Operating While Intoxicated; Third Offense; Penalties - R.S. 14:98.3

 

A. (1) Except as provided in Subsection B of this Section, on a conviction of a third offense violation of R.S. 14:98, regardless of whether the third offense occurred before or after a previous conviction, the offender shall be fined two thousand dollars and shall be imprisoned, with or without hard labor, for not less than one year nor more than five years. Except as provided in Paragraph (2) of this Subsection, at least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Except in compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot be served on home incarceration.

 

(2) The one-year period described in Paragraph (1) of this Subsection, which shall otherwise be imposed without the benefit of parole, probation, or suspension of sentence, may be suspended if the offender is accepted into a drug division probation program pursuant to R.S. 13:5301 et seq. The provisions of R.S. 14:98(F) relative to vehicle seizure and sale shall also be applicable to any offender whose sentence is served with the benefit of parole, probation, or suspension of sentence pursuant to the provisions of this Paragraph.

 

(3)(a) The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment imposed pursuant to Paragraph (1) of this Subsection. If any of the remainder of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for not more than a period of five years but not less than a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from imprisonment after serving the mandatory sentence required by this Section, unless the offender was released by diminution of sentence for good behavior pursuant to R.S. 15:571.3, in which case the probation shall commence simultaneously with the period of supervision provided by R.S. 15:571.5 and shall run concurrently therewith. The offender must comply with both the conditions of his release as set by the committee on parole in accordance with R.S. 15:571.5 and with the conditions of probation set by the sentencing court.

 

(b) Any offender placed on probation pursuant to this Paragraph shall be required as a condition of probation to participate in two hundred forty hours of court-approved community service activities, obtain employment, participate in a court-approved driver improvement program at his expense, and submit to and complete either of the following requirements:

 

(i) Immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health, to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks, followed by outpatient treatment services for a period not to exceed twelve months.

 

(ii) Participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.

 

(c) In addition to the requirements set forth in Subparagraphs (a) and (b) of this Paragraph, any offender placed on probation pursuant to the provisions of this Subsection shall be placed in a home incarceration program approved by the division of probation and parole for a period of time not less than six months and not more than the remainder of the sentence of imprisonment. The terms of home incarceration shall be in compliance with the provisions of R.S. 14:98.5(B) and Code of Criminal Procedure Article 894.2.

 

(d)(i) Notwithstanding any law to the contrary and the provisions of R.S. 32:414(D)(1)(b), upon conviction of a third offense violation of R.S. 14:98, any motor vehicle, while being operated by the offender, shall be equipped with a functioning ignition interlock device in accordance with the provisions of R.S. 15:306. The ignition interlock device shall remain installed and operative until the offender has completed the requirements of substance abuse treatment and home incarceration, or, if applicable, the requirements of the drug division probation program provided in R.S. 13:5301 et seq.

 

(ii) Notwithstanding any provision of law to the contrary, any offender convicted of a third offense violation of R.S. 14:98 shall, after one year of the suspension required by R.S. 32:414(D)(1)(a), upon proof to the Department of Public Safety and Corrections that the motor vehicles being operated by the offender are equipped with functioning ignition interlock devices, be issued a restricted driver’s license. The restricted license shall be effective for the period of time that the offender’s driver’s license is suspended. The restricted license shall entitle the offender to operate the vehicles equipped with a functioning ignition interlock device in order to earn a livelihood and to travel to and from the places designated in R.S. 14:98.5(B)(3)(e).

 

(e) If an offender placed on probation pursuant to the provisions of this Paragraph fails to complete the substance abuse treatment required by this Subsection or violates any other condition of probation, including conditions of home incarceration, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.

 

B. (1) If the offender has previously received the benefit of parole, probation, or suspension of sentence on a conviction of a third or subsequent offense violation of R.S. 14:98, or if the offender has previously participated in a drug division probation program pursuant to R.S. 13:5301 et seq., pursuant to a sentence imposed on a conviction of a third or subsequent offense violation of R.S. 14:98, or if the offender has previously been required to participate in substance abuse treatment or home incarceration pursuant to a sentence imposed on a conviction of a third or subsequent offense violation of R.S. 14:98, then on a conviction of a subsequent third offense violation of R.S. 14:98, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be fined two thousand dollars and imprisoned, with or without hard labor, for not less than two nor more than five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Except in compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot be served on home incarceration.

 

(2) Except where inconsistent with the provisions of this Subsection, the conditions of probation shall include but not be limited to the conditions of probation provided by Paragraph (A)(3) of this Section, except that the offender shall not be sentenced to substance abuse treatment provided for by Items (A)(3)(b)(i) and (ii) of this Section. Nothing in this Section shall prohibit the court from ordering substance abuse treatment if it determines that the offender is able to pay for the substance abuse treatment.

 

C. In addition to any other penalty, the court shall order, upon motion of the prosecuting district attorney, that the vehicle being operated by the offender at the time of the offense be seized and impounded, and sold at auction in accordance with the provisions of R.S. 14:98(F).

 

Credits

 

 

Added by Acts 2009, No. 236, § 1, eff. July 1, 2009. Amended by Acts 2014, No. 385, § 1, eff. Jan. 1, 2015.

 

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