It is time for my (kinda) regular reminder that marijuana is still illegal under federal (and state - under most circumstances) law!

In the United States it is illegal to possess marijuana. The possession of any amount is a criminal offense that carries a potential fine and/or imprisonment.

In Louisiana, it is illegal to possess marijuana (in any quantity); however, the possession of 14 grams or less is punishable by only a fine of up to $100. (NOTE: This is still. a. crime. It will still go on your rap sheet and you will still have to disclose it to potential employers.)

The one exception to the prohibition on possession under Louisiana law is that

Any person who is a patient of the state-sponsored medical marijuana program in Louisiana, and possesses medical marijuana in a form permissible under R.S. 40:1046 for a condition enumerated therein, a caregiver as defined in R.S. 15:1503, any person who is a domiciliary parent of a minor child who possesses medical marijuana on behalf of his minor child in a form permissible under 40:1046 for a condition enumerated therein pursuant to a legitimate medical marijuana prescription or recommendation issued by a licensed health professional authorized by R.S. 40:1046(B) to recommend medical marijuana to patients, or any visiting qualifying patient as defined in R.S. 40:1046.1 shall be exempt from the provisions of this Section. This Paragraph shall not prevent the arrest or prosecution of any person for diversion of marijuana or any of its derivatives or other conduct outside the scope of the state-sponsored medical marijuana program.

La. R.S. 40:966F(1).

With regard to traveling with marijuana, beyond its illegality under federal law, the chart below (thanks to statista.com for the chart!) shows the current state of legalization across the United States. Traveling to another state, even with a medical marijuana authorization from Louisiana, may still render you in legal trouble if it is not legal in the state to which you travel (or through which you travel).

Finally, strangely, the Transportation Security Administration (TSA) has an interesting perspective on air travel while carrying marijuana on their website:

The second paragraph of this blurb from the TSA’s website is, I think, the most important despite the permissiveness of the first paragraph.

If you or someone you know is being prosecuted for charges related to marijuana and would like to set up a consultation, give us a call at (318) 459-9111.

The federal government has established several special criminal offenses that govern the behavior of individuals traveling by air.

Title 18, §31 defines several terms that are important for further review of the offenses that follow:

(1) Aircraft - The term “aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.

…

(4) In flight - The term “in flight” means —

(A) any time from the moment at which all the external doors of an aircraft are closed following embarkation until the moment when any such door is opened for disembarkation; and

(B) in the case of a forced landing, until competent authorities take over the responsibility for the aircraft and the persons and property are on board.

(5) In service - The term “in service” means —

(A) any time from the beginning of preflight preparation of an aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing; and

(B) in any event includes the entire period during which the aircraft is in flight.

18 USC 31(a).

Section 32 of Title 18 prohibits (among other things) destroying, setting fire to, damaging, wrecking, placing a destructive device or substance on or in proximity to an airplane, air navigation facility, or maintenance area for an aircraft. This statute is very broad and probably covers any action you could take that could cause damage while in an airport or on an airplane. There are some limitations, such that the action must be done “willfully” or with the intent to damage, destroy, or disable the aircraft, or with the intent to endanger the safety of another person. it also prohibits performing any act of violence against or incapacitating any individual on an aircraft if such act is likely to endanger the safety of the aircraft. The penalty for violating these offenses is a fine and/or imprisoned for up to 20 years.

So that disagreement with the flight attendant is just not worth resorting to physical violence over.

For those traveling internationally this summer, a reminder:

Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces or attempts to smuggle or clandestinely introduce into the United States any merchandise which should have been invoiced, or makes out or passes or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper, or

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—

Shall be fined under this title or imprisoned not more than 20 years, our both.

Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this Section.

18 USC 545.

On a lighter note, it is also a federal crime to aim the beam of a laser pointer at an aircraft and carries a fine and/or imprisonment up to 5 years. 18 USC 39A.

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

Merle Denezpi, a member of the Navajo Tribe, pled guilty to an assault charge in the Court of Indian Affairs. Subsequently, he was indicted in federal court for charges arising from the same set of facts. He was convicted and sentenced to 30 years in prison.

