| pEmile Delaneuville
Defendant was sentenced to ten years with the Department of Corrections, all but sixty days suspended, to be served consecutively and uninterrupted. The judge also ordered defendant to serve one year of home incarceration with the restriction that defendant could not drive during that time and with curfew restrictions to be imposed by the probation officer. Additionally, the judge ordered defendant to be on active probation for five years with the condition that defendant 13have an Interlock device installed in his vehicle during the probationary period. The judge further informed defendant of the conditions of his probation. Lastly, the judge ordered defendant to pay a mandatory fine of $5,000.00 and court costs in the amount of $303.50. Defendant now appeals on the basis of several assignments of error.
FACTS
On December 27, 2007 at approximately 1:20 p.m., Sergeant Aron Hastings and Lieutenant Lester Rulf, enforcement agents with the Louisiana Department of Wildlife and Fisheries, were travelling northbound along Highway 51 in St. John the Baptist Parish when they passed a green truck parked on the shoulder of the road facing south. As the agents passed, they observed the occupant of the driver’s seat, who was later identified as defendant, toss a beer can and a plastic bag out of the truck. Upon observing this, the agents turned their vehicle around to get behind defendant’s truck to stop him for littering. While the agents made the U-turn, defendant got back on the road and headed southbound. The agents followed defendant for 0.7 miles before pulling him over. When Sgt. Hastings made contact with defendant, he observed an 11-year-old boy in the passenger seat and informed defendant that he had been stopped for littering.
Defendant stood at the rear of his vehicle, holding on to it to maintain his balance.
LAW AND DISCUSSION
In his first assignment of error
In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10),
In the instant case, defendant was convicted of a fourth offense of operating a vehicle while intoxicated in violation of LSA-R.S. 14:98. At the time of the offense, that statute provided, in pertinent part:
| (A- (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... 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; or
In order to convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Cowden, 04-707, p. 8 (La. App. 5 Cir. 11/30/04),
The Louisiana Supreme Court has defined intoxication as the impairment, however slight, to the ability of a person to operate an automobile. State v. Hightower,
The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient |7to support a charge of driving while intoxicated. Cowden, 04-707 at 8,
In State v. Landry,
While the [officer’s] observations were not made during the course of a “subjective” field sobriety test, the same physical traits would have manifested themselves had the defendant attempted to perform the test. It is implausible to hold that, because the defendant refused to submit to a field sobriety test, his exhibition of the same physical traits which the field sobriety test was designed to uncover were insufficient to support a driving while intoxicated conviction.
Id.
Similarly, in State v. Conner,
In the present case, the trial judge articulated the reasons for his conclusion that the State had carried its burden of proving that defendant was intoxicated. The key facts the judge relied on were:
Mr. Delaneuville had bloodshot eyes, slurred speech, was leaning on his car once he exited the vehicle, and had an odor of alcohol. Not only did Mr. Dela-neuville exhibit these visible signs of intoxication, but he was not able to comprehend and answer simple questions and instructions from Sgt. Hastings.... The defendant did not present any evidence suggesting Mr. Delaneuville was mentally limited such that he could not intelligently answer or comprehend Sgt. Hastings’ questions.
The record supports the trial court’s conclusions that Sgt. Hastings observed that defendant had bloodshot eyes, slurred speech, an odor of alcohol, and rested on his vehicle to maintain his balance. Also, defendant’s answers were repetitive and nonresponsive to the officer’s questions such that the officer needed to repeat his questions and directions several times. Furthermore, defendant was observed disposing of an empty alcoholic beverage container from his vehicle.
