590 So. 2d 1290 | La. Ct. App. | 1991
Lead Opinion
This is a license suspension action in which plaintiff, Timmy Graves, had his driving privileges restored on grounds that his first D.W.I. conviction was set aside, pursuant to La. Code of Criminal Procedure article 894(B), and that the effect was an acquittal mandating that his second D.W.I. conviction be treated as a first conviction when assessing a license suspension in a civil proceeding.
The State has appealed the trial court’s adoption of plaintiffs contentions on grounds that a civil license suspension proceeding is unaffected by an article 894(B) acquittal. The cases relied upon by the State are inapposite as they concern factual situations not before this court. Controlling authority, not cited by counsel for the Department of Public Safety, comes to us from our supreme court wherein Justice Dixon stated, at page 862, that an article 894 acquittal is just that, an acquittal. State v. Bradley, 360 So.2d 858, 862 (La. 1978). Thus, the State is prevented from using the prior conviction in a later civil license suspension proceeding. Bradley, 360 So.2d at 862. The prohibition of using a prior criminal conviction and an article 894(B) acquittal would not have application on a subsequent criminal prosecution.
Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at defendant-appellant’s cost in the amount of $650.30.
AFFIRMED.
Concurrence Opinion
concurring.
I concur separately to stress the distinction that a conviction which is set aside by art. 894(B) may be used in a subsequent prosecution of the party as a multiple offender; Department of Public Safety proceedings for license revocation are not prosecutions. State v. Bradley, 360 So.2d at 862.