He challenged his conviction in federal court alleging that the Double Jeopardy Clause of the United States Constitution prohibited his subsequent conviction in federal court after he was convicted in the Court of Indian Affairs.

The question pending before the Supreme Court this term is:

Does a prosecution in the Court of Indian Offenses trigger the Constitution’s Double Jeopardy Clause?

Source: Oyez.org

In 1997, William Wooden broke into a storage facility and stole objects from 10 different storage units. He was charged with and subsequently pled guilty to 10 counts of burglary. In 2014, officers found him in possession of a rifle and charged him with being a felon in possession of a firearm and was indicted by a federal court. After trial, and during his sentencing hearing, Wooden was determined to be an Armed Career Criminal in violation of 18 U.S.C. § 922(g)(1) and 924(e).

The Supreme Court addressed the following question:

Are offenses committed as part of a single criminal spree but sequentially in time “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act?

In a unanimous decision drafted by Justice Kagan, the Court found that offenses committed as part of a single criminal episode did not occur on different “occasions” and thus count as only one offense for purposes of the Armed Career Criminal Act.

Source: Oyez.org.

Larry Thompson was arrested for resisting an officer and obstructing governmental administration after he refused to allow officers entry into his home when they told him they did not have a warrant. He spent two days in jail and after three months his case was dismissed. The initial complaint was made by his sister-in-law who believed diaper rash on her nephew was a sign of abuse. After EMTs arrived on scene and found nothing wrong, four law enforcement officers arrived and Mr. Thompson, who did not know about his sister-in-law’s call, denied them entry, resulting in his arrest.

After his case was dismissed, Mr. Thompson filed a lawsuit against the officers for malicious prosecution. The trial court dismissed the case because it found that a dismissal was not a proceeding that “formally ended in a manner not inconsistent with his innocence,” or “ended in a manner that affirmatively indicates his innocence”.

In a 6-3 decision authored by Justice Kavanaugh, the Supreme Court held that an acquittal was not required to sustain an §1983 action.

Source: Oyez.org

In April 2006, two men got into a fight with several other people in the Bronx. Shortly thereafter, someone opened fire with a 9 millimeter handgun and a child in a passing car was killed. Nicholas Morris was identified by witnesses as the shooter and pursuant to a warrant, officers found a 9 millimeter cartridge and ammunition for a .357 revolver in his home. They did not find the weapon. Morris’ trial ended in a mistrial and rather than re-try him, Morris pled to possessing a firearm at the scene of the shooting. Because the prosecution did not have sufficient evidence to prove possession of a firearm at the scene, Morris testified during the plea that he possessed a .357 revolver at the scene.

In 2013, Darrell Hemphill was charged with the murder. At trial, Hemphill presented evidence that a 9 millimeter cartridge was located at Morris’ home shortly after the shooting. In response, the State presented the testimony of Morris at his plea that he had possessed a .357 revolver at the scene.

Hemphill appealed and the question presented to the United States Supreme Court was:

When, if ever, does a criminal defendant who “opens the door” to evidence that would otherwise be barred by the rules of evidence also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause?

The Supreme Court, in an 8-1 decision authored by Justice Sonia Sotomayor, held:

The Confrontation Clause of the U.S. Constitution guarantees criminal defendants the right to confront witnesses against them, and the Court has recognized no open-ended exceptions to this requirement—only those exceptions established at the time of the founding. In People v. Reid, New York’s highest court held that a criminal defendant “opens the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was “reasonably necessary” to correct a misleading impression made by the defense’s argument. Contrary to the State’s contention, the Reid rule is not merely procedural, but a substantive principle of evidence that dictates what material is relevant and admissible. Such an exception is antithetical to the Confrontation Clause.

Source: Oyez.com.

