. R.S.
32:661(C). Miller further argues that this misconception also undermines
the purpose of the forms, which is to document an officer’s compliance with
the procedural requirements of Louisiana’s implied consent law.
After review of the relevant statutes and exhibits, we conclude that
Miller’s assertions and concerns do not invalidate the blood draw in this
case. Louisiana has two implied consent provisions regarding intoxication
and drug abuse impairment while operating a motor vehicle: Part XIV
“TESTS FOR SUSPECTED DRUNKEN DRIVERS” and Part XVI, a single
statute that concerns “POST-ACCIDENT DRUG TESTING.” There are
some relevant distinctions between the two implied consent provisions. The
implied consent provision of Part XIV, La. R.S. 32:661(A), concerns
chemical testing of operators of motor vehicles who have been arrested for
an offense while driving and believed to be under the influence of alcoholic
beverages or a CDS. In other words, the person must be under arrest for
committing a driving offense and also suspected of being intoxicated or
under the influence of a CDS, or under arrest for simply driving while
intoxicated or impaired by a CDS.
By contrast, Part XVI, the implied consent provision for postaccident
drug testing, La. R.S. 32:681(A), does not require that the driver be under
arrest, or that an officer have probable cause or reasonable suspicion that the
motor vehicle operator is intoxicated or under the influence of a CDS.
Consent to a blood, urine or other chemical test is deemed to be voluntary if
33
two circumstances are present: (1) the driver was involved in a collision,
crash, or other casualty (2) which resulted in a fatality.
Two provisions in R.S. 32:681 are the source of Miller’s argument.
Subsection (B) requires that the law enforcement officer who orders the
blood test on a person must have reasonable grounds to believe that person
was the operator of the vehicle when the collision, crash, or casualty which
caused the fatality occurred. The last sentence of the subsection reads:
The law enforcement agency by which such officer is
employed shall designate in writing under what conditions the
tests shall be administered.
Subsection (D) of R.S. 32:681 states that chemical tests of a person’s
blood or urine or other bodily substance for the presence of an abused
substance or CDS or other impairing substance “shall be administered in the
same manner and subject to the provisions of Part XIV of this Chapter.”
Miller argues that Trooper Sharma disregarded this statutory mandate.
Specifically, he contends that Sharma was required to check off one of the
three boxes on the DPS Blood Test Form, particularly the box that states the
person named to be tested is “dead, unconscious, or otherwise” incapable of
refusing due to a condition.
Based on our reading, the plain meaning of this provision is that the
agency that employs the enforcement officer requesting the blood draw, e.g.
the DPSC or the LSP, must have a written policy designating the conditions
under which the chemical tests are administered. We do not read this
provision to require a written provision or “check-box” on the upper half of
the DPS Blood Test Form. In any case, the form has a special section called
“Voluntary Submission to the Chemical Test,” which was filled in by the
34
state troopers, and where it calls for Miller’s signature, they wrote in
“unable.”
Although neither Nurse Mullins nor Trooper Sharma could remember
if Miller was unconscious at the time his blood was drawn, the
overwhelming evidence is that at the very least, he was semiconscious under
heavy sedation on a ventilator. Miller was unconscious when he was placed
in the helicopter. The ER report listed his condition as GCS-3, in a coma or
unconscious. The treating physician noted that Miller had to be sedated and
intubated.
The state explains that the DPS Blood Draw form consists of two
components. The top half of the form concerns chemical testing for people
under arrest pursuant to R.S. 32:661(A)(2), whereas the bottom part of the
form concerns chemical tests for R.S. 32:681. Simply reading this section
confirms the state’s position. The “Voluntary Submission to the Chemical
Test” section clearly states that a blood test is being administered due to
Miller’s involvement in a traffic fatality. Thus, LSP complied with the
requirements of R.S. 32:681(B).
Miller further contends that the state did not comply with R.S.
32:681(D), which requires that the postaccident drug tests be administered in
the same manner and subject to the provisions of Part XIV, which governs
tests for drunken drivers. This provision can be read narrowly or broadly,
either concerning only the requirement that the tests be performed by a
physician, physician assistant, R.N. etc., allowing the person to get his own
test and other things under R.S. 32:662, or more broadly to include all
provisions of the drunken drivers testing procedures. Miller insists that the
state troopers in this case, pursuant to subsection C(1) of R.S. 32:661, should
35
have read to Miller his Miranda rights, that his driving privileges can be
suspended for refusing to take the test, that he could lose his driving
privileges if he submits to the test and it shows the presence of any CDS, the
name of all law enforcement officers involved in the stop, and, request the
person to sign the form, or if he is unwilling or unable, the arresting officer
must certify that he has read to the arrested person the above, and that he is
unable to sign.
