author: MARCUS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Charles MOSELY.
    No. 61407.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Charles Mosely was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and sentenced to serve eight years at hard labor. On appeal, defendant relies upon twenty-four assignments of error for reversal of his conviction and sentence. Finding reversible error in Assignment of Error No. 14, we pretermit consideration of the other assignments of error.

Defendant contends the trial judge erred in allowing the state to read, in the presence of the jury, a defense witness’ prior inconsistent statement after the witness had distinctly admitted making such statement.

During trial, Reginald Lachney testified on behalf of defendant. On direct examination, he stated that he was with defendant and several friends at the Voinche apartments on the night before the alleged burglary. (The burglary was allegedly committed during the early morning hours of April 11, 1977.) Mr. Lachney related their activities and denied that they ever walked toward John’s Discount Store or Lewis Roy Motor Company, the allegedly burglarized structure. He stated that defendant left to go home about midnight. On cross-examination, the state asked Mr. Lachney if he had previously told the police that he and his friends had walked toward John’s Discount Store on the date of the alleged burglary. Lachney distinctly admitted having made such a statement. The state then asked him if he had not in fact given a specific statement. Mr. Lachney explained, “Under a threat.” The state then questioned him about the allegedly involuntary nature of the prior inconsistent statement and asked if he could identify a certain document. Mr. Lachney identified the document as a statement he had given the police, and the state proceeded to read it aloud before the jury. Defendant interrupted the reading, and the following colloquy occurred:

[By defendant]:
Your honor, I’m going to object — the only time a prior inconsistent statement is introduced, if he denies what he said. Mr. Lachney readily admitted that he made the statement.
[By the state]:
Your honor, we have a right to introduce the — to show exactly what his statements were and to show what that inconsistency is; and we’ve been going through inconsistencies and inconsistencies; now I want to show an inconsistency for this record.
By the Court:
I’ll permit the statement to go through.

The state then read aloud the prior inconsistent statement in its entirety. The statement incriminated defendant by placing him at the scene of the alleged burglary.

La.R.S. 15:493 provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible. (Emphasis added.)

La.R.S. 15:493 permits the credibility of a witness to be impeached by proof of any statement made contradictory to his testimony at trial. Proof that the prior inconsistent statement was made can be used for impeachment purposes only, not to show the truth of its content. If a witness distinctly admits having made a prior inconsistent statement, his credibility has been effectively impeached. At this point, the permitted reason for the use of the prior inconsistent statement (impeachment) has been accomplished. Thereafter, proof that the statement was made would not be for impeachment purposes, but rather to show the truth of its content, which is not permissible. Accordingly, if a witness distinctly admits having made a prior inconsistent statement, evidence that the statement was made is inadmissible. La.R.S. 15:493; State v. Bennett, 357 So.2d 1136 (La.1978); State v. Johnson, 333 So.2d 223 (La.1976); State v. Zeno, 322 So.2d 136 (La.1975).

In the instant case, we find, and the state does not otherwise contend, that Mr. Lachney distinctly admitted having made the prior inconsistent statement. Hence, the trial judge erred in allowing the statement to be read before the jury. Since the prior inconsistent statement contained remarks highly prejudicial to defendant, we are compelled to find the error reversible.

DECREE

For the reasons assigned, the conviction and sentence are reversed; the case is remanded for a new trial consistent with law and the views herein expressed.

SANDERS, C. J., dissents with reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice

(dissenting).

Although the record is not altogether clear, as I interpret it, the prior statement of the witness Lachney was used only as an aid in the State’s cross-examination.

Prior to its use, the witness admitted only that he had signed a prior statement “under a threat” without disclosing the extent and nature of its inconsistency, if any. The State then proceeded to ask him if he made certain factual representations by reading them from the document to establish that the prior statement was in fact inconsistent.

In State v. Redwine, La., 337 So.2d 1041 (1976), we approved such cross-examination even after the witness had admitted that his prior statement was “entirely different,” stating:

“This response amounted to little more than an opinion and did not constitute an admission of having made a prior inconsistent statement regarding any particular one of the many facts to which he testified at the trial; it told the trier of fact nothing of the nature or extent of his prior self-contradiction.”

It is true, as noted by the majority, that the cross-examination apprised the jury of the factual content of the prior statement. In my opinion, however, the jurors were entitled to know the nature and extent of the inconsistency.

For the reasons assigned, I respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana Through the STATE BANKING DEPARTMENT, Plaintiff-Appellant, v. ACADIANA BANK AND TRUST COMPANY, Defendant-Appellee.
    No. 61428.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      William J. Guste, Jr., Atty. Gen., Thomas S. Halligan, Asst. Atty. Gen., for plaintiff-appellant.
    Kenneth Pitre, DeVillier & Ardoin, Eunice, for defendant-appellee.
   PER CURIAM.

The trial court held a portion of Act 98 of 1976 unconstitutional. This act, which prohibits bank institutions within nine parishes from opening on Saturdays, was held to violate the provision of La.Const. of 1974, Article 3, Section 12, which provides in pertinent part:

“Section 12. (A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law: * * *
(6) Regulating labor, trade, manufacturing, or agriculture; fixing the rate of interest. * * * ” (Italics ours.)