In honor of the 230th anniversary of the ratification of the Bill of Rights and week 8, another criminal defense attorney favorite: the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment’s short and sweet language is some of the most complicated and has spawned the most litigation in the Supreme Court. The questions of what is excessive, cruel, or unusual have spawned a great deal of litigation and the Court’s decisions on these matters have evolved over time as our society has evolved and changed. Things that were one thought perfectly fine are now considered cruel and unconscionable. This area of the law will continue to change as our society changes what we think constitutes cruelty.

Further reading:

• Kahler v. Kansas, in which the Court answered the question: “May a state abolish the insanity defense without violating the Eighth and Fourteenth Amendments?” Answer: Yes.

• Madison v. Alabama, in which the Court addressed the questions: “(1) Does the Eighth Amendment and the Court’s jurisprudence prohibit a state from executing a prisoner whose mental disability leaves him with no memory of the commission of the capital offense? and (2) Does the Eighth Amendment prohibition of cruel and unusual punishment preclude a state from executing a prisoner who suffers from severe cognitive dysfunction such that he cannot remember the crime for which he was convicted or understand the circumstances of his scheduled execution?” The Court found that: “The Eighth Amendment does not prohibit a state from executing a prisoner who cannot remember committing his crime, but it does prohibit executing a prisoner who cannot rationally understand the reasons for his execution, whether that inability is due to psychosis or dementia.”

• Timbs v. Indiana, in which the Court addressed the question: “Has the Eighth Amendment’s excessive fines clause been incorporated against the states under the Fourteenth Amendment?” Answer: Yes.

• Miller v. Alabama, in which the Court answered the question: “Does the imposition of a life-without-parole sentence on a fourteen-year-old child violate the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishment?” Answer: Yes.

In honor of the 230th anniversary of the ratification of the Bill of Rights and week 6, one of the favorites of criminal defense lawyers: the Sixth Amendment!

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment contains a lot of the rights which form the basis of our criminal justice system in the United States. This amendment requires that trials be both “speedy and public.” This, unfortunately, does not mean that the trial has to happen on the defendant’s preferred schedule, but it does mean that the State cannot simply hold an individual in custody indefinitely without resolution of his charges. It also requires that his trial be open to the public so that observers can enter and view the proceedings and so that the defendant knows that his trial will be subject to the oversight of his community, should they choose to avail themselves of that opportunity.

The defendant must be advised of the nature of the charges against him. This means he cannot be tried for a charge he hasn’t been advised he has been accused of. He has the right to confront the witnesses against him, which means they are required to come to court and testify openly and he has the right, on his own or through his counsel, to ask them questions relevant to their testimony. He can subpoena his own witnesses to court to testify on his behalf and cannot be prohibited from doing so provided their testimony is relevant. Finally, he has a right to an attorney to represent him and defend his case.

Further reading:

• Kaley v. United States, in which the Court answered the question: “Do the Fifth and Sixth Amendments require a district court to allow a criminal defendant to challenge the evidence behind her charges in a pretrial hearing when a protective order freezes the assets necessary for the defendant to hire her attorney?” Answer: No. The Defendant does not have a right to use illegally obtained assets to hire an attorney.

• Padilla v. Kentucky, in which the Court answered the questions: “(1) Is the mandatory deportation that results from a guilty plea to trafficking in marijuana a "collateral consequence" that relieves counsel of an affirmative duty to advise his client per the guarantees of the Sixth Amendment? (2) Assuming deportation is a "collateral consequence", can counsel's gross misadvice about deportation constitute a ground for setting aside a guilty plea that is induced by that advice?” Answers: (1) No, and (2) not reached because of the answer to (1).

• Montejo v. Louisiana, in which the Court addressed the question: “After the appointment of an attorney, does a defendant need to take additional steps to accept the appointment in order to secure the protections afforded by the Sixth Amendment?” Answer: Not necessarily.

• Hemphill v. New York, in which the Court will address the question: “When, if ever, does a criminal defendant who “opens the door” to evidence that would otherwise be barred by the rules of evidence also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause?”

• Hardy v. Cross, in which the Court answered the question: “Did the steps taken to attempt to locate [the witness] satisfy the Confrontation Clause's good faith effort requirement?” Answer: Yes.

