The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Taking effect on July 1, 2024, the legislature has extended the conditions for which a driver who is arrested for driving while intoxicated must be required to install an ignition interlock in their vehicle.

The legislature increased the period of suspension for a first breath test with a result over a .08 from 90 days to 6 months (unless the arrested individual is under 21). An ignition interlock is now required for reinstatement and/or hardship qualifications for any refusal, whether a first or a fifth.

Finally, and probably most consequentially, the legislature now requires the Court to order for any DWI conviction that the defendant not drive a motor vehicle unless that vehicle has been equipped with a functioning ignition interlock device. For a first conviction, this requirement would be in place for 6 months. For a second conviction, this requirement would be in place for four years.

The one positive change to the DWI laws made by the legislature this term is that installations of ignition interlock devices for submissions or refusals to breath tests can now be given credit toward installations for convictions, which means an individual will not be required to install an ignition interlock device twice to meet the requirements of both statutes.

If you or someone you know is facing criminal prosecution for a DWI and you would like to schedule a consult, give us a call at (318) 459-9111 to schedule a consultation.

The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Taking effect on July 1, 2024, the legislature modified Louisiana Code of Criminal Procedure Article 320 requiring pretrial drug testing as a condition of bail. The statute now requires that every person arrested for a drug offense or crime of violence must be drug tested within 24 hours of booking and at random testing thereafter, if the initial test is positive. Also, if positive, the individual shall then be screened for eligibility for speciality courts (i.e.: drug court, veteran’s court, etc…). The statute limits disclosure of these records to anyone except the District Attorney, defense counsel, treatment professionals affiliated with the drug court program, and the court, but shall be inadmissible in court except for the purposes of determining eligibility for specialty court admission.

The legislature also amended and enacted Louisiana Code of Criminal Procedure Articles 893 and 904 regarding the procedures for admission to specialty courts in Louisiana.

If you or someone you know is facing criminal prosecution and you would like to schedule a consult, give us a call at (318) 459-9111 to schedule a consultation.

The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Effective on March 5, 2024, the Legislature extended the prescriptive period for sex offenses under limited circumstances. Louisiana Code of Criminal Procedure Article 572 now says:

[…] prosecutions for any sex offense may be commenced beyond the time limitations set forth in this Title if the identity of the offender is established after the expiration of such time limitation through the use of a DNA profile or newly discovered photographic or video evidence.

La. C.Cr.P. Art. 572. This change requires that the out-of-time prosecution be brought within 3 years of the date on which the offender’s is identified based on the newly discovered photographic or video evidence.

If you or someone you know is facing criminal prosecution and you would like to schedule a consult, give us a call at (318) 459-9111 to schedule a consultation.

Happy first day of spring from Gilmer & Giglio!

As of August 1, 2023, the Louisiana Legislature has created a special provision for expunging first offense misdemeanor possession of marijuana convictions:

D. Notwithstanding any provision of law to the contrary, a person may file a motion to expunge his record of arrest and conviction of a misdemeanor conviction for a first offense possession of marijuana, tetrahydrocannabinol, or chemical derivatives thereof after ninety days from the date of conviction.

Louisiana Code of Criminal Procedure Article 977(D).

The fees for filing this expungement are slightly less than a regular expungement. La CCrP Art. 983(M).

This special provision will cease to be available to citizens of Louisiana on August 1, 2026. La CCrP Art. 983(M)(5).

If you or someone you know wants to know if they are eligible for an expungement under this law, give us a call at (318) 459-9111 to set up a consult.

Article 4, Section 5, Subsection (E of the Louisiana Constitution grants the Governor of the State of Louisiana the following powers:

(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons,1 may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(emphasis added).

This section of the Louisiana Constitution grants those never before convicted of a felony to automatically receive a “first offender pardon” under several circumstances:

(1) If they are convicted of a “non-violent crime”

Crimes of violence are defined in Louisiana Revised Statutes §14:2 as: “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.”

La. R.S. 14:2 further gives an enumerated list of crimes the legislature defines as “crimes of violence”:

(1) Solicitation for murder.

(2) First degree murder.

(3) Second degree murder.

(4) Manslaughter.

(5) Aggravated battery.

(6) Second degree battery.

(7) Aggravated assault.

(8) Aggravated kidnapping of a child.

(9) Aggravated or first degree rape.

(10) Forcible or second degree rape.

(11) Simple or third degree rape.

(12) Sexual battery.

(13) Second degree sexual battery.

(14) Intentional exposure to AIDS virus.

(15) Aggravated kidnapping.

(16) Second degree kidnapping.

(17) Simple kidnapping.

(18) Aggravated arson.

(19) Aggravated criminal damage to property.

(20) Aggravated burglary.

(21) Armed robbery.

(22) First degree robbery.

(23) Simple robbery.

(24) Purse snatching.

(25) False imprisonment; offender armed with dangerous weapon.

(26) Assault by drive-by shooting.

(27) Aggravated crime against nature.

(28) Carjacking.

(29) Molestation of a juvenile or a person with a physical or mental disability.

(30) Terrorism.

(31) Aggravated second degree battery.

(32) Aggravated assault upon a peace officer.

(33) Aggravated assault with a firearm.

(34) Armed robbery; use of firearm; additional penalty.

(35) Second degree robbery.

(36) Disarming of a peace officer.

(37) Stalking.

(38) Second degree cruelty to juveniles.

(39) Aggravated flight from an officer.

(40) Sexual battery of persons with infirmities.

(41) Battery of a police officer.

(42) Trafficking of children for sexual purposes.

(43) Human trafficking.

(44) Home invasion.

(45) Domestic abuse aggravated assault.

(46) Vehicular homicide, when the operator's blood alcohol concentration exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.

(47) Aggravated assault upon a dating partner.

(48) Domestic abuse battery punishable under R.S. 14:35.3(L), (M)(2), (N), (O), or (P).

(49) Battery of a dating partner punishable under R.S. 14:34.9(L), (M)(2), (N), (O), or (P).

(50) Violation of a protective order punishable under R.S. 14:79(C).

(51) Criminal abortion.

(52) First degree feticide.

(53) Second degree feticide.

(54) Third degree feticide.

(55) Aggravated abortion by dismemberment.

(56) Battery of emergency room personnel, emergency services personnel, or a healthcare professional.

(57) Possession of a firearm or carrying of a concealed weapon by a person convicted of certain felonies in violation of R.S. 14:95.1(D).

(58) Distribution of fentanyl or carfentanil punishable under R.S. 40:967(B)(4)(b).

(59) Distribution of heroin punishable under R.S. 40:966(B)(3)(b).

La R.S. 14:2(B). All individuals convicted of the crimes listed above will not receive a first offender pardon unless:

(2) They are convicted of “aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities” because the legislature explicitly excluded these offense and allows for first offender pardons for these convictions.

A First Offender Pardon is not like a Pardon with restoration of gun rights signed by the Governor because it does not restore an individual’s right to possess a firearm under either State or Federal law. Nor does it impact that person’s right to vote as voting rights are restored for all felons immediately upon completion of their sentence as of other legislation that was passed several years ago.

At this point, the only effect a first offender pardon appears to have is that it allows an individual to file for an expungement of a felony conviction immediately upon receiving his pardon, rather than having to wait 10 years to establish a clean record as would otherwise by required by Louisiana Code of Criminal Procedure Article 978.

If you or someone you know has received a first offender pardon and would like to know if you are eligible for an expungement, give us a call at (318) 459-9111 to set up a consult.

There are several offenses that criminalize physical violence committed in intimate or family relationships: Domestic Abuse Battery, Battery of a Dating Partner, Domestic Abuse Aggravated Assault, and Aggravated Assault Upon a Dating Partner.

Domestic abuse battery

Domestic abuse battery “is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member.” La. R.S. 14:35.3(A).

“Family member” and “household member” are specifically defined in the same statute. “‘Family member’ means spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, foster children, other ascendants, and other descendants. ‘Family member’ also means the other parent or foster parent of any child or foster child of the offender.” La. R.S. 14:35.3(B)(4). “‘Household member’ means any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.” La. R.S. 14:35.3(B)(5).

Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation. La. R.S. 14:35.3(C).

A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service. La. R.S. 14:35.3(D).

A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000. La. R.S. 14:35.3(E).

There are several other provision of La. R.S. 14:35.3 that increase or alter the penalty:

(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“ La. R.S. 14:35.3(I).

(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.3(K).

(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.3(L).

(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.3(M).

(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.” La. R.S. 14:35.3(N).

(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.” La. R.S. 14:35.3(O).

(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.” La. R.S. 14:35.3(P).

BATTERY OF A DATING PARTNER

Battery of a dating partner “is the intentional use of force or violence committed by one dating partner upon the person of another dating partner.” La. R.S. 14:35.9(A).

“‘Dating partner’ means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. ‘Dating partner’ shall not include a casual relationship or ordinary association between persons in a business or social context.” La. R.S. 14:35.9(B)(3).

Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation. La. R.S. 14:35.9(C).

A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service. La. R.S. 14:35.9(D).

A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000. La. R.S. 14:35.9(E).

There are several other provision of La. R.S. 14:35.9 that increase or alter the penalty:

(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“ La. R.S. 14:35.9(I).

(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.9(K).

(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.9(L).

(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.” La. R.S. 14:35.9(M).

(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.” La. R.S. 14:35.9(N).

(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.” La. R.S. 14:35.9(O).

(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.” La. R.S. 14:35.9(P).

DOMESTIC ABUSE AGGRAVATED ASSAULT

Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member or family member upon another household member or family member. La. R.S. 14:37.7A.

Assault is defined in La. R.S. 14:36 as an “attempt to commit a battery; or the intentional placing of another in reasonable apprehension of receiving a battery.”

“Family member” and “household member” are defined the same way as they are in La. R.S. 14:35.3. The penalty for domestic abuse aggravated assault is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000. La. R.S. 14:37.7B(1), B(2), & C.

If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:37.7D.

AGGRAVATED ASSAULT UPON A DATING PARTNER

Aggravated assault upon a dating partner “is an assault with a dangerous weapon committed by one dating partner upon another dating partner.” La. R.S. 14:34.9.1A.

“Dating partner” is defined in this statute the same way it is defined in battery of a dating partner. The penalty for this offense is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000. La. R.S. 14:34.9.1B & C.

If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:34.91.1D.

If you or someone you know is facing charges related to domestic violence, give us a call at (318) 459-9111 to schedule a consultation.

On this Veterans Day, we want to say thank you to all those who have served.

Happy Halloween from Gilmer & Giglio! Stay safe and have fun!

The Louisiana Code of Criminal Procedure allows for the setting aside of convictions under certain circumstances. Article 893 applies to felonies and article 894 applies to misdemeanors.

Article 893(E) says, in relevant part:

E. (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.

(b) The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3 or that is defined as a sex offense by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than ten years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).

(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only twice with respect to any person.

(3)(a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses.

(b) The court may extend the provisions of this Paragraph to any person who has previously successfully completed a drug court program and satisfactorily completed all other conditions of probation.

(c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only twice with respect to any person.

(4) When a defendant, who has been committed to the custody of the Department of Public Safety and Corrections to serve a sentence in the intensive incarceration program pursuant to the provisions of Article 895(B)(3), has successfully completed the intensive incarceration program as well as successfully completed all other conditions of parole or probation, and if the defendant is otherwise eligible, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Subparagraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only twice with respect to any person.

Article 894 provides, in relevant part:

A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

(2) When a suspended sentence in excess of six months is imposed, the court may place the defendant on probation under the supervision of the Department of Public Safety and Corrections, division of probation and parole, for a period of not more than two years and under such conditions as the court may specify.

(3) When a defendant has been convicted of the misdemeanor offense of operating a vehicle while intoxicated, second offense, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised or supervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

(4) The court may suspend, reduce, or amend a misdemeanor sentence after the defendant has begun to serve the sentence.

(5) At the time that any defendant petitions the court to set aside any plea for operating a vehicle while intoxicated pursuant to this Article, the court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor vehicles, a certified copy of the record of the plea, fingerprints of the defendant, and proof of the requirements as set forth in Code of Criminal Procedure Article 556.1 which shall include the defendant's date of birth, social security number, and driver's license number. An additional fifty dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records.

(6) When a case is assigned to the drug division probation program pursuant to the provisions of R.S. 13:5304, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the drug division probation program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.

(7) When a case is assigned to an established driving while intoxicated court or sobriety court program certified by the Louisiana Supreme Court Drug Court Office, the National Highway Traffic Safety Administration, or the Louisiana Highway Safety Commission, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that the successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the driving while intoxicated court or sobriety court program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.

B. (1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. However, prior to setting aside any conviction and dismissing the prosecution for any charge for operating a vehicle while intoxicated, the court shall require proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the requirements of Subparagraph (A)(5) of this Article have been complied with.

(2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten-year period.

(3) Discharge and dismissal pursuant to the provisions of this Subparagraph may occur on a single subsequent prosecution and conviction which occurs during the ten-year period provided for in Subparagraph (B)(2) of this Article if the following conditions are met:

(a) The offender has successfully completed a driving while intoxicated court or sobriety court program pursuant to Subparagraph (A)(7) of this Article.

(b) The conditions imposed by the court pursuant to the provisions of Subparagraph (A)(3) of this Article have been met.

What these articles allow for is, after completion of a term of probation, a person may set aside their conviction. This allows them to say that they have not been convicted of the offense, but also makes them eligible to expunge the arrest record immediately upon granting of the set aside, rather than waiting the otherwise requisite time periods for an expungement.

If you or someone you know is facing criminal charges and would like to set up a consult, give us a call at (318) 459-9111 to set up a consult.

Every year, the Louisiana Legislature passes a slew of new legislation, most of which will take effect on August 1. And so, each year, I like to do a run-down of the new legislation related to or impacting criminal law. This week’s topic: Firearms!

The Louisiana legislature amended Louisiana Revised Statutes 40:1379.1.4 to edit the definition of “qualified retired law enforcement officers” who are permitted to carry concealed weapons as individuals who “[were] properly certified by the Council on Peace Officer Standards and Training at the time of retirement, in accordance with R.S. 40:1379.3(D)(1)(f).” In keeping with this additional definition, the Louisiana legislature amended the Illegal Carrying of Weapons statute to allow for this change.

The Louisiana Legislature also amended the concealed carry permit statute (La. R.S. 40:1379.3) to remove the restriction from obtaining a concealed carry permit if one has been convicted of operating a motor vehicle while intoxicated. The restriction on individuals who “chronically and habitually use alcoholic beverages to the extent that his normal faculties are impaired” remains in effect. This statute was further amended to state that “No permit shall be suspended or revoked solely upon the basis of an arrest for a violation of R.S. 14:98.1.” La. R.S. 40:1379.3(I)(6).

The Louisiana Legislature also amended the definition of a “machine gun” to define it as:

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one show without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, and any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun.

La. R.S. 40:1751.

This same Act increases the penalty range for the manufacture, transfer, or possession of a machine gun in Louisiana from imprisonment at hard labor for not less than one year nor more than five years to not less than one year nor more than ten years. La. R.S. 40:1755(A). If the person has a prior conviction of a felony crime of violence (as defined in La. R.S. 14:2), that person shall be imprisoned at hard labor for not less than three years nor more than ten years. La. R.S. 40:1755(B). This change in the law also removes “flame thrower” from the definition of “firearm” in La. R.S. 40:1781.

The Louisiana Legislature expanded the definition of “utility service employee” for purposes of the offense of Aggravated Assault Upon a Utility Service Employee with a Firearm to include:

any person employed under contract, of any utility service that provides electricity, gas, water, broadband, cable television, heat, steam, telecommunications services, or sewer services, whether privately, municipally, cooperatively, or investor-owned."

