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Six Little Letters
tenure (ten'yer)
1. The status of holding one's position on a permanent basis without periodic contract renewals; example: a teacher granted tenure on a faculty.
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Despite its benign and somewhat boring definition, the word "tenure" has become a flash point of controversy in recent years. To one camp, tenure for teachers gives them academic freedom to pursue research and to teach as they see fit. To another camp, it is an outdated idea that keeps poor teachers in the classroom and negatively impacts education.
These two camps battled when a constitutional challenge was raised to a 2012 state law designed to make it more difficult for public school teachers to earn and retain tenure. The changes to the tenure rules were part the Jindal administration's education reform package which also included "vouchers," another small word that generates intrigue.
On March 4th, the trial court ruled that the tenure law was unconstitutional because it included multiple "objects" in one legislative "bill." This widely-reported decision was appealed to the Louisiana Supreme Court.
On May 17th, the Louisiana Supreme Court in separate "voucher" litigation addressed the requirement that a bill have only one "object." See Louisiana Federation of Teachers v. State of Louisiana, 13-0120 (La. 5/7/13), __ So. 3d ___. This same "one object" issue was also present in the tenure litigation. Because the parties and the trial court did not have access to the Supreme Court's analysis in Louisiana Federation (which was released after the tenure ruling), the Supreme Court has remanded the case back to the trial court to allow consideration of the decision. It remains to be seen what impact, if any, the Louisiana Federation voucher ruling will have upon the constitutionality of the tenure law.
What is clear is that "tenure" will remain an interesting word for some time.
Constitutional Law
Louisiana Supreme Court
Resource
JUNE 2013 LEGAL UPDATE
PREMISES LIABILITY- In Honore v. Family Dolar Stores of Louisiana, Inc., 2013-93 (La. App. 3 Cir. 6/12/13), the plaintiff tripped on a hole in a parking lot. Family Dollar did not own the property, which was leased from a third party. The plaintiff sought to hold Family Dollar liable despite its non-ownership of the parking lot.The lease signed by Family Dollar Stores provided that it was authorized to step in and fulfill any obligation not performed by the third-party lessor. The plaintiff argued that this provision rendered Family Dollar liable because it did not repair the hole in the parking lot despite its employee's knowledge of the defect. This argument was rejected and Family Dollar's Motion for Summary Judgment was granted. In upholding summary judgment, the 3rd Circuit reasoned that the mere fact that Family Dollar had the contractual ability to fulfill the landlord's duties did not impose an obligation to do so.EVIDENCE- In Housing Authority of New Orleans v. King, 2012-1372 (La. App. 4 Cir. 6/12/13), the 4th Circuit overturned an eviction predicated upon a "one strike" lease provision authorizing termination of a lease for criminal activity. The tenant had been arrested for allegedly interfering with a police investigation, battery on a police officer and related conduct. The tenant denied the allegations.At the eviction hearing, the housing authority offered no evidence or testimony. The trial court, in granting the eviction, relied upon a police report which was not entered into evidence. On appeal, the 4th Circuit overturned the eviction holding that the arguments of counsel, while "artful," did not constitute evidence and that the trial court cannot consider evidence not properly offered and admitted.ANIMALS- the plaintiff in Smith v. Kopynec, 2013 WL 2476543 (La. App. 1 Cir. 6/7/13) sued when she was injured and her pet schnauzer killed by a Pit Bull owned by the son of a couple who resided in the same neighborhood as the plaintiff. The Pit Bull "Boondocks" escaped from the defendants' residence shortly before the attack. The plaintiff had been attacked by Boondocks a few days earlier. In response, the dog was removed by Animal Control only to be reclaimed by its owner (the son) prior to the second incident.The parents of the dog's owner moved for and were granted summary judgment on the basis that they were not aware of Boondocks' presence at their property on the date of the attack. They factually demonstrated that they had advised the son to get rid of the dog and attested to a belief that he had done so. As non-owners of the dog, the parents could not be held "strictly liable" for the dog under Civil Code Article 2321. However, they could be liable if they were aware of the violent propensities of the dog on their land and failed to act reasonably in response.In opposing summary judgment, the plaintiff correctly argued that summary judgment is rarely appropriate where a court must determine "subjective facts" such as intent, motive or knowledge or where the court must determine "the reasonableness of the acts and conduct of parties under all the facts and circumstances of a case." Nevertheless, the 1st Circuit felt that the testimony of the parents must be accepted where no evidence showed that they knew of the presence of the dog or had any legitimate reason to reject the son's claim that he had gotten rid of the dog.