• Bullcoming v. New Mexico, in which the Court addressed the question: “Can a blood-alcohol test admitted without the actual testimony of the person who prepared the results violate a criminal defendant's Sixth Amendment rights under the Confrontation Clause?” Answer: Yes.

• Melendez-Diaz v. Massachusetts, in which the Court addressed the question: “Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. Washington?” Yes.

On March 30, 2021, the Federal Bureau of Investigation (FBI) issued a Public Service Announcement advising the public of the criminal consequences of making and/or buying a fraudulent vaccination record.

Because the real vaccination cards carry the seal of the Center for Disease Control and Department of Health and Human Services, 18 USC 1017 criminalizes faking these cards or possessing fake cards:

Whoever fraudulently or wrongfully affixes or impresses the seal of any department or agency of the United States, to or upon any certificate, instrument, commission, document, or paper or with knowledge of its fraudulent character, with wrongful or fraudulent intent, uses, buys, procures, sells, or transfers to another any such certificate, instrument, commission, document, or paper, to which or upon which said seal has been so fraudulently affixed or impressed, shall be fined under this title or imprisoned not more than five years, or both.

18 USC 1017 - Government seals wrongfully used and instruments wrongfully sealed. Be careful and stay safe.

If you or someone you know needs a consult, give us a call at (3180 459-9111.

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.

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.

Both Sarah and I love to read, so when I saw there was a Read Across America day, I got very excited and knew I needed to share it. First, some history: Read Across America day began in 1997 as an initiative to encourage children to read. It is held on the nearest school day to March 2 every year because Thedor Geisel, or Dr. Suess, was born on March 2, 1904. Dr. Suess was a prolific author of children’s books that are beloved to this day.

In honor of Read Across America Day, we’ve got some recommendations for books for you:

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I know, I know, I didn’t have to tell you to read this one. But it is THE quintessential book about the law and justice in America. I don’t know very many lawyers who haven’t read this book. And an aside, when students sign up to take the bar exam in Louisiana, they have to pick a pseudonym so the graders can’t identify whose exam they are reading and, well, cheat. The examiners advise students not to choose the name “Atticus Finch” because SO MANY people have done it in the past that they run the risk of not being able to identify their own results.

Continuing our theme of books made into movies, you could pick any of a very long list of Grisham novels, but this was his first, and was inspired by To Kill a Mockingbird. Another book that attempts to grapple with the issues of race and justice in America that we have yet to solve.

As someone who uses the phrase “Kafkaesque” much more often than is really justifiable, I couldn’t resist the opportunity to include this book. This is the story of a man struggling with the bureaucracies of a court system that will not tell him what crime he has been accused of nor will it allow him to defend himself. It is absurd and frustrating but worth a read.

This is a non-fiction book that gives a good background in the development of DNA forensics and then delves deeply into the issues with said forensic evidence. For anyone with an interest in DNA, science-based evidence, or how exactly courts began to accept DNA evidence, this book is fantastic!

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We hope you found something here worth picking up on this National Read Across America day! Happy reading!

As always, if you or someone you know is accused of a crime, call us at (318) 459-9111 to schedule a consultation.

We get lots of questions about what evidence is, what type of information can be used against a person in a trial, and why certain information can’t be used at a trial. Each case is different and none of what follows should be considered to be applicable in all cases, but in this post and over the coming few weeks, we’re going to cover some common rules of evidence and some examples of how they might apply.

The first question we’re going to cover: is there a general rule about what information can be prevented at my trial?

The answer: Yes. That rule is relevancy. In Louisiana, relevancy is defined in the Code of Evidence Article 401. It says that relevant information is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In non-lawyer-speak, that basically means that a party can present any information that will make the trier of fact (jury or the judge, whoever is hearing the case) believe it is more or less likely that that element of the case (crime, defense, or an element of a civil case) occurred.

