Monday, November 07, 2011

DUI Laws - Louisiana Increases Sentence on Appeal

'Sometimes you can't win for losing', said someone personally unknown to me. But that unknown person may have come across Jeffrey Deville at another time past. In the case of State of Louisiana v. Deville--- So.3d ----, 2011 WL 4580591 (La.App. 3 Cir.), 2011-88 (La.App. 3 Cir. 10/5/11), the defendant entered a blind plea of guilty to two counts of vehicular homicide. The trial court sentenced him to thirty years at hard labor on each count, the sentences to run concurrently to each other and consecutively to the sentence he was already serving. The first five years of the sentences were ordered to be served without benefit of probation, parole, or suspension of sentence. Based on the fact of the prior unrelated felony, he was required to do at least one-half of the actual sentence, i.e. fifteen years before he could be actually paroled. Deville appealed, pointing to at least 25 cases where similar conduct had resulted in sentences one-half to one-third as long in jail time.

On appeal, the appellate court noted that in previous cases, the Louisiana Supreme Court had addressed the legislature's continuing reassessment of vehicular homicide:

"When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La. R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S. 14:32.1. See, e.g., State v. Pelt, 448 So.2d 1294 (La.1984); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Wilcoxon, 26,126 (La.App. 2nd Cir.6/22/94), 639 So.2d 385, writ denied, 94–1961 (La.12/16/94), 648 So.2d 386; State v. Wry, 591 So.2d 774 (La.App. 2nd Cir.1991); State v. Yates, 574 So.2d 566 (La.App. 3rd Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Rock, 571 So.2d 908 (La.App. 5th Cir.1990), writ denied, 577 So.2d 49 (La.1991); State v. Williams, 546 So.2d 494 (La.App. 4th Cir.1989), writ denied, 553 So.2d 470 (La .1989).

"Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion.”).

"The broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” [ State v.] Telsee, 425 So.2d [1251 (La.1983) ] at 1254, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Id.

Noting that the defendant in this case had at least four different illegal drugs in his system, his limited education, has three prior felonies, etc., the appeals court found the sentence of 30 years hard labor not too excessive.

But, they didn't stop there. Instead, they found the sentence illegally lenient. Since the trial court failed to add on the statutory fines and counseling, the case was remanded to add the counseling and statutory fines. Yikes.

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