Pubdate: Wed, 31 Jan 2001
Source: Advocate, The (LA)
Copyright: 2001 The Advocate, Capital City Press
Contact:  525 Lafayette St., Baton Rouge, LA   70802
Website: http://www.theadvocate.com/
Author: Joe Gyan, Jr., New Orleans Bureau

HIGH COURT TO HEAR CHALLENGE TO DWI VEHICLE SEIZURE

NEW ORLEANS -- Norman Keith Edwards' truck has been impounded ever since he 
pleaded guilty nearly two years ago to a driving while intoxicated charge 
stemming from his third DWI arrest in a four-month span.

Now, the Denham Springs man not only wants his truck back, but he also is 
asking the Louisiana Supreme Court to strike down the state law that allows 
for the seizure, impoundment and sale at public auction of a vehicle that a 
person convicted of third-offense DWI was driving at the time of the arrest.

The Supreme Court will hear oral arguments Feb. 21 from Edwards' attorney 
and the East Baton Rouge Parish District Attorney's Office. In an unusual 
move, the high court also has invited comments from the Louisiana District 
Attorneys Association.

"Clearly it's a serious issue," said Baton Rouge lawyer Scott Collier, who 
represents the 39-year-old Edwards.

Longtime Louisiana District Attorneys Association executive director Pete 
Adams said that only once before have the justices sought comment from the 
association. Normally, the LDAA must ask for the high court's permission to 
intervene in a case, he said.

Collier contends the forfeiture provision of the third-offense DWI law is 
unconstitutional because the 1974 Louisiana Constitution says "personal 
effects shall never be taken."

"The plain language of the constitution says they can't do that," he said.

But in 1989, the state Legislature passed the Seizure and Controlled 
Dangerous Substances Property Forfeiture Act, which involves property 
involved in illegal drug activity or derived from such activity. The state 
Supreme Court upheld the act's constitutionality in 1996.

Collier claims the 1997 seizure provision of the third-offense DWI law does 
not fall under the 1989 drug contraband exception to the constitutional 
prohibition against the taking of personal effects.

"A constitutionally protected right always and necessarily trumps an act of 
the legislature in conflict with that right," Collier argues in documents 
filed at the high court.

Assistant District Attorney Creighton Abadie disagrees and draws a 
distinction between the 1989 drug forfeiture act and the third-offense DWI 
seizure provision. Abadie says the '89 act allows for the forfeiture of 
property in a "civil proceeding," while the DWI vehicle seizure provision 
is part of a criminal sentence.

"The forfeiture of a vehicle upon conviction is no different than a person 
being sentenced to pay a fine upon conviction equal to the value of the 
vehicle he was driving at the time of the offense, and thus, the provision 
is constitutional," Abadie argued in documents filed at the state 1st 
Circuit Court of Appeal that now are part of the Supreme Court record.

A three-judge 1st Circuit panel voted 2-1 last February to affirm Edwards' 
sentence, which included the forfeiture of his car. The two-judge majority 
said it agreed with Edwards that the DWI vehicle seizure statute "does not 
fall under the contraband drug exception," but the judges found the statute 
to be constitutional under the U.S. and Louisiana constitutions' due 
process clauses. The judges said Edwards was given fair notice and a chance 
to be heard before his vehicle was taken.

"Advance notice does not create authority to do that which the Constitution 
expressly states not to do," Collier argues.

State District Judge Tony Clayton gave Edwards a suspended two-year prison 
term and put him on probation for 18 months with numerous conditions.

Edwards was booked in December with fourth-offense DWI after he backed into 
another vehicle on North Harrell's Ferry Road, according to Baton Rouge 
police. Edwards, who refused to take a field sobriety test, also was booked 
with reckless operation of a vehicle and driving without carrying a 
license, police said.

Supreme Court records show Edwards' first DWI arrest came Dec. 18, 1997; he 
was convicted Jan. 14, 1998, in Baton Rouge City Court. His second DWI 
arrest was March 7, 1998, with an April 13, 1998, conviction in Denham 
Springs City Court. Edwards' third DWI arrest came the day before his April 
13, 1998, conviction. He pleaded guilty to the third-offense charge Feb. 1, 
1999.

The truck Edwards was driving at the time of his third DWI arrest remains 
in the custody of the East Baton Rouge Parish Sheriff's Office, Collier said.
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