State v. Harmon

May 14, 1999

No. 32,659-KW

Reporters:: , ,
Before:: Brown

Dissenting Opinion

| ¶ NORRIS, J,

dissenting.

I dissent. La. R.S. 32:295.1 F states: “No vehicle, the contents of the vehicle, driver, or passenger in a vehicle shall be inspected, detained, or searched solely because of a violation of this Section.” In other words, a seat belt violation does not justify a stop and search. The evidence arising from this illegal search was properly suppressed by the District Court.

Admittedly, a 1995 amendment to this subsection was promoted as an effort to make the failure to wear a seat belt a “primary offense.” La. Acts 1995, No. 643. The result of this amendment — quoted above — has been held by one court to authorize a stop, but by two other courts not to authorize a stop. State v. Henderson, 98-614 (La.App. 5 Cir. 12/16/98), 727 So.2d 1180; contra, State v. Antoine, 98-369 (La.App. 3 Cir. 10/28/98), 721 So.2d 562, and State v. Palmer, 98-2236 (La.App. 4 Cir. 11/18/98), 723 So.2d 1040. This conflicting jurisprudence *987shows that, at best, the statute is ambiguous and must be construed in favor of the defendant. See, e.g., State v. Carouthers, 618 So.2d 880 (La.1993).

Lead Opinion

J¡WRIT GRANTED, PEREMPTORILY REVERSED AND REMANDED.

An individual may be stopped and ticketed for failure to wear a seat belt. La. R.S. 32:295.1. However, that alone does not suffice for further inspection, detention or search. La. R.S. 32:295.1(F). In this case the officer detected a strong odor of alcohol which justified the field sobriety test and arrest for 3rd offense DWI.

The trial court’s grant of defendant’s motion to suppress is reversed and this matter remanded for trial.

NORRIS, J., dissents.