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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 36 FROM : CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 21st day of May, 2008, are as follows:

BY KIMBALL, J.:

2007-KA-2285

STATE OF LOUISIANA v. ALEXANDER GRANGER (Parish of E. Baton Rouge) For the reasons assigned, the judgment of the district court declaring La. R.S. 15:578.1 unconstitutional is reversed. REVERSED.

5/21/08 SUPREME COURT OF LOUISIANA No. 2007-KA-2285 STATE OF LOUISIANA versus ALEXANDER GRANGER ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE, HONORABLE BONNIE P. JACKSON, JUDGE

KIMBALL, Justice This is a direct appeal from a judgment of the district court that declared La. R.S. 15:578.1 unconstitutional. La. R.S. 15:578.1 provides that any person arrested for driving while intoxicated ("D.W.I.") in violation of La. R.S. 14:98 and placed into a pretrial diversion program shall have his or her arrest record and placement into the pretrial diversion program made a public record after exiting that program. The statute additionally provides that this public record shall be maintained for five years from the date of arrest before becoming subject to expungement or destruction. The issue presented to this court is whether La. R.S. 15:578.1 unconstitutionally discriminates against these D.W.I. offenders, and thus violates the equal protection guarantees of Article I, Section 3 of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution. For the reasons that follow, we conclude that La. R.S. 15:578.1 is not unconstitutional because it suitably furthers an appropriate state interest, and defendant has failed to satisfy his burden of proving otherwise. The judgment below is therefore reversed. FACTS AND PROCEDURAL HISTORY On October 29, 2005, defendant Alexander Granger, was arrested for driving while intoxicated in the Parish of East Baton Rouge. On January 6, 2006, the District

Attorney charged defendant, by bill of information, with operating a vehicle while intoxicated, first offense, in violation of La. R.S. 14:98(B),1 and failure to drive only upon the right half of the roadway, in violation of La. R.S. 32:71(A).2 On April 3, 2006, defendant entered into a pretrial diversion program, which he successfully completed on June 13, 2006. Defendant then filed a "Motion to Expunge Criminal

As applicable to the instant matter, La. R.S. 14:98, "Operating a vehicle while intoxicated[,]" provides the following: A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: (a) The operator is under the influence of alcoholic beverages; or (b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood[.] ... B. (1) On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months. Imposition or execution of sentence shall not be suspended unless: (a) The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or (b) The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a courtapproved substance abuse program, and participate in a courtapproved driver improvement program. ...
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La. R.S. 32:71(A) states: Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows: (1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement, including passing lanes; (2) When the right half of the roadway is closed to traffic while under construction or repair; (3) Upon a roadway designated and signposted for one-way traffic. 2

Records under Provisions of [La. R.S.] 44:9" ("Motion to Expunge") on August 1, 2006, asserting that, since the time for prosecution had run, he was entitled to have that record destroyed pursuant to La. R.S. 44:9(A).3 On December 12, 2006, the State of Louisiana filed a "Statement in Opposition to Motion for Expungement" ("Statement in Opposition"), in which it argued that defendant's D.W.I. arrest, in violation of La. R.S. 14:98(B), was presently ineligible for expungement under the provisions of La. R.S. 15:578.1.4 The district court dismissed defendant's Motion to
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La. R.S. 44:9(A) allows that: (1) Any person who has been arrested for the violation of a municipal or parish ordinance or for the violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record, under either of the following conditions: (a) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or (b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

La. R.S. 15:578.1, "Pretrial diversion program for driving while intoxicated; criminal history records[,]" provides: Pursuant to the provisions of R.S. 15:242, the prosecuting authority shall maintain a list of all persons arrested for a violation of R.S. 14:98, operating a vehicle while intoxicated, or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated, while impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance, and placed by the prosecuting authority into a pretrial diversion program. The arrest record and placement into the pretrial diversion or intervention program shall become a public record when the person successfully completes the pretrial diversion or intervention program or is terminated from the program. Such record shall be maintained for a period of five years from the date of arrest and shall not be subjected to expungement or destruction during the period. La. R.S. 15:242, "Pretrial diversion for driving while intoxicated; reporting[,]" states: Notwithstanding any provision of law to the contrary, if a person is placed into a pretrial diversion program following an arrest for a violation of R.S. 14:98, operating a vehicle while intoxicated, or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated, while impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance, then the prosecuting authority shall maintain a record consisting of the name of the person, 3