For reasons more fully set forth in our recent decision citing a similar issue, State v. LaBauve, 359 So.2d 181 (Docket No. 62,111, 1978), we find that the quoted portion of the act is a local law regulating trade in nine parishes by specific designation of them only. Therefore, it falls within the prohibition of Article 3, Section 12(A)(6) and is invalid.

Accordingly, we affirm the judgment of the district court so declaring and, consequently, denying the state banking agency an injunction against the defendant bank to require it to close on Saturdays.

AFFIRMED.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

SANDERS, C. J., concurs in part and dissents in part for the reasons assigned by MARCUS, J.

SUMMERS, J., dissents.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree that the trial court correctly held that the defendant bank, a domestic banking corporation, domiciled and engaged in the business of banking in the Parish of St. Landry, and other banking institutions in St. Landry Parish were denied the equal protection of the law. However, I do not consider that the portion of Act 98 of 1976 at issue in the instant case should be declared unconstitutional as a denial of equal protection of the law to banking institutions in the other eight parishes enumerated therein because no such showing was made at the evidentiary hearing held on the matter before the trial court.

I do not agree that the pertinent portion of Act 98 of 1976 is unconstitutional as a “local or special” law under La.Const. art. 3, § 12. It is well settled that a law is not local or special, rather than general, even though its enforcement may be restricted to a particular locality, simply because the conditions under which it operates do not prevail in every locality of the state. Davenport v. Hardy, 349 So.2d 858 (La.1977); Kotch v. Bd. of River Port Pilots Comm’rs., 209 La. 737, 25 So.2d 527 (1946), aff’d., 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947); Clark v. City of Opelousas, 147 La. 1, 84 So. 433 (1920). A “general” law is one which operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or one which operates equally upon all of a designated class founded upon a reasonable and proper classification. Davenport v. Hardy, supra; Knapp v. Jefferson-Plaquemines Drainage Dist., 224 La. 105, 68 So.2d 774 (1953); State v. Clement, 188 La. 923, 178 So. 493 (1938). “Local or special” law, as used in prior Louisiana constitutions and as carried forward in the 1974 constitution, is, in essence, one directed to secure some private advantage or advancement for the benefit of private persons or private property within a certain locality. See Davenport v. Hardy, supra; State ex rel. Grosch v. City of New Orleans, 211 La. 241, 29 So.2d 778 (1947); State v. Dalon, 35 La.Ann. 1141 (1883). Hence, I consider that the portion of Act 98 of 1976 at issue in the instant case is not unconstitutional as a “local or special” law within the meaning of La.Const. art. 3, § 12.

For these reasons, I dissented from the majority opinion in State v. LaBauve, 359 So.2d 181, No. 62,111 (La., 1978), and also consider that the entirety of the pertinent portion of Act 98 of 1976 should not be declared unconstitutional.

Accordingly, I concur in the per curiam insofar as it declares unconstitutional that provision of Act 98 of 1976 which prohibits banking institutions in the Parish of St. Landry from conducting banking business on Saturdays. I dissent insofar as the opinion declares unconstitutional the remainder of that portion of Act 98 of 1976 at issue in the instant case.

      . The portion invalidated provided:
      “Notwithstanding the provisions of R.S. 6:65 or any other law to the contrary, all banking institutions . . located within the parishes of Terrebonne, Lafourche, Iberia, Pointe Coupee, West Baton Rouge, St. Mary, and Iber-ville, and all banking institutions located within the parishes of Lafayette and St. Landry, shall be closed during any year on Saturdays . . .”

      . The trial court correctly held that the defendant bank was denied the equal protection of the law; but we do not reach this issue, in view of our decision that the statute offends the cited provision of the state constitution.


author: DENNIS, Justice. SUMMERS, Justice.

text:
    LOUISIANA POWER & LIGHT CO. v. Vernon L. CALDWELL, Jr., et al.
    No. 61473.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearings Denied July 26, 1978.

      John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendants-applieants.
    Kenneth Watkins, Watkins, Watkins & Walker, Houma, Andrew P. Carter, Eugene G. Taggart, George F. Riess, Monroe & Lemann, New Orleans, for plaintiff-respondent.

       SUMMERS, J., would grant a limited rehearing in favor of defendant.

   DENNIS, Justice.

Louisiana Power and Light Company (LP&L) sought to expropriate a right of-way, in the nature of a servitude, of some one hundred feet in width across the property of defendants. The purpose of the servitude was the construction, operation, and maintenance of a 230KV electric transmission line. The total acreage contained in the right of way comprises some 29.07 acres, including .05 acres for guying servi-tudes; the proposed servitude runs east to west across the defendants’ property and spans swamp land, wooded acreage, and areas under agricultural cultivation.

Defendants objected to the taking by LP&L, contending that the expropriation did not serve a public and necessary purpose and that the plaintiff had failed to follow statutory mandates requiring that the expropriating authority consider the convenience of the landowner in selecting a route for the servitude.

The trial court found for the plaintiff, ruling that the expropriation of the right of way was for a public and necessary purpose. It rendered judgment fixing the defendants’ compensation at $50,743.50, denied defendants’ motion for new trial, and denied them attorney’s fees.

On appeal, the circuit court affirmed the ruling of the trial judge as to the public and necessary character of the expropriation. As to the defendants’ arguments regarding the selection of the route for the right of way, it found that the defendants had not shown that plaintiff was guilty of “fraud, bad faith or conduct or practices amounting to abuse of the privilege.” The appellate court further found that the $50,743.50 fixed as compensation by the district court did not constitute an abuse of discretion.

We granted certiorari to consider whether the appellate court correctly interpreted La.R.S. 19:2(7), which authorizes electric companies to expropriate property, provided that the structures for which property is taken shall be located so as not to “interfere . . more than is necessary, with the convenience of the landowners/

Although the original statute authorizing expropriation by electric power companies and setting forth criteria for the placement of the servitudes was enacted into our law in 1924, the portion of the statute which requires consideration of the landowner’s convenience in route selection has never been construed by this Court. It has, however, been considered on various occasions by the courts of appeal, with conflicting results.

The initial construction of La.R.S. 19:2(7) (then La.R.S. 19:2(9)) appears in a 1961 decision of the First Circuit Court of Appeal. In Central Louisiana Electric Company, Inc. v. Covington and St. Tammany Land & Improvement Co., 131 So.2d 369 (La.App. 1st Cir. 1961), the court was faced with a contention by a landowner that the expropriating authority had failed to consider his convenience in its placement of an overhead electric transmission line. While noting that the subsection of La.R.S. 19:2 which deals with electric utility companies is the only portion of that statute which requires consideration of the landowner’s convenience, the court nevertheless relied on the frequently stated principle that “in the location of rights-of-way considerable discretion is vested in the expropriating authority and the courts will not disturb or interfere with the exercise thereof in the absence of fraud, bad faith or conduct or practices amounting to an abuse of the privilege,” id. at 375, and approved the route selected by the expropriating company.

In Louisiana Power & Light Company v. Anderson, 188 So.2d 733 (La.App. 2d Cir. 1966) the court cited the St. Tammany Land & Improvement Company decision in finding that the sole issue presented by a case involving an electric company expropriation was “whether the location of plaintiff’s transmission line has been made in an arbitrary or capricious manner constituting an abuse of discretion or evidence of bad faith.” It further stated that “the mere availability of alternate routes is not a determinative factor;” that La.R.S. 19:2(7) “must be reasonably construed and requires only the application of sound engineering and economic principles;” and that “courts will not disturb or interfere with the location of rights-of-way by condemnors in the absence of evidence that the privilege of expropriation has been abused.” In a cogent dissent from the majority’s opinion, however, Judge Bolin pointed out that no other law in Louisiana imposes restrictions on an expropriating authority similar to those set forth in La.R.S. 19:2(7). He further noted that the decision in the Coving-ton case, relied upon by the majority, was based upon authorities from other jurisdictions and Louisiana cases involving expropriation of property for purposes other than the transmission of electric power. He asserted that the proper consideration is not “whether the location of plaintiff’s transmission line has been made in an arbitrary or capricious manner constituting an abuse of discretion or evidence of bad faith,” but rather “whether [the expropriating authority] has complied with the mandatory requirements of [La.R.S. 19:2(7)].”

The rule enunciated by the court in the Covington case was approved and reaffirmed in Gulf States Utilities Company v. Heck, 191 So.2d 761 (La.App. 1st Cir. 1966), and again in Southwestern Electric Power Company v. Jones, 256 So.2d 677 (La.App. 2d Cir. 1972). In Southwest Louisiana Electric Membership Corporation v. Simon, 207 So.2d 546 (La.App. 3d Cir. 1968), however, the court on original hearing stated its belief that “the statute [La.R.S. 19:2(7)] requires the court to consider the landowner’s safety and convenience as the primary consideration and the selection of location by the condemnor to be the secondary consideration.” Although this statement was modified somewhat by the opinion on rehearing, in which the court reverted to a standard more akin to the arbitrariness requirements of Covington, the court nevertheless determined that the condemnor had failed to meet its statutory burden under La.R.S. 19:2(7). In Simon, therefore, the appellate court gave life to the legislative mandate that the convenience of the landowner, in addition to the engineering principles relied upon by the expropriating authority, is to be considered in the selection of a location upon which the improvements are to be placed.

In the instant case, the appellate court was again confronted with a contention by the defendants that the plaintiff company had failed to follow the provisions of the statute requiring a consideration of the landowner’s convenience in the placement of the proposed electric power servitude. In response, the court relied upon Texas Eastern Transmission Corporation v. Bowie Lumber Company, 176 So.2d 735 (La.App. 1st Cir. 1965), writ denied 248 La. 385, 178 So.2d 663 (1965), for the proposition that “the selection of a route by the expropriating authority or agency will not be disturbed or upset except upon the showing by the party resisting the expropriation that the selection was made through fraud, bad faith or conduct or practices amounting to abuse of the privilege.” Id. at 739.

A different rationale was employed by another panel of the appellate court in its decision in a companion case, Louisiana Power and Light Co. v. Caldwell, 353 So.2d 1343 (La.App. 1st Cir. 1977). There, the court stated:

“This expropriation proceeding was instituted pursuant to LSA-R.S. 19:2(7) which provides:
“ ‘Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:
u i * 9k *
“ ‘(7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners; * 9k * i ■
“We note that of the nine categories under LSA-R.S. 19:2 authorized to expropriate needed property, it is only in category number 7 wherein there is any mention of the convenience of the landowners. Certainly, there must be some significance to this distinction and difference.
u !k * *
“Generally, the route selected must be based on sound engineering and economic principles, however, we conclude that under LSA-R.S. 19:2(7) the convenience of the landowner is an element that must be considered.
u * * *
“To disregard the added language of convenience of the landowners found in LSA-R.S. 19:2(7) and not found elsewhere in the expropriation authority granted by LSA-R.S. 9:2 would be to completely overlook the obvious intent of the Legislature that the convenience oí the landowners be taken into consideration in determining whether the expropriating authority has abused that discretion granted it.
“In determining whether the expropriating authority has abused the discretion granted it in route selection, all factors including sound engineering and economic principles as well as the inconvenience which the selected route may cause the landowner must be considered.” 353 So.2d at 1345-1346. (Emphasis in original)

We agree that the clear wording of La.R.S. 19:2(7) evinces a legislative intent to require electric power companies which seek to expropriate land to consider the convenience of the landowner as an element of route selection. Indeed, the statute commands that the improvements for which property is expropriated shall be so located as not to interfere more than is necessary with the convenience of the landowners. It follows clearly, therefore, that a court must not approve an expropriation unless it determines from the evidence that there is no more interference than is necessary with the convenience of the landowners.

The reliance of the appellate court in the instant case on the decision in Texas Eastern Transmission Corporation v. Bowie Lumber Company, supra, is misplaced. In that case, the utility was a gas company which sought expropriation for a pipeline; La.R.S. 19:2(5), which authorizes such expropriations, does not condition a taking by a gas company upon the landowner’s convenience.

Our consideration of the record in the case at bar reveals that the owner requested the power company to locate its transmission lines along the corridor of an existing gas pipeline servitude. The company refused; at trial, its expert stated that construction costs would be greater along the corridor than over the company route, since he estimated that the path suggested by the owner would result in the line being one-half mile to one mile longer. He did not, however, estimate the dollar amount by which the cost of the line would be increased; further, he conceded that use of the pipeline corridor would lessen clearing costs of the timber land although, again, he admitted that no research had been done to determine the effect on the total cost of construction.

In further justification of the plaintiff’s route selection, the expert stated that the route proposed by defendant would not meet the needs of the plaintiff because the line would not then connect with a new electric substation which would be in the planning stage within a few years. Defendant, however, contended that the utility had not even attempted to prove public purpose and necessity for the proposed substation and that it should not, therefore, be allowed to use the positioning of the substation as a justification for its proposed route. During cross-examination by defense counsel, plaintiff’s expert also admitted that no site had actually been chosen for the substation, but that it should “ideally” be located approximately half way between the Thibodaux and Houma substations.

Our examination of the record in the instant case satisfies us that defendants are correct in their assertion that the district court failed to determine if the proposed expropriation met the statutory requisite of being so located as not to interfere more than is necessary with the landowner’s convenience. Since the record will not support our deciding this factual issue in favor of the plaintiff, we must set aside the judgment of expropriation. Normally, a dismissal of the plaintiff’s suit with prejudice would be in order. However, considering that our decision today overturns the erroneous interpretation of La.R.S. 19:2(7) by the courts of appeal, it is likely that the parties did not litigate the issue as fully as our construction of the statute demands. Accordingly, in the interest of justice, we will remand this case to the trial court for the purposes of amending pleadings and redetermining the issue of whether the proposed expropriation unnecessarily interferes with the landowners’ convenience.

The judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

SUMMERS, Justice.

While I agree with this opinion in all other particulars, I would dismiss plaintiff’s suit with prejudice.

      . 353 So.2d 371 (La.App. 1st Cir. 1977).

      . Id. at 374.

      . 354 So.2d 1374 (La.1978).

      . La.R.S. 19:2, in its entirety, states:
      “Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:
      “(1) The state or its political corporations or subdivisions created for the purpose of exercising any state governmental powers;
      “(2) Any domestic or foreign corporation created for the construction of railroads, toll roads, or navigation canals;
      “(3) Any domestic corporation created for the construction and operation of street railways, urban railways, or interurban railways;

        “(4) Any domestic or foreign corporation created for the construction or operation of waterworks, filtration and treating plants, or sewerage plants to supply the public with water and sewerage;
      “(5) Any domestic or foreign corporation created for the piping and marketing of natural gas for the purpose of supplying the public with natural gas;
      “(6) Any domestic or foreign corporation created for the purpose of transmitting intelligence by telegraph or telephone;
      “(7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners;
      “(8) All persons included in the definition of common carrier pipelines as set forth in R.S. 45:251;
      “(9) Any domestic or foreign corporation created for piping and marketing of coal or lignite in whatever form or mixture convenient for transportation within a pipeline as otherwise provided for in R.S. 30:721 through 30:723.”

      . By Act 110 of that year.

      . See, La.C.C.P. art. 2164, and official revision comments following.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Burlon GRAHAM.
    No. 61540.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.
    Lewis 0. Unglesby, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, Burlon Graham, was convicted of driving while intoxicated as a second offender, La.R.S. 14:98, and sentenced to serve a period of sixty days in the parish prison and pay a fine of $350, in default of which he will be required to serve an additional one hundred twenty days. We granted writs to determine whether the trial court committed reversible error by allowing the State to establish a presumption of the defendant’s intoxication through the introduction of a chemical analysis of his blood’s alcoholic content without presenting prima facie proof of the standard quality of the test chemicals.

