Gilmer & Giglio


I'm being pulled over, can I just swallow the drugs to keep the police from arresting me?

Swallowing your drugs to keep the police from seizing them as evidence is a bad idea for a LOT of reasons. From a legal standpoint:

First, the officer may charge you with obstruction of justice.  The Louisiana Obstruction of Justice Statute is pretty long, but the relevant part says:

“A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as described in this Section:

(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:

(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or

(b) At the location of storage, transfer, or place of review of any such evidence…” 

The punishment for committing obstruction of justice? If the crime you’re trying to cover up is a misdemeanor or non-hard labor felony: a fine of up to $10,000 and imprisonment for up to FIVE YEARS. For hard labor felonies, the punishment is a fine of up to $50,000 and imprisonment up to 20 years. The punishment for first offense simple possession of less than 14 grams of marijuana? A fine of up to $300 and 15 days in jail.

Secondly, just because you swallow the drugs doesn’t mean you can’t be prosecuted for possession of the drug if the officer saw it in your possession before you swallowed it. The officer will be able to testify about what he observed and a jury may still find beyond a reasonable doubt that you possessed a controlled dangerous substance.

If you or someone you know has been arrested for possession of a controlled dangerous substance, call us for a consult at (318) 459-9111.

State Court v. Federal Court

Common Questions regarding State Court and Federal Court:

  1. Is there a difference between State Court and Federal Court?

    Yes, several. State courts have only the authority to handle crimes which are prohibited by their state laws. And only those crimes which occurred within their states and the smaller district divisions of the courts.

    For example, the First Judicial District Court in Caddo Parish can only handle cases where the crimes were committed in the State of Louisiana, and particularly only in the First Judicial District which encompasses the Parish of Caddo. State courts have no authority to handle federal crimes.

    Federal courts have jurisdiction to handle only violations of federal law and federal laws, because of some specific constitutional requirements, have limited jurisdiction over criminal acts that occurred in more than one state (i.e. drug trafficking across state lines) or which involve interstate commerce (i.e. wire fraud).

    This is why some offenses which are crimes under state law are not crimes under federal law and why there are often additional interstate requirements for prosecutions in federal court.

  2. I have been charged with a drug offense in a Louisiana District Court, can I be charged with a crime in Federal court?

    That depends. If the drugs were transported across state lines, yes, if the drugs you are charged with possessing are illegal to possess under both state and federal law (currently, most of them are, although some states marijuana laws differ from federal law). 

  3. If I’ve been convicted or acquitted of a crime in state court that is also a crime in federal court, doesn’t double jeopardy mean the federal court can’t prosecute me

    No. The double jeopardy clause in the Fifth Amendment of the United States Constitution states (in part): “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

    However, because our system of government is one of dual sovereignty, we are citizens of the United States of America and also our State of residence. Each sovereign, the United States and the State of Louisiana, has the authority to prosecute the crimes committed within their jurisdiction, without being subject to double jeopardy restrictions for the actions of the other.

    This means that if you are tried for a drug offense in state court and found not guilty, the State cannot retry your case for another shot, but the federal court which has jurisdiction over that case can then prosecute you in the event that the circumstances of your arrest were in violation of a federal crime.

If you or someone you know is facing prosecution in state or federal court and you would like your questions answered, please call us to set up a consult: (318) 459-9111.

There is a warrant out for my arrest. What do I do?

An arrest warrant is issued under several circumstances, usually after a law enforcement officer has shown a judge that there is probable cause to believe you have committed a crime, or if you have failed to appear in court after receiving proper notice of the court date. Under both circumstances, the warrant will allow law enforcement in any jurisdiction to take you into custody. If you are outside the jurisdiction where the warrant was issued, you can be held for some time before you are transported to that jurisdiction.

If there is an outstanding warrant for your arrest, you should make arrangements to turn yourself in to the jurisdiction where the warrant was issued. In most cases, when the warrant was issued, the issuing judge will set a bond amount. The bond amount is the amount of money you will need to pay to be released pending the resolution of your case. In Louisiana, you can pay bond in cash for the full amount, with property valued at the same or more than the amount of the bond, or through a bondsman by paying the bondsman a portion of the full amount of the bond.

