State v. FurlowState v. Furlow
Defendant, Morrison Lee Furlow, was charged by bill of information with third offense DWI, a violation of
In defendant‘s sole assignment of error, he argues that the trial judge erred in denying the motion to quash the indictment. Defendant contends that his conviction of a third offense of DWI subjects him to the imposition of a harsher penalty than one convicted of a fourth offense of DWI, i.e., a mandatory six month jail sentence. Defеndant further contends that, as a result of this disparity, his right to equal protection of the law has been violated.
D. On a third conviction, [for DWI] regardless of whether thе offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one yеar nor more than five years, and may be fined not more than one thousand dоllars. At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence. If a portion of the sentence is imposed with benefit of probation, parole, or suspension of sentence, the court shall require the offender tо participate in a court-approved substance abuse program and/or participate in a court-approved driver improvement program.
E. On a fourth conviction, [for DWI] regardless of whether the fourth offense occurred before or after an earlier conviction, the оffender shall be sentenced to imprisonment at hard labor for not less than tеn nor more than thirty years.
In the case sub judice, the actual sentence imposed on defendant is one year at hard labor. The trial judge did not specify that a portion оf defendant‘s sentence be served without parole, probation or susрension of sentence as required by
The United States Supreme Court has held that a party has standing to challenge the сonstitutionality of a statute only insofar as it has an adverse impact on his own rights; and, as a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. County of Ulster v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 77 (1979); State v. Turner, 392 So.2d 436, 441 (La.1980). We have adhered to this position by saying that only a person whose rights are injuriously affected by those provisions of the law sought to be declared unсonstitutional can be heard to challenge the constitutionality thereof. State v. Turner, supra; State v. McMahon, 391 So.2d 1120, 1123 (La.1980).
The sentence actually imposed on defendant did not implement the mandatory jail sentence requirement for one convicted of a third offеnse DWI. Therefore, defendant has not been adversely affected by what he claims is an unconstitutional disparity in the sentencing provisions of
We find no merit in defendant‘s assignment of error.
Accordingly, defendant‘s conviction and sentence are affirmed.
AFFIRMED.