The legislature has enacted a system of laws governing tests for suspected drunken drivers. Any person who operates a motor vehicle upon the public highways of Louisiana is considered by law to have given consent to a chemical test of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for an offense arising from the operation or control of a motor vehicle while intoxicated. La. R.S. 32:661. If a person refuses to submit to an authorized chemical test at the request of a law enforcement officer having probable cause to arrest him for drunken driving, his license may be suspended for a period of six months. La.R.S. 32:667. In the trial of a drunken driving offense one of two rebuttable presumptions may arise upon the proper introduction of a valid chemical test. The presumptions are as follows: If at the time of the offense there was 0.05 per cent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages. If there was 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages. If there was in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood there shall be no legal presumption but the test results may be considered as evidence in the case. La.R.S. 32:662.

Both our state and federal constitutions oblige the prosecution in a criminal trial to prove beyond a reasonable doubt every fact necessary to constitute the crime charged and forbid the state to shift the burden of ultimate persuasion of an essential element of the crime charged to the defendant. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Searle, 339 So.2d 1194 (La.1976). Under La.R.S. 32:662 the state may be relieved of its obligation to prove beyond a reasonable doubt the defendant’s intoxication and thus shift the burden of ultimate persuasion on this essential issue to the defendant. Accordingly, at least two constitutional questions deserving of careful scrutiny are raised by this legislation, e. g., whether there is a justifiable empirical basis for the presumption, assuming complete reliability in testing; and whether the state may erect the presumption against an individual without proof beyond a reasonable doubt of the reliability of all elements of the chemical analysis. We do not reach the constitutional questions, however, because defendant has attacked the validity of the proceedings below on the narrow ground that the trial court allowed the introduction of alcohol content evidence without proof that it was obtained in compliance with the Department of Health regulations for chemical intoxication tests. Nevertheless, because the presumption of intoxication, for all practical purposes, places an impossible burden on even an innocent defendant, the question raised of the admissibility of the chemical analysis which triggers and presumption looms as one involving issues of fundamental fairness.

The legislature and this Court have recognized the importance of establishing safeguards to guarantee accuracy in chemical testing. In the same legislation which authorizes the chemical analysis of a motorist’s blood and creates a legal presumption of intoxication in the event his blood contains the requisite per cent of alcohol, the legislature conditioned the validity of the chemical test upon its having been performed according to methods approved by the Department of Health. La.R.S. 32:663. In considering previous attacks upon the validity of the statutory design, this Court has expressed the opinion that, in order for the State to avail itself of the statutory presumption of a defendant’s intoxication without violation of his constitutional due process guarantee of a fair trial, detailed methods, procedures and techniques must be officially promulgated to insure the integrity and reliability of the chemical tests including provisions for “repair, maintenance, inspection, cleaning, chemical accuracy. certification [as well as] proof of adherence to” those methods, procedures and techniques. State v. Jones, 316 So.2d 100, 105 (La.1975); cf. State v. Junell, 308 So.2d 780, 783 (La.1975).

In response to the constitutional requirements and the legislative mandate expressed by the statute, the Louisiana Health and Human Resources Administration, Division of Health, promulgated methods, procedures and techniques for assuring the accuracy of the tests. See, Rules and Regulations for Chemical Test for Intoxication, 1 Louisiana Register, p. 562 (1975). The rules and regulations are divided into eleven detailed sections which may be described as follows: Section 1. The Division of Health is the successor to the Department of Health; Section 2. Requirement of approval of prototype before use of testing device in the state; Section 3. Designation of the Photo-Electric Intoximeter Model No. 400 as an approved technique or method for testing; Section 4. Procedure for performing analysis of breath specimens; Section 5. Procedure for manufacturers to request approval of testing devices; Section 6. Procedure for maintenance of testing devices and chemicals; Section 7. Qualifications and certifications of testing device operators; Section 8. Insurance and renewal of permits to testing device operators; Section 9. Qualifications of blood analysts; Section 10. Methods for blood-alcohol analysis of blood; Section 11. Specification for blood collection kits.

The section pertaining to the maintenance of testing devices, chemical accuracy and the certification and proof of adherence to the regulations with regard thereto, provides:

“6. Maintenance checks will be performed on a routine basis at least once every four months. Items to be checked shall be but not limited to the following:
A. Each lot of ampuls shall be spot-checked and certified by the manufacturer as to their quality. This certificate shall be prima facie evidence as to the standard of the ampul.
B. Clean instrument
C. Calibration check of standard ampuls
D. Running of a known alcohol solution in which results shall be within plus or minus .010g% or the known alcohol value. (See Exhibit C)
E. In the event any repair work is needed, it will be recorded in detail. (See Exhibits D & E)
Repair work will be performed by technicians working for the Applied Technology Section of the Louisiana State Police Crime Laboratory who are certified by the Louisiana Health and Human Resources Administration, Division of Health, Bureau of Laboratories, to perform such maintenance. The Applied Technology Section of Louisiana Police Crime Laboratory shall have the authority to instruct other individuals to perform such maintenance (Exhibit F). Upon satisfactory completion of such training the individual shall be certified to perform maintenance by the Louisiana Health and Human Resources Administration, Division of Health, Bureau of Laboratories.
Records covering maintenance, etc., of the P.E.I. (photo-electric intoximeter) instrument will be kept by the Louisiana State Police Crime Laboratory.”

