Character evidence is probably the most common type of evidence we get questions about: can I talk about how bad a person a victim was? Can I tell the jury about a specific bad thing the victim did? The very short answer is rarely, but sometimes.

First of all: what IS character evidence? Louisiana Code of Evidence Article 404 says that it is “evidence of a person’s character or a trait of his character, such as a moral quality.” Which pretty much defines the word using the word. Dictionary.com defines character as: “(1) the aggregate of features and traits that form the individual nature of some person or thing. (2) one such feature or trait. (3) moral or ethical quality.” Is a person honest, trustworthy, friendly, angry, aggressive, quick to fight, a peacemaker? These are all examples of character or traits of character that a person might want introduced at a trial.

So can you introduce those traits?

In general, evidence of a person’s character is not admissible for the purpose of showing “that he acted in conformity therewith on a particular occasion.” So, no. In general, you cannot introduce character evidence to show that the person acted in keeping with that evidence at a specific time. There are some exceptions, however:

1. You may introduce a pertinent trait of the accused, but it must be restricted to showing moral qualities pertinent to the crime. For example, if the defendant is charged with fraud, it may be relevant to show that he has a dishonest character.

2. You may introduce evidence of the character of a victim when

   • The victim has engaged in an overt act or hostile demonstration toward the defendant prior to the alleged crime, or

   • When the defendant has pleaded self-defense and there is a history of “assaultive behavior” between the defendant and the victim and they have lived together in a “familial relationship”

(Evidence of a non-victim and non-defendant witness’ character will be discussed in a later blog post.)

But what about specific evidence of prior criminal (or non-criminal but “bad” behavior”)?. Louisiana Code of Evidence Article 404(B) prohibits the use of “evidence of other crimes, wrongs, or acts…to prove the character of person in order to show that he acted in conformity therewith.”

As you surely already know if you have been following this blog series for the lsat three weeks, there are exceptions: such evidence may only be admissible to prove: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In order for the State to use such evidence against a defendant, it must provide reasonable notice to him.

Finally, in prosecutions for domestic abuse battery or cruelty to juveniles, the State may introduce evidence of other crimes, wrongs, or bad acts provided that the evidence is otherwise admissible under Code of Evidence Article 403 and it must provide notice to the defendant before the evidence may be introduced.

Next week we’ll talk about how you can introduce this character evidence. In the meantime, if you have questions about what evidence might be admissible in your case, give us a call at (318) 459-9111 to set up a consult.

Louisiana Revised Statutes Title 51, Section 650 and its subsequent statutes govern the sale, possession, and use of fireworks in Louisiana. Louisiana places restrictions on the types of fireworks that can be possessed in Louisiana as well as where and when they can be ignited.

Louisiana does not permit the possession of any of the following types of fireworks:

• cherry bombs,

• tubular salutes,

• two-inch American-made salutes,

• firecrackers with casings the external dimensions of which exceed an inch and a half long or one-quarter of an inch in diameter,

• repeating bombs,

• aerial bombs,

• torpedoes which exceed 3/8-inches in diameter,

• Roman candles larger than 10 ball, and

• sky rockets heavier than 6 ounces.

The state also prohibits the possession of “aerial luminaries” or:

• sky lanterns,

• Chinese lanterns,

• Hawaii lanterns,

• sky candles,

• Kongming lanterns,

• fire balloons, and

• flying luminaries.

Possession of any of the above subjects the individual in possession of them to a fine of up to $1,000 and imprisonment with or without hard labor for not more than two years.

Louisiana Revised Statutes 51:654(A) prohibits the sale of any fireworks to people under the age of 15, intoxicated persons, or (hilariously) “any person known to be irresponsible.” Subsection (B) prohibits the lighting of any fireworks within 1000 feet of any church, hospital, asylum, school, public building, or “fireworks retail location.” Subsections (C) and (D) prohibit the igniting of a firework in a car and the throwing of a firework from or into a car.

Stay safe this upcoming Fourth of July, but if you or someone you know runs afoul of one of the offenses above, give us a call at (318) 459-9111.

For Part One of our two-part series on Louisiana’s Habitual Offender Law, click here.

The habitual offender law increases the sentences for felony convictions upon a second, third, and fourth (or subsequent) convictions.

A third felony conviction will increase the sentence range from a minimum sentence of 1/2 the longest possible sentence to a maximum sentence 2 times the longest possible sentence. If all three offenses are crimes of violence or sex offenses involving victims under the age of 18, the sentence will be life imprisoment without benefit of probation, parole, or suspension of sentence.

For a fourth felony conviction (or any felony conviction beyond the fourth), a habitual offender finding will increase the minimum possible sentence to the maximum sentence for the underlying felony or 20 years, whichever is longer, with a maximum possible sentence of life imprisonment. If the fourth offense is a crime of violence or a sex offense, but none of the priors are crimes of violence or sex offenses, the minimum possible sentence will be twice the longest sentence for the underlying charge or 20 years, whichever is longer, with a maximum possible sentence of life imprisonment. Finally, if all of the offenses are crimes of violence or sex offenses involving victims under the age of 18, the sentence will be life imprisonment without benefit of probation, parole, or suspension of sentence.

Multiple felony convictions greatly increase the risk of imprisonment upon conviction. If you or someone you know is facing criminal charges and is worried about a multiple offender bill, call us at (318) 459-9111.

In Louisiana, a person charged with a felony offense who has been convicted of prior felony offenses may be charged by multiple offender bill as a habitual offender. If the Court finds that that person has been convicted of one or more prior felonies within a certain time period, his sentence will be increased. (La. R.S. 15:529.1)

There are cleansing periods built into the statute that prohibit the Court from considering prior convictions after 5 years for non-violent and non-sex offense priors. In the event that the prior offenses are sex offenses or violent offenses, then the Court can consider them from 10 years prior to the present charge. Finally, if a conviction has been set aside pursuant to Article 893 and is not a crime of violence, it cannot be used as a prior offense for purposes of the habitual offender law.

If convicted of a second felony offense and charged as a habitual offender, the sentence range for the current charge will increase from a minimum of 1/3 of the longest possible sentence to a maximum of twice the length of the longest possible sentence. If both felonies are sex offenses, then the sentence range for the second felony will increase to a minimum of 2/3 of the longest possible sentence to a maximum of 3 times the longest possible sentence without benefit of probation, parole, or suspension of sentence. Finally, if both the felonies are sex offenses involving victims under the age of 13, the sentence will become life imprisonment without benefit of probation, parole, or suspension of sentence.

For third and fourth felony offenses, check back with us next week and if you or someone you know has concerns about being charged as a habitual offender, please call us at (318) 459-9111.

Both the United States Constitution and the Louisiana State Constitution, according to the US Supreme Court and the Louisiana Supreme Court, allow for law enforcement to set up checkpoints for various offenses. The Courts have allowed for checkpoints for the purpose of stopping and arresting intoxicated drivers, people operating their vehicles without insurance and without seatbelts, among other things.

In order for a checkpoint to pass constitutional muster, it must meet some requirements:

1. The location, time, and duration of the checkpoint, as well as any other regulations governing the operation of the checkpoint must be established by supervisory or administrative personnel with the law enforcement agency who are not involved in the operation of the checkpoint, itself. It is not required, but the cases recommend that these regulations be memorialized in writing.)

2. The law agency must provide advance warning to motorists using signs, flares, or other indicators of the official nature of the checkpoint.

3. The motorists must be detained for a minimal period of time.
   and

4. The officers must use a systematic, nonrandom criteria for stopping motorists.

The purpose of these rules is the “curtail the unbridled discretion of officers in the field.” State v. Jackson, 764 So.2d 64 (2000).

If you have questions about an arrest arising from a law enforcement checkpoint, call us at (318) 459-9111.

In Louisiana, when a person is arrested for Driving While Intoxicated (DWI), his driver’s license will also be suspended in an administrative proceeding that is entirely separate from the criminal prosecution.

The first step in this process occurs during the arrest, itself. During the arrest, law enforcement will read a series of instructions and regulations to the arrested person advising him of his rights related to the breathalyzer.

The law at the time of this writing requires a person operating a motor vehicle on the public highways of Louisiana to submit to a chemical test of his blood, breath, or other bodily substance if an officer believes he is operating or “in actual physical control” of a motor vehicle and a law enforcement officer has “reasonable grounds to believe he is under the influence of alcohol beverages or “any abused substance or controlled dangerous substance.” (La. R.S. 32:661).

If the arrested person refuses to submit to testing or submits to testing and his results are above the legal limit of .08 (or .02 in the event the arrested person is under the age of 21), his driver’s license will be suspended for a period ranging from 90 days to 365 days. In order to reinstate his driver’s license after a DWI arrest, an arrested person usually must provide proof of additional auto insurance (SR-22) and install an ignition interlock device in any vehicle he operates. 

The arrested person has 30 days to appeal the suspension of his driver’s license. 

If you have been arrested for DWI and are concerned about the status of your driver’s license, please call us for a consult 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 these strange times, there are a lot of rumors about what actions the governor has taken so far and what obligations Louisianans have to comply with his executive orders.

Louisiana Revised Statutes Title 29, Section 724 establishes the powers of the governor. Subsection (A) states that “[t]he governor is responsible for meeting the dangers to the state and people presented by emergencies or disasters, and in order to effectuate the provisions of this Chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them.” It also establishes that these orders “shall have the force and effect of law.” Subsection (B) requires that the governor declare a state of emergency by executive order or proclamation. If the governor has declared a state of emergency,

The governor has issued 4 proclamations or executive orders since March 11, 2020, which regulate or limit the behavior of citizens of Louisiana. Proclamation 25 JBE 2020 declared a state of emergency beginning on March 11 and extending through April 9, 2020. It specifically prohibited “price-gouging” during the state of emergency.

The second Proclamation (JBE 2020 - 27) limited gatherings to less than 250 people, closed schools, and suspended some legal deadlines with regard to sex offender registration determinations for out-of-state convictions and concealed handgun permits as well as suspending some fees and expiration deadlines at the DMV.

The third proclamation was issued on March 16, 2020, and limited gatherings to less than 50 people; closed movie theaters, bars, bowling alleys, and gyms; closed restaurants except for take-out or delivery services; suspended multiple legal deadlines in both civil and criminal cases; allows for local law enforcement to establish curfews should they deem them necessary; and suspends additional expiration dates with the DMV.

The most recent proclamation issued yesterday afternoon and effective at 5 p.m. today (33 JBE 2020) cancels all gatherings of 10 or more people and issues a “general stay-at-home order” for all citizens who are not performing an “essential activity.” Essential activities are activities which “are for the purpose of obtaining food, medicine, and other similar goods necessary for the individual or a family member of the individual,” “obtaining non-elective medical care…,” going to and from work if that work is deemed essential, going to and from the home of a family member, going to and from an individual’s place of worship, or engaging in an outdoor activity (provided social distancing measures are also adhered to). The proclamation further closes all places of public amusement (that weren’t already closed), personal care and grooming businesses (including hair salons and spas), and malls. Any businesses not essential and not prohibited are ordered to operate subject to the 10-person minimum and comply with social distancing. All state office buildings are also ordered closed to the public. This proclamation is in effect through April 13 unless terminated earlier or extended.

Subsection (E) of La. R.S. 29:724 establishes that “any person or representative of any firm, partnership, or corporation violating any order, rule or regulation promulgated pursuant to this Chapter, shall be fined not more than $500 or confined in the parish jail for not more than 6 months, or both.” This offense is a misdemeanor.

Gilmer & Giglio is a two-person law firm, so we are not closed subject to this proclamation. We are, however, doing what we can to flatten the curve by cancelling all in-person meetings. Further, we are, to the extent possible, working from home. We are reachable via telephone at (318) 459-9111 during normal business hours and via e-mail through email at our contact us page. Be smart, stay home, stay safe, and stay healthy and call us if you need us.

Domestic Abuse Battery is defined in Louisiana Revised Statutes 14:35.3. It prohibits the use of force or violence upon a household or family member without their consent. A household member is defined as “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.” A family member is defined as, “spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children.”

A first or second offense of domestic abuse battery is a misdemeanor; however, certain allegations will raise the penalty range to a felony. If a child under the age of 13 is present in the home at the time of the incident; if the victim of the domestic abuse battery is pregnant and the offender knows the victim is pregnant; if the battery involves strangulation; or if the battery involves burning, the penalty range increases to a maximum term of imprisonment of 3 years.