If you have an outstanding warrant for your arrest, you should not attempt to flee the jurisdiction nor should you attempt to hide from law enforcement or resist arrest. If there is a warrant out for your arrest and you are not sure what to do, call us at (318) 459-9111 to set up a consult.

I'm a victim in a criminal case. Can I drop the charges?

In a civil case, the parties are the plaintiff, the party who claims an injury, and the defendant, the party who is alleged to have caused the injury. 

But in a criminal case, the parties are the person accused of the crime (the defendant) and the state, who is prosecuting it. The person who alleges he was harmed by the accused is not a party; rather, he is simply a witness in the state’s case. 

In a civil lawsuit, a plaintiff can dismiss his case at any time and for any reason. In a criminal case, the victim has no power to dismiss the case. Only the state has that power.

So what happens when a victim wants to drop charges against a defendant in a criminal case?

(1) Most District Attorneys offices have a Victim Assistance Office or Coordinator. These people are employees of the DA’s office whose job it is to help walk victims through the legal proceeding. Among their duties are also to communicate with victims regarding their wishes in the case.

(2) If the defendant has hired an attorney, a victim can also contact that attorney directly regarding signing an affidavit of non-prosecution. Although, again, the prosecutor does not have to accept this affidavit, it is a sworn statement by the victim in the case that he does not want the case prosecuted. 

(3) Some District Attorney’s offices have “drop slips” or forms that can be filled out in the district attorney’s office to notify the prosecutor that the victim does not want to see the defendant prosecuted. 

Revocation - What is it?

Revocation is usually short-hand for a hearing that is intended by the State of Louisiana to end a criminal defendant’s supervised release on probation or parole and return him to incarceration for some period of time up to the length of his original sentence.

When a criminal defendant is sentenced to probation, or is released on parole, there are conditions of his supervision with which he must comply.

The standard conditions of release on probation are found in Louisiana Code of Criminal Procedure Article 895. All defendants are required to refrain from criminal conduct and to pay a supervision fee to help defray the costs of supervision. In addition, the sentencing court may impose any or all of the following conditions:

  • Full and truthfully report to his probation/parole officer (PO) monthly or as directed;

  • “Meet his specified family responsibilities, including any obligations imposed in a court order of child support”;

  • Allow his PO to visit him at home or other places he may regularly be found;

  • Maintain employment;

  • Refrain from owning or possessing a firearm or other dangerous weapon;

  • Make reparation or restitution to the victim;

  • “Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;”

  • Stay within the jurisdiction of the court and receive permission from his PO before changing his address or employment;

  • If he is unable to read English, “devote himself to an approved reading program;”

  • Community service;

  • Submit to medical, psychiatric, or substance abuse examination or treatment; and/or

  • Agree to searches of his person, home, vehicle, etc…by his PO.

A judge may impose additional restrictions in the event he believes them necessary for the particular criminal defendant.

If the defendant then violates these conditions, his PO can file a Petition for Probation Revocation, which will usually be accompanied by a warrant, and the defendant will have to appear before the sentencing judge to explain why his probation should not be revoked.

If his probation is revoked, a defendant can be ordered to a longer term of probation, to perform additional conditions of probation, or can have his probation terminated, and he can be ordered to serve the original prison sentence that was suspended at the time he was placed on probation.

If you or someone you love has been notified that his PO is going to terminate his probation, please contact our office to assist you.

I'm a convicted felon. Can I still vote?

The Louisiana State Constitution prohibits individuals “under an order of imprisonment” on a felony conviction from exercising their right to vote. Louisiana Revised Statutes 18:102 reiterates this provision and states that “No person shall be permitted to register or vote who is: (1) Under an order of imprisonment […] for conviction of a felony.” La. R.S. 18:102A(1). “Under an order of imprisonment is defined as “a sentence of confinement, whether or not suspended, whether or not the subject of the order has been placed on probation, with or without supervision, and whether or not the subject of the order has been paroled.”

Earlier this year, Governor John Bel Edwards signed legislation that reinstated the right to vote for those convicted of felonies and who have not been incarcerated within 5 years. The change in the law requires the voter to submit documentation to the registrar of voters from Louisiana Department of Corrections showing that he has not been incarcerated within the preceding 5 years.

Anyone who has been convicted of a felony offense of election fraud or another election related offense who is under an order of imprisonment will not benefit from the amended law and will not have his voting rights reinstated after 5 years.