This provision of the statute plainly applies to persons who are under
arrest for suspected intoxication or other driving offense committed while
intoxicated. Miller was not under arrest. No state troopers were present at
the accident scene or at the hospital when Miller was there to assess if he
had been drinking or was under the influence of a CDS. Most importantly,
however, reading subsection C(1) to Miller while he lay unconscious or
under semiconscious sedation, seriously injured and preparing for surgery,
would be a vain and useless exercise. State v. Caccioppo, 10-385 (La. App.
5 Cir. 2/15/11), 61 So. 3d 61.
Finally, the trial transcript shows that much ado was made over
backdated forms by Trooper Cobb. This matter arose largely because the
fatality occurred on February 9, 2016, but the blood tests results and arrest
did not occur until May. According to testimony at the hearing on the
motion to suppress, the computer automatically populated much of the
information, including signature dates. Most, if not all, of the problems
seem to have occurred on the arrestee forms, among them a Miranda rights
form says that Miller was read his Miranda rights on the date of the
accident, February 9, 2016, whereas in actuality he was not read his Miranda
rights until he was arrested on May 26, 2016.
36
All of these backdating matters were clarified by testimony at the
motion to suppress, and we do not find that they render the blood tests
inadmissible at trial.
This assignment is without merit.
ERROR PATENT
Our review of the record discloses that the trial court improperly
restricted the first five years of the defendant’s sentence be served without
the benefit of probation, parole, or suspension of sentence after adjudicating
him a second-felony offender. Additionally, the trial court failed to sentence
defendant to a court-approved substance abuse program.
La. R.S. 14:32.1(B) provides, in relevant part, that the penalty for
conviction of vehicular homicide is a fine of not less than $2,000, nor more
than $15,000, and imprisonment, with or without hard labor, for not less
than five years, but not more than 30 years, and at least five years of the
sentence of imprisonment shall be imposed without benefit of probation,
parole, or suspension of sentence. The trial court is also required to order
the defendant to participate in a court-approved substance abuse program.
At the time of this offense, La. R.S. 15:529.1(A)(1) provided that if
the second felony was such that upon a first conviction the offender would
be punishable by imprisonment for any term less than his natural life, then
the sentence to imprisonment would be for a determinate term not less than
one-half the longest term and not more than twice the longest term
prescribed for a first conviction.9
9 R.S. 15:529.1 (A) was amended in 2017 to set the mandatory minimum for a
second felony offense at one-third the longest term for the underlying offense. The
change, which was effective November 1, 2017, was expressly made prospective only,
and thus does not apply to this case. 2017 La. Acts Nos. 257, 258.
37
La. R.S. 15:529.1(G) requires that any sentence imposed under the
provisions of this section shall be at hard labor without benefit of probation
or suspension of sentence.
The penalty range for vehicular homicide, after applying the habitual
offender statute, would be imprisonment for not less than 15 years and not
more than 60 years. Under La. R.S. 15:529.1(G), the entire sentence must
be imposed without benefit of probation or suspension of sentence.
Additionally, the court failed to sentence Miller to a court-approved
substance abuse program. This court is authorized to correct an illegal
sentence pursuant to La C. Cr. P. art. 882, when the sentence does not
involve the exercise of sentencing discretion by the trial court. See also, La.
R.S. 15:301.1.
Therefore, we amend Miller’s sentence to reflect 20 years at hard
labor, without benefit of probation or suspension of sentence, along with a
fine of $2,000, plus court costs, and enrollment in a court-approved
substance abuse program.
Outcome: For the foregoing reasons, the defendant’s conviction is affirmed. We
amend Miller’s sentence to be served as 20 years at hard labor without
benefit of probation or suspension of sentence. Miller is ordered to enroll
into an approved substance abuse program and pay a fine of $2,000 plus
court costs.
Plaintiff's Experts:
Defendant's Experts:
Comments: