author: MARCUS, Justice. LEMMON, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Darryl WILLIAMS.
    No. 80-KA-2662.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Jeffrey Hollingsworth, Ralph Roy and Kay Kirkpatrick, Asst. Dist. At-tys., for plaintiff-appellee.
    Vincent Wilkins, Jrs., M. Michele Fournet, Asst. Public Defenders, Baton Rouge, for defendant-appellant.
   MARCUS, Justice.

Darryl Williams and Robert Smith were charged in the same information with the armed robbery of Diana Phillips on August 23, 1979 in violation of La.R.S. 14:64 (count one). Williams was also charged in that information in a separate count with the armed robbery of the same victim, Diana Phillips, on August 13, 1979 (count two). After a joint trial by jury, Williams was found guilty as charged on both counts while Smith was found not guilty on the one count on which he was charged. Thereafter, Williams was sentenced to serve thirty-five years at hard labor without benefit of parole, probation or suspension of sentence on count one and fifteen years at hard labor without benefit of parole, probation or suspension of sentence on count two. The court expressly directed that the sentences be served consecutively.

Williams designated four errors to be urged on appeal. However, Assignments of Error Nos. 1, 3 and 4 were neither briefed nor argued; therefore, we consider them to have been abandoned. In the sole remaining assigned error (Assignment of Error No. 2), defendant contends the trial judge erred in denying his motion for a severance of offenses. He argues that he was prejudiced by the joinder for trial of the two armed robberies.

The first robbery occurred on August 13, 1979. Diana Phillips was working alone at the Dairy Queen located at 3344 Highland Road in Baton Rouge. A black male came in between 8:30 and 8:45 p.m. and bought a coke. He then walked to the rear of the store, but soon returned to the counter and asked for change for the juke box. Ms. Phillips advised him that the machine would make change. He walked away but returned again and stated that he had lost his money in the juke box. When Ms. Phillips opened the cash register to refund his money, the man pulled out a gun and ordered her to give him all the money. Too frightened to comply, she backed up and watched the man take approximately $200 from the cash register.

The second armed robbery occurred on August 23, 1979 (ten days later). At about 8:30 p.m., two black males entered the same Dairy Queen. Diana Phillips was working again that night. One of the men purchased a coke and . then walked to the rear of the store. Before Ms. Phillips could close the cash register, the other man pulled out a gun. He then reached into the cash register and took about $200. Ms. Phillips recognized him as the same man who had robbed her ten days before. Meanwhile, the man who purchased the coke entered the store’s office and took a bank deposit bag containing approximately $145. The men then left together.

Diana Phillips was the victim and only witness to these two crimes. At a photographic lineup conducted on August 28, 1979, she identified Darryl Williams as the person who had robbed her twice. At a physical lineup conducted on September 14, 1979, Ms. Phillips again identified defendant.

Prior to trial, defendant moved for a severance of the two offenses. The trial judge denied the motion considering that defendant would not be prejudiced by the joinder of the two armed robberies of the same victim at the same place ten days apart.

Two or more offenses may be joined in the same information in a separate count for each offense under La.Code Crim.P. art. 493 if the offenses charged

are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, the offenses charged, two counts of armed robbery, are of the same or similar character. Moreover, since the punishment for each offense is necessarily confinement at hard labor, the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. La.Code Crim.P. art. 782. Hence, the offenses were properly joined in the same information. La.Code Crim.P. art. 493.

When an accused has been charged in the same information with two or more offenses pursuant to art. 493, he may apply for severance of offenses under La.Code Crim.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

Such a motion is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. State v. Washington, 386 So.2d 1368 (La.1980). Considerations for the trial court in determining whether prejudice may result from joinder include, according to Washington,

whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

In State v. Carter, 352 So.2d 607 (La.1977), we held that art. 495.1, as it read at that time, normally required severance when the offenses were joined solely because they were of the “same or similar” character unless evidence of each offense would have been respectively admissible at the separate trial of the other. In Washington, we held that Carter still remained viable as a criterion for judging when there is a strong possibility of prejudice, even though art. 495.1 had been amended. However, under the new article, a severance need not be granted if the prejudice could be effectively avoided by other safeguards. Thus, a severance is not mandated simply because the offenses would not be admissible at separate trials if the defendant is not “prejudiced” by the joinder. We have held that there is no prejudicial effect from the joinder of two or more offenses when the evidence of each offense is relatively simple and distinct, even though such evidence might not have been admissible in separate trials of the offenses because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations. State v. Washington, supra; State v. Robinson, 404 So.2d 907 (La.1981).

In Washington, the defendant was charged with four counts of attempted aggravated rape. After trial by jury, he was found guilty on all counts. We held that, although the evidence of each crime was simple, the trial court’s instruction offered little guidance to the jury in order to prevent it from cumulating the evidence. Thus, we reversed defendant’s convictions. In Robinson, the defendant was charged with two counts of armed robbery of different victims at the same store on separate occasions. After trial by jury, he was found guilty on both counts. We held that the defendant was not prejudiced by a single trial of the two offenses because the jury was instructed that defendant was charged with separate offenses requiring separate verdicts as to each offense and that in deliberating it should consider “defendant’s guilt or innocence as to each individual count independently and separately of all other counts of the indictment.”

In the instant case, the two armed robberies, although of the same victim at the same location some ten days apart and although identity was a genuine issue at trial, the offenses were not so unique as to qualify as “signature crimes.” Thus, the offenses would most probably not have been admissible under the Prieur rationale. Therefore, it is necessary to determine whether the jury knew that defendant was charged with separate offenses requiring separate verdicts as to each offense and that the evidence of one offense could not be considered as evidence of the other offense. The jury was properly instructed that defendant was charged with two separate armed robberies and was furnished a verdict form setting forth the two counts of armed robbery with their respective dates and requiring the rendition of separate verdicts as to each offense. A separate verdict form was furnished as to Robert Smith. Admittedly, the trial judge did not instruct the jury that the evidence of one crime could not be used in determining defendant’s guilt of the other; however, under the circumstances of this case, defendant was not prejudiced by the absence of such an instruction. The evidence presented as to defendant’s guilt of the two offenses was extremely simple and consisted of only the out-of-court identification of defendant by Diana Phillips made after both robberies had occurred. Consequently, there was no evidence for the jury to improperly cumu-late. Hence, no jury instruction to that effect was needed in this case. Moreover, the acquittal of Robert Smith, who was charged along with defendant for the August 23 armed robbery (but not the August 13 robbery), indicates that the jury was capable of considering multiple offenses without inferring a criminal disposition or becoming hostile.

We are convinced that defendant was not prejudiced by the joinder of these offenses for trial. Accordingly, the trial judge did not abuse his discretion in denying defendant’s motion for severance.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

The evidence of defendant’s August 13 robbery of Diana Phillips would have been admissible at a separate trial of his August 23 robbery of the same victim, because that evidence had extremely great probative value on a material issue in dispute, namely the reliability of Diana Phillips’ identification of the-August 23 robber. Because the evidence that defendant committed the earlier robbery shows more than that defendant was a “bad man”, the probative value of this independently relevant evidence outweighs its undeniable prejudicial effect, and the evidence was admissible. State v. Humphrey, 412 So.2d 507 (La.1982).

Therefore, the trial court properly denied the motion to sever.

CALOGERO, Justice,

dissenting.

I agree with the majority determination that the two offenses were properly joined in the same bill of information. I disagree, however, with the majority’s conclusion that defendant was not prejudiced by the joint trial of these offenses, especially when, as the majority notes, the evidence of one robbery would “most probably not have been admissible under the Prieur rationale” in the- separate trial of the other.

There is likely to be inherent prejudice to a defendant when the jury hears evidence of more than one offense because the jurors may view defendant as one predisposed toward criminal behavior. Additionally, they may be tempted to find guilt on one or another, or all of the charges, based upon the multiplicity of charges and evidence in a situation in which, when considered separately, the evidence supportive of each individual charge may fall short of being beyond a reasonable doubt. Therefore, our law provides a procedural vehicle for a defendant to move that the offenses, although properly joined, be severed for trial. The 1975 legislature, which enacted La.C.Cr.P. art. 493 concerning joinder, also enacted article 495.1 regarding severance, a statute which has since been amended but read in 1975:

The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense ...

