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.

What happens immediately after you’ve been arrested is a bit dependent on the circumstances of your arrest. For individuals who have been arrested for a misdemeanor, depending on the court and the jail, their bond may be set by schedule, and they may be able to post bond and be released within hours. For those arrested on a felony, if arrested without a warrant, the court must make a determination that there was probable cause for the arrest within 72 hours of the arrest. This can be done either by a court appearance or by the court simply reviewing the arrest affidavit submitted by the arresting officer and making a probable cause determination from that document. If the person was arrested pursuant to an arrest warrant, then the probable cause determination has already been made. If bond was not set on the warrant, itself, it will be within 72 hours (unless the arrest was for domestic abuse battery, violation of a protective order, stalking, a sex offense, or a crime involving acts or threats of violence against a family member, household member, or dating partner. (For more information about that, see last week’s post.)

Once bail has been set, whether or not the arrested individual is able to post bail, her case will likely be set for either an initial appearance, bond return date, or arraignment. if bond is posted and the defendant is released, the court may set a bond return date on which the defendant must appear in court. This is simply a date to ensure that the defendant is following the rules of his bail obligation. Arraignment is the first court date on which anything of substance will likely happen in the case (assuming there has not been a bond hearing previously). Arraignment is the court appearance at which the State will file the Bill of Information or other charging document and that document will be read to the defendant in its entirety (unless she waives that reading).

The defendant will then be asked how she pleads to the charges. If she pleas guilty, she will be waiving all additional rights to trial, representation by counsel, against self-incrimination, for compulsory process, etc… and she will be sentenced by the court at that time.

If she pleas not guilty, the case will continue and the State will have to provide her attorney with the discovery in the case. Discovery is simply any evidence the State intends to use against the defendant at the trial of the case.

The case will likely be set for several additional court appearances as the parties negotiate and/or fight about potential resolutions, discovery issues, suppression issues, etc…

If you or someone you know has been arrested and is looking for legal representation, give us a call to set up a consult at (318) 459-9111.

Gilmer & Giglio are in trial this week. If you contact our office, leave a message, and we will return your call as quickly as possible. We appreciate your patience!

As of August 1, 2022, if an individual fails to pay a traffic citation or fails to appear for his court appearance, the DMV will no longer suspend his license immediately. Louisiana Revised Statutes 32:57.1 now requires that the DMV notify the individual via regular mail and “any available electronic communication” that “if he fails to honor the written promise to appear or pay an appropriate fine for the offense within one hundred eighty days after the date the notice was received,” that his license may be suspended. The Department is also required to notify the individual again no later than one hundred twenty days after the Department receives notice of the failure to appear. La. R.S. 32:57.1(A).

This statute increases the reinstatement fee for a suspended driver’s license to $100 from $50 once the suspension has gone into effect. La R.S. 43:57.1(B).

The statute further allows that if the individual failed to appear due to incarceration, his license shall be immediately reinstated without payment of any reinstatement fee. La R.S. 32:57.1(D).

If you or someone you know is dealing with unpaid traffic tickets or a driver’s license suspension, call us at 318-459-9111 to schedule a consultation.

Gilmer & Giglio are in trial this week. If you contact our office, leave a message, and we will return your call as quickly as possible. We appreciate your patience!

Gilmer & Giglio are in trial this week. If you contact our office, leave a message, and we will return your call as quickly as possible. We appreciate your patience!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

In Lousiana, some cases are tried by a judge and some are tried by a jury. The dividing line between the two are that cases in which the defendant may be sentenced to imprisonment at hard labor must be tried by a jury, unless the defendant waives that right and chooses to be tried by a judge. This is solely the defendant’s right to waive. The State cannot force a defendant to give up his right to trial by jury.

In Louisiana, jury trials are also broken down into two types: 6-person juries and 12-person juries.