Examples of relevant evidence:

(*Please note that other rules of evidence may impact the admissibility of the evidence described below, we are simply providing examples for the purpose of relevancy here*)

• A defendant is being tried for simple battery after striking the victim, but witnesses are available who can testify that the victim and the defendant were members of a boxing team and they were engaged in a bout;

• An alleged victim of a theft gave statements to the defendant on a recorded telephone line that the defendant had permission to use his credit card; or

• A witness to a car accident saw the driver of the vehicle who struck the plaintiff tail-gating the plaintiff for several minutes before rear-ending the plaintiff’s vehicle at a red light.

In general, relevant evidence is admissible (meaning: able to be presented at trial) and irrelevant evidence is not admissible. The following is an example of evidence that would likely be found to be irrelevant: the fact that the defendant had been seen drunk at a party (not driving) a month before her arrest for driving while intoxicated.

Even relevant evidence may not be admissible in all cases. A court may decide that the evidence, although relevant, should be excluded because its probative value (its value as proof of something) is outweighed by:

1. the danger of unfair prejudice;

2. confusion of the issues;

3. misleading the jury; or

4. undue delay or waste of time.

Some examples:

• Evidence that is relevant but that would so poison the minds of the jury against one of the parties that it should not be presented to them;

• Evidence that is relevant, but that would only serve to make the case more complicated than necessary to decide, and so much more complicated that it would risk the reliability of the verdict;

• Evidence that would cause the jury to infer information or facts that are not true; or

• Evidence in cases where more than one witness can testify to the same information allowing them all to testify would be overly burdensome to the trial, even though all of their testimony is relevant.

Even if none of the above exceptions applies, relevant evidence may still not be admissible because another rule of evidence may apply. Stay tuned next week when we talk about one of those specific exceptions: character evidence.

If you or someone you know is facing criminal charges or has been involved in an accident and has questions about seeking legal representation, you can call our office at (318) 459-9111.

If you are contemplating air travel, and regularly carry a firearm, make sure you double-check that it isn’t in your luggage or that it is secured correctly.

Federal law, Louisiana law, and Shreveport city ordinances prohibit the possession of firearms in and around airports.

Federal law prohibits the “deliver[ing]” of a firearm to a “common or contract carrier for transportation or shipment in interstate or foreign commerce” any package containing a firearm without written notice to the carrier or unless “deliver[ed]…into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip.” (18 USC 922(e)).

Louisiana Revised Statutes Title 40, Section 1379.3 prohibits the concealed carrying of a handgun in “[a]ny portion of an airport facility where the carrying of firearms is prohibited under federal law, except that no person shall be prohibited from carrying any legal firearm into the terminal, if the firearm is encased for shipment, for the purpose of checking such firearm as lawful baggage.” (Subsection (N)(7)). That statute further states that no concealed carry permit permits the carrying of a concealed firearm in violation of state or federal law.

Finally, Shreveport City Ordinances also prohibit the possession of firearms on the premises of airports. Ordinance 50-135.1(a)(1) prohibits “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person,” and 50-135.2 states: “no person shall knowingly or intentionally possess or cause to be present or attempt to possess or cause to be present in…public buildings, structures or facilities owned by, occupied by, used by or under the control of the city, any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon.”

When you get ready to use air travel this summer, be careful about your firearms and if you or someone you know could use our help, give us a call at (318) 459-9111.

Louisiana Revised Statutes 14:79 makes it a crime to violate a protective order. The statute prohibits the following conduct:

A. (1)(a) Violation of protective orders is the willful disobedience of a preliminary or permanent injunction or protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., R.S. 46:2181 et seq., Children's Code Article 1564 et seq., Code of Civil Procedure Articles 3604 and 3607.1, or Code of Criminal Procedure Articles 320 and 871.1 after a contradictory court hearing, or the willful disobedience of a temporary restraining order or any ex parte protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, R.S. 46:2171 et seq., criminal stay-away orders as provided for in Code of Criminal Procedure Article 320, Children's Code Article 1564 et seq., or Code of Civil Procedure Articles 3604 and 3607.1, if the defendant has been given notice of the temporary restraining order or ex parte protective order by service of process as required by law.