If you are facing a criminal charge and have concerns about the collateral consequences, including the impact on your voting rights, call us at (318) 459-9111 to set up a consult.

Who was that masked man?

It is state law in Louisiana that adults are not permitted to wear masks or hoods, “or anything in the nature of either, or any facial disguise of any kind or description, calculated to conceal or hide the identity of the person or to prevent his being readily recognized” in public places. (La. R.S. 14:313(A).

The law has several exceptions including:

  • Children on Halloween
  • “Persons participating in any public parade or exhibition of an educational, religious, or historical character given by any school, church, or public governing authority”;
  • “Persons in any private residence, club, or lodge room”;
  • Persons participating in Mardig Gras festivities;
  • Persons wearing head coverings or veils for religious beliefs or customs;
  • Persons driving or riding motorcycles; and
  • Persons wearing helmets or masks for medical purposes.

The law prohibits the wearing of hoods or masks by a person convicted of a sex offense for any holiday, including Halloween.

Be careful when choosing your Halloween costume this year and remember to comply with the law and stay safe.

Happy Halloween!

Happy Halloween from Gilmer & Giglio!

In honor of Halloween, we at Gilmer & Giglio wanted to provide you some warnings about those common and lesser-known laws that might get you into trouble this holiday. Be safe and call us if you need us!

Don’t destroy people’s pumpkins or you could be facing up to a $1,000 fine and 6 months in jail. (Simple Criminal Damage to Property - La. R.S. 14:56 - “the intentional damaging of any property of another, without the consent of the owner…by any means other than fire or explosion.” Don’t destroy people’s pumpkins or you could be facing up to a $1,000 fine and 6 months in jail. Criminal Mischief - La. R.S. 14:59 - “(A)(1) Tampering with any property of another, without the consent of the owner, with the intent to interfere with the free enjoyment of any rights of anyone thereto, or with the intent to deprive anyone entitled thereto of the full use of the property.” “(A)(6) Throwing any stone or any other missile in any street, avenue, alley, road, highway, open space, public square, or enclosure, or throwing any stone, missile, or other object from any place into any street, avenue, road, highway, alley, open space, public square, enclosure, or at any train, railway car, or locomotive.”)

Be careful when those parties get out of hand! Disturbing the Peace - La. R.S. 14:103 - “(A) Disturbing the peace is the doing of any of the following in such manner as would foreseeable disturb or alarm the public:…(3) Appearing in an intoxicated condition; or (4) Engaging in any act in a violent and tumultuous manner by any three or more persons…”

Please also note that no person convicted of a sex offense is permitted to hand out candy to persons under the age of 18. (La. R.S. 14:313.1).

And for those of you who take your Halloween costumes a bit literally: no Dr. Frankenstein-like behavior (La. R.S. 89.6 - prohibiting human-animal hybrids; La. R.S. 14:101 - prohibiting the desecration of graves; La. R.S. 14:101.1 - prohibiting the purchase or sale of human organs)!

If you or someone you know has a run-in with law enforcement this Halloween, call us at (318) 459-9111 to schedule an appointment.

Have a safe and happy Halloween!

My child was arrested, do we need an attorney?

Like adult court, a child charged with a criminal offense has the right to an attorney under the constitutions of the United States and the State of Louisiana. Also, like adult court, the Juvenile Court will appoint an attorney to represent a child who has been charged with a criminal act. There are public defenders available to aid children who are charged with criminal offenses.

Unlike adult court, juvenile proceedings are conducted in a much more confidential manner. As a result, the language used (petition, adjudication, disposition, etc…) are unfamiliar to even those who may have some familiarity with the adult justice system. An attorney with experience in the juvenile court system can provide some much-needed information regarding the proceedings.

A criminal prosecution in juvenile court can, just like adult court, result in a finding of guilt and punishment. That punishment can include fines, imprisonment, probation, community service, anger management, and a multitude of other consequences. In addition, parents of minor children can be required to comply with certain conditions as a result of a juvenile delinquency finding. (Please see last week’s blog post regarding criminal consequences for the parents of delinquent children.)

Although a juvenile record is more protected from disclosure than an adult criminal record, a criminal conviction as a juvenile can cause problems for a person once they have reached adulthood. Under certain circumstances, a juvenile record can be released in subsequent criminal prosecutions. 