A defendant is entitled to a 12-person jury trial when the charge for which he is being prosecuted is either capital (meaning he can be executed or imprisoned at hard labor for life) or if the sentence requires that he be sentenced to hard labor. If the potential punishment only carries the possibility of imprisonment at hard labor, then the defendant is only entitled to a trial by 6 jurors.

See Louisiana Code of Criminal Procedure Article 782.

For those of you located in Louisiana, you are certainly aware that there is an election coming up on March 26th. For those in Caddo or Bossier Parishes, this election will directly impact our court system. There are two open judicial seats on the ballot on March 26: Judge on the Second Circuit Court of Appeal and Judge on the 26th Judicial District Court.

The candidate elected to the 26th will preside over criminal as well as civil cases in Bossier and Webster Parishes and the candidate elected to the Second Circuit will hear appeals of criminal and civil cases throughout the Second Circuit (see the maps below).

Louisiana Judicial District Map

Map of the state of Louisiana with each judicial district (1 through 42) displayed on it.

Louisiana Court of Appeal Map

Map of the state of Louisiana with each Appellate District (1 through 5) displayed on it.

In Louisiana, District Court judges are elected for six (6) year terms. Appellate court judges are elected for terms of ten (10) years. The candidates for the Court of Appeal in this election are Judge Erin Leigh Waddell Garrett and Judge Craig Marcotte. The candidates for the 26th Judicial District Court are Allie Aiello Stahl and Doug Stinson.

In Louisiana, the requirements to be eligible to vote are that you: (1) are a United States citizen, (2) are 18 years old (but you can register at 17), (3) are not in jail or under an order of supervision (i.e. in jail or on probation or parole)*, (4) are not interdicted, and (5) live in the state and parish in which you are registered to vote.

*This provision means that even if you are a convicted felon, once you have served your sentence, you are eligible to vote and should confirm that your registration is valid. (You can do that here.)

Early voting in this election begins on March 12 and runs through March 19 (except Sunday, March 13) from 8:30 a.m. - 6 p.m. and Election Day voting will take place on March 26, from 7 a.m. to 8 p.m.

During the last regular session, the Louisiana Legislature added several sections to Louisiana Code of Criminal Procedure Article 556.1 establishing new duties on courts and defense lawyers in providing advice to their clients. The prior version of the law requires the Court to advise a defendant entering a plea of guilty to the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.

(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.

(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

The amendment now requires that the defendant be advised:

(5) That if he pleads guilty or nolo contender, he may be subject to additional consequences or waivers of constitutional rights in the following areas as a result of his plea to be informed as follows:

(a) Defense counsel or the court shall inform him regarding:

(i) Potential deportation, for a person who is not a United States citizen.

(ii) The right to vote.

(iii) The right to bear arms.

(iv) The right to due process.

(v) The right to equal protection.

(b) Defense counsel or the court may inform him of additional direct or potential consequences impacting the following:

(i) College admissions and financial aid.

(ii) Public housing benefits.

(iii) Employment and licensing restrictions.

(iv) Potential sentencing as a habitual offender.

(v) Standard of proof for probation or parole revocations.

The amendment further establishes that failure to so advise a defendant does not entitle him to reversal of his conviction and that this information can be provided to the defendant using a form.

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. 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.

Because some state and federal laws prohibit the same activity, you can sometimes be prosecuted in both state and federal court for the same (or very similar) conduct. For example, if you are charged with possession of controlled dangerous substances under state laws and, if the drugs were transported across state lines, you can be prosecuted under both state and federal law.

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 again, 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.

Court proceedings are also very different between state and federal court. In state court, you may have multiple court appearances while your case is pending. In federal court, you will make your initial appearance and most other proceedings, unless they are contested hearings, will be handled with conferences between the attorneys. Federal cases follow a strict scheduling order and tend to proceed more quickly than cases in state court tend to.

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.

We often hear from both the accused and complainants in domestic abuse cases that the complainant wants to drop the charges against the accused. The next question is always: Won’t the state just dismiss my case, then?