In State v. Carter, 352 So.2d 607 (La.1977), we held that article 495.1, as it read at that time (see above), normally required severance when offenses were joined solely because they were of the “same or similar” character unless evidence of each offense would have been respectively admissible at the separate trial of the other. We discussed how our enactment differed from both the federal rule on severance of jointly charged offenses and the American Bar Association Standards for severance. The federal rule allowed the trial judge discretion in fashioning relief if he determined that a defendant would be prejudiced by being tried for multiple offenses in a single trial. Conversely, the ABA Standards offered a defendant an absolute right to severance when the offenses were joined solely on the basis of being of the same or similar character. Our severance provision fell somewhere between the two, mandating that the judge grant a severance, but only after defendant demonstrates that he will be prejudiced by the joint trial. However, in our view, as expressed in Carter, defendant could demonstrate prejudice by showing that the joined offenses were not legitimate “other crimes” under La.R.S. 15:446 and therefore evidence would not be respectively admissible in separate trials.

After our decision in Carter, the Legislature amended La.C.Cr.P. art. 495.1 to read:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

This new version more nearly tracks the language of the federal provision concerning severance.

In State v. Washington, 386 So.2d 1368 (La.1980), we considered the effect of the above amendment on our holding in Carter. Regarding the legislation as an obvious attempt to adopt the federal rule as to severance, we turned to the federal jurisprudence for guidance. We observed that in the federal system:

the defendant has a heavy burden of proof when he alleges prejudicial joinder. United States v. Allstate Mortgage Corporation, 507 F.2d 492 (7th Cir. 1974). A motion for relief from a prejudicial join-der is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of that discretion. United States v. Olson, 504 F.2d 1222 (9th Cir. 1974); United States v. Ziperstein, 601 F.2d 281 (7th Cir. 1979). Thus, in order for an appellate court to reverse the trial court’s ruling, there must be a showing of clear prejudice. United States v. Bowman, 602 F.2d 160 (8th Cir. 1979). 386 So.2d at 1371.

Considerations for the trial court in determining whether prejudice may result from joinder include, according to Washington:

whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. See Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); United States v. Weber, 437 F.2d 327 (3rd Cir. 1970). 386 So.2d at 1371.

We noted that in general federal courts have fashioned a rule whereby crimes which are not admissible in separate trials ordinarily should not be tried together. The reason for this practice is well stated in Drew v. United States, 331 F.2d 85 at 89, 90 (D.C.Cir. 1964):

It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose. The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable, (footnotes omitted)

Nevertheless, federal courts have found that not all such situations require severance. “Where the parties and the judge through an orderly presentation of the evidence and careful and precise instructions, limit the possible prejudice brought about by joinder, severance may not be mandatory.” Washington, supra, at 1372.

In Washington, we concluded that Carter remained viable as a criterion for judging when there is a strong possibility of prejudice. However, in our opinion, the new article allowed the trial court more flexibility in fashioning relief from possible prejudice. Consequently, we held that under the new article, a severance need not be granted if the prejudice could effectively be avoided by other safeguards.

Despite the holding that severance was no longer mandatory, we reversed Washington’s convictions because we found that the trial court did abuse its discretion in denying the motion for severance. We observed the dissimilarity in the methods of committing the four charged offenses and found that evidence of any one crime would not have been admissible in the separate trial of another. Furthermore, we noted that although the evidence of each crime was simple and distinct, the trial judge’s instruction offered little guidance to the jury in order to prevent the members from cumulating the evidence. The trial judge gave an instruction which did little more than advise the jury that they were to bring in separate verdicts on each count:

This defendant is charged with four counts of Attempted Aggravated Rape. You may render any combination of verdicts you find appropriate from the law and evidence. You are not obligated to find the defendant guilty on all counts or not guilty on all counts. You may find the defendant guilty on all counts or not guilty on all counts, or you may find any possible combinations of guilty verdicts to each count, or you may find the defendant not guilty on one count and return one of the possible guilty verdicts on the other counts.
More simply stated, you should return the verdict as to each count you feel the facts and the law dictate. However, you are to reach one separate verdict as to each of the four counts. 386 So.2d at 1373, n.4

In affirming convictions in State v. Robinson, 404 So.2d 907 (La.1981), we again stressed the importance of the trial judge’s instruction in a case in which evidence of the joined offenses would not have been respectively admissible in separate trials. In Robinson, however, unlike Washington, the trial judge had clearly admonished the jury to consider guilt or innocence as to each individual count independently and separately:

The defendant at bar is charged under a two count indictment. Each count charges the defendant with a separate and distinct offense under the laws of Louisiana. In deliberating, you, the jury should consider the defendant’s guilt or innocence as to each individual count independently and separately of all other counts of the indictment. Thus, it would be possible to render a verdict of guilt as to one count while returning a verdict of innocence as to the other count. It would also be possible to return a verdict of guilt as to both or a verdict of innocence as to both counts if you so find. 404 So.2d at 910, 911.

In the case at bar, I agree with the majority determination that evidence of one crime would not have been admissible in a separate trial of the other. The two armed robberies were not committed in a similar manner. A single perpetrator was involved in the first offense; while the second robbery was done by two men. According to the victim, different guns were used in the two robberies. Furthermore, the fact that the same store was the scene of both robberies does not make evidence of either one respectively admissible in a separate trial of the other. Ms. Phillips testified that the Dairy Queen store had been robbed a third time only a few days after the second robbery, but that the perpetrator of this third robbery was white. In this respect, the case before us is similar to Drew, supra, which reversed convictions for an armed robbery and an attempted armed robbery of neighborhood dairy stores. The court observed that stores of that variety are particularly vulnerable to this kind of crime because they are usually staffed with only one or two female clerks. In the court’s view, this rendered less significant the fact that the crimes both occurred when there were no customers in the store and at about the same time of day. The court said: “These circumstances all fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort.” 331 F.2d at 93.

In the case before us although the crimes are not legitimate “other crimes,” the trial judge may not have abused his discretion in denying defendant’s motion for severance, if he were to have fashioned other effective means to avoid prejudice. At the very least, the trial judge must, as was stated in Washington and Robinson, clearly instruct the jury to consider defendant’s guilt or innocence for each charged offense separately. The jury must be cautioned not to cumulate the evidence against the defendant.

In my opinion the trial judge in the instant case did not give a sufficient jury instruction to protect defendant’s presumption of innocence on each charge. The judge merely informed the jurors that they must return two verdicts. There was no admonition not to cumulate the evidence of the two robberies. This instruction falls even shorter than the one in Washington which we found to be inadequate, and far short of Robinson which we found an adequate safeguard. Not only was the jury not given sufficient cautionary instructions against cumulating the evidence against the defendant, but the jury was provided with a single verdict sheet on which to record both verdicts. Without a limiting instruction to the jury informing the jurors to consider the evidence of each charged offense separately and return a verdict on each charge without regard to the evidence of the other charge, and absent the fashioning of other effective relief to offset the obvious prejudice to defendant of being tried in a single trial for offenses, evidence of which would not have been admissible in separate trials, I believe that the trial judge was required to have severed the charges for trial.

As the court in Drew, supra, summarized:

If separate crimes are to be tried together ... both court and counsel must recognize that they are assuming a difficult task the performance of which calls for a [vigilance] far beyond that required in the ordinary trial. 331 F.2d at 94.

Although we are reviewing the ruling on a motion (to sever) which was made before trial, we do so with benefit of the entire proceedings, including those which followed the ruling. Appellate review of the ruling, under these circumstances, allows us to consider the ruling in light of the care the trial judge took to minimize prejudice to the defendant. Accordingly, considering the inherent prejudice in a joint trial for multiple offenses, the ruling denying separate trials for the two charges, coupled with the failure of the trial judge to fashion protective measures (not even the minimal protection of a jury charge similar to that in Robinson), constituted reversible error in my opinion.

I respectfully dissent.

      . State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . A second clerk was working during the August 23rd robbery but was in the restroom while the robbery was in progress. She did not see the two men.