For the same reasons you would seek an attorney for an adult prosecution, you should seek representation for your child accused of a crime. The consequences can be severe and long-ranging and an attorney will be able to advise you about the direct and collateral consequences of a juvenile criminal prosecution.

If your child has been arrested for a crime, call us at (318) 459-9111 to set up a consult.

Can I be prosecuted for my child’s delinquency?

The Louisiana Children’s Code allows juvenile courts to exercise jurisdiction over the adult parents or guardians of a juvenile when that juvenile is subject to delinquency, traffic, and several other proceedings in juvenile court. It allows for the juvenile court to place restrictions on the parents of a juvenile to ensure compliance with the court’s orders regarding the delinquency or care of the minor child. Louisiana Children’s Code Article establishes that juvenile courts shall have exclusive jurisdiction over adults charged with: contributing to the delinquency of a juvenile in violation of La. R.S. 14:92.1, criminal neglect of family, and improper supervision of a minor by a parent or legal guardian in violation of La. R.S. 14:92.2. 

La. R.S. 14:92.1 & 92.2 allow for criminal penalties against the parents or guardians of minors who have engaged in delinquent behavior or been improperly supervised by their parents or guardians. The penalties for these offenses are misdemeanors, but each carries the risk of jail time and/or a fine. 

La R.S. 14:92.1 allows for the court to impose a fine of not more than $1,000 and/or imprisonment for not more than 6 months on the parent or guardian “in all cases where any child shall be a delinquent, dependent, or neglected child” if that parent or guardian “shall by any act encourage, cause, or contribute to the dependency or delinquency of such child, or who acts in conjunction with such child in the acts which cause such child to be dependent or delinquent.” (La. R.S. 14:92.1A(1)). Delinquency is defined as any of the following:

  • any act which tends to debase or injure the morals, health or welfare of a child;
  • drinking beverages of low alcoholic content or beverages of high alcoholic content; 
  • the use of narcotics;
  • “going into or remaining in any bawdy house, assignation house, disorderly house or road house, hotel, public dance hall, or other gathering place where prostitutes, gamblers or thieves are permitted to enter and ply their trade;” 
  • associating with thieves and immoral persons;
  • enticing a minor to leave home or to leave the custody of its parents, guardians or persons standing in lieu thereof, without first receiving the consent of the parent, guardian, or other person; 
  • begging, singing, selling any article; 
  • playing any musical instrument in any public place for the purpose of receiving alms;
  • habitually trespassing where it is recognized he has no right to be; 
  • using any vile, obscene, or indecent language; or
  • performing any sexually immoral act; or violating any law of the state ordinance of any village, town, city, or parish of the state.”

La. R.S. 14:92.1B.

La. R.S. 14:92.2 prohibits the “improper supervision of a minor by a parent or legal custodian” and establishes a wide range of penalties depending on the circumstances, including a fine as low as $25 or as high as $1,000 and/or imprisonment up to 6 months. Improper supervision includes:

  • through criminal negligence, permitting the minor to associate with a person known by the parent or custodian:
    • to be a member of a known criminal street gang;
    • to have been convicted of a felony offense;
    • to be a known user or distributor of drugs; or
    • to be a person who possesses or has access to an illegal firearm, weapon, or explosive.
  • through criminal negligence, the permitting of the minor:
    • to enter premises known by the parent or custodian to be a place where sexually indecent activities or prostitution is practiced;
    • to violate a local or municipal curfew ordinance;
    • to habitually be absent or tardy from school […] without valid excuse;
    • to enter the premises known by the parent or legal custodian as a place of illegal drug use or distribution activity;
    • to enter the premises known by the parent or legal custodian as a place of underage drinking or gambling; or
    • to enter the premises known by the parent or legal custodian as a place which stores or has a person present who possesses an illegal firearm, weapon, or explosive.

La R.S. 14:92.2.

If you or someone you know have concerns about criminal consequences for a child’s behavior, call us at (318) 459-9111 to set up a consult.

Basics of Sex Offender Registration

Sex Offender Registration in Louisiana is governed by Title 15, §540, et seq., of the Louisiana Revised Statutes. Those statutes define those who are required to register and the requirements and fees associated with registration. §542 lists the offenses for which, if convicted, a person will have to register as a sex offender. These include convictions in Louisiana or from another jurisdiction (including another state, federal court, or foreign court).