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Were You Lying Then, Or Are You Lying Now?
Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.
Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied?
Helm: Yes!
Sir Wilfrid: And now today you've told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now?
Whether in court, deposition or on the big screen, the impeachment of witness creates drama-the kind of drama opposing attorneys try to avoid.
In O'Dwyer v. Our Lady of the Lake, -- So. 3d ---, 2013 WL 2131763 (La. 5/17/13), the Louisiana Supreme Court was asked to decide whether audio recordings of a defense witness must be disclosed before the deposition of the witness. The O'Dwyer plaintiff was a nursing student who alleged that she had been targeted for termination from the nursing program through "harassment, bullying, stalking, and intimidation."
O'Dwyer's attorney sought to depose the nursing program director. The defendant sought production of audiotaped conversations between the program director and another student before the deposition was allowed, and successfully obtained a written order that the audiotapes be produced. The First Circuit denied the plaintiffs' writ, but writs were granted by the Louisiana Supreme Court.
The O'Dwyer Court looked to prior jurisprudence. In Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So. 2d 1164), the Supreme Court held that a defendant was not required to produce surveillance of the plaintiff until after the plaintiff's deposition. The Court highlighted the "important function in the search for truth" served by surveillance. After all, the value of the surveillance could be minimized were a plaintiff able to view the evidence and tailor his or her testimony to match. Therefore, the evidence was viewed as potential impeachment evidence and could be withheld prior to deposition.
In Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La. 2/22/07), 950 So. 2d 654, the Court refused to extend Wolford to the production of video which captured the accident itself. Video of the accident upon which the plaintiff sued was direct evidence and not primarily impeachment evidence. Therefore, it had to be produced prior to the plaintiff's deposition.
In O'Dwyer, the Court concluded that the audiotapes were made for impeachment and therefore need not be produced until after the nursing director's deposition. Justice Weimer, in dissent, challenged the characterization of the audiotapes as exclusively impeachment evidence. He cited to the language of the writ application which described the tapes as "unique evidence that may be used for direct or impeachment evidence at trial."
O'Dwyer indicates that a court may look to the primary function of the evidence in deciding its discoverability. The fact that the audiotapes may serve as direct evidence did not require their production when their primary function was impeachment.
Evidence
Louisiana Supreme Court
Insight
Court Cannot Vouch for Voucher Funding
The Louisiana Supreme Court has ruled 6-1 that the funding method for the private school tuition voucher program approved by the Legislature last year is unconstitutional under La. Const. art. VIII, Sect. 13(B). The decision leaves uncertain the status of the approximately 8,000 students who had been approved for vouchers for the 2013-2014 school year.In Louisiana Federation of Teachers et al. (No. 2013-CA-0120), the Court held that once funds are dedicated to the state's Minimum Foundation Program for public education, the Constitution prohibits the use of those funds for the tuition costs of nonpublic schools and nonpublic entities. The Court reasoned that it could not sanction the voucher program's funding method when the source of those funds specifically mandated that they be spent on public education. The Court rejected the argument that the voucher program violated the constitutional requirement that a legislative bill have only "one object."The voucher program was part of a 2012 school reform program that allowed the State to offer vouchers to a large number of Louisiana students and to expand the number of privately managed charter schools.The Jindal administration has pledged to continue the program. In response to the ruling, Jindal stated, "We're disappointed the funding mechanism was rejected, but we are committed to making sure this program continues and we will fund it through the budget."The passing of the voucher program legislation was a high-profile affair prominently covered by local and even national media. In this context, the Court felt it advisable to confirm the Supreme Court's role in approving or rejecting legislation. The first page of the opinion includes the following quote:
The determination of how to best provide for the education of children is not the role of the court in this matter. We defer that determination to those more learned in the fields of education and public policy. The court's role is to evaluate the law set forth in the constitution to determine whether the matters addressed by the legislature comply with the relevant constitutional provisions and "not to legislate social policy on the basis of our own personal inclinations." State v. Smith, 99-0606, 99-2094, 99-2015, 99-2019, p. 11 (La. 7/6/00), 766 So. 2d 501, 510. [Emphasis added]
One might reasonably expect that this will not be the last time the Louisiana Supreme Court will be asked to consider the voucher program.
Constitutional Law
Louisiana Supreme Court
Insight
What Happens Outside of Vegas?