The answer to that question is almost always no.

In Louisiana, the victim in a criminal case is not a party to the prosecution. In a civil case, the person who committed the wrongful act and the victim are both parties. The Plaintiff is the person who was hurt and the Defendant is the person who did the hurting. For example, in a car accident in which John Doe rear-ended Jane Roe, Doe would be the defendant sued by Roe.

In a criminal case, the State steps in to the shoes of the wronged party and brings the case against the defendant. So, for example, if John Doe were accused of committing a domestic abuse battery against Jane Roe, the case would be filed as State of Louisiana versus John Doe. And Jane Roe would merely be a witness in the State’s case.

That said, victims in Louisiana have certain rights established in our constitution and laws. Louisiana Constitution Article I, Section 25 establishes the rights of a victim:

“Any person who is a victim of crime shall be treated with fairness, dignity, and respect, and shall be informed of the rights accorded under this Section. As defined by law, a victim of crime shall have the right to reasonable notice and to be present and heard during all critical stages of preconviction and postconviction proceedings; the right to be informed upon the release from custody or the escape of the accused or the offender; the right to confer with the prosecution prior to final disposition of the case; the right to refuse to be interviewed by the accused or a representative of the accused; the right to review and comment upon the presentence report prior to imposition of sentence; the right to seek restitution; and the right to a reasonably prompt conclusion of the case. The legislature shall enact laws to implement this Section. The evidentiary and procedural laws of this state shall be interpreted in a manner consistent with this Section.

Nothing in this Section shall be construed to inure to the benefit of an accused or to confer upon any person the right to appeal or seek supervisory review of any judicial decision made in a criminal proceeding. Nothing in this Section shall be the basis for an award of costs or attorney fees, for the appointment of counsel for a victim, or for any cause of action for compensation or damages against the state of Louisiana, a political subdivision, a public agency, or a court, or any officer, employee, or agent thereof. Remedies to enforce the rights enumerated in this Section shall be provided by law.”

And Louisiana Revised Statutes Title 46, Chapter 21-B, Section 1844 establishes additional rights that victims and witnesses in criminal cases may have.

One of the rights established by these laws is notification and consultation with the district attorney’s office handling the case. This is the opportunity for the victim in a domestic abuse case to be heard about the resolution of the case. Often, a Victim Assistance Coordinator, an employee of the District Attorney’s Office, will be assigned to the case to whom the victim can make their requests.

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.

No.

There are multiple reasons why you should speak to an attorney if you are accused of a crime, even if you know you did it:

The consequences of pleading guilty may be more severe than you realize.

Many people think that if they just go in to court and plea guilty, they will receive a fine and be allowed to go on with their day. Almost every criminal offense (and many traffic offenses) allow for a court to impose a jail sentence instead of or in addition to a fine. Pleading guilty without knowing what the likely sentence will be could result in jail time for you.

In addition to those consequences, many felonies will result in the loss of gun rights under State law and all felonies will result in the loss of gun rights under Federal law. Some misdemeanors that involve domestic violence may also result in the loss of gun rights.

Finally, any criminal conviction usually must be disclosed on job applications which can cause problems for young people who are not established in their careers.

There may be another resolution available to you.

Even if you are guilty of the offense with which you are charged, depending on your criminal history, an attorney may be able to advocate on your behalf for a plea to a lesser offense, or a referral to a diversion program which may result in your charge being dismissed. These options will usually not be relayed to you by the prosecutor if you are not represented by an attorney. (It isn’t the prosecutor’s job to advocate for you. That’s why you need a lawyer!)

The State may not have sufficient evidence to prove you committed the offense.

Even if you are guilty of the offense, the State may not have enough evidence to prove it. Your criminal defense lawyer will review all of the evidence and see if there are grounds to suppress some of the evidence against you or if there is simply insufficient evidence to convict you of the crime.