      . La.Code Crim.P. art. 495.1 provided prior to its amendment by Acts 1978, No. 466, § 1:
      The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
      (a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
      (b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . The federal severance provision is Rule 14 of the Federal Rules of Criminal Procedure which reads:
      If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

      . American Bar Association Standard 2.2 provides in full that:
      (a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses, (b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), should grant a severance of offenses whenever: (i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The court should consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
      American Bar Association Project on Minimum Standards for Criminal Justice relating to Joinder and Severance, Approved Draft, 1968.

      .La.R.S. 15:446 provides:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . The jury may well cumulate evidence of the two offenses even when the evidence consists of no more than identification of defendant.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    STATE ex rel. Helen T. BAILEY v. CITY OF WEST MONROE.
    No. 81-KH-1184.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      Lee E. Ineichen, Jr., Indigent Defender Board, Monroe, for defendant-relator.
    James A. Norris, Jr., City Atty., West Monroe, for plaintiff-respondent.
   BLANCHE, Justice.

Defendant was charged with disturbing the peace, simple battery, and resisting arrest in violation of West Monroe City Ordinances. Initially defendant appeared in court without counsel and was found guilty as charged in the City Court of West Monroe. After an appeal to the Fourth Judicial District Court, her conviction and sentence were reversed and remanded to the City Court. Defendant was determined to be indigent and counsel was appointed; she was tried again in a bench trial and found guilty as charged.

The head cashier at Fred’s Department Store, located in McMillan Mall in West Monroe, gave testimony regarding the events leading up to the arrest of defendant’s daughter which, in turn, led to defendant’s own arrest. She stated she was working as a cashier at the cheek out counter of Fred’s and noticed a teenaged girl, later identified as defendant’s daughter, enter the store and proceed to the film rack about fifteen feet from the check out counter. She then saw defendant’s daughter pick up a roll of film from the rack and proceed to walk out of the store with the film. However, when defendant’s daughter noticed that the cashier was watching her, she returned and asked the cashier if she could get a refund on the film. When defendant’s daughter could not produce a receipt, they then went to talk the matter over with the store manager, who advised that she could not obtain a cash refund without a cash receipt, though she could exchange the film. Defendant’s daughter was not interested in the exchange, and left the store with the film.

The cashier then told the manager what she had observed and, with this information, the manager summoned the assistant manager to watch the store and call the police while he followed defendant’s daughter. About 15 to 20 minutes later, defendant’s daughter was observed entering Beall’s Department Store, which is located next to Fred’s Department Store.

Captain Stanley of the West Monroe Police Department testified that, when he arrived, the assistant manager told him what had occurred and the two left the store to locate defendant’s daughter at Beall’s. When they found her, Captain Stanley advised her of her rights, arrested her, and took her back to Fred’s Department Store for interrogation. Two shoppers in Fred’s at that time overheard Captain Stanley’s attempts to interrogate defendant’s daughter and recognized her as the daughter of a woman they had seen earlier in Beall’s. One of the shoppers went to Beall’s and notified defendant that her daughter was being arrested in Fred’s.

Upon learning of her daughter’s plight, the defendant entered the store and confronted Captain Stanley, who advised her that he was going to arrest her daughter for shoplifting. Defendant’s attitude at that time became belligerent, and she responded that he was not going to arrest her daughter nor take her anywhere. Captain Stanley testified that he carefully explained to defendant that she could accompany her daughter to the police station and that the girl would be released to defendant after the booking procedures were completed. Defendant responded by continually coun-selling her daughter not to give the officer any identification. Captain Stanley testified that he repeatedly told defendant to stop interfering with the investigation or she would be arrested. When Captain Stanley noticed a crowd of people begin to gather, he called for assistance.

The defendant then inquired about what was stolen and was told that it was film. She requested that her daughter be searched by one of the bystanders, but this search did not produce the film. In a short time, two additional policemen, Officer Traweek and Major Naron, responded to the call and, after their arrival, defendant continued to tell her daughter not to answer any questions. At that point, Captain Stanley formally placed defendant under arrest. The defendant began fighting when they attempted to handcuff her, but she was subdued and defendant and her daughter were then transported to the correctional center.

When they arrived at the center, Major Naron went to assist defendant out of the police vehicle. She seemed calm while seated but, as she moved out, she became violent and kicked Naron several times. After leaving the vehicle, defendant began walking down the street but the officers restrained her and directed her back to the jail.

Assignments of Error Numbers 1, 2 and 3

Defendant’s first three assignments of error are consolidated into one argument. By these assignments, she contends that (1) her daughter’s arrest was illegal; (2) she had the right to advise her daughter, a juvenile, to resist the allegedly illegal arrest; and (3) defendant’s arrest for instructing her daughter to resist the arrest was illegal and, therefore, she had the right to resist her own arrest. Resolution of these assignments depends upon the legality of the arrest of defendant’s daughter, which was the precipitating factor in the conduct which resulted in the charges against defendant.

The arrest of a suspected shoplifter is provided for in C.Cr.P. art. 215, which states, in part, as follows:

A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.

Although C.Cr.P. art. 215 provides that an officer may arrest a suspected shoplifter upon “reasonable grounds”, we are of the opinion that this phrase is synonymous with probable cause when used in the context of an arrest rather than a detention. This interpretation is consistent with jurisprudence which has interpreted “reasonable cause” for an arrest in C.Cr.P. art. 213 as the equivalent of probable cause. C.Cr.P. art. 213 specifies the circumstances under which an arrest by an officer without a warrant is lawful, and states that an officer may arrest a person without a warrant when he has “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.” In State v. Drew, 360 So.2d 500 (La.1978), this Court stated:

Reasonable cause, which we have treated under this article [213] as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.

Under our interpretation of “reasonable grounds” in C.Cr.P. art. 215(A), a suspected shoplifter’s arrest must be based upon probable cause.

C.Cr.P. art. 215 further provides that a complaint from a merchant or his employee constitutes “reasonable cause” for an arrest. In this context, “reasonable cause” is also the equivalent of probable cause, and the officer may arrest a suspected shoplifter upon the complaint of a merchant without independently ascertaining the facts supporting the merchant’s complaint. Though not relevant to our inquiry here, we note that, if a merchant does abuse the right and acts unreasonably to cause the arrest of another, the injured party will have a civil action against the merchant for damages. Hardin v. Barker’s of Monroe, Inc., 336 So.2d 1031 (La.App. 2nd Cir. 1976); Brasher v. Gibson’s Products Co., Inc., 306 So.2d 842 (La.App. 2nd Cir. 1975).

An officer summoned to the scene of an alleged shoplifting incident often does not have time to evaluate for himself whether or not the underlying facts establish probable cause to support the merchant’s accusation that shoplifting has occurred and still have the opportunity to apprehend the suspect. Accordingly, he must rely upon the complaint of a merchant or his employee and this complaint alone is sufficient to establish probable cause for the officer to make the arrest. However, the legality of that arrest is still dependent upon whether the facts known to the merchant are sufficient to establish probable cause.

Probable cause to arrest exists when facts and circumstances are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Randolph, 337 So.2d 498 (La.1976). In the case at bar, the actions observed by the cashier were sufficient to establish probable cause for the arrest. She observed defendant’s daughter enter the store without film, saw her pick up film from the rack, was distracted by a customer and, when she looked back, observed defendant’s daughter heading out of the store with the film she reasonably believed was taken from the store’s film rack. The cashier stated that, when defendant’s daughter saw she was being watched, she returned and asked for a refund, but could not produce a receipt. Defendant’s daughter did not have a purse when she entered the store, but she was wearing a coat and, though it is possible she had the film in her coat pocket, the facts observed by the cashier were sufficient to justify a person of ordinary caution in believing that defendant’s daughter was guilty of shoplifting. Probable cause, and not absolute certainty, is the test to be applied in judging the validity of an arrest, and all possible lawful explanations of a situation need not be negated before making an arrest. State v. Winfrey, 359 So.2d 73 (La.1978); State v. Phillips, 347 So.2d 206 (La.1977). The arrest of defendant’s daughter was based upon probable cause and was, therefore, legal.