Defendant did not submit to field sobriety, breath, or blood tests; therefore, his conviction rests solely upon Sgt. Hastings’ observations. It is well settled that the observations of the arresting officer may be sufficient to establish the defendant’s guilt and that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify. State v. Cowden, 04-707, p. 8 (La.App. 5 Cir. 11/30/04),
In his second assignment of error, defendant re-urges a two-fold argument that he previously raised in his motion for a new trial. First, he argues that the trial court erred by considering his silence in response to the questions posed by Sgt. Hastings during the traffic stop. Specifically, defendant alleges that his nonre-sponsive answers to Sgt. Hastings’ questions and instructions constituted silence and that the trial judge’s consideration thereof was a violation of Doyle v. Ohio,
In response to the first part of defendant’s argument, the State contends that defendant was not silent, but, in fact, was quite vocal in response to the officer’s questions. The State points out that defendant never invoked his right to remain silent, nor did he choose to stay silent. As its response to the second part of | indefendant’s argument, the State incorporates a portion of the trial court’s judgment denying defendant’s motion for new trial. In that denial, the trial judge stated:
This court recognizes that we may have included improper language that states that the defendant did not put on evidence in support of his claim. This court did not in any way place the burden on the defendant at any time in this matter. Though we may have erroneously included such language, this court stresses that we did not expect the defendant to put on any evidence. The state left no doubt in this court’s mind as to the accuracy and truthfulness of the factors and observations which contributed to our decision to find Mr. Dela-neuville guilty of driving while intoxicated. In our decision, we believed the totality of the State’s evidence against Mr. Delaneuville which included: odor of alcohol on his breath, bloodshot eyes, slurred speech, leaning on his vehicle, and answering the questions presented to him with unusual statements that did not address the question posed to him. At no time, in the transcripts from which we obtained this evidence, or during the trial, did we have any doubt as to why Mr. Delaneuville exhibited these outward symptoms and behaviors other than because he was intoxicated. This court believed Sgt. Hastings to be reliable and credible, and we found this evidence to be sufficient to find Mr. Delaneuville guilty of driving while intoxicated. Even if this court included language that suggested that the defendant should put on evidence, this court’s decision relied solely upon the State’s evidence.
In the first part of defendant’s argument, he relies on LSA-C.Cr.P. art. 770(3) and the Doyle v. Ohio jurisprudence. LSA-C.Cr.P. art. 770(3) prohibits references to the failure of a defendant to testi-
LSA-C.Cr.P. art. 770(3) provides that upon the defendant’s motion, a mistrial shall be ordered when a remark or comment, made within the hearing of|nthe jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to the failure of the defendant to testify in his own defense. The Louisiana Supreme Court has held that LSA-C.Cr.P. art. 770 is designed to guard against improprieties in the presence of the jury. State v. Marshall,
Secondly, this Court has held that a reference to a defendant’s post-arrest silence in violation of Doyle is subject to a harmless error analysis. State v. Longo, 08-405, p. 12 (La.App. 5 Cir. 1/27/09),
Despite that Doyle applies to references to a defendant’s post-arrest silence in the context of jury trials, we find that the harmless error analysis is nevertheless instructive here: if the trial judge’s decision was surely unattributable to his consideration of defendant’s post-arrest silence, then such consideration was a harmless error. Thus, assuming defendant’s nonresponsive answers constituted | ^silence and should not be considered, we find there was sufficient evidence to support defendant’s conviction. Sgt. Hastings observed defendant had bloodshot eyes, smelled of alcohol, rested on his vehicle to maintain his balance, and disposed of an empty alcoholic beverage container from his vehicle.
Lastly, and most notably, Sgt. Hastings’ testimony makes clear that defendant was not silent during his encounter with the officer. In fact, the trial judge took note of this in his denial of defendant’s motion for a new trial, stating:
[Defendant] argues that [he] was prejudiced because he chose to remain silent when being questioned by Sgt. Hastings. The defendant contends that this court determined Mr. Delaneuville to be non-responsive to Sgt. Hastings’ inquiries. The defendant’s counsel believes that Mr. Delaneuville was simply confused. The defendant misinterprets the Court’s reasoning on this point. Our judgment was clear that Mr. Delaneuville continually responded to Sgt. Hastings’ questions. Therefore, the right to remain silent is not an issue.