(b) A defendant may also be deemed to have been properly served if tendered a certified copy of a temporary restraining order or ex parte protective order, or if tendered a faxed or electronic copy of a temporary restraining order or ex parte protective order received directly from the issuing magistrate, commissioner, hearing officer, judge or court, by any law enforcement officer who has been called to any scene where the named defendant is present. Such service of a previously issued temporary restraining order or ex parte protective order if noted in the police report shall be deemed sufficient evidence of service of process and admissible in any civil or criminal proceedings. A law enforcement officer making service under this Subsection shall transmit proof of service to the judicial administrator's office, LouisianaSupreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.

(2) Violation of protective orders shall also include the willful disobedience of an order of protection issued by a foreign state.

(3) Violation of protective orders shall also include the willful disobedience of the following:

(a) An order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner or justice of the peace that a criminal defendant stay away from a specific person or persons as a condition of that defendant's release on bond.

(b) An order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner or justice of the peace that a defendant convicted of a violation of any state, federal, parish, municipal, or city criminal offense stay away from any specific person as a condition of that defendant's release on probation.

(c) A condition of a parole release which requires that the parolee stay away from any specific person.

(d) An order issued pursuant to R.S. 46:1846.

(4) Violation of protective orders shall also include the possession of a firearm or carrying a concealed weapon in violation of R.S. 46:2136.3, the purchase or attempted purchase of a firearm, and the carrying of a concealed weapon in violation of R.S. 14:95.1, 95.1.3, or 95.10.

The short version of all of that is: if a protective order has been issued ordering you not to contact, harass, etc…another person, any violations of that protective order can result in you facing civil contempt charges in the protective order proceeding as well as a new criminal proceeding.

A first offense violation of a protective order charge which did not involve the use of violence carries a penalty range of a fine of up to $500 and imprisonment up to 6 months. A second offense which does not involve violence carries a penalty range of up to $1,000 and imprisonment for not less than 14 days nor more than 2 years.

If the violation does involve violence, the penalty range for a first offense is a fine of not more than $1,000 and imprisonment for not less than 3 months nor more than 2 years. A second offense carries a penalty range of a fine of not more than $2,000 and imprisonment for not less than one year nor more than 5 years.

If you or someone you know is facing charges for violating a protective order, give us a call at (318) 459-9111 to set up a consultation.

In Louisiana, a person convicted of a felony may lose two very important rights: (1) the right to vote and (2) the right to possess a firearm.

Under new legislation passed in the last few years, a person convicted of a felony regains his right to vote automatically upon release from supervision. This means that as long as the person convicted of a felony is no longer in custody or on probation or parole, his right to vote has been restored. Because voter rolls are sometimes purged after a certain period of time, once the individual has been released from supervision, he should check with his local Registrar of Voters to ensure that he is registered to vote.

With regard to the right to possess a firearm, both Louisiana and the federal government have prohibitions against the possession of a firearm by a convicted felon.

In Louisiana, only certain charges criminalize the possession of a firearm by any person convicted of or found not guilty by reason of insanity for:

• Crimes of violence listed in La. R.S. 14:2(B) which are felonies;

• Simple Burglary;

• Burglary of a Pharmacy;

• Burglary of an Inhabited Dwelling;

• Unauthorized Entry of an Inhabited Dwelling;

• Felony Illegal Use of a Weapon or Dangerous Instrumentality;

• Manufacture or Possession of a Bomb;

• Possession of a Firearm While in the Possession of or During the Sale of Controlled Dangerous Substances;

• Any sex offense as defined in La. R.S. 15:541; or

• Any attempt to commit any of the above offenses.

(La. R.S. 14:95.1). This statute only prohibit such possession for 10 years from the completion of any sentence. After that 10-year-period, the right to possess a firearm is restored under Louisiana law.

Unfortunately, Federal law prohibits, with no restoration, the right to possess a firearm by anyone convicted of a felony under State or Federal law. As a result, no matter the above reinstatement, federal law will still prohibit the possession of a firearm by a convicted felon.