If convicted in Louisiana, upon conviction, a person must register in person with the sheriff of the parish and the chief of police in the city or municipality in which he resides as well as the parish and city where he is employed or attends school. If he is not incarcerated upon conviction, he will also need to register in the parish where convicted for his initial registration only. If a person is convicted in another state and then relocates to Louisiana, within 3 days of establishing residence in Louisiana, he must register as listed above. There is an annual fee for registration that must be paid at the time of registration. 

The following documents must be provided on the day of registration:

  • Name and any aliases;
  • Physical address or address of residence;
  • Name and physical address of place of employment (which may include routes of travel);
  • Name and physical address of the school where he is a student;
  • 2 Forms of proof of residence, which may include a driver’s license, utility bill, telephone bill, or affidavit of residence from an adult living in the same residence;
  • Offense for which he was convicted, date and place of conviction, court, docket number, statute, and sentence;
  • A current photograph;
  • Fingerprints, palm prints, and a DNA sample;
  • Telephone numbers;
  • Description of every motor vehicle registered to him, including the license plate numbers, VINs, and copies of his driver’s license;
  • Social security number;
  • Date of birth;
  • Physical description, including sex, race, hair color, eye color, height, age, weight, and identifying marks;
  • All e-mail addresses, screen names, or other online identifiers; and
  • Travel and immigration documents, including passports.

If a person required to register plans to leave his main residence for a period of longer than 7 days, he must provide temporary lodging information more than 3 days before departure. If he will be traveling internationally, he must provide temporary lodging information regardless of the length of the trip and no later than 21 days prior to the date of departure.

Failure to comply with these requirements and those contained in the the remainder of Title 15, §540, et seq., can result in criminal prosecution. 

If you or someone you know has questions regarding sex offender registration or has been arrested for failure to register as a sex offender, call us at (318) 459-9111 to schedule an appointment.

What is an 893 or 894 and why do I want one?

Articles 893 and 894 of the Louisiana Code of Criminal Procedure in their broadest sense allow for the suspension and deferral of a sentence (and probation) in a criminal case. More specifically, under certain circumstances, they allow a conviction to be set aside after the defendant serves a period of probation satisfactorily. This opens up the charge for expungement.

Article 893:

Article 893 applies to felony convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of a sentence “after a conviction for a first offense noncapital felony.” At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 893 once and there are several exceptions to eligibility for deferral including certain violations of the Controlled Dangerous Substances Laws, sex offenses, and violent crimes.

Article 894:

Article 894 applies to misdemeanor convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of the sentence. At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 894 once during a 5-year period (or a 10-year period for Driving While Intoxicated convictions). 

Okay, so why do I want one?

The dismissal and set aside of the conviction under either Article 893 or 894 allows the defendant to seek an expungement of the arrest record immediately and will also allow him to say that he has never had a criminal conviction (assuming an otherwise clean record) for most purposes.

If he goes through with expungement, he will be able to say he has never been arrested (assuming an otherwise clean record, and with some exceptions).

The benefit of an Article 893 or 894 allows an individual to maintain, for most purposes, a clean record once she has served her term of probation and to minimize the impact of a sole criminal offense on her life.

If you have been arrested, and are unsure whether you will be eligible for an 893 or 894, call us at (318) 459-9111 to schedule an appointment to discuss your case.

I've Been Arrested...What About my Gun Rights?

It is relatively well-known that conviction of a felony or submission to probation negatively affects your gun rights, but it is a common misconception that a mere arrest for a misdemeanor does not affect your gun rights here in Louisiana. That is not exactly true. The governing law on this matter is La.R.S. 40:1379, which states that “(e)ach permittee, within fifteen days of a misdemeanor or a felony arrest, other than a minor traffic violation, in this state or any other state, shall notify the deputy secretary of public safety by certified mail. The deputy secretary may suspend, for up to ninety days, the permit of any permittee who fails to meet the notification requirements of this Section.”

A few important things regarding reporting:

1. You have a very short timeline

The deadline to provide such notice to the Department is within fifteen days of arrest. This notification process can be difficult, particularly if you are still in jail, unable to post bond. At Gilmer & Giglio, we can help you with the notification process. 