Defendant’s conviction for resisting an officer was based upon West Monroe City Ordinance article 70, which defines resisting an officer as “the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of the property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property or serving process is acting in his official capacity.” It also provides that the phrase “obstruction of”, as used in the ordinance, “shall in addition to its common meaning, signification and connotation mean: ... (3) Refusal by the arrested party to give his name and make his identity known to the arresting officer.” Section (3) makes it clear that defendant’s daughter did not have the right to refuse to give the arresting officer her name, and the defendant’s instruction to that effect constituted the offense of resisting an officer. Defendant’s conduct would be included in the common meaning of the term “obstruction” and, thus, would be prohibited by the article as “the intentional obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest when the defendant knew the person making the arrest was acting in his official capacity.”

Defendant’s arrest for resisting an officer was for instructing her daughter not to give her name to the officers rather than for counselling her not to incriminate herself as defendant contends. Undoubtedly, a parent would have the right to instruct a child to exercise any lawful right; however, that is not the situation presented by this case. Defendant did not have the right to direct her daughter to resist an officer by refusing to give her name pursuant to a legal arrest. Defendant’s arrest for resisting an officer was legal; therefore, her conduct following the arrest which resulted in the other charges against her, including shouting profanities and kicking an officer, was not justified as resistance to an unlawful arrest.

These assignments are without merit.

Assignment of Error Number 4

By this assignment defendant contends her sentences were excessive.

Even though a sentence is within the statutory range, it may still violate a defendant’s right against excessive punishment and is subject to this Court’s appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The maximum possible sentences for each offense for which defendant was convicted were a fine not to exceed $500 and confinement for a term not to exceed 6 months, or both, together with court costs. Defendant was fined $50 and costs, or 10 days in jail for disturbing the peace; $150 and costs, or 30 days in jail for simple battery; and $200 and costs, or 40 days in jail for resisting an officer.

In imposing sentence, the trial court noted that defendant has no prior history of criminal conduct. It also appears that there were circumstances tending to excuse defendant’s conduct, though failing to establish a defense, because she felt she was protecting her daughter. However, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. The sentence imposed for disturbing the peace is not apparently severe and the sentences imposed for simple battery and resisting an officer do not appear to be an abuse of the trial court’s discretion because of the relatively serious nature of these offenses.

This assignment is without merit.

Assignment of Error Number 5

In this assignment, defendant argues she was prejudiced by ineffective assistance of counsel. The issue of ineffective assistance of counsel is more properly raised by writ of habeas corpus. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Malveaux, 371 So.2d 820 (La.1979); State v. Anthony, 347 So.2d 483 (La.1977).

This assignment is not properly before the Court at this time.

Accordingly, defendant’s convictions and sentences are affirmed.

AFFIRMED.

LEMMON, J., concurs.

      . The officer did not formally arrest defendant’s daughter until they returned to Fred’s. However, he testified he would not have allowed her to walk off after he approached her in Beall’s Department Store; therefore, she was technically under arrest at that time. State v. Wichers, 392 So.2d 419 (La.1980); State v. Morvant, 384 So.2d 765 (La.1980).

      . This construction of reasonable cause in the context of an arrest does not, of course, affect our previous holding that reasonable cause for an investigatory detention is something less than probable cause. State v. Hudgins, 400 So.2d 889 (La.1981).

      . West Monroe City Ordinance 70 is similar to R.S. 14:108, which also defines refusal by an arrested party to give his name and make his identity known to the arresting officer as resisting an officer.


author:
DENNIS, Justice. MARCUS, Justice
      CALOGERO, Justice, BLANCHE, Justice

text:
    William HOEFLY & Joann C. Hoefly v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.
    No. 81-C-2770.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      A. R. Snell, Fayard & Snell, Bossier City, for applicant-plaintiff.
    Roland J. Achee, Nelson & Achee, Ltd., Samuel W. Caverlee, Cook, Yancey, King & Galloway, Shreveport, for respondent-defendant.
   DENNIS, Justice.

The question presented by this case is whether an automobile accident victim’s uninsured motorist carrier is solidarily obliged with the tortfeasor so that the victim’s timely suit against the latter interrupts prescription with regard to the insurer. The court of appeal affirmed the trial court’s judgment sustaining the insurer’s plea of prescription, holding that the plaintiffs’ timely suit against two tortfeasors, one uninsured and another underinsured, failed to interrupt prescription because the uninsured motorist insurer and the tort-feasors were not solidary obligors. We reverse. An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. When these characteristics result from provisions of law, as in the case of the obligation of the tortfeasor and uninsured motorist carrier, an obligation in solido exists without requiring an express declaration. Consequently, the plaintiff’s timely and properly filed suit against the tortfeasors interrupted prescription as to his uninsured motorist carrier.

This suit arises out of an automobile accident which occurred on November 1, 1976, when Mrs. Joann C. Hoefly was struck and injured by an automobile driven by Kim Lewiston, a minor, as Mrs. Hoefly was getting out of her own vehicle. On October 12, 1977, Mrs. Hoefly and her husband filed this suit against Neftalí Rodriquez, the owner of the automobile driven by Kim Lewiston, Mrs. Margaret C. Lewiston, the mother of Kim Lewiston, and Government Employees Insurance Company, Mrs. Lewiston’s liability insurer. In their original and amended petitions the plaintiffs alleged that Kim Lewiston was negligent in operating the vehicle without an operator’s license, failing to maintain proper speed and control of the vehicle, and in failing to discover a defective condition in the vehicle. Plaintiffs also alleged that Rodriquez was negligent in allowing an unlicensed minor to operate the vehicle, failing to maintain the vehicle in proper working condition and in seizing the steering wheel from the minor just before the accident. On September 5, 1980, plaintiffs filed an amended and supplemental petition naming Allstate Insurance Company, the Hoeflys’ uninsured motorist carrier, as a defendant and alleging that Rodriquez was an uninsured motorist and that the insurance provided by Government Employees to Mrs. Lewiston was insufficient to pay for all of the damages sustained by plaintiffs. Allstate filed a peremptory exception of prescription which was sustained by the trial court. Plaintiffs appealed and the court of appeal affirmed. 403 So.2d 853 (La.App. 2d Cir. 1981). We granted certio-rari to review the appeals court’s holding that “[a]n uninsured motorist carrier is not liable in solido with the tort-feasor; therefore the filing of suit against the tort-fea-sor and/or his liability insurer does not interrupt prescription against the uninsured motorist carrier of the injured party.” Id. p. 854-855.

Allstate’s plea of prescription is based on the circumstance that the accident occurred on November 1, 1976, whereas the amended and supplemental petition naming it as a defendant was not filed until September 5, 1980. It is thus urged that the action for recovery of damages sustained in a motor vehicle accident brought pursuant to uninsured motorist insurance coverage has prescribed, having been filed more than two years after the date of the accident in which the damage was sustained. La.R.S. 9:5629 (Supp.1977). The plaintiffs, however, rely upon the timely institution of their suit against Mr. Rodriquez, Mrs. Lewi-ston and her insurer as an interruption of prescription.

In our opinion, the trial court and the court of appeal incorrectly decided that Allstate’s plea of prescription should be sustained. The timely and proper filing of the suit against Mr. Rodriquez, Mrs. Lewiston and her insurer prevented the accrual of prescription against them. La.R.S. 9:5801 provides: “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. * * * ” Since the original filing of the suit interrupted prescription against Mr. Rodriquez, Mrs. Lewiston and her insurer, it also interrupted prescription against Allstate. “A suit brought against one of the debtors in solido interrupts prescription with regard to all.” La.C.C. art. 2097. Although the court of appeal held, and Allstate contends, that the filing of suit against the tortfeasor and his liability insurer does not interrupt prescription against the uninsured motorist carrier of the injured party, we are constrained to disagree.

Under Civil Code Article 2091, “[t]here is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.” When an obligation fulfills this definition and contains these ingredients, the obligation is in solido. Sampay v. Morton Salt Co., 395 So.2d 326 (La.1981); Foster v. Hampton, 381 So.2d 789 (La.1980); Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973); Thomas v. W. W. Clarklift, Inc., 375 So.2d 375 (La.1979) (Dennis, J., concurring); Wooten v. Wimberly, 272 So.2d 303 (La.1972) (Tate, J., concurring and Barham, J., dissenting); Kern v. Travelers Insurance Co., 407 So.2d 2 (La.App. 4th Cir. 1981); Granger v. General Motors Corp., 171 So.2d 720 (La.App. 3d Cir. 1965); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960); The Work of the Louisiana Appellate Courts for the 1973-1974 Term — Obligations, 35 La.L.Rev. 280, 297 (1975). As we analyze the obligation in this case, it satisfies the prerequisites for a solidary obligation.