Although there has been some movement by the Louisiana legislature to amend state law regarding the possession of firearms by individuals who have expunged their records, the effect of those laws on the federal prohibition has not been tested.

The only guaranteed way to restore one’s gun rights under federal law is to apply for and receive a Governor’s Pardon With Restoration of Gun Rights.

The Eighth Amendment to the United States Constitution contains the prohibitions against excessive bail and fines and cruel and unusual punishment. It states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment is the shortest of the sections of the Bill of Rights applicable to criminal law. It is quite simple, but has been the subject of an abundance of rulings by the United States Supreme Court due to the arguably vague nature of its prohibitions.

The Amendment prohibits the imposition of “excessive” bail or fines. This means, in practice, that the requirement of bail that may be placed on a defendant in a criminal prosecution must be limited to an amount necessary to ensure his appearance at the remainder of the criminal proceedings against him. The prohibition against excessive fines essentially requires that a defendant be fined only to the extent necessary to ensure that the Government’s interests in prosecuting the criminal defendant are met. Some of the interests put forth by the government as justifications for criminal prosecutions are: the punishment of the defendant, the prevention of any future criminal behavior by this defendant or any other individual, and rehabilitation.

Finally, the Eighth Amendment contains the prohibition against cruel and unusual punishment. This prohibition has been used most often to prohibit the methods of execution for capital (death penalty) cases. In particular, it has been used to prohibit the use of hanging and electrocution as methods of execution. Fairly regularly, cases are argued before the Supreme Court of the United States with regard to the death penalty and the prohibition against cruel and unusual punishment.

We hope you have enjoyed some brief information about the Constitution and, in particular, the Bill of Rights as applied to criminal investigations and prosecutions over the last few weeks!

The Sixth Amendment to the United States Constitution contains the most rights related to criminal defense in the Bill of Rights. It states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment’s prohibitions and requirements all pertain to the process by which a defendant may be tried in court. These rights apply to the actual trial procedure and not the process prior to the institution of prosecution.

First, it requires that a criminal defendant’s trial be “speedy” and “public.” The requirement of a speedy trial means that a defendant may not be held in jail indefinitely without his case being brought to trial. In Louisiana, our state statutes have established that the delays for bringing a case to trial are 2 years for felony prosecutions and 1 year for misdemeanors. The requirement that a defendant’s trial be public means that, under most circumstances, the defendant’s trial must be conducted in an open courtroom that may be entered by any person who would like to view the trial. There are some limitations when evidence is protected by another statute (for example: in cases involving the abuse of minors), or when a court is attempting to limit pre-trial publicity.

Second, the Sixth Amendment requires that a defendant be tried by an impartial jury. This requirement means that a defendant has the right to ask questions of the potential jurors to make sure that they are not biased against him for some reason, whether that be because of his race or gender, or because of the nature of the crime, itself. Jury selection is an incredibly important part of any trial.

The Sixth Amendment also requires that a defendant be informed of the “nature and cause of the accusation” against him. This provision requires that a defendant be advised of the crime with which he has been charged. In Louisiana, this means that a Bill of Information or Indictment is filed which contains the name of the defendant and the charge against him, including the date(s) on which the crime was allegedly committed. Further, the defendant has a right to have that document read aloud to him at his arraignment so he can enter a plea of either guilty or not guilty to the charge.

The Sixth Amendment also requires that a criminal defendant have the right of confrontation and compulsory process. This means that a criminal defendant must be entitled to cross examine his accuser at the time of his trial. The individual who has accused the defendant of a crime must be present in court to testify under oath to the facts that lead that person to believe that the defendant committed the offense, whether that be a victim or a law enforcement officer. Further, a defendant is allowed to call witnesses to testify on his behalf. He can also issue subpoenas (compulsory process) requiring them to appear in court to testify on his behalf if they are unwilling or unable to attend court voluntarily.