La. R.S. 14:37.5(B)(3).

Finally, the Legislature increased the penalty for Assault by Drive-By Shooting from not less than one year nor more than five years to not less than three years nor more than 10 years, and expanded the definition of “drive-by shooting” to include interstate highways along with the previously included “public street or highway.” La. R.S. 14:37.1.

If you or someone you know is facing prosecution for a firearm charge in Louisiana, give us a call at (318) 459-9111 to set up a consult.

So this week we might be getting a bit into the weeds, but it is always useful to know about procedural changes in criminal courts, and not just the substantive changes to the offenses, themselves.

Over the last few years, the Louisiana Legislature has made some changes to the posting of booking photographs on the internet. This year, they amended the statute again, adding two exceptions to the prohibition if:

(f) The individual is released on a bail undertaking and the law enforcement officer or agency is equated to release or disseminate the booking photograph to the individual’s surety agent.

(g) A law enforcement officer or agency determines that releasing or disseminating the booking photograph is necessary for investigative purposes.

Louisiana Code of Criminal Procedure Article 234(C)(1).

The Louisiana Legislature also enacted Louisiana Code of Criminal Procedure Article 388 to require additional information be provided in the charging document, including:

(1) Date of the offense.

(2) Date of arrest or summons, if a summons was issued in lieu of an arrest.

(3) The state identification number of the defendant, if one has been assigned to the defendant for the offense or for any prior offenses.

(4) Defendant demographic data to include sex, race, and date of birth, if known.

La. C.Cr.P. Art. 388(A). This information is required to be provided to various agencies including the Louisiana Supreme Court and the Louisiana Bureau of Criminal Identification and Information. Failure to provide this information; however, does not provide grounds for a motion to quash. La. C.Cr.P. Art. 388(B)-(D).

The Legislature also passed some new rules regarding the behavior of jurors in Code of Criminal Procedure Article 791 requiring that they be sequestered “during active deliberations” and requiring the Court to charge the jury about the rules of deliberation when breaking from sequestration overnight.

Finally, the Legislature amended Louisiana Code of Evidence Article 404(B) relative to character evidence in criminal prosecutions to establish that the following is not admissible character evidence, except as provided in Article 412, or as otherwise provided in 404(B):

(b)(i) For purposes of this Subparagraph, “creative or artistic expression” means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.

(ii) Except as provided in Article 412 or has otherwise provided by law, creative or artistic expression is not admissible in a criminal case to prove the character of a person in order to show that he acted in conformity therewith, provided that the accused provides reasonable notice to the prosecution in advance of trial asserting that the evidence is creative or artistic expression. Evidence of creative or artistic expression may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral pat of the act or transaction that is the subject of the present proceeding.

La C.E. Art. 404(B).

If you or someone you know is facing criminal prosecution and you would like to set up a consult, please give us a call at (318) 459-9111.

The Louisiana Legislature this year amended the Schedule II penalties with regard to Fentanyl and established a new offense for the production, manufacturing, distribution, or possession of Xylazine.

Louisiana Revised Statutes 40:967 has been amended, with regard to Fentanyl, to increase the penalties as follows:

• For a conviction involving less than 28 grams, the penalty shall be imprisonment at hard labor for not less than 5 years nor more than 40 years, and a fine of up to $50,000. The legislature established a mandatory minimum penalty of 5 years without benefit of probation, parole, or suspension of sentence.

• For a first conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment at hard labor for not less than 7 years nor more than 40 years, at least 7 years of which shall be without benefit of probation, parole, or suspension of sentence (and a fine).

• For a second conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment at hard labor for not less than 30 years nor more than 40 years, at least 10 years of which shall be without benefit of probation, parole, or suspension of sentence (and a fine).

• For a third conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment or hard labor for not less than 99 years without benefit of probation, parole, or suspension of sentence (and a fine).