The tortfeasor and the uninsured motorist carrier are obliged to the same thing. A tortfeasor is obliged to repair the damage that he has wrongfully caused to the innocent automobile accident victim. La.C.C. art. 2315. Subject to conditions not granted the tortfeasor, the uninsured motorist carrier is independently obliged to repair the same damage. By effect of the uninsured motorist statute, La.R.S. 22:1406(D)(1)(a), and its insuring agreement, the plaintiffs’ uninsured motorist carrier is required to pay, subject to statutory and policy conditions, amounts which they are entitled under other provisions of law to recover as damages from owners or operators of uninsured or underinsured motor vehicles. By effect of law and the terms of the insuring agreement, therefore, both the uninsured motorist carrier and the tort-feasor are obliged to the same thing. The Work of the Louisiana Appellate Courts, 1974-1975 Term — Obligations, 36 La.L.Rev. 375, 379-380 at n. 23; The Work of the Louisiana Appellate Courts for the 1967-1968 Term — Insurance, 29 La.L.Rev. 253, 257 (1969); The Work of the Louisiana Appellate Courts for the 1966-1967 Term — Insurance, 28 La.L.Rev. 372, 373-374 (1968).

The tortfeasor and the uninsured motorist carrier each may be compelled for the whole. The principal result of solidarity is to prevent the division of the debt and to obligate each debtor for the whole, as if he were alone. 2 M. Planiol, Civil Law Treatise, pt. 1, no. 745 (11th ed. La.St.L.Inst. trans. 1959). This essential element of solidarity, that each debtor may be compelled for the whole, means simply that the debtor who has been sued cannot plead the benefit of division, which was invented for the benefit of sureties whereby the creditor is required to divide his action between them. This is covered expressly in Article 2094 because under the ancient law several attempts had been made to extend benefit of division to solidary co-debtors. That each debtor is held for the whole, i.e., unable to plead the benefit of division, is solidarity’s most direct consequence. 2 M. Planiol, supra, no. 746.

This requisite of solidarity is satisfied in the case of the uninsured motorist and the tortfeasor because neither may plead the benefit of division, as if each were alone. To permit the tortfeasor or uninsured motorist carrier to plead the benefit of division would be inimical to the legislative aim of the uninsured motorist statute. The object of that legislation is to promote full recovery for damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. Bond v. Commercial Union Assur. Co., 407 So.2d 401, 407 (La.1981) (on rehearing); Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580, 28 A.L.R.3d 573 (1968). The statute is to be liberally construed to carry out this objective of providing reparation for those injured through no fault of their own. Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1974); Elledge v. Warren, 263 So.2d 912 (La.App. 3d Cir. 1972); Valdez v. Fed. Mut. Ins. Co., 272 Cal.App.2d 223, 77 Cal.Rptr. 411 (1969). The legislation cannot be construed, therefore, to benefit the insurer and the tortfeasor by requiring the accident victim to divide his action between them.

The uninsured motorist carrier is obliged differently from the tortfeasor because its liability is conditioned by the tortfeasor’s total or partial lack of liability insurance, the type of damage he has caused and any limits in the insurer’s policy that are permitted by law. Contrary to Allstate’s arguments, however, the terms and conditions which have been allowed the uninsured motorist carrier by law and by contract, while the tortfeasor is bound pure and simple, do not prevent the uninsured motorist carrier and the tortfeasor from being obliged to the same thing or being unable to plead the benefit of division. “The obligations may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.” La.C.C. art. 2092. See, American Bank and Trust Co. v. Blue Bird Rest. & Lounge, Inc. 290 So.2d 302 (La.1974); Pearson v. Hartford Accident & Ind. Co., 281 So.2d 724 (La.1973); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960).

For similar reasons, the fact that the uninsured motorist carrier is bound by the combined effect of the tortfeasor’s wrongful act, the uninsured motorist statute, and the carrier’s delivery or issuance for delivery of automobile liability insurance, while the tortfeasor is obliged merely because of his delict, does not prevent there being an obligation in solido on the part of the debtors. The obligation may be in solido even though the obligations of the obligors arise from separate acts or by different reasons. La.C.C. arts. 2091, 2092. Pearson v. Hartford Accident & Ind. Co., supra. Granger v. General Motors Corp., supra; Hidalgo v. Dupuy, supra; Finance Security Co. v. Williams, 42 So.2d 310 (La.App. 1st Cir. 1949); Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1171 (5th Cir. 1978); Avondale Shipyards v. Vessell Thomas E. Cuffe, 434 F.Supp. 920, 932 (E.D.La.1977); Developments in the Law, 1979-1980 — Obligations, 41 La.L.Rev. 355, 357 (1981).

When payment is made by either the tortfeasor or the uninsured motorist carrier the other is exonerated toward the creditor as to the solidary obligation. This is a direct consequence of each debtor being obliged to the same thing so that each may be compelled for the whole, as if he were the sole debtor. 4 C. Aubry & C. Rau, supra, p. 27. Moreover, the underlying purpose of both delictual responsibility and uninsured motorist coverage is to promote and effectuate complete reparation, no more or no less. Accordingly, as to the debt to which the tortfeasor and uninsured motorist carrier are solidarily obliged, payment of it by one exonerates the other toward the creditor.

When an obligation by effect of law contains the requirements or fulfills the definition of Article 2091, the obligation is in solido and the law from which it results need not state that the obligation is solida-ry. “Article 2093 provides that ‘[a]n obligation in solido is not presumed; it must be expressly stipulated.

This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.’ ” The first paragraph of Article 2093 dealing with conventional solidarity, requires that it be expressly stipulated. But it is otherwise with regard to the second paragraph of the same article which, dealing with legal solidarity, admits it in all cases where it results from a provision of law, without requiring an express declaration. 4 C. Aubry & C. Rau, Droit Civil Francais, § 298b Note 13 (6th ed. Bantin) in A. Yiannopoulos, 1 Civil Law Translations 24 (1965); Cline v. Crescent City R. Co., 41 La.Ann. 1031, 6 So. 851 (1889); Hidalgo v. Dupuy, supra; Finance Security Co. v. Williams, supra. The previous expressions to the contrary by this court in Wooten v. Wimberly, 272 So.2d 303 (La.1973) and Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948), which have received scholarly criticism, Wooten v. Wimberly, supra (Tate, J., concurring and Barham, J., dissenting); The Work of the Louisiana Appellate Courts, 1972-1973— Obligations, 34 La.L.Rev. 231 (1974); Note, The Nonsolidness of Solidarity, 34 La.L. Rev. 648 (1974); Comment, Prescribing Solidarity: Contributing to the Indemnity Dilemma, 41 La.L.Rev. 657, 674-676, and have been substantially undermined, Sampay v. Morton Salt Co., supra; Foster v. Hampton, supra; Kern v. Travelers Insurance Co., supra, are now expressly overruled.

The solidary obligation in the present case results primarily from provisions of law, viz., the general rules of delic-tual responsibility, La.C.C. arts. 2315, et seq., and the uninsured motorist statute, La.R.S. 22:1406(D). Although an insurer must deliver or issue for delivery automobile liability insurance in order to be bound, the basic ingredients of the obligation are provided and required by law. Under these circumstances, the obligation is solidary by operation of law, without requiring an express declaration.

Allstate argues that the conclusion we have reached will cause all effects of solidarity to be applied in uninsured motorist cases. Care should be taken by civilian attorneys and jurists to be on guard against applying one segment of the code in isolation from others. Neither the Civil Code nor the revised statutes were intended to be applied in this manner. A full delineation of the relationship between the tortfeasor and the uninsured motorist carrier after payment of the debt owed by them solidarily is beyond the scope of this case. However, it is clear that the Civil Code recognizes that debtors, although solidarity bound for the creditor’s benefit, may have differing relationships among themselves. The conclusion that debtors are solidarily bound does not alone determine the rights and obligations of the debtors in relation to each other. La.C.C. arts. 2103, 2104, 2106; 2 M. Planiol, supra, nos. 767-771; Wooten v. Wimberly, supra (Tate, J., concurring). The Work of the Louisiana Appellate Courts for the 1972-1973 Term — Obligations, 34 La.L.Rev. 231, 233 (1974).

