State v. Brister - 514 So. 2d 205 (La. Ct. App. 1987)

Rule:

To be convicted under La. Rev. Stat. Ann. § 14:98 of driving while intoxicated, the defendant must have "operated" the vehicle while intoxicated. Also, failure to obey an officer's order while he is merely investigating a scene is not resisting an officer. Lastly, La. Rev. Stat. Ann. § 32:1304 makes it the duty of the owner of a vehicle to have the vehicle inspected and to display an inspection sticker. The owner or operator must display the certificate of inspection.

Facts:

In July 1986, the police encountered defendant John F. Brister slumped behind the wheel of a vehicle, which was stopped on the highway late at night with the motor off and the lights on. Defendant failed to respond to orders to exit the vehicle and made a suspicious movement, thus, the police officer sprayed him with mace and pulled him from the car, which had drifted forward in neutral. In the vehicle, a nearly empty whiskey bottle was found, and the inspection sticker was expired. No field sobriety test was administered, defendant was, however, taken to jail where he refused to take a breathalyzer or photo-intoximeter test. Defendant was charged by bill of information with driving while intoxicated, resisting an officer, simple obstruction of a highway, and driving with an expired motor vehicle inspection sticker, violations of LSA-R.S. 14:98, 14:108, 14:97 and 32:1304, respectively. He was convicted of all charges and sentenced to three terms of six months each, with two terms to be served consecutively. He claimed that the trial court erred in convicting him on the charges, on appeal, defendant argued that the evidence was insufficient.

Issue:

Did the trial court err in convicting defendant on all the charges? 

Answer:

Yes.

Conclusion:

The court reversed defendant's convictions on all charges. The sentences were also vacated and set aside. The court declined to pass on the conviction for simple obstruction of the highway. In reversing in part, the court ruled that to be convicted of driving while intoxicated under La. Rev. Stat. Ann. § 14:98, defendant must have operated the vehicle while intoxicated and that his mere presence in the car while it was in motion did not make him the operator unless he exercised some control over it. The court added that failure to obey the officer's order while he was merely investigating the scene was not resisting an officer under La. Rev. Stat. Ann. § 14:108 and that no evidence was introduced that defendant owned the vehicle, as required for the inspection violation.