If the battery involves burning and inflicts serious bodily injury, then the penalty range changes to imprisonment at hard labor for not less than 5 years nor more than 50 years without benefit of probation, parole, or suspension of sentence.

The statute also increases the penalty range to a maximum term of imprisonment of 8 years if the battery results in serious bodily injury.

If you or someone you know is facing charges of domestic abuse battery, give us a call at (318) 459-9111 to set up a consultation.

Everyone knows that if you are arrested for Domestic Abuse Battery (DAB) or Violation of a Protective Order (VPO) and are found guilty that there will be criminal consequences, which can include a fine, imprisonment, and/or probation which can also include community service requirements, anger management classes, and substance abuse evaluations or treatment.

What many people don’t realize is that there are additional consequences that can result from a DAB or VPO conviction and some can even result from an arrest for one of these charges.

Last week we let you know about the Gwen’s Law hearing that may be required if you are arrested for DAB before you can be released on bond. In addition, if you are released on bond, there will often be a protective order or no-contact order issued as part of the conditions of your bond. A violation of this order can cause your bond to be revoked or for you to be charged with a new VPO offense.

An arrest for DAB or VPO can also restrict your ability to possess a firearm while out on bond and a conviction for DAB or VPO will restrict your gun rights for, at a minimum, the duration of your probation, and potentially beyond.

If you or someone you know has been arrested for a domestic abuse battery or a violation of a protective order, give us a call to set up a consultation at (318) 459-9111.

Gwen’s Law refers to Louisiana Code of Criminal Procedure Article 313. It took effect in 2017 and now allows for a hearing before bail is set if the person has been arrested for certain offenses. If that individual was arrested for domestic abuse battery, violation of a protective order, staling, or any other felony offense that involves the use of force or a deadly weapon upon a family member, he must appear before a judge for a hearing to have his bail set. The hearing must be held within 5 days of the arrest, but does not include legal holidays or weekends in that calculation of time.

The court must consider all regular bail considerations but when Gwen’s Law is applicable, must also consider the following factors in setting bail:

• The criminal history of the defendant;

• The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children; and

• Documented history or record of any of the following: substance abuse by the defendant; threats of suicide by the defendant; the defendant’s use of force or threats of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the defendant; or threats to kill.

After the hearing, the court may refuse bail if there is clear and convincing evidence that the defendant is a flight risk or that he poses a danger to any other person or the community. If bail is granted, the court may order electronic monitoring for the defendant and/or house arrest.

If you or someone you know has been arrested and is awaiting a Gwen’s Law hearing, call us at (318) 459-9111 to request a consult.

Last week we warned you about those alcohol-related offense that can get you into trouble during Mardi Gras. Today, we’d like to take a minute to warn you away from reenacting those scenes from Mardi Gras on tv and movies.

Shreveport-Bossier’s Mardi Gras is a little more family-friendly than the version of Mardi Gras you’ll find on Bourbon Street in New Orleans. Be aware that it is a crime in Louisiana to expose a women’s breasts to the public view (La. R.S. 14:106(A)(1)). The penalty for a violation of this statute is a felony conviction with a fine ranging from $1,000 to $2,500 and imprisonment for not less than 6 months nor more than three years.

When you’re shouting, “Throw me something, Mister!” make sure you keep your requests rated G and have a great time at the parades this weekend!

During Mardi Gras season, we often see a large uptick in the number of arrests for alcohol-related offenses. This means a rise in arrests for Driving While Intoxicated, Public Drunkenness, Disturbing the Peace and Resisting an Officer offenses.

First and second offense DWI and the other offenses listed above are misdemeanor offenses, but they carry penalty ranges ranging up to 6 months in jail and fines.

Disturbing the Peace includes fighting, being drunk in public, and what has often been termed: “fightin’ words”. It carries a penalty range of up of a $100 fine and imprisonment up to 90 days. Public Drunkenness carries a penalty of up to a $200 fine and imprisonment for up to 7 days.

Driving While Intoxicated prohibits the operation of a motor vehicle on a public roadway while the operator is impaired as a result of a controlled substance or an alcohol beverage. It carries penalties including mandatory jail time unless the person convicted is placed on probation and completes community service and court-ordered substance abuse treatment. An arrest for DWI also often results in the suspension of the arrestee’s driving privileges with requirements that he obtain SR-22 proof of insurance and also an ignition interlock device for any vehicle he operates.

Enjoy yourselves at Mardi Gras this year, friends, but be careful! If you or someone you know ends up on the wrong side of the criminal law this season, call us at (318) 459-9111

North Louisiana Mardi Gras has started! January saw the Krewes of Sobek and Harambe parades, and February brings with it an abundance of additional parades and experiences for those so inclined. Shreveport’s Other Side has published a useful guide to all the Shreveport/Bossier festivities.

We’d like to cover some basic legal ground rules to ensure you and your family and friends have a safe and arrest-free Mardi Gras:

1. Many roads will be closed on parade days. Driving down a closed road or around a police barricade is a crime under state law. La. R.S. 32:237 prohibits the tampering with, moving, or disobeying the instructions of any barricade or sign or signal placed upon any highway (note: highways means basically anything not a private drive, parking lot, or private road).

2. Many neighborhood roads, particularly in Broadmoor and Highland will have signs posted prohibiting parking on one side of the street on parade days. This prohibition is to ensure, as much as possible, the free flow of traffic on parade days. It is a crime to disobey signs regulating parking under La. R.S. 32:144.

3. The Shreveport City Code gets in on the act and prohibits the obstruction of public passages, or standing and walking in roadways. Be mindful of where you stand and walk when leaving parade locations. Shreveport City Ordinance 50-140.

4. It is a violation of the Shreveport City Code to be drunk in public, use profane language, urinate or defecate in public places, and spit. Shreveport City Ordinance 50-155 - 157. In general, be mindful of your behavior and don’t be a nuisance.

5. And finally, be aware that being drunk in public is also a crime, and so is disobeying law enforcement. Flight from an Officer, Resisting an Officer, and Interference with an Officer are very common arrests during Mardi Gras season.

Enjoy yourselves at the Parades, but be careful, and if you or a family member need help after a parade, gives us a call at (318) 459-9111.

The process for filing for an expungement can be lengthy.

The beginning of the process requires the applicant to request a background check, which usually takes approximately 30 days for Louisiana State Police to provide. Once the expungement motion is filed, the State has 60 days to file an objection. Once that 60-day window has passed, the Court will set the matter for a hearing to determine whether the applicant is entitled to an expungement. If the Court finds that the applicant is entitled to an expungement, he will sign the order. Once the order is signed, the expungement is granted; however, there is usually a period of time after the order is signed, but before the order has been complied with by the various agencies who maintain records.

The entire process takes anywhere from 6 to 9 months.

Louisiana Code of Criminal Procedure Article 973 states that:  “An expunged record of arrest or conviction shall be confidential and no longer considered to be a public record and shall not be made available to any person or other entity…” (La. CCrP Art. 973(A)) The effect of an expungement in Louisiana is to remove the record of an arrest from public access. It also allows an individual who has expunged his record to refuse to disclose the fact of an arrest under many circumstances.

There are some exceptions to the rules regarding disclosure after an expungement; however.

• Law enforcement and prosecutors may access the records;

• A court may order the release of the records after a hearing in which the party asking for the records to be released shows “good cause”;

• The individual whose record has been expunged may access the records;

• Multiple and various state agencies and licensing boards may access the records, including:

  • The Office of Financial Institutions;

  • The Louisiana State Board of Medical Examiners;

  • The Louisiana State Board of Nursing;

  • The Louisiana State Board of Dentistry;

  • The Louisiana State Board of Social Work Examiners;

  • The Louisiana State Board of Examiners of Psychologists;

  • The Louisiana Board of Pharmacy;

  • The Emergency Medical Services Certification Commission;

  • Louisiana Attorney Disciplinary Board;'

  • The Louisiana Supreme Court Committee on Bar Admissions;

  • The Louisiana Sate Board of Chiropractic Examiners;

  • and additional agencies who oversee individuals who care for children.

In general, an expungement will allow an individual to not disclose an arrest for most purposes and to deny any arrest or conviction unless an exception applies.