For the foregoing reasons, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

CALOGERO, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor. La.Civ.Code art. 2091. An obligation in sol-ido is not presumed; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law. La.Civ.Code art. 2093. I do not consider that an injured party’s U/M carrier is liable in solido with the tortfeasor. U/M coverage is a contract whereby the insurer agrees to indemnify the insured in the event that the insured is injured by a tortfeasor who is uninsured or underin-sured. There is no relationship, contractually or otherwise, between the U/M carrier and the tortfeasor. The obligation of the tortfeasor to repair the damage that he has caused is not the same as the obligation of the U/M carrier under its insurance contract. Moreover, there is no provision of law which makes the U/M carrier liable in solido with the tortfeasor. Compare La. Civ.Code art. 2324 which makes joint tort-feasors “answerable in solido.” Accordingly, I respectfully dissent.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion because in my view the requirements for solidarity expressed in La.C.C. art. 2091 are not met in this case; the payment by one of the debtors (uninsured motorist carrier) does not exonerate the other (tortfeasor).

La.R.S. 22:1406(D)(4) does not grant the uninsured motorist carrier, which pays its insured in the appropriate case, the right of legal subrogation. To the contrary, the provision only gives the uninsured motorist carrier a right of reimbursement from “the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person [the insured] against any person or organization legally responsible for the bodily injury for which such payment is made.” Thus, under this provision, there is no exoneration of the tortfeasor because of payment by the uninsured motorist carrier. The victim/insured may assert his claim against the tortfeasor with a right in the uninsured motorist carrier to be reimbursed from the insured out of any recovery.

Insofar as the insured and the insurer may contract in the policy to give the insurer a right to conventional subrogation [See Niemann v. Travelers Ins. Co., 368 So. 1003 (La.1979) and Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), on rehearing], the tortfeasor is not exonerated toward the claimant by the payment by the uninsured motorist carrier. At best it can be said that the conventional subrogation effects an assignment of the claimant’s right against the tortfeasor to the uninsured motorist carrier.

BLANCHE, Justice

(dissenting).

Louisiana law requires all insurers to extend uninsured motorist coverage to their insureds, unless such coverage is explicitly waived by the insured. Under the uninsured motorist portion of an insurance policy, the uninsured motorist carrier contracts to indemnify the insured, in the event the insured is injured by a tortfeasor who is unable to fully respond in damages. The sole basis of the uninsured motorist carrier’s liability to the insured remains the contract of insurance, to which the tortfeasor is not a party.

The majority opinion correctly notes that “[a]n obligation in solido is not presumed; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.” Civil Code Art. 2093. In erroneously concluding that the relationship between the uninsured motorist carrier and the tortfeasor is one of legal solidarity, the majority completely ignores the absence of a most vital element present in all other cases of legal solidarity. There must be some relationship between the two parties who are to be held solidarily liable. The solidary relationship between an employer and his employees is premised upon the employment relationship which exists between these parties. A principal becomes solidarily liable with his agent by virtue of their unique relationship. The solidary relationship of a liability insurer and its insured is founded upon the vital contract of insurance which binds these two parties.

In all other cases in which legal solidarity arises, there exists some relationship between the parties who are held solidarily liable. By contrast, there is no relationship, contractual or otherwise, between the uninsured motorist carrier and the tortfeasor. A solidary relationship between the uninsured motorist carrier and the tortfeasor does not exist by virtue of some provision of the law; rather, it is purely the creation of the majority opinion. Such judicial legislation is beyond the bounds of our authority. By the express provisions of C.C. art. 2093, we cannot presume a solidary relationship where none is intended to exist.

For the foregoing reasons, I respectfully dissent.

      . Since this court has rejected the distinction between “perfect” and “imperfect” solidarity, Foster v. Hampton, supra at 791, we need not analyze the nature of the present obligation from this standpoint, although the exercise may prove interesting from an historical and academic perspective. See 2 M. Planiol, Civil Law Treatise, pt. 1, nos. 777-779 (11th ed. La.St.L.lnst. trans. 1959); 4 C. Aubry & C. Rau, Droit Civil Francais, § 298b (6th ed. Bartin) in A. Yiannopoulos, 1 Civil Law Translations 20-21 (1965); The Work of the Louisiana Appellate Courts for the 1967-1968 Term — Insurance, 29 La.L.Rev. 253 (1969); The Work of the Louisiana Appellate Courts for the 1973-1974 Term — Obligations, 35 La.L.Rev. 291 (1975); The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Obligations, 36 La.L. Rev. 375 (1976); Comment, Solidary Obligations, 25 Tul.L.Rev. 217 (1951); Comment, Prescribing Solidarity: Contributing to the Indemnity Dilemma, 41 La.L.Rev. 657 (1981).

      . Compare C.C. art. 2324, which establishes a solidary relationship between joint tortfeasors.


author: DENNIS, Justice. CALOGERO, J., BLANCHE, Justice

text:
    Mary K. MATTHEWS and Jack Matthews v. INSURANCE COMPANY OF NORTH AMERICA, et al.
    No. 81-C-1888.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    Steven Lemoine, New Orleans, for plaintiff-applicant.
    Steven B. Whitman, Gary Zwain, New Orleans, Edward P. Lobman, Metairie, Johnston & Duplass, Clayton Borne, III, Metairie, Sessions, Fishman, Rosenson, Snellings & Boisfointaine, Walden Michale Hingle, New Orleans, for respondent-defendant.
   DENNIS, Justice.

This suit arises out of an automobile accident which occurred on May 7, 1976, when Mrs. Mary Matthews’ vehicle was struck by an automobile driven by Joy Hansen, a minor, causing Mrs. Matthews injuries. On April 21, 1977, the Matthews filed suit against Joy Hansen, Mr. Ed C. Hansen, Joy’s father, and Insurance Company of North America, alleged to be Mr. Hansen’s automobile liability insurer. On November 2, 1979, the plaintiffs filed an amended and supplemental petition naming Allstate Insurance Co., the Matthews’ uninsured motorist carrier, as a defendant and alleging alternatively that Joy and Ed Hansen were not insured at the time of the accident. Allstate filed a peremptory exception of prescription on the basis of La.R.S. 9:5629 (Supp.1977), which precludes suits pursuant to uninsured motorist insurance coverage more than two years after the date of the accident in which the plaintiffs sustained injuries.

In an effort to arrive at a fair method of applying the prescriptive period provided by La.R.S. 9:5629 to plaintiffs’ claim which arose before the effective date of the statute, the district court utilized the theory of “proportionate prescription” and concluded that plaintiffs’ suit against Allstate was timely filed. Pursuant to Allstate’s application, the Fourth Circuit Court of Appeal issued a writ of mandamus directing the trial court to vacate its prior judgment and maintain the plea of prescription. We granted writs to consider plaintiffs’ claim that their timely suit against Joy and Ed Hansen interrupted prescription as regards Allstate because they are solidary obligors.

In Hoefly v. Government Employees Insurance Co., et al., 418 So.2d 575 (La.1982) we held that a tortfeasor which causes an automobile accident victim damage and the victim’s uninsured motorist carrier are solidary obligors because they are obliged to repair the same damage, neither may plead the benefit of division, and the payment by one exonerates the other as to the obligation owed to the victim. La.C.C. art. 2091. Consequently, an automobile accident victim’s timely and properly filed suit against the tortfeasors interrupts prescription as to his uninsured motorist carrier. La.C.C. art. 2097; La.R.S. 9:5801.

In the present case, the Matthews timely filed suit against Joy and Ed Hansen. Because the Hansens and Allstate are solidary obligors for the plaintiffs’ benefit, this suit interrupted prescription against Allstate.

For the reasons assigned herein, and more thoroughly in Hoefly v. Government Employees Insurance Co., supra, the judgment of the district court maintaining Allstate’s peremptory exception of prescription is vacated and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

CALOGERO, J.,

dissents and assigns reasons.