2. You must notify them by certified mail

Aside from the fact that sending this notification via regular mail does not allow you to confirm receipt, sending it via regular mail also means that you are not in compliance with the statute. Correspondence related to your permit should be directed to: Louisiana State Police, Concealed Handgun Permit Unit, P.O. Box 66375, Baton Rouge, LA 70896. We cannot overstate the importance of sending this notification certified mail, return receipt requested, if you want to avoid the suspension.

3. You could get suspended, when you otherwise would not

So why would you care about reporting your arrest? Because you could get suspended for merely failing to report your arrest. This is a 90-day suspension. If you get suspended, you will get a notice from the Department telling you that you to immediately return your permit (again by Certified Mail to the address listed above). If you fail to immediately return your permit, the Department may then revoke your permit altogether

4. You may be able to appeal such a suspension

The Louisiana Administrative Code provides for an appeal of a suspension due to failure to report an arrest (LA.A.C. 55:I:1315.B), however there are strict deadlines related to such an appeal—typically ten days.

At Gilmer & Giglio, we pride ourselves on helping our clients not only directly with their criminal matters, but also in minimizing the collateral consequences, including concealed carry permit suspensions. If you need an attorney who can help guide you through your criminal case, as well as collateral consequences, give us a call at (318) 459-9111.

Happy Constitution Day!

5 Frequently Asked Questions About Expungements in Louisiana

1. How often can I get an expungement?

Early and often - if you were not convicted of any offense resulting from the arrest, you can expunge these arrests any time and as many of them as you want. If you were arrested for a felony but convicted of a misdemeanor, you can apply for an interim expungement of the felony arrest anytime, but cannot remove the record of the misdemeanor conviction until the delays discussed below have passed.

5 Years - for most misdemeanors after the date you were last serving any portion of your sentence (including probation).

10 years - for most felonies after the date you were last serving any portion of your sentence (including probation or parole).

You can only expunge one misdemeanor conviction (barring special sentencing provisions) every 5 years and one felony conviction (barring special sentencing provisions) every 15 years. Misdemeanor DWIs can only be expunged once every 10 years.

2. Are there any charges I can’t expunge?

Yes. Sex offenses as defined in La. R.S. 15:541, domestic abuse battery and stalking convictions cannot be expunged. Under certain circumstances, crimes of violence as defined in La. R.S. 14:2(B) and violations of the Uniform Controlled Dangerous Substances laws (Title 40) cannot be expunged.

3. How long will this process take?

Approximately 6 - 9 months.

The first step is to apply for a background check from Louisiana State Police. Once that is received, the Petition for Expungement must be filed within 30 days. There is a 60-day waiting period during which the State may file an objection to the Petition. Once the 60-day waiting period has passed, the Court will set the matter for a court appearance and either grant or deny the Petition. If it is granted, the Court will sign the order and the expungement will be granted.

There is often a delay between the signing of the order and the removal of the record because the Clerk of Court must send a copy of the order to each police agency involved in the case. Once each agency has removed the record from public access, they will send a certification letter stating so to the Clerk of Court. This entire process from background check request to receipt of final certification letter takes approximately 6 months.

4. Once I have gotten an expungement, can I tell people I’ve never been arrested?

Under most circumstances and with regard to the specific charge you have gotten expunged, yes. (If you have multiple arrests and are not able to expunge them all, you may still have to disclose those arrests depending on the wording of the question.)

5. Does an expungement make it like my charge “never happened?”

Short Answer: No.

Longer Answer: Expungements are different in every state. In Louisiana, an expungement removes the record from “public access” but does not result in the record’s destruction. In effect, this means that most background checks will not reveal the existence of the arrest; however, there are many exceptions to this rule. This also means that the arrest can be seen by law enforcement and the courts and can be used against you in subsequent prosecutions.

If you have a specific question about whether an expungement is a good idea for your circumstances, call us at (318) 459-9111 to set up a consult.

Happy National Clean Up Day - September 16th!

Diversion...What Is It?

Diversion programs are an alternative to criminal prosecution established by many District Attorney’s Offices in Louisiana.

In many ways, diversion functions like probation: a criminal defendant, having been arrested for a criminal offense is referred to a “diversion coordinator” or “diversion office” run by the District Attorney’s Office, instead of being sent to court for prosecution of his case. 