Section 6 of the rules and regulations requires submission of each testing device, and the ampuls of chemicals allocated for. use with it, to a routine maintenance check by a certified technician at least once every four months. Because premature opening of an hermetically sealed ampul causes the chemical to deteriorate, the regulations do not provide for a laboratory analysis of each ampul. Instead, the certified technician is merely required to determine if each lot of ampuls has been spotchecked and certified to be of standard chemical quality by the manufacturer. According to the regulation, the manufacturer’s certificate that a sample of ampuls spotchecked were of standard chemical quality constitutes “prima facie evidence” of the standard chemical quality of the lot of ampuls from which the sample was taken. This procedure is somewhat similar to one which has been recommended and, in substance, approved in other states whereby all chemicals are received in numbered lots and stored with proper care under the supervision and control of a local chemist, who conducts spot tests of portions of each lot, so that when a contested case is presented in court he will be available to testify that the particular lot, from which the chemicals used in a particular case were taken, were of proper composition, strength and volume at the time the test in question was conducted. Although the procedure noted in other states is preferable because it assures, through periodic spotchecks, that the accused will be tested with recently certified chemicals, the method adopted by the Department of Health reasonably assures that the chemicals were of standard quality at the time they were received from the manufacturer. Since the defendant has not attacked the regulation, we will assume for present purposes that there is a sufficient rational basis for a court to consider the manufacturer’s certification as prima facie proof of standard chemical quality at the time an accused is subsequently tested for the concentration of alcohol in his blood. Accordingly, under the regulation as written, the State may establish prima facie proof of the chemical accuracy of the test in question by presenting in court the manufacturer’s certificate as to the spotcheck and the standard chemical quality of the lot of ampuls involved in the analysis to be introduced into evidence.

It is undisputed that in the instant case the State did not lay a foundation for the introduction of the chemical analysis by presenting a manufacturer’s certificate of spotcheeking and standard chemical quality as provided by Section 6 of the Department of Health regulations. The attorney for the prosecution argues, however, that the failure to do so is not reversible error because chemical accuracy was guaranteed through another procedure and because any error was rendered harmless due to substantial independent evidence of intoxication.

Section 4(B)(3) of the Rules and Regulations promulgated by the Department, which is part of a “photo-electric intoxime-ter checklist” that must be conducted by the operator of the testing device before making a chemical analysis, provides:

“Preparation of the instrument whereby temperature is checked and the ampul to be used in such analysis is checked to show it is within a certain tolerance plus or minus 0.10g%. This is to insure a good ampul will be used in the analysis.”

In the instant ease the operator of the testing device testified that he performed this step in the checklist as provided, and the able attorney for the State argues that this procedure alone is sufficient to insure the accuracy of the test chemicals.

We cannot agree because the ampul check provided by Section 4(B)(3), relied on by the State, appears to be merely a partial, secondary check on chemical quality to be performed immediately before an intoxime-ter test is run in the field to determine the alcohol content of a suspect’s blood. This expedient precaution does not entail laboratory analysis by a chemist for proper chemical composition, strength and volume. It simply calls for the operator of the testing device, usually not a chemist, to check the ampul to be used in an alcohol concentration test against a “comparison” ampul contained in the same lot to see if they produce similar photo-electric readings on the intox-imeter. If deterioration or damage has affected the “comparison” ampul, obviously such an intra-lot test would not assure chemical accuracy of the measurement of alcohol concentration in a suspect’s blood. On the other hand, the requirement of a manufacturer’s certificate by Section 6 of the Department’s regulations and the procedures of other jurisdictions envision a thorough analysis of chemicals by a chemist under laboratory conditions. Therefore, we conclude that under the officially approved technique or method for testing by photo-electric intoximeter, the manufacturer’s certificate of chemical quality based on its laboratory tests of a portion of the ampuls constitutes the primary assurance an accused has that the chemicals will provide an accurate analysis of the alcohol content of his blood.

The failure of the prosecution in the instant case to produce a manufacturer’s certificate or other form of prima facie proof of standard chemical quality of the test chemicals cannot be excused as an inconsequential departure from the painstaking methods, techniques and procedures formulated by the Department in response to an act of the legislature and the decisions of this Court. If the lot of chemicals involved in the test was of inferior quality it is possible that a practically conclusive presumption of guilt was brought to bear against an innocent person. A conviction obtained through chemical test legislation, which not only destroys a defendant’s presumption of innocence but also severely restricts any possibility of a defendant proving his innocence, must be reversed if not accompanied by all of the safeguards designed to insure reliable chemical analysis. The proof of the standard quality of chemicals used in the test by which the State seeks to set up the presumption against the defendant is crucial to a fulfillment of the defendant’s constitutional due process guarantee and therefore must be educed in strict compliance with the standards promulgated in response to the decisions of this Court. See, State v. Jones, supra; State v. Junell, supra.

The wrongful introduction of a chemical analysis which by law presumed the defendant to be under the influence of alcohol at the time of his arrest was manifestly prejudicial to the defendant’s case. Although other independent evidence of intoxication was presented by the State at the trial of the case, we are prohibited by the constitution from deciding the factual question of guilt or innocence and must restrict our scope of review to questions of law in criminal cases. La.Const.1974, Art. 5, § 5. Consequently, we cannot speculate as to what decision the trier of fact would or should have made had the inadmissible evidence not been introduced. Instead, we are required to review the record for reversible errors of law and to declare them when found. State v. Burnette, 353 So.2d 989 (La.1978).