Effective August 1, 2019, the Louisiana legislature has made a few changes to the States’ expungements laws. The first change makes clear that the records that must be removed from public access after an expungement order is signed include records of arrest or warrants for failure to appear bench warrants provided that bench warrant was related to the same offense(s) for which the person is seeking an expungement. This change will close a loophole that could have allowed an individual to receive an expungement, have their arrest record for the original arrest removed from public access, but have their rap sheet still show an arrest or an outstanding warrant for a bench warrant if they had failed to appear in court for any reason for that same charge.

The second change increases the availability of expungements for individuals with felony convictions. Also, taking effect on August 1, 2019, Code of Criminal Procedure Article 978 now allows individuals who are entitled to a first offender pardon pursuant to Article IV, Section 5(E)(1) of the Louisiana Constitution to be eligible for an expungement, as long as the offense they are attempting to expunge is not a crime of violence as defined in La. R.S. 14:2(B) or a sex offense as defined in La. R.S. 15:541.

The First Offender Pardon contained in the Louisiana Constitution automatically pardons an individual who has been convicted of a non-violent crime (or of mingling harmful substances, extortion, or illegal use of weapons or dangerous instrumentalities) who has completed his sentence. This effectively means that, for those convicted of only one felony, who may not have been sentenced pursuant to Article 893, they will be eligible to expunge their arrest and conviction immediately upon completion of their sentence, provided they are otherwise eligible for a first offender pardon.

If you or someone you know thinks you may now be eligible for an expungement, please contact our office for a consult at (318) 459-9111.

For those of you with children under the age of 18 who sometimes ride in your vehicle, be aware that new laws have been enacted which may have an impact on you.

Senate Bill 76 increases the ages for many child safety restraints and requires that a child meet not only the height and weight requirements, but also the age requirements set in the statute for each type of restraint.

The new law requires:

• rear-facing child restraint systems for any child under the age of 2

• forward-facing restraints with an internal harness for children over the age of 2 who have outgrown the manufacturer’s height and weight requirements for the rear-facing child restraint

• a booster seat with a vehicle lap-shoulder belt for children over the age of 4 who have outgrown the manufacturer’s height and weight requirements for a forward-facing restraint system; and

• an adult safety belt for a child who has reached the age of 9 years old and has outgrown the previous restraint systems height and weight requirements.

Please note that a child must meet both the age and height and weight requirements to move to the next safety restraint; otherwise, the child must be placed in the more restricting of the categories which applies.

If you or someone you know falls afoul of these new restrictions, contact us for a consult at 318-459-9111.

Many people are aware that a DWI conviction will result in an order to pay a fine and serve some jail time or spend some time on probation with driver improvement classes, community service, and substance abuse treatment; however, many people are not aware of the non-criminal consequences that can result from a DWI arrest or conviction.

Collateral consequences of a DWI arrest

1. Suspension of your driving privileges

If you are arrested for DWI, you will be asked to submit a breath sample or to a urine or blood test to determine your Blood Alcohol Content (BAC). If you refuse or submit and your BAC is above a .08 (or .01 if you are under 21), the Louisiana Department of Motor Vehicles will suspend your driving privileges. This suspension will occur automatically 30 days after your arrest unless you file an appeal using a form provided to you at the time of your arrest.

2. Licensing Requirements

If you hold a state license, for example, if you are a nurse or attorney, you are required to report arrests to your licensing agency. Failure to do so can cause your license to be suspended or disciplinary proceedings to be instituted. 

Collateral consequences of a DWI conviction

1. Suspension of your driving privileges

A DWI conviction will result in your driver’s license being suspended again. This suspension will run concurrently with (i.e., at the same time as) the suspension related to the breath test; but there is no right to appeal this suspension. For both suspensions, you may be eligible for a hardship license if you comply with certain requirements which may include the installation of an Ignition Interlock Device in your vehicle and the purchase of SR-22 insurance.

2. Insurance Consequences

Your car insurance rates may increase or your car insurance may cancel your policy entirely after a DWI conviction. You may also be required to purchase additional “high-risk” insurance in order to get your driver’s license reinstated by the DMV.

If you or someone you know has been arrested for DWI, call us at (318) 459-9111 to set up a consult to discuss the criminal and non-criminal consequences of such an arrest.