The United States Supreme Court recently granted writs in a case that could affect the minimum contacts test used to find jurisdiction were a similar case brought in Louisiana. See Walden v. Fiore, 688 F. 3d 558 (2011). In Walden, the United States Supreme Court will decide whether to uphold the Ninth Circuit's ruling that a court may exercise personal jurisdiction over a defendant whose primary contact with the forum state was his knowledge that the plaintiffs had connections to that state.
In Walden, airline passengers sued a DEA agent who allegedly violated their Fourth Amendment rights in seizing $97,000.00 in cash. At least some of the cash was won on a gambling trip to San Juan, Puerto Rico. The plaintiffs boarded the plane in San Juan with a planned stop in Atlanta in route to Las Vegas.
Once in Atlanta, a drug-detection dog "alerted" to one of the plaintiff's bags. The bags were searched and the $97,000.00 was seized under suspicion of a connection to drug activity. Nevertheless, the plaintiffs were allowed to board their flight to Las Vegas and were promised return of the cash if they could establish its legitimacy.
It was alleged that one of the officers prepared and/or helped to prepare an allegedly false probable cause affidavit to facilitate the forfeiture of the cash to the government. Ultimately, the cash was returned.
The suit was filed in Nevada and was dismissed for lack of personal jurisdiction. In refusing jurisdiction, the District Court cited to the fact that the agent's conduct was "expressly aimed" at Georgia.
On appeal, the Ninth Circuit Court of Appeals, using a three-part test derived from Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802(9th Cir. 2004), held that the allegations were sufficient to satisfy the "forum-related conduct" prong of the test for specific jurisdiction. Therefore, Nevada jurisdiction was reasonable.
The Ninth Circuit agreed that the officer's seizure of the cash was "expressly aimed" at Georgia and did not support jurisdiction. However, the Ninth Circuit believed that the false probable cause affidavit aspect of the case supported jurisdiction in Nevada.
The Court reasoned that the officer was aware of the plaintiffs' significant connections with Nevada because: the plaintiffs had told the officer that they were going to Las Vegas; some of the funds originated from Las Vegas; and, background checks were run on the plaintiffs after they returned to Nevada. Under these facts, the Court concluded that the officer expressly aimed his conduct at Nevada when he prepared the affidavit and thus subjected himself to the jurisdiction of a Nevada Court.
The facts of Fiore set the stage for an important jurisdictional ruling.
Constitutional Law
Jurisdiction
Louisiana Supreme Court
Resource
MAY 2013 LEGAL UPDATE
MERCHANT LIABILITY- In Orr v. Academy Louisiana Co., LLC, 2012-1411 (La. App. 3 Cir. 5/1/13), - So.3d-, the Third Circuit held that La. R.S. 9:2800.6 (the "merchant liability statute") is "not all inclusive with relation to merchant negligence liability." The defendants argued that the lower court erred when it did not examine the facts of the case under the terms of the merchant liability statute, and instead awarded the plaintiff damages based upon general negligence principles. The Court highlighted that a merchant has a general duty to exercise reasonable care for the safety of its patrons. Therefore, under Orr, a case can be decided after conducting a duty-risk analysis without mention of La. R.S. 9:2800.6, at least when the case does not involve keeping "aisles, passageways and floors in a reasonably safe condition."Nevertheless, the Court reversed the trial court's decision and granted summary judgment for the defendant merchant. In Orr, the plaintiff/shopper was injured when another customer took a bicycle test ride in the store. The Court held that it was not foreseeable that a customer would ride a bicycle from the bike display to the other side of the store where the plaintiff was injured. As such, the defendant/merchant was not negligent.INSURANCE- In Wiley v. Cornerstone National Insurance Company, 2012-0909 (La. App. 1 Cir. 4/25/13), the First Circuit examined an insurer's obligation to inform its insured of a cancellation of its policy under LSA-R.s. 22:166. Cornerstone argued that its policy had been cancelled for non-payment of premium prior to the underlying incident. Cornerstone contended that the "anticipatory" "Notice of Cancellation" included in its billing invoices was sufficient to provide its insured notice of cancellation as required by statute. The Court disagreed.The notice statute was enacted to protect the insured and the public from unnoticed termination of insurance coverage. To meet this end, it requires "an unconditional, unequivocal notice of cancellation." Notices of cancellation for nonpayment sent with every premium invoice, when there is not yet a basis for cancellation, do not satisfy the terms of the statute. When Cornerstone sent the "notice of cancellation," it was sending a bill for payment, not initiating cancellation of the policy. As such, the policy at issue had not been validly cancelled.SUMMARY JUDGMENT PROCEDURE- In Christakis v. Clipper Const., LLC, 2012-1638 (La. App. 1 Cir. 4/26/13), - So. 3d -, the First Circuit upheld the trial court's grant of summary judgment because the plaintiff could not establish that the defendant knew or should have known that a floor mat created anunreasonably dangerous condition. The plaintiff's affidavit included only conclusory allegations of fact and did not show that the plaintiff could carry his burden of proof at trial.On appeal, the plaintiff argued that summary judgment was premature because discovery was not complete. The Court noted that, while parties must have a fair opportunity to conduct discovery, "there is no absolute right to delay action on a motion for summary judgment until discovery is complete." Suit was filed over three years prior to the hearing on the motion for summary judgment.