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Expunge on January 18, 2007. On February 21, 2007, defendant filed a "Motion to Reconsider Ruling" ("Motion to Reconsider") in the district court, contending that La. R.S. 15:578.1 is unconstitutional.5 In support of his Motion to Reconsider, defendant asserted that La. R.S. 15:578.1 violates equal protection principles by denying, for five years, misdemeanor D.W.I. pretrial diversion participants the opportunity to have their arrest records expunged, while all other misdemeanor pretrial diversion participants can have their records expunged pursuant to La. R.S. 44:9 once the time to prosecute their offenses has run. Citing State v. Bradley, 360 So. 2d 858 (La. 1978), defendant argued that "affording different treatment to [defendant] because he was arrested for D.W.I., as opposed to some other misdemeanor charge, is not rationally related to a legitimate state interest and, therefore, is a violation of equal protection guaranteed [sic] by the [Fourteenth] Amendment [to the United States Constitution] and [Article I], Section 3 of the Louisiana Constitution of 1974." R. at 45. In response, the State filed a "Memorandum in Opposition to Reconsidering the Ruling of the Trial Court" ("Memorandum in Opposition"), in which it asserted that defendant voluntarily entered into a pretrial diversion program to avoid the harsher

the arrest date, and a description of the pretrial intervention or diversion program into which the person was placed. Such records shall become a public record when the person has successfully completed the intervention program or is terminated from the program. Though there is no single procedure for challenging the constitutionality of a statute, our jurisprudence has established that a statute "must first be questioned in the trial court . . . , and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized." Vallo v. Gayle Oil Co., 94-1238, p. 8 (La. 11/30/94), 646 So. 2d 859, 864-65 (footnote omitted). These rules have been established so that interested parties are afforded sufficient time to prepare briefs defending the constitutionality of a challenged statute, so that trial courts are provided with complete and thoughtful arguments regarding the issue of constitutionality, and so that reviewing courts have an adequate record upon which to determine the statute's constitutionality. Istre v. Meche, 00-1316, p. 4 (La. 10/17/00), 770 So. 2d 776, 779. Raising the constitutionality issue within a motion has been deemed by this court to satisfy these goals. See Vallo, 94-1238, p. 8, 646 So. 2d at 865. Accordingly, defendant's constitutional challenge, presented in his Motion to Reconsider, is now properly before us. 4
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penalties that would be imposed if he were convicted for violating La. R.S. 14:98(B). Citing La. R.S. 44:9, the State argued that pretrial diversion was, as a method of disposition for defendant's D.W.I. violation, wholly different than "dismissal, sustaining of a motion to quash, or acquittal[.]" See La. R.S. 44:9(A)(1)(b). Thus, the State contended that La. R.S. 44:9 simply should not apply to defendant's situation. The State sought to distinguish State v. Bradley on these grounds, noting that Bradley had held unconstitutional a portion of La. R.S. 44:9 within which all first and second D.W.I. misdemeanor arrests were treated differently than all other misdemeanor arrests for expungement purposes, while La. R.S. 15:578.1 applied only to misdemeanor D.W.I. defendants that chose to enter into a pretrial diversion program to avoid the risks associated with continued prosecution. Further, the State asserted that, even through an equal protection analysis of La. R.S. 15:578.1 itself, defendant could not show that the statute fails to serve a legitimate government purpose. To the contrary, the State argued that the importance of protecting the public from the dangers of drunk driving had become much more clear since the Bradley decision was issued and that the State had several valid interests in not allowing the expungement of arrest records for individuals who participate in pretrial diversion programs. On August 27, 2007, the district court held a hearing on defendant's Motion to Reconsider. At this hearing, defendant argued that the completion of a pretrial diversion program "equals a dismissal just like required [sic] under [La. R.S.] 44:9 in order to expunge any record." R. at 68. Defendant argued further that the State had been unable to show any specific interest furthered by keeping misdemeanor D.W.I. offenders' arrest records public for five years under La. R.S. 15:578.1. Accordingly, defendant again cited State v. Bradley, 360 So. 2d 858 (La. 1978), and asserted that, by denying only misdemeanor D.W.I. offenders the right to have their misdemeanor arrest records expunged under La. R.S. 44:9, La. R.S. 15:578.1 violates the equal
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protection principles espoused in the Constitutions of the United States and the State of Louisiana. In response, the State argued that the five-year public record requirement within La. R.S. 15:578.1 does, in fact, suitably further a legitimate state interest. Specifically, the State asserted that, because La. R.S. 15:578.1 deters pretrial diversion participants from re-offending and allows Louisiana's prosecuting authorities to more efficiently deny previous offenders any offers to participate in pretrial diversion programs by consulting those public records, the statute protects the public from drunk drivers. Nevertheless, the district court remained troubled by the fact that a misdemeanor D.W.I. pretrial diversion participant's arrest record becomes public for five years under La. R.S. 15:578.1, while certain similar misdemeanor D.W.I. offenders who were actually adjudicated guilty can seek record expungement under La. C.Cr.P. art. 8946 after a period of probation (usually two years). Unpersuaded by
La. C.Cr.P. art. 894, "Suspension and deferral of sentence; probation in misdemeanor cases[,]" provides, in pertinent part: A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify. ... (5) At the time that any defendant petitions the court to set aside any plea for operating a vehicle while intoxicated pursuant to this Article, the court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor vehicles, a certified copy of the record of the plea, fingerprints of the defendant, and proof of the requirements as set forth in Code of Criminal Procedure Article 556.1 which shall include the defendant's date of birth, social security number, and driver's license number. An additional fifty dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records. 6
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the State's justifications, the district court thus found "no compelling governmental interest in treating those people who have gone through a diversionary program any different [sic] from the other class of D.W.I. arrestees or offenders," and declared La. R.S. 15:578.1 unconstitutional. R. at 82-83. Pursuant to La. Const. art. V,

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