In this court’s analysis of Mr. Dela-neuville’s answers to Sgt. Hastings, this Court clearly demonstrated how Mr. De-laneuville’s answers did not match the questions posed to him. According to the defendant’s own' Motion for New Trial, this court observed a cue of impairment used by officers to determine whether Mr. Delaneuville was impaired. Under the category of “Personal Contact with the Defendant,” this court observed, among others, cue number 12 entitled “Unusual Statements.” To briefly reiterate our prior judgment, Sgt. Hastings asked Mr. Delaneuville if he knew that he was pulled over for littering. A common sense answer might be, “Yes” or “No.” Mr. Delaneu-ville replied twice that he was not shooting any guns. Then, Sgt. Hastings asked him to submit to an HGN test using a pen, in broad daylight. Such a test requires Mr. Delaneuville to follow the pen with his eyes. Mr. Delaneuville replied first that he had bad knees, and then that he could not follow a light, even though he was presented with a pen. It is clear to this court that Mr. Delaneuville was not confused, nor was he silent. It is clear that his unusual answers reveal that Mr. Delaneuville was intoxicated such that he could not accurately answer Sgt. Hastings’ questions.
In view of the foregoing, we find that the first part of defendant’s argument has no merit.
In regard to the second part, namely, that the trial court impermissibly considered defendant’s failure to testify, this Court has previously recognized that a reference to a defendant’s failure to testify in violation of LSA-C.Cr.P. art. |13770(3) is subject to a harmless error analysis. State v. Shannon, 10-580, pp. 27-28 (La. App. 5 Cir. 2/15/11),
In Shannon, the defendant was on trial for a third offense of driving while intoxicated and argued that a mistrial should have been declared when the prosecutor emphasized that the evidence was uncon-troverted because it constituted an indirect reference to the defendant’s right to remain silent. Shannon, 10-580 at 23,
The present case is distinguishable from Shannon for two reasons: this was a bench trial and the reference to defendant’s failure to present evidence was made in the trial judge’s order of judgment, not by the prosecutor or other court official. Nevertheless, we find that the reasoning articulated in Shannon is applicable here: unless we are thoroughly convinced that defendant’s failure to present evidence contributed to the judge’s decision, the conviction should not be reversed. Here, like in Shannon, there was ample
In view of the foregoing, we determine that the second part of defendant’s argument has no merit. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s motion for a new trial
In his third assignment of error, defendant re-urges another argument raised in his motion for new trial. He argues that the trial court erred by considering facts not admitted into evidence. Specifically, defendant contends that the court imper-missibly considered defendant’s speech and intellect in a sober state as compared with his speech and intellect while under the influence of alcohol. In support of this contention, defendant points to the trial court’s statement in its order of judgment that “the court has observed Mr. Delaneu-ville in court and has never found Mr. Delaneuville’s speech to be naturally slurred or his intellect to be limited.” Defendant asserts that such an observation was impermissible because defendant did not testify, nor was testimony concerning his typical speech and intellect introduced into evidence.
|1fiIn its response, the State incorporates the trial court’s denial of defendant’s motion for new trial as support for its position. The trial court stated:
[T]he defendant points out that the Court’s observation that Mr. Delaneu-ville’s speech is not slurred nor his intellect limited is an improper observation by the court and cannot be used in this court’s judgment. Without discussing whether the observations were or were not improper, the court merely made such observations which had no bearing on this court’s decision. This court, as stated in our judgment, accepts Sgt. Hastings’ report that Mr. Delaneuville’s speech was slurred, which was a contributing factor in our conclusion that Mr. Delaneuville was intoxicated. Such a fact was never challenged, nor is the defendant required to challenge such an allegation. Because of the testimony by the State, and taking into consideration the totality of the other factors that point to intoxication, this Court believes beyond a reasonable doubt that Mr. De-laneuville’s speech was slurred because he was under the influence of alcohol.
In another DWI case out of this Court, the defendant asserted that the trial court erred in considering facts not admitted in evidence when it extrapolated the defendant’s blood alcohol level at the time of the present offense by relying on the defendant’s blood alcohol level in a prior driving while intoxicated conviction. State v. Simard,
The State is not required to prove a defendant had a blood alcohol level of .10% or more in order to convict him of driving while intoxicated. Rather, the State need only prove a defendant was intoxicated. A blood alcohol level of .10% merely entitles the State to a presumption of intoxication, but it is not the only proof of intoxication.... [I]ntoxi-cation with its attendant behavioral manifestations is an observable condition about which a witness may testify.... [TJhere is sufficient evidence in the record to support a finding that defendant was intoxicated based on the physical traits observed by the police officer at the time of the stop. Thus, the trial court’s determination of defendant’s blood alcohol level, while clearly improper, was irrelevant.