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A Presumption of Constitutionality
The Louisiana Supreme Court recently upheld as constitutional two statutes requiring the registration of sex offenders even when applied to a person who was found not guilty by reason of insanity. See State of Louisiana v. Isaiah Overstreet, Jr., 12 - 1854 (La. 3/19/13). While an ultimate resolution of this issue would cause the Court to measure the asserted personal interests of the defendant against the public's interest in safety, the defendant's challenges were rejected because he failed to properly raise and brief the constitutional issues.
In Overstreet, it was factually established that the defendant attempted to force himself upon co-eds at two universities. After his arrest, he was diagnosed as schizophrenic and consistently denied any recollection of the crimes. Overstreet was found not guilty by reason of insanity and continued in state-run mental facilities for over a decade until filing a Motion to be Released in 2010. The motion was denied as a consequence of his refusal to participate in sex offender treatment.
When he inquired about the potential release to a group home, he was advised that he would have to register as a sex offender. He then moved to declare LSA-R.S. 15:541(7) and 15:542 (the sex offender registration statutes) unconstitutional.
The Trial Court struck down the statutes as an affront to the Louisiana Constitution, giving conflicting oral and written reasons in support of the ruling. The Trial Court later explained in a per curiam opinion that the primary concern is one of capacity and that it would be unjust to require registration from one lacking capacity to do so.
At the Supreme Court, the defense attorney argued that an application of the registration statutes to Overstreet would violate due process and equal protection because he had not been convicted as a sex offender. In response, the State argued that a finding of not guilty by reason of insanity is not equivalent to an acquittal and that the registration statutes are not punitive but instead are designed to protect the public. The State contended that the defendant was a "sex offender" irrespective of the not guilty by reason of insanity defense.
The Louisiana Supreme Court did not address the merits of these positions. Instead, the Court held that the defendant had not sufficiently particularized the grounds for a constitutional challenge. The Court reasoned that legislation is presumed constitutional. As a result, if a party desires to challenge the constitutionality of a statute, that party must raise the unconstitutionality and specifically plead the basis of the alleged unconstitutionality.
The Overstreet Court reversed the Trial Court because it is the challenger's duty to sufficiently raise the constitutional objections. In so doing, the Court disregarded the Trial Court's sua sponte ruling ("on its own motion") that the sex offender registration statutes were unconstitutional because the Trial Court did not have the authority to raise these challenges.
While Overstreet did not resolve the ultimate issues of the constitutionality of the sex offender statutes in this setting, it did define the issues which would likely guide its decision should the issue ever be properly raised before the Court.
Constitutional Law
Louisiana Supreme Court
Insight
Impact of Supreme Court's Recent "Open and Obvious" Ruling not Obvious
The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.
To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.
Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.
In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.
The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.
The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.
The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.
Louisiana Supreme Court
Negligence
Slip and Fall
News
Mary Anne Wolf presents at a seminar entitled BUILDING CODES in LOUISIANA
Mary Anne Wolf will present at a seminar entitled BUILDING CODES in LOUISIANA on April 12th in Scott, LA. The seminar offers CE credit for architects, engineers, and contractors. For information, visit www.lorman.com/ID373571.
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Class Actions in a State of Undress
Almost no litigation grabs attention and headlines more than a high-profile class action. The Louisiana Supreme Court's recent class action ruling was no exception in a case involving salacious conduct and a violation of privacy.