For the reasons assigned, the defendant’s conviction and sentence are reversed and the case is remanded for a new trial, consistent with this opinion.

TATE, J., concurs, pending further showing that the testing of the ampuls at the time the subject is examined by the machine adequately assures the reliability of the test chemicals used.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., concurs.

      . See, Ashford and Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969). See also, Note, 37 La.L.Rev. 1155 (1977).

      . A number of jurisdictions have upheld the validity of presumptions established by chemical test legislation. Johnson v. State, 487 P.2d 1005 (Okl.Cr.1971); State v. Childress, 78 Ariz. 1, 274 P.2d 333, 46 A.L.R.2d 1169 (1954); State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964); State v. Simonsen, 252 Minn. 315, 89 N.W.2d 910 (1958); Seattle v. Bryan, 53 Wash.2d 321, 333 P.2d 680 (1958).

      . La.R.S. 32:663 provides:
      “Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the Department of Public Safety and by an individual possessing a valid permit issued by said department for this purpose. The Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”
      Subsequent to defendant’s trial, the statute was amended to provide that the methods or techniques shall be approved by the Department of Public Safety. See La. Acts 1977, Act 533, § 1.

      . Other state courts have required that the state produce prima facie proof of compliance with similar basic requirements before the introduction of chemical tests. E. g., in State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 809 (1960), the Supreme Court of Washington set forth the prerequisites as prima facie evidence “(1) That the machine was properly checked and in proper working order at the time of conducting the test; (2) that the chemicals employed were of the correct kind and compounded in the proper proportions; (3) that the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test; (4) that the test be given by a qualified operator and in the proper manner.” (Emphasis added) Hill v. State, 158 Tex.Crim. 313, 256 S.W.2d 93 (1953); cf., State v. Miller, 146 N.W.2d 159 (N.D.1966).

      . See, Donigan, Chemical Tests and the Law, 71, 279-80 (1966). Cf. Penny v. State, 410 P.2d 553 (Okl.Cr.1966); State v. Miller, 146 N.W.2d 159 (N.D.1966); Ward v. State, 169 Tex.Cr.R. 589, 355 S.W.2d 839 (1960); City of Wichita v. Showalter, 185 Kan. 181, 341 P.2d 1001 (1959); Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953) (reversal based in part upon the fact that there was no showing that chemicals were compounded to the proper percentage); Fluitt v. State, 169 Tex.Cr.R. 259, 333 S.W.2d 144 (1953).

      . Judgment must be reserved for a future case with a proper record as to whether the potential for chemical damage or deterioration is sizeable enough to require periodic local spot-checking in order to afford the State prima facie proof of current chemical accuracy.

      . See footnote 5, supra.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Hayworth L. BRADLEY.
    No. 61549.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Earnest L. Johnson, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-relator.
   DIXON, Justice.

On February 17, 1976 Hayworth L. Bradley was charged by bill of information with driving while intoxicated in violation of R.S. 14:98. He was tried on October 21, 1976 and, after the presentation of the State’s evidence, was granted a directed verdict of acquittal. Following his acquittal, Bradley filed a “motion to expunge criminal records under provisions of LSA-R.S. 44:9.” The State objected to the motion on grounds that the statute specifically prohibits the expungement of arrests for D.W.I. At the hearing on the motion the defendant successfully argued that the exclusion of D.W.I. arrests from the expungement statute constituted a denial of equal protection. We granted the State’s application for supervisory writs to review the trial court’s judgment declaring the last sentence of R.S. 44:9(A)(2) to be unconstitutional.

R.S. 44:9 provides:

“A. Any person who has been arrested for the violation of a municipal ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district court for the parish in which he was arrested for expungement of the arrest record, if:
(1) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or
(2) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal. If the court finds that the mover is entitled to the relief sought, for either of the above reasons, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint or any other information of any and all kinds or descriptions. The court shall order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency’s central respository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same and a copy shall be retained by the affiant agency which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes to preserve the integrity of said agency’s files and shall not be used for any investigative purpose. This Subsection does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98.
B. Any criminal court of record in which there was a nolle prosequi, an acquittal, or dismissal of a crime set forth above shall at the time of discharge of a person from its control, enter an order annulling, cancelling or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition. Upon the entry of' such an order the person against whom the arrest has been entered shall be restored to all civil rights lost or suspended by virtue of the arrest, unless otherwise provided in this section, and shall be treated in all respects as not having been arrested.
C. Notwithstanding any other provision of this section to the contrary, the provisions of this section shall in no case be construed to effect in any way whatsoever the practices and procedures in effect on July 29, 1970, relating to the administration of the implied consent law.
D. Whoever violates any provisions of this section shall be punished by a fine of not more than two hundred fifty dollars or by imprisonment of not more than ninety days, or both, if the conviction is for a first violation; second and subsequent violations shall be punished by a fine of not more than five hundred dollars or imprisonment of six months, or both.” (Emphasis added).

The clear language of the statute segregates only D.W.I. arrest records from those which may be expunged. The issue is whether the State may constitutionally accord different treatment to persons arrested but not convicted for driving while intoxicated from those with the same disposition of arrests for other misdemeanors.