I dissent for the same reasons I assigned in Hoefly v. Government Employees Insurance Co., et al., 418 So.2d 575 (La.1982), rendered this date.

MARCUS, J., dissents for reasons assigned in Hoefly v. Government Employee Insurance Company, 418 So.2d 575 (La.1980).

BLANCHE, J., dissents and will assign reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent for reasons assigned in Hoefly & Hoefly v. Government Employees Insurance Co., et ah, 418 So.2d 575 (La.1982), rendered June 21, 1982.

      . American International Rent-A-Car Corp., the owner of the vehicle driven by Joy and leased to Mr. Hansen, was also named a defendant.


author:
LEMMON, Justice.

      DIXON, Chief Justice

text:
    STATE of Louisiana v. Jeff L. SPENCE.
    No. 81-KA-2398.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Premila Chumbley, Asst. Dist. Attys., for plaintiff- ' appellee.
    Sam J. D’Amico, D’Amico & Curet, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction on two counts of negligent homicide. The principal assignments of error concern radar readings of automobile speed and the testing of the alcohol content of defendant’s blood.

Facts

While patrolling an interstate highway, State Trooper Jones observed a sports car break out from a pack of approaching cars in the opposite lane. His radar system clocked the speed of the vehicle at 76 miles per hour. The trooper turned across the neutral ground and pursued the speeding vehicle.

As they approached an exit, the pursued vehicle slowed down and moved to the right in order to take the exit ramp. When the trooper turned on his red signal lights in an attempt to pull the vehicle over, the driver accelerated to a speed of approximately 80 mph. The trooper also accelerated at first, but then slowed when he realized that the pursued vehicle would have difficulty entering the heavy traffic on the boulevard at the exit. The vehicle continued at a high rate of speed through the yield sign at the boulevard. Unable to make the sharp turn, the driver attempted to brake and skidded through the northbound lane of the boulevard, hit the raised median, and literally flew into another vehicle. The impact killed two of the passengers in the other car.

Defendant, the driver of the sports car, was a 19-year-old student at Southeastern Louisiana University at the time of the accident. Before leaving Hammond to drive to Baton Rouge, defendant had drunk a quantity of “jungle juice”. His blood alcohol content was measured at 0.06% two hours after the accident.

Assignment of Error No. 2

Defendant contends that the trial court erred in denying his motion to suppress the intoximeter test. Specifically, he alleges since the advice of rights form contained the outdated provision that “refusal to submit to this chemical test may also result in the loss of your vehicle registration and license plates”, his consent to submit to the test was improperly, coerced, and the test results should have been excluded from evidence.

Although the form used in this case had not been updated to comport with the amended statute, the form correctly advised defendant that his license would be suspended if he refused (R.S. 32:667) and that his refusal would be used against him in court (R.S. 32:666). Moreover, his constitutional rights were fully explained to him. Under these circumstances, the allegedly inaccurate advice of possible additional consequences was not sufficient to require suppression of the test results.

Defendant also points out that the advice of rights form contained the notation, “if you refuse the test until you can talk to a lawyer, you will still lose your license”. He argues that placement of this clause immediately after the listing of constitutional rights gives the arrested person the impression that he has no such rights, as well as coercing him into submitting to the test.

The clause cannot reasonably be interpreted as implying that an arrested person does not have a constitutional right to consult a lawyer. It merely informs a person that he cannot delay taking the test until he has consulted a lawyer, without incurring the risk that he will lose his license.

The reason for this rule is obvious. The relevant point in time for measuring blood-alcohol content is immediately after the driver is stopped, because the blood-alcohol percentage decreases with the passage of time. Were the result otherwise, the driver could effectively defeat the state’s efforts to conduct a prompt test by requesting that he be given the opportunity to consult a lawyer.

Finally, defendant contends that he could not make a knowing and intelligent decision on submitting to the test because the form did not advise him of the consequences of submission, namely, that the results of the test could be used as evidence against him.

R.S. 32:661(C) does not require such a warning, but only requires that defendant be advised of the consequences of a refusal to submit. The right against self-incrimination is not implicated in the gathering of physical evidence, such as a blood sample for scientific testing, and a warning that such evidence can be used in court is not constitutionally required. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

This assignment of error lacks merit.

Assignment of Error No. 4

Defendant contends that the trial court erred in admitting radar evidence of the speed of defendant’s vehicle without a proper foundation. C.Cr.P. Art. 773. He further submits that the trial court erroneously took judicial notice of the reliability of radar evidence. Defendant argues that in order to permit the introduction of the results of radar devices, it is necessary first to lay a proper foundation by expert testimony as to the accuracy of the particular type of instrument used by the officer.

On direct examination, Trooper Jones was asked to describe the type of radar equipment in his vehicle. Defense counsel was overruled when he objected to the introduction of any evidence concerning the radar equipment without the proper foundation.

The trooper then proceeded to explain in detail how his equipment worked, showing a vast and comprehensive knowledge of the system. He testified that he was qualified by the Federal Communications Commission to operate a radar system, that he was also certified by Kustom Systems, the manufacturer of this particular unit that had been selected and furnished for his use by the Office of State Police, and that he was even responsible for training other state troopers in the use and operation of the radar unit. He further testified that he tested the system by means of tuning forks prior to each shift of duty and that on this particular evening he calibrated and tested his unit, which was in perfect working order.

When the state then asked Jones the speed of defendant’s vehicle as shown on his radar device, defense counsel objected to the admissibility of such evidence. The trial court retired the jury and allowed defense counsel to question the witness on the foundation for admissibility of the evidence. After extensive cross-examination, the trial judge interrupted when defense counsel asked the witness a hypothetical question concerning the functioning of the radar device in a situation involving approaching vehicles, noting that the witness could not testify about hypothetical situations without being qualified as an expert.

The jury was brought back in, and the state continued to lay a foundation. Defense counsel objected again when the witness was asked the speed of the vehicle, and the objection was overruled.

The scientific reliability of radar as a recorder of speed is a proper subject for judicial notice. See Annotation, Proof, By Radar or Other Mechanical or Electronic Devices, of Violation of Speed Regulations, 47 A.L.R.Sd 822 (1973) and the cases cited therein. The accuracy of radar equipment as a method of measuring speed is so widely known and commonly accepted that it is unnecessary to call an expert witness in each case to testify as to this fact. Defense counsel in the present case conceded as much, but attacked the accuracy and reliability of the particular instrument used in this case.

The accuracy of a particular radar unit can be established by showing that the operator tested the device in accordance with accepted procedures to determine that the unit was functioning properly and that the operator was qualified by training and experience to operate the unit.

The use of calibrated tuning forks, furnished by the manufacturer with each unit, is an accepted method of testing to determine that the set is operating properly and measuring accurately. Before he went on duty each day, Trooper Jones tested the set for accuracy with the tuning forks. He testified that on the day of this incident he tested the unit and determined that it was functioning properly.

As to the qualifications of the operator, Trooper Jones testified in detail as to his vast training and experience. Additionally, he was certified to operate the radar equipment by the manufacturer and by the Federal Communications Commission, as noted earlier.

The trial judge properly required the state, upon objection by defense counsel, to lay a foundation for the admissibility of the measurement by radar of defendant’s speed, and correctly concluded that an adequate foundation had been established. Accordingly, there is no merit to the assignment complaining of the admission of the radar evidence.

Assignment of Error No. 5

Defendant contends that the trial court erred in denying his motion for a mistrial when the trooper testified that defendant had resisted arrest. Specifically, defendant argues that such testimony amounted to a legal conclusion or opinion by the witness in violation of R.S. 15:463, which limits testimony to facts known by the witness.

On direct examination, the officer described what he saw and did while at the scene, as follows:

“I stopped by Mr. Spence’s vehicle again. And, I placed handcuffs on his wrists and one around the steering column because I was not able to watch him continually and he was sitting in the car. He was in a dazed condition. I didn’t notice any cuts or lacerations on his face. So I just—so he would not leave the scene because that—what had happened here he had been resisting by flight when_."

Defense counsel objected and moved for an admonition and a mistrial, arguing that the officer had given a legal opinion that defendant’s actions constituted the offense of resisting an officer. The trooper’s statement, in context, was merely an explanation of his decision to handcuff defendant to keep him from leaving the accident, because defendant had previously tried to evade pursuit. The jury could hardly have viewed the testimony as expressing the officer’s opinion of defendant’s guilt of an uncharged crime.