• Distribution which “is the direct cause of serious bodily injury to the person who ingested or consumed the substance”:

  • Shall be classified as a crime of violence

  • Penalty shall be imprisonment at hard labor for an additional period of five years without benefit of probation, parole, or suspension of sentence to be served consecutively.

La. R.S. 40:967.

The Louisiana legislature also enacted Louisiana Revised Statutes 40:989.4 - Unlawful production, manufacturing, distribution, or possession of Xylazine

A.(1) It shall be unlawful for any person to knowingly or intentionally produce, manufacture, distribute, or possess with intent to produce, manufacture, or distribute Xylazine.

(2) Whoever violates the provisions of this Subsection shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, and, in addition, may be required to pay a fine of not more than fifteen thousand dollars.

B.(1) it shall be unlawful for any person to knowingly or intentionally possess Xylazine.

(2) Whoever violates the provisions of this Subsection shall be imprisoned for not more than six months and, in addition, may be required to pay a fine of not more than five hundred dollars.

C. The provisions of this Section shall not apply to the following:

(a) The production, manufacturing, distribution, or possession of Xylazine in the course of a legitimate veterinary practice.

(b) The production, manufacturing, distribution, or possession of Xylazine bulk chemical for pharmaceutical compounding by a licensed pharmacist or veterinarian.

(c) The possession of Xylazine pursuant to a valid prescription from a licensed veterinarian.

D. As used in this Section, “Xylazine” means Xylazine and any salt, sulfate, isomer, homologue, analogue, or other preparation of Xylazine, and any salt, isomer, compound, derivative, precursor, homologue, analogue, or other preparation thereof that is substantially chemically equivalent or identical to Xylazine.

La. R.S. 40:989.4.

If you or someone you know is facing prosecution for a drug offense, give us a call at (318) 459-9111 to set up a consult.

This week, we are addressing some changes the Louisiana Legislature made to the Driving While Intoxicated laws as well as a new sentencing enhancement for operating a vehicle without a properly attached license plate.

The Louisiana Legislature amended all of the Operating a Vehicle While Intoxicated to mandate that the Department of Motor Vehicles shall suspend a defendant’s Driver’s License if he submitted to a blood alcohol test and the results were 0.15 or higher. For a first offense, the Driver’s License shall be suspended for 2 years. For a second offense, 4 years. This amendment does allow the defendant to obtain a hardship license during the term of his suspension, as long as his vehicle is equipped with an ignition interlock device (a breathalyzer).

Louisiana Revised Statutes 32:57 has been amended to create a sentencing enhancement under the following circumstances:

If a violation of R.S. 32:53(A)(2) [improper display of a license plate] is committed in the preparation of or during the commission of a felony offense in order to escape detection, the violator shall be punished by an additional fine of two hundred dollars or by imprisonment of an additional thirty days, or both. For any violation of R.S. 32:53(A)(2), the vehicle may be immediately impounded.

La. R.S. 32:57(A)(2).

The Louisiana Legislature also enacted La. R.S 14:93.2.4 - Unlawful Swimming in Certain Waterways:

A. It shall be unlawful for any parent or legal guardian who has care and control of a minor, to permit a minor, either knowingly, willfully, or through criminal negligence to swim without wearing a Type 1, type II, Type III, or Type V personal floatation device approved by the United States Coast Guard in the portion of any river beginning from a water-controlled structure through which that river flows to a point seventy miles downstream when that structure creates a reservoir used to generate hydroelectric power. The distance provided for in this Subsection shall be measured from the structure along a line drawn downstream in the middle of the river bed.

(B)(1) On a first conviction, the parent or legal guardian shall be issued a warning ticket, fined not more than twenty-five dollars, or both.

(2) On a second conviction, the parent or legal guardian shall be fined not more than fifty dollars, imprisoned for not more than seven days, or both.

(3) On a third or subsequent conviction, the parent or legal guardian shall be fined not more than seventy-five dollars nor more than two hundred fifty dollars, imprisoned for not more than thirty days, or both.

La. R.S. 14:93.2.4.

If you or someone you know is facing criminal prosecution, give us a call at (318) 459-9111 to set up a consult.