The plaintiff in Jane Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13) was an unnamed victim of a "peeping tom." She contended that an employee of a popular gym placed a pen camera in the women's bathroom where he would tape unsuspecting women in various states of undress. The pen camera could hold only 1-2 hours of film. The perpetrator testified that, after viewing, he would immediately delete the footage. The images of only four women were seen on the footage when it was discovered. After the employee was arrested, one of the victims filed the class action lawsuit. At issue before the Louisiana Supreme Court was whether the class action was properly certified by the Trial Court.
Class action is a nontraditional litigation procedure that was introduced into Louisiana civil procedure in 1961. Louisiana class action procedure is modeled after the original federal rule and has been extensively revised since its inception. Louisiana Code of Civil Procedure Article 591 provides the elements that must be met before a class action can be certified. Failure to meet one of the threshold requirements of Article 591 precludes class action treatment. Once of these threshold requirements is numerosity, i.e. a class of potential plaintiffs "so numerous that joinder of all members is impractical." La. C.C.P. art. 591(a)(1). The requirement of numerosity was at issue in Jane Doe.
In its analysis, the Supreme Court stressed that courts must perform a rigorous analysis to determine whether the proposed class action meets the requirements of Article 591. Simply pleading a class action is insufficient. Instead, the plaintiff "must be prepared to prove in fact" that the Article 591 requirements are met. Id. at p. 9. To establish the "numerosity" requirement, the class representative cannot simply allege that several persons were affected by the defendant's bad acts. She must be able to offer some proof of a definable group of aggrieved persons so numerous that joinder is impractical.
In Jane Doe, the Supreme Court held that the plaintiff did not satisfy numerosity. The employee's testimony revealed that he may have recorded approximately 20 women. However, because the footage was deleted, most of the potential class members could not show that their privacy had been violated. Only nine women had positive knowledge that they were on video. According to the Jane Doe Court, nine class members did not meet the numerosity requirement and the class was decertified. While the Court did not reveal a "magic number" to meet numerosity, we now know it may be higher than nine.
There is an old adage that "bad facts make bad law." In Jane Doe, the Louisiana Supreme Court did not let the egregious nature of the conduct impact its view that the requirements of Article 591 must be met in every circumstance.
Class Actions
Louisiana Supreme Court
Resource
APRIL 2013 LEGAL UPDATE
INSURANCE- In Byrnside v. Hutto, 2013 WL 692474, the Second Circuit affirmed a decision excluding insurance coverage for injuries sustained by the plaintiff in a bar fight. The Court held that, where the actions of the defendant were intentional and reasonably calculated to produce harm or injury, coverage for such injuries is excluded under the intentional acts exclusion contained in the policy. The Court indicated that the intentional acts exclusion would not have applied in the case of self-defense. However, the factual finding that the defendant ordered the persons holding the plaintiff to release him, only to then "immediately hit Byrnside in the face" offered ample factual support for the rejection of self-defense.PRESCRIPTION- In Howard v. Mamou Health Resources, 2013 WL 811676, the Third Circuit affirmed an exception of prescription in favor of a "qualified health care provider" as defined in Louisiana Revised Statutes title 40, section 1299 et seq, where the plaintiff filed suit in district court against the health care provider within a year of the incident, but failed to file a claim with the Patient's Compensation Fund within that time period. The Court found that the timely filing of suit against a qualified health care provider in the district court neither suspends nor interrupts the one-year prescriptive period for the filing of medical malpractice claims.PUNITIVE DAMAGES- In Rachal v. Brouillette, 2013 WL 950355, the Third Circuit was presented with evidence that the defendant/tortfeasor was under the influence of hydrocodone and marijuana and that his impairment caused him to strike a mother and her two children walking near the roadway. The jury awarded substantial damages including $100,000 in punitive (exemplary) damages.The Third Circuit cited to the principle that an award of punitive damages will not be disturbed on appeal absent a showing that the jury's decision was manifestly erroneous or clearly wrong. Nevertheless, the Court held that the award of $100,000 was abusively low under the facts presented and increased the punitive award to $500,000. The defendants argued that no punitive damages were recoverable because the tortfeasor had only a "small amount" of drugs in his system and was not impaired. In rejecting this argument, the Court stated:"This 'small amount of drugs' was apparently enough to cause Mr. Brouillette to drive erratically at a high speed, kill three people, and not remember any of it."In support of its decision, the Court cited to a wide range of facts including the fact that the tortfeasor's prior conviction for driving while intoxicated had not served as a sufficient deterrent.
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