STATE v. BARBER (2020)

Writ application denied.

Notwithstanding that the application concerns a misdemeanor La. R.S. 14:98 conviction, I believe it merits this Court's attention and would therefore grant the State's writ and docket the case for briefing and oral arguments. In my view, the court of appeal erred in its narrow interpretation of “operating” as set forth in La. R.S. 14:98, which defines operating a vehicle while intoxicated as “the operating of any motor vehicle ․when ․(t)he operator is under the influence of alcoholic beverages.”

In this case, defendant stipulated to the State's evidence concerning his intoxication level at trial. Specifically, following a report that a male driver was passed out and sleeping behind the wheel of his parked car, two police deputies arrived at the location and found a vehicle parked partially in the roadway and partially on the curb in front of a residence. Jefferson Parish Deputy Paul Carmouche testified that the driver was asleep at the wheel with a can of beer in his lap and the vehicle engine running. Defendant stated that he turned on the engine so that he could heat up the vehicle, as it was a cold night in February. He also told Dep. Carmouche that he had parked the vehicle earlier that day and a friend had driven him from a Mardi Gras party to his house, where he chose to sleep in his truck. The trial court found the defendant guilty and the appellate court subsequently reversed.

To prove defendant violated R.S. 14:98, the State had to demonstrate that he operated a motor vehicle while under the influence of alcoholic beverages. In relevant part, R.S. 14:98(A)(1) states “[t]he crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist: (a) “the operator is under the influence of alcoholic beverages․” There is no requirement than an accused actually drive a vehicle. Rather, courts in this jurisdiction have found that the term “operating” is broader than the term “driving.” State v Jones, 97-1687, p. 3 (La. App. 1 Cir. 5/15/98), 714 So.2d. 819, 820-21, writ denied, 98-1597 (La. 10/30/98), 723 So.2d 975; State v Rossi, 98-1253 (La. App. 5 Cir. 4/14/99), 734 So.2d 102, writ denied, 99-0605 (La. 4/23/99), 742 So.2d 886.

I would therefore grant this application to examine whether the appellate court applied the correct standard of review in reversing the conviction. Specifically in accordance with standard set forth by Jackson v Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979), was the circumstantial evidence, viewed in the light most favorable to the prosecution, sufficient to convince a rational trier of fact that all elements of the crime – and specifically whether the defendant was “operating” the vehicle within the meaning of R.S. 14:98 – proven beyond a reasonable doubt? In my view, this Court should examine this precise legal issue in order to clarify this recurring subject in our district and city courts.

Weimer, J., would grant. Crichton, J., would grant and docket and assigns reasons. Crain, J., would grant.