The defendant agrees, in writing, to certain conditions. If she completes those conditions and after a set period of time has passed, the District Attorney will, in exchange, dismiss or reduce the criminal case against the defendant. There is usually a fee for participating in a diversion program. The standard conditions can range from community service to alcohol abuse screening and treatment, theft prevention courses, and obtaining gainful employment or a G.E.D. or its equivalent.  Most diversion programs last from 6 months to 2 years. 

The benefit of participation in a diversion program is that dismissal of the charge upon completion of the program keeps the defendant from having a criminal conviction on her record, and also allows her to expunge the arrest immediately (except in the case of a DWI arrest).

If you have been arrested and would like to discuss your options in more detail, please call us at (318) 459-9111 to set up a consult.


Busted in a Prostitution Sting?

It’s probably one of the more embarrassing things to be arrested for, but at Gilmer & Giglio, we  are experienced attorneys who can help you navigate the difficulties of your situation. If you were a “John” in the sting, then you were likely arrested for soliciting for prostitutes, in violation of Louisiana Revised Statute 14:83, which makes it illegal to “solicit, invite, induce, direct, our transport a person to any place with the intent of promoting prostitution.” Currently, the punishment for violation of this statute is a fine of up to $500 dollars and imprisonment up to six months. Louisiana Revised Statute 14:82.2 is a similar crime—purchase of commercial sexual activities, which makes it illegal to “knowingly give, agree to give, or offer to give anything of value to another in order to engage in sexual intercourse with a person who receives or agrees to receive anything of value as compensation for such activity.” The punishment for this crime is also up to six months imprisonment and a fine of up to $500.

Effective August 1, 2018, a few changes will be made to both laws. The first is an increase in the possible fine on both crimes from $500 to $750. Additionally, the legislature is adding an enhancement for “second or subsequent offense” soliciting for prostitutes. The penalty for this crime will be a fine ranging from $1500 to $2000, imprisonment for not more than one year, or both. It will also be a requirement that anyone convicted of either of these crimes (even on a first conviction) will have to participate in an educational program “to educate the offender about the harms, exploitation, and negative effects of prostitution.” 

Depending on your job, there may also be employment consequences if you are arrested on these charges or something similar. If you need an attorney to help guide you through this process, call us at (318) 459-9111.

Know Before You Fly: 3 Things You Need to Know Before You Fly Your Drone

One of the most popular new “toys” in the last few years are drones. What’s not to love?! You can pretend to be a pilot while staying on the ground, take pictures with views you would never otherwise get to experience, and feel cool while doing it.  That’s all true, but there are also laws you must be aware of.  Here are a few things to know before you fly:

1. You Need to Register Your Drone with the FAA

Under Federal law, if your drone weighs more than .55 pounds up to 55 pounds, you need to register it with the FAA.  It’s a relatively simple process, but it has to be done. Further, when flying your drone, you need to carry proof of registration with you. If someone else is flying your drone, you need to provide them with a copy of the registration, either by paper copy or by email.

What can the government really do if I don’t register my drone? While the FAA has stated that it “will attempt to educate operators who fail to comply with registration requirements,” penalties are in place for those whose conduct is egregious or aggravated by bad behavior. Civil fines are potentially as high as $27,500. Criminal penalties are even worse—up to a $250,000 fine and up to three years imprisonment.

2. Don’t fly over schools, jails, etc. 

In 2016, the Louisiana state legislature passed legislation creating “no-fly zones” for drones. Unless you have prior written consent of the property owner, you cannot use a drone to “conduct surveillance of, gather evidence of or collect information about, or photographically or electronically record schools or school premises. Violation of this section of the law is a misdemeanor on a first conviction, punishable by up to $500 and imprisonment up to six months.  A second conviction is worse—a felony punishable by a minimum fine of $500 up to a maximum fine of $2000 and imprisonment for a minimum of 6 months and up to a year, with or without hard labor.

Another subsection of the same law prohibits flying your drone over a jail, prison, or correctional facility (again without written consent of the person in charge of that facility).  The punishment for this section is somewhat more costly: a first conviction on this subsection is a misdemeanor punishable by up to a $2,000 fine and up to six months imprisonment. A second conviction is a felony punishable by a minimum fine of $2,000 and up to a maximum find of $5,000 and imprisonment, with or without hard labor for up to one year.