1 KJd. (citation omitted).
Similarly, in the instant case, even assuming that the trial court considered facts not admitted in evidence when it noted defendant’s normal speech and intellect, we find that there was nonetheless sufficient evidence in the record to support a finding that defendant was intoxicated. Excluding the evidence regarding defendant’s speech and intellect, other facts indicative of intoxication were the odor of alcohol on defendant’s breath, bloodshot eyes, leaning on his vehicle for balance, and the disposed alcoholic beverage container. Additionally, in his denial of defendant’s motion for new trial, the trial judge even explicitly stated that his observations regarding defendant’s normal speech and intellect had no bearing on his decision. In light of the foregoing and this Court’s holding in Simará, we determine that the trial court’s consideration of facts not admitted in evidence, while perhaps improper, was harmless.
In his fourth assignment of error, defendant argues that the trial court erred by not granting him a contradictory hearing on his motion for new trial. He cites to LSA-C.Cr.P. art. 852
In State v. Davis,
The method of hearing motions for new trial is left to the discretion of the judge. If the reading of the motion imparts to him sufficient knowledge to enable himto intelligently dispose of the matter, he cannot be arbitrarily required to delay his ruling for the purpose of further hearing or argument. The accused is not entitled to compulsory process to obtain witnesses in support of his motion for a new trial, and the examination of witnesses to prove newly-discovered evidence is within the discretion of the trial judge.
Id. (quoting State v. Varnado,
In the instant ease, the trial court considered a memorandum and a supplemental memorandum in support of defendant’s motion for new trial, as well as the State’s opposition to the motion for new trial. Indeed, in its denial of defendant’s motion for new trial, the court even stated:
In this case, the court has read several lengthy motions that present all of defendant’s arguments in favor of granting a new trial. This court feels that we have a complete understanding of the arguments that will be heard at a contradictory hearing, and find that no such hearing is necessary in order to make a ruling on the Motion for New Trial.
Consequently, we find that the trial judge was sufficiently well-versed on the issues and that a hearing was unnecessary, Thus, we determine that defendant has 11snot shown that the trial court abused its discretion in declining to hold a hearing on defendant’s motion for new trial.
In his fifth assignment of error, defendant argues that the State failed to prove that two of defendant’s former DWI offenses occurred within the ten-year cleansing period.
The State responds by citing State v. Ostrom, 43,166 (La.App. 2 Cir. 4/9/08),
Since the predicate offense is not a “material ingredient” or element of the criminal DWI conduct upon which the ac■cused’s present arrest and prosecution are based, the state should not be required to prove the commission dates of the predicate offenses when the proven conviction dates for those crimes are well within the applicable ten-year period.
Ostrom, 43,166 at 14-15,
|19See also, State v. Chapman,
In the instant case, the conviction dates for the offenses at issue are December 6 and 13, 1999. Since the present offense was committed on December 27, 2007, LSA-R.S. 14:98(F)(2) mandates that DWI offenses committed prior to December 27, 1997 are not to be considered for enhancement of the present offense. However, the commission dates of the pri- or offenses were not determined at trial. Nonetheless, following Chapman and Os-trom, because the conviction dates are well within the ten-year period, the State was not required to prove the commission dates of the prior offenses. This assignment of error has no merit.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux,
The record shows that defendant’s sentence is illegally lenient for two reasons. One, the record does not reflect that the trial court ordered defendant’s vehicle to be seized, impounded, and sold at auction as required by LSA-R.S. 14:98(E)(2)(a).
(a) An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:
(i) Electronic monitoring.
(ii) Curfew restrictions.
(iii) Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months. After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.
(b) The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense. The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.
(c) Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.20
|21,In State v. Simms, supra,
In the instant case, the trial judge made the following statements regarding defendant’s home incarceration: “We impose the one year home incarceration. The terms of it will include curfew restrictions and other issues and concerns that the probation officer may have.” The judge subsequently stated, “I am going to admit Mr. Delaneuville to approach trial bail. In other words, an appellate bail, and impose conditions of house arrest, and no driving during that period, as a balancing of the various concerns, obligations, and rights here.” (Emphasis supplied). The judge also stated, “Typically, I let him go to a job, his attorney, a doctor, and a church.”