There are sentencing provisions that may help you clear your record down the road that you will not be aware of representing yourself.

Finally, even if your case resolves with you pleading guilty to the charge, an attorney may be able to position you so that you can expunge your record at some point down the line.

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

In Louisiana, criminal charges are either misdemeanors or felonies. As a general rule, misdemeanors are less serious and much less punitive than felonies. Louisiana’s criminal definition statute is found in Title 14 of the Revised Statutes, Section 2. Subsections (4) and (6) define “felony” and “misdemeanor”.

A felony in Louisiana is

“Any crime for which an offender may be sentenced to death or imprisonment at hard labor."

A misdemeanor in Louisiana is

“Any crime other than a felony.”

The other major difference between a felony and a misdemeanor in Louisiana is that individuals charged with felonies are entitled to trial by jury. Although an individual charged with a felony can waive his right to a jury trial, people charged with misdemeanors are only entitled to trial by judge.

One of the questions we are asked very frequently during consultations is: What motions will you file in my case? Our answer is always first: It depends. But there are some motions that we will always file and many others that we will always consider.

In every case, we will file a Motion to Enroll. A motion to enroll notifies the court that we represent our client and allows us to, as I often put it, do the talking. We will also file a Motion for Discovery. This motion requests the court to order the state to provide to us all of the evidence they intend to use against our client. We ask for copies of police reports, arrest affidavits, photographs, police body and dash cam videos, and interviews, among many other things.

The other motions that we will file are all dependent on the facts of each client’s case. Sometimes we will file a Motion to Quash, which is filed usually when there is something technically wrong with the charging document (the bill of information or indictment). This motion is how we say that there is something wrong with the charge and it needs to be fixed.

In some cases, we will file a motion to suppress. A motion to suppress is appropriate in cases where there has been a violation of a client’s constitutional rights. If granted, a motion to suppress will order the state to exclude evidence seized as a result of that violation.

Every case is different and will require different motions that should be filed at different times. We look at each case thoroughly to find what motions are appropriate and when they should be filed.

If you or someone you know is looking for an attorney for a criminal case, call us at (318) 459-9111 to set up a consult.

The likely answer to this question is, unfortunately, no. Your case will likely not be dismissed just because the officer didn’t read you your rights. To explain why, we’ll have to give you a brief run-down of what Miranda actually involved.

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In Miranda v. Arizona, decided in 1966, the United States Supreme Court consolidated several cases in which individuals who had been placed under arrest were interrogated by law enforcement or prosecutors and who, during those interrogations, gave statements that were subsequently used against them.

Prior to 1966, the Supreme Court had recognized that criminal defendants had certain rights during police interrogation, among them the right to have counsel present and the right to remain silent, but Miranda was the first case where the Court really recognized that many people didn’t actually know that they had these rights and this lack of knowledge could be taken advantage of by law enforcement attempting to obtain confessions. Miranda now requires that an arrestee who is subject to interrogation must be advised of his right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that if he cannot afford an attorney, the court will appoint one to represent him. If he is not so advised, any statements he makes then cannot be used against him.

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So, back to your set of facts: you were placed under arrest, and the officers did not read you your rights. Does this mean that your case will automatically be thrown out? No. If you were not interrogated about the facts surrounding the arrest, Miranda isn’t implicated. If you were interrogated, there may be grounds to file a motion to suppress your statement because it was taken in violation of Miranda requirements, but that does not mean that your case will automatically be dismissed if there is sufficient other evidence to prosecute you.

If you or someone you know has been arrested and interrogated for a crime and are looking to hire an attorney, give us a call at (318) 459-9111 to set up a consult.

At Gilmer & Giglio, we frequently handle bond matters, including reduction requests. Here are our answers to a few basic bond-related questions that we often receive. Of course, each case is different, so if you or a loved one needs help, give us a call at (318) 459-9111, to talk to us about your case specifically.

Q: What is the purpose of bond?