3. You CAN trespass with your drone—DON’T!

The Louisiana legislature has also clarified trespass law to include operating your drone in the air space over immovable property owned by another with the intent to conduct surveillance of the property. So, unless you have consent to have your drone in the airspace over someone else’s property—don’t go there.

Essentially, those acts that were previously illegal are still illegal, and the legislature has enacted specific language to include those acts involving your drone.  Examples include video voyeurism (i.e. “peeping tom”) laws which specify that if you use your drone to film or photograph someone for a lewd or lascivious purpose, it is still video voyeurism, and obstruction of an officer. (Louisiana law now specifies that when an area is cordoned off for police investigations, that area includes the airspace above it and flying your drone across that cordon is a criminal offense, and police and/or fire department personnel are authorized to disable your drone.)

Enjoy your drone, but make sure you do so in compliance with both Louisiana and federal law.  If you or someone you know has been arrested for a drone-related crime, give Gilmer & Giglio a call to set up your consult at (318) 459-9111.

Happy National Aviation Day - August 19th!

I Didn't Do Anything Wrong...Do I Still Need a Lawyer?

We frequently help people in what we call “pre-arrest” situations—that is, the person has not yet gone to jail, and may never go to jail or be charged, but they have been contacted by a detective who wants to speak with them regarding a situation that the detective is investigating. A common mistake that people make is thinking this: “I didn’t do anything wrong, so I will just go and explain everything to the detective and everything will be okay.” There are a few things to remember before you do this. First, if you are getting called in by a detective to “give your side of the story” you must remember that the detective has likely already labeled you as a suspect. This means he is going to view everything you say with great skepticism, and likely not believe you, which could mean you are giving a statement in vain. Second, don’t forget that detectives go to extensive training in interrogation and interview tactics, so you are rarely actually going in for a “conversation” with them—you are going in for an interrogation, and you need to be prepared for what that means. 

Does this mean that we never take people to speak with the police? Absolutely not! We frequently take clients to give statements to the police. When you hire us, we make a plan with you, the client, to determine whether or not it is in your best interested to give a statement. We have taken many clients in to give statements who were never arrested. Taking an attorney with them provided those clients with an advocate and someone who was comfortable in the interrogation room, calling out unfair statements or tactics that the police use, when they may not have been able to accomplish that themselves, without an attorney.

Why should you hire an attorney prior to giving a statement? Aside from the fact that it is much less expensive to hire us for a pre-arrest matter than it is to litigate your case, you also may end up avoiding an arrest altogether.  If you are wondering whether you should hire an attorney for your pre-arrest matter give us a call at (318) 459-9111 to discuss your case.

My College Student Child Got Arrested for Possession of Marijuana. Do They Need an Attorney?

No parent wants to get a call from their child telling them that he or she was arrested on drug charges, but unfortunately we do see that situation often. So once it has happened, the question is “what do we do next?” Do we need a lawyer? An attorney will likely be able to help you and your child navigate not only the criminal but additional issues that may arise. 

Perhaps the greatest financial value in fighting your child’s possession of marijuana case is as it relates to federal scholarship money. If he or she is receiving federal aid (via FAFSA), his or her eligibility might be suspended if the alleged offense occurred while they were receiving aid. Eligibility would not be suspended simply as a result of the arrest, but upon conviction, if the student is re-applying for FAFSA, as you do going into each year of college, the student will have to report such a conviction. At that point, FAFSA will send the student a worksheet to determine whether or not funding will continue to be available to the student or if his aid will be suspended. 

Additionally, if your student is considering any type of profession which requires licensing (i.e., attorney, doctor, nurse, etc.), their case needs to be handled in such a way that the collateral consequences of the case are minimal. For example, if Client A has career aspirations that do not involve licensing, and Client B’s dreams involve a license occupation, diversion might be a great outcome for Client A, but if Client B’s licensing agency views diversion negatively, that might not be a good outcome for Client B. This is why we take an extensive amount of time to talk to each client about not only their case, but their life goals (particularly younger clients). We want to make sure we put them in a good position to pursue the future they want.

Unfortunately, we also sometimes see clients whose possession of marijuana arrest uncovers more significant drug use. In these cases, we work with the client and their family to work through these issues. We help our clients get into counseling, if necessary, and we will also connect them with rehab facilities. 

If you or someone you know is facing possession charges, give Gilmer & Giglio a call at (318) 459-9111, and we will set up a consult with you to see how we can help you.