In addition to these vague conditions, a review of the record reveals that the trial judge failed to make any mention of electronic monitoring, home visitation, employment, or a driver improvement program as required by LSA-R.S |22 14:98(E)(3)(a) and
In light of this Court’s holding in Simms, the vague conditions and apparent deficiencies regarding the imposition of defendant’s home incarceration, and the failure of the trial court to order defendant’s vehicle seized, impounded, and sold at auction, we find that defendant’s sentence is likewise illegally lenient. Therefore, as this Court did in Simms, we vacate the sentence and remand the matter for resen-tencing for clarification and compliance with LSA-R.S. 14:98(E). Simms, 03-1459,
DECREE
Accordingly, for the reasons assigned herein, defendant’s conviction is hereby affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING
Notes
. Defendant's surname is spelled differently throughout the record. For the sake of consistency, it will be spelled Delaneuville herein.
. Defendant and the State stipulated that at trial the State would introduce the testimony of Agents Aron Hastings and Lester Rulf by introducing the transcript of their testimony given at the Motion to Suppress hearing held on October 21, 2009. These facts are derived therefrom.
. The 11-year-old boy was later identified as Justin Delaneuville.
. In his incident report, Sgt. Hastings indicated that the odor of an alcoholic beverage was "strong” and that defendant’s level of impairment was "obvious.”
. In his incident report, Sgt. Hastings indicated that a pistol and a shotgun were recovered from the vehicle and that both weapons had been fired recently.
. In his incident report, Sgt. Hastings noted “Subject held on to his vehicle numerous times for balance while talking.”
. In his incident report, Sgt. Hastings indicated that defendant's speech was "slurred.” Also contained in the report was the agent’s observation that "Agent could detect bloodshot eyes and slow movements by the subject’s head and eyes.”
. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold,
.In his brief, defendant relies on the National Highway Traffic Safety Administration’s guideline for identifying signs of driving while intoxicated. However this Court has found the Louisiana Department of Public Safety and Transportation’s training manual for in-toxilyzer testing as well as the U.S. Department of Transportation and Safety's standards for DWI investigations to be irrelevant. State v. Conner,
. The defense and State stipulated at trial to defendant’s three prior DWI convictions. However, in this appeal, defendant argues that two of his three prior DWI convictions were ineligible to be used in adjudicating him a fourth DWI offender.
. Doyle v. Ohio precludes the State from impeaching a defendant’s testimony at trial with evidence that he remained silent immediately after his arrest and after receiving the warnings required by Miranda v. Arizona,
. The trial court's ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bazley, 09-358, p. 17 (La.App. 5 Cir. 1/11/11),
. LSA-C.Cr.P. art. 852 provides: "A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.”
.At the time of the offense, LSA-R.S. 14:98(F)(2) provided in pertinent part:
For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section ... if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder.
. See LSA-C.Cr.P. art. 572(A)(3).
. See LSA-C.Cr.P. art. 578(A)(3).
. It is worth noting that, like the instant case, in Ostrom, the State and defense also entered into a stipulation concerning the existence of three prior convictions. Ostrom, 43,-166 at 3,
. At the time of the offense, LSA-R.S. 14:98(E)(2)(a) provided:
In addition, the court shall order that the vehicle being driven by the offender at the time of the offense be seized and impounded, and be sold at auction in the same manner and under the same conditions as executions of writ of seizure and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.
.At the time of the offense, LSA-R.S. 14:98(E)(2)(b) provided:
The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated. If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.
LSA-R.S. 14:98(E)(2)(c) provided: "In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.”
. At the time of the offense, LSA-C.Cr.P. art. 894.2(D) provided: “The defendant shall be given a certificate setting forth the conditions of his home incarceration and shall be required to agree in writing to the conditions.”
. It is noted that Subsection D was at issue in Simms, as opposed to Subsection E like in the present case, because the defendant in Simms was convicted of a third offense of driving while intoxicated. Despite this difference, the provisions governing home incarceration for a third offender are the same as those for a fourth offender.