Defendant also contends that the trooper’s statement was an impermissible reference to another crime in violation of C.Cr.P. Art. 770. Defendant’s conduct described by the officer was part of the res gestae, which is always admissible. R.S. 15:447 and 448.

Accordingly, the trial court properly denied defendant’s motion for a mistrial.

Assignment of Error No. 10

Defendant contends that the trial court erred in allowing Trooper Jones to testify on redirect examination that alcohol contributed to the accident. Defendant contends that such testimony was in violation of R.S. 15:463, which provides that a witness can testify only as to facts within his knowledge and may not give an impression or opinion.

During cross-examination, Trooper Jones was asked whether he would have arrested defendant for DWI, had he been an investigating officer and not merely a witness to the collision. Trooper Jones answered affirmatively. When defense counsel attempted to impeach him with a statement he had made during the preliminary hearing, Trooper Jones explained the discrepancy in his statements. Defense counsel’s questioning continued as follows:

“Q. Officer the fact remains that you were an officer on the scene. You had chased this man and you — uh—knew good and well that what you should have done if you drive while intoxicated to have charged him with DWI, isn’t that true?
“A. No, sir, it was a city police investigation, sir. I was simply a witness.
“Q. Suppose you had stopped him and you went up to him and he smelled of alcohol without the accident, wouldn’t you — would you or would you not have charged him with a DWI?
“A. As I stated at a preliminary examination, no, I would not have.”

Defense counsel apparently was not merely questioning the officer about defendant’s intoxication for impeachment purposes, but for the purpose of getting the officer to admit that defendant did not appear intoxicated at the time of the accident. Under such circumstances, it was entirely proper for the state on redirect examination to elicit further testimony on the trooper’s perception of defendant’s alcohol related behavior. Furthermore, even if the specific question calling for an opinion was improper, the officer’s answer could hardly be grounds for reversal of the conviction.

Assignment of Error No. IS

Defendant contends that the trial court erred by not allowing him to question Officer John Barker concerning the authenticity and reliability of the auto-intoximeter tests.

Officer Barker of the Baton Rouge City Police testified for the state as to his training and experience in operating the auto-in-toximeter machine. The court informed defendant that he would be entitled to cross-examine the witness as to the foundation for the administering of this particular test before the witness would be allowed to answer any question concerning the reading on the machine when defendant was tested. At one point in the cross-examination, defendant asked the witness whether he had a certificate from the manufacturer as to the intoximeter’s authenticity. The state objected, stating that the witness had not been offered as an expert in the history of the machine, but merely as the police officer who conducted the alcohol testing. The court sustained the objection and reminded defense counsel to limit his examination to foundation-related questions and to questions concerning compliance with the regulations of the Department of Public Safety.

Defendant correctly argues that the question of the certification of the machine’s reliability was a proper subject of inquiry on cross-examination. However, a certified inspector of these machines, Lawrence Efferson, had testified earlier regarding the recertification of the machine, and the current recertification form was introduced into evidence. Officer Barker simply testified as to his operation of the machine, and he presented the proof of his certification to operate the machine.

We conclude there was no error in the trial court’s refusal to allow defense counsel to question this particular witness on the certification of the machine.

Assignment of Error No. 20

Defendant contends that the trial court erred by not instructing the jury to disregard the results of the auto-intoximeter test, because there was no expert testimony on the interpretation of the machine’s reading presented by the state. Specifically, defendant argues that it was reversible error to allow the jury to consider the fact that defendant had a 0.06% blood-alcohol level.

Officer Barker, who administered the breath test to defendant, testified that the results of the test indicated that defendant had a blood-alcohol content of 0.06 grams percent. When the witness was asked what a 0.06% reading meant in terms of “grams percent”, defense counsel objected, stating that the witness was only qualified to testify as tó the machine reading and not to interpret the results. The court sustained the objection. Defense counsel then requested that the court instruct the jury to disregard the test results. The court denied this request, and defendant now argues that it was reversible error for the jury to consider the fact that defendant had a 0.06% blood-alcohol level.

The essence of defendant’s contention is that the test results should not have been admitted, unless the state produced expert testimony to interpret them.

The present case is distinguishable from State v. Williams, 375 So.2d 931 (La.1979). In this case, the state did not use the presumption that a person with 0.10% or more is under the influence of alcoholic beverages, because defendant’s blood-alcohol level was nowhere near the 0.10% legal presumption level.

The trial judge did not instruct the jury that a finding of 0.10% gave rise to a presumption that the person was under the influence of alcoholic beverages, as occurred in State v. Williams, above. The jury was simply informed that defendant had alcohol in his blood, a fact which could properly be considered with other competent evidence in determining whether defendant was under the influence of alcohol. Moreover, the trial judge did not instruct the jury by reading the arguably unconstitutional presumption in the second paragraph of R.S. 14:32. Rather, he properly informed the jury that “[i]f you find that a person violated a safety law and thereby injured another, you may but are not required to infer that he was criminally negligent”. Under these circumstances, there was no prejudice to defendant in admitting the test results without expert testimony interpreting the results.

The convictions and sentences are affirmed.

DIXON, C. J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur. The results of the blood-alcohol test should not have been admitted, because of the ambiguous, erroneous and unconstitutional threat of the consequences of seeking legal advice. The suppression of the test results, however, would probably not have affected the verdict.

       Judges William Norris, III and Fred C. Sexton, Jr. of the Second Circuit Court of Appeal and Robert L. Lobrano of the Fourth Circuit Court of Appeal participated in this decision as justices pro tempore with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lem-mon.

      . Defendant was sentenced to three years on each count, to run concurrently. The sentences were suspended, and defendant was placed on three years of supervised probation with the following conditions: (1) his driving privileges were suspended for one year; (2) he was required to make restitution to the victims’ families in the amount of $50 per month for three years; (3) he was required to do volunteer work for eight hours per week in an authorized medical treatment facility, preferably in the emergency room; and (4) he was required to remain in pursuit of his college education.

      . Defendant’s other assignments of error involve only settled principles of law and are treated in an unpublished appendix which is attached to this opinion and is a part of the official record.

      . R.S. 32:661 outlines the procedures that must be followed before the results of a chemical test may be used at trial. Section 661(C) provides:
      “C. When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.”
      R.S. 32:896 formerly provided that the registration shall be suspended for all motor vehicles registered in the name of a person refusing to submit to the test, unless that person has or provides proof of financial responsibility with respect to all motor vehicles registered by him. That statute has been amended, but still provides that if a person refuses to submit to the test, the suspended license shall not be reinstated or reissued unless that person provides proof of financial responsibility with respect to all motor vehicles registered by him.

      . The trial judge in this case stated, outside the presence of the jury, that he was taking judicial notice of the reliability of radar.

      . Intoxication, with its attendant behaviorial manifestations, is an observable condition about which a witness may testify. State v. Neal, 321 So.2d 497 (La.1975).

      . R.S. 32:662 provides:
      “A. The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:

        “1. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath or other bodily substance shall give rise to the following presumptions:
      “a. If there was at that time 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.
      “b. If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
      “c. If there was at that time 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.
      “B. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood. “C. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under influence of alcoholic beverages.
      “This section has no application to a civil action or proceeding.”

      . In State v. Williams, above, this court held that the legal presumption of intoxication arising from a finding of 0.10% or more of alcohol in a person’s blood could not be used in a negligent homicide case, because that presumption, combined with the presumption in R.S. 14:32 that violation of a statute is presumptive evidence of criminal negligence, improperly shifts the burden of proof to defendant.
      The court noted, however, that blood-alcohol test results may be admissible, although the combined presumptions are not. The court stated:
      “Nor do we hold that the PEI test result itself is necessarily inadmissible, if otherwise proper under the rules of evidence, including (assuming indeed it is admissible undei evidence law) the requirement of a proper foundation of the reliability of the test and the use of sworn expert opinion testimony to evaluate its results, subject to cross-examination.” Id. at 936.
      Thus, the state was not improperly relieved by a combination of statutory presumptions of its burden of proving beyond a reasonable doubt the essential elements of criminal negligence.