Making a constitutional argument about the implied consent law in opening statement and closing argument without a motion or briefing it is insufficient. Yet, remanded so he can do it again. [Not in most states; it would be denied and not remanded.] Bloom v. State, 2018 La. App. LEXIS 1770 (La. App. 1 Cir. Sep. 20, 2018):
Asserting the unconstitutionality of Louisiana’s Implied Consent Law as applied to him during opening and closing arguments at the trial of his petition for judicial review without raising the claim in a pleading is insufficient, particularly since DPSC has not been afforded an opportunity to brief and argue the issue. See Williams, 671 So.2d at 902 (where the state agency was provided formal notice of intent to attack a statute, failed to raise any objection, and did not request a delay in the proceedings to argue and brief the issue, because the claim was not asserted in a formal pleading, the trial court’s declaration of unconstitutionality was vacated). In the interest of justice, the matter is remanded to the district court for further proceedings on the issue of the constitutionality of Louisiana’s Implied Consent Law as applied to Bloom. See La. C.C.P. art. 2164; Vallo, 646 So.2d at 866.