Finally, the Sixth Amendment requires that a defendant have the right to counsel. This right is contained in the second half of the Miranda warnings in which an arrestee is advised that she “has the right to an attorney,” and “if she cannot afford an attorney, one will be appointed to represent” her. This right does not apply until the arrestee has been charged with a crime, meaning that the arrestee is not necessarily entitled to an attorney during an interrogation; however, if the arrestee tells the police that he does not want to speak to them until he has an attorney, the interrogation is not allowed to continue until an attorney has been appointed to or retained by the criminal defendant. This requirement also means that a criminal defendant is entitled to an attorney who can represent him at all stages of the trial proceeding, from arraignment through trial and sentencing if she is convicted.

Next week: the Eighth Amendment’s prohibitions against excessive fines and bail and cruel and unusual punishment.

The Fifth Amendment to the United States Constitution is also found in the Bill of Rights and makes multiple requirements of the government in criminal prosecutions. The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment has the almost the largest number of rights that apply to criminal cases, second only to the Sixth Amendment, which we’ll discuss next week.

The Fifth Amendment requires that, in (most) federal prosecutions, a defendant must be indicted by a grand jury. This means that a group of people from the jurisdiction of the Court must meet and must hear the allegations brought against the defendant and decide that there is sufficient evidence to move forward with a prosecution before the defendant can be officially charged with a crime. This applies to all capital “or otherwise infamous” crimes which, in practice, means if you are being prosecuted in federal court, you have been indicted by a grand jury.

The Fifth Amendment also prohibits a defendant being tried for the same crime more than once: double jeopardy. This requirement means that once a person has been acquitted of a crime, he cannot be prosecuted for the same crime in the same jurisdiction. There are some limitations to this: if a defendant has been tried, but that trial ended in a mis-trial, or if the offense is a crime under both state and federal law, in which case the defendant can be prosecuted in both state and federal court.

The Fifth Amendment’s third prohibition is the right against self-incrimination. This right is depicted in every police procedural on television when the police advise the arrested person that she “has the right to remain silent and not answer any questions.” This prohibition also means that a criminal defendant cannot, unlike other witnesses, be compelled to testify when he is on trial. When a person “pleads the Fifth,” this is the section of the Amendment to which she is referring.

Finally, the Fifth Amendment establishes that a criminal defendant has a right to “due process.” Due Process is a very broad term that encompasses a multitude of other rights, which basically boil down to requirements that do not allow the government to put the defendant in jail and throw away the key without a trial.

Next week: the Sixth Amendment and speedy trials, impartial juries, and the confrontation clause, among others!

The Fourth Amendment to the United States Constitution is found in the Bill of Rights and, along with several others we’ll talk about over the next few weeks, provides protections for individuals against intrusions by the government. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This requires that a law enforcement agency (or other government agency) that wants to search a person’s home or property must show probable cause that evidence of a crime exists within that location. Further, it says that the government may not seize a person’s property without also showing probable cause to believe that it is evidence of or proceeds from a crime. Any warrant, in order to be constitutionally valid, must also describe the place to be searched and the description must be clear, and it must describe the property, or the person in the case of an arrest warrant, to be taken or arrested.

This requirement of probable cause, along with the prohibition against unreasonable searches and seizures means that the government must show, to the satisfaction of a reviewing judge, that they have more than just a suspicion that evidence of a crime is going to be located at the location. A person also may not be arrested except upon a showing of probable cause.

The effect of this Amendment on criminal prosecutions in Louisiana can be seen in many procedures our courts follow:

In Louisiana, if a person is arrested without a warrant, a judge must review the arrest information within 72 hours (exclusive of legal holidays) to determine whether there was probable cause to effectuate that arrest. If there was, then the case may proceed. If not, then the arrestee must be released.

Defendants who believe that they or their property have been searched unlawfully or absent probable cause may file a motion to suppress the results of the search and the Supreme Court has held that if those searches were conducted without probable cause, the evidence cannot be used against the Defendant.

Check back with us next week for our favorite legal and law-related movies in celebration of Louisiana Film Prize Weekend!