A: Per Louisiana Code of Criminal Procedure Art. 316, bond must be fixed “in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community.”

Q: What does the judge consider when setting the bond?

A: The Louisiana Code of Criminal Procedure sets out ten factors to be considered in setting a defendant’s bond. They are:

1. The seriousness of the offense charged (including whether it is a crime of violence or involved a controlled dangerous substance;

2. The weight of the evidence against the defendant;

3. The previous criminal record of the defendant;

4. The ability of the defendant to post bail;

5. The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release;

6. The defendant’s voluntary participation in a pretrial drug testing program;

7. The absence or presence in the defendant of any controlled dangerous substance;

8. Whether the defendant is currently out on bond for another felony;

9. Any other circumstances affecting the probability of the defendant’s appearance; and

10. The type or form of bail

Q: Why is it taking so long to get a bond set in my Domestic Abuse Battery case?

A: This is likely because of Gwen’s law. If you are charged with domestic abuse battery, violation of protective orders, stalking or any felony offense involving the use or threatened use of force or a deadly weapon upon a family member, household member or dating partner, the court can hold you for a contradictory hearing (a “Gwen’s law hearing”) for up to five days after the finding of probable cause (usually the arrest day). This five-day window is exclusive of weekends and holidays. At that hearing, the court will make a determination as to whether or not the Defendant will have to remain incarcerated pending trial. Additionally, if bond is set at that hearing, there is a high likelihood that a protective order will be issued in favor of the complainant. If possible, you should hire an attorney before this hearing.

Q: I’ve already bonded out, but now I think that the bond was too high. Can we go back and get a reduction?

A: No.

Q: I bonded out, but now the State is asking for a bond increase. Can they do that?

A: Just like you can ask for a bond reduction, they can ask for a bond increase. We see this frequently, when a Defendant bonds out and subsequently picks up a new charge. Whether a bond increase is granted depends on many circumstances, just as a reduction does.

Q: What are my bond conditions?

A: Bond conditions are specific to each case, so each Defendant’s bond may be a little bit different. The jail or your bondsman should give you your bond conditions when you leave the jail. Common conditions of bond include: orders to refrain from criminal activity and drug use, avoid associating with felons, not to leave the state without prior written permission of the court, and to obey any orders of protection.

In more serious cases, the court may require global position monitoring (ankle monitoring). It is incredibly important in cases where there is a protective order or no-contact order is in place, you abide by that order. It does not matter how friendly you are with that person or that you are in a romantic relationship with them—violation of these orders is the fastest way to get your bond revoked. Don’t do it! 

Q: What is the process to get a bond reduction?

A: If you hire us for your case, and would like us to seek a bond reduction, our first step would be to get you a court date as soon as possible, so the judge can hear the evidence quickly and hopefully get the bond reduced so you can get out of jail. Sometimes getting set on a docket takes a day, and sometimes it takes weeks, but that is the first step. Once we have a court date, we may subpoena witnesses to testify as to your ties to the community, work history, lack of drug history, etc. We may also start collecting character letters on your behalf. Additionally, we usually speak to the prosecutor to see if they will agree with the bond reduction. It is the policy of most District Attorneys to oppose bond reductions, but we have been able to get them to agree in some situations. At the bond hearing, we will present evidence, the state will present evidence, and then both sides will argue to the judge. Typically, the judge will rule on the bond reduction that day in open court, although sometimes they take the matter under advisement, which means we have to come back to court to get the answer.

Q: I need to travel out of state, but my bond conditions say I can’t. Can you do anything about this?

A: Yes. We often file motions to amend bond conditions, requesting that the judge sign an order allowing you to travel out of the state even though it is otherwise a violation of bond. We work to make sure your bondsman has no opposition, and then explain the reason for travel to the judge, find out if the State has any opposition, and hopefully the judge will approve your travel. If he or she does approve it, we give you a copy of the signed order to take with you while you travel, so you don’t run into any issues.

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.