Neither the Equal Protection Clause of the Fourteenth Amendment nor Art. 1, § 3 of the Louisiana Constitution of 1974 prevents the State in all eases from according different treatment to different classes. It is only when those classifications are not justified by valid State interests that a denial of equal protection may be found. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1968); Succession of Robins, 349 So.2d 276 (La.1977); Williams v. Williams, 331 So.2d 438 (La.1976). Both the State and the defendant agree that in the present case, there being no “suspect classification” nor “fundamental right” involved, the proper constitutional analysis to be applied is whether the classification created by the legislature bears a rational relation to a legitimate State interest. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976); Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974); McCormick v. Hunt, 328 So.2d 140 (La.1976); Chabert v. Louisiana High School Athletic Assn., 323 So.2d 774 (La.1975). The fact that a “privilege” is involved rather than a right is of no consequence. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Chabert v. Louisiana High School Athletic Assn., supra.

The general purposes of the expungement statute were recently discussed by this court in State v. Sims, 357 So.2d 1095 (La.1978). While the discussion also dealt with a related construction of C.Cr.P. 894, it is nevertheless pertinent to the present issues:

“The primary purpose of the acts in question is rehabilitative. They were designed to prevent individuals aided by their terms from future harassment and embarrassment by virtue of a criminal record. Without the expungement order involved, for instance, the matters of their arrests and convictions are public records open to public inspection; they thereby are made available to members of the public generally, as well as to credit bureaus, prospective employers, and others. La.R.S. 44:1, 3; La.C.Civ.P. art. 251. The primary evil sought to be remedied by the statutes was to expunge the arrest and conviction as a matter of public knowledge and information and as an ordinary police or criminal ‘record’ of the person involved.” 357 So.2d at 1098.

Two arguments have been advanced as justification for denying only those arrested for D.W.I. the benefits of expungement. The State first argues that D.W.I. arrest records must be retained so that they will be available for use in license revocation proceedings conducted by the Department of Public Safety under the provisions of R.S. 32:414. Specifically, the State refers to the provisions of R.S. 32:414(D)(4) and (5), which provide:

“D. The department may conduct an investigation to determine whether the license shall be suspended, cancelled or revoked upon a showing by its records or other sufficient evidence that the licensee:
(4) Is an habitually reckless or negligent driver of a motor vehicle;
(5) Is incompetent to drive a motor vehicle;

The State’s argument is faulty. Under our law evidence of an arrest is generally inadmissible because it constitutes nothing more than an accusation based upon the opinion of the arresting officer. Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968); Davis v. Bankston, 192 So.2d 614 (La.App.3d Cir. 1966); Pugh, Work of Appellate Courts, Evidence, 28 La.L.Rev. 436 (1968). The arrest record, therefore, could not be used against the license holder in a revocation proceeding, so the justification advanced by the State is without merit.

The State next argues that it is justified in excluding D.W.I. arrests from the provisions of the expungement statute because of the effect of C.Cr.P. 894 on habitual motor vehicle offender proceedings under R.S. 32:1472. R.S. 32:1471-1478 prohibit driving by and licensing of persons convicted of certain numbers of certain offenses within a five year period.

C.Cr.P. 894 provides:

“A. When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of one year or such shorter period as the court may specify.
When a suspended sentence in excess of ninety days is imposed, the court may also place the defendant on probation under the supervision of the Department of Corrections, division of probation and parole for a period not in excess of two years and upon such conditions as the court may fix.
The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.
B. When the imposition of sentence has been suspended by the court, as authorized by this Article, and the court finds at the conclusion of the period of suspension that the defendant has not been convicted of any other offense during the period of the suspended sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period.” (Emphasis added).

Under this article, if the defendant successfully completes the probation suspension period then the court may set the conviction aside and dismiss the prosecution. The dismissal in all respects has the effect of an acquittal except that it may be used as a first offense in later prosecutions. The article is clearly intended as a rehabilitative device which restores all of the defendant’s civil rights and prevents the exploitation of a prior criminal record. State v. Sims, supra. Only when the defendant commits a later offense which makes him susceptible of prosecution as a multiple offender can his prior record be used against him. Department of Public Safety proceedings under R.S. 32:1472 are not “prosecutions;” they are civil proceedings (State v. Page, 332 So.2d 427 (La.1976)). Therefore, an offense for which the imposition of sentence has been suspended under C.Cr.P. 894(B) and subsequently set aside cannot be used in a departmental habitual motor vehicle offender revocation action. Such conviction can only be used in a “subsequent prosecution of the party as a multiple offender.” C.Cr.P. 894. The second justification offered by the State for the exclusion of D.W.I. arrest records from the expungement statute is also without basis.

The State has failed to demonstrate any rational basis for the different treatment afforded D.W.I. misdemeanor arrests. Accordingly, the trial court’s judgment declaring the last sentence of R.S. 44:9(A)(2) unconstitutional as a denial of equal protection is affirmed.

      . From the record before us it appears that the State was unable to prove that the defendant was the driver of the car at the time of the arrest.

      . It does not escape us that the beneficial effect of expungement will be somewhat limited for this defendant by the publication of this opinion.

      . It should be noted that only convictions, not acquittals, can be used under R.S. 32:1472, so no evidence of this defendant’s arrest record would be available for use in such a proceeding.