Since it is the season for holiday parties, it seemed prudent to remind you all that DWI Checkpoints are legal in Louisiana and have been determined to be so by the Louisiana Supreme Court since 2000. In State v. Jackson, 2000-0015 (La. 7/6/00); 764 So.2d 64, the Louisiana Supreme Court found that DWI checkpoints could satisfy the limitations of the Louisiana constitution if they met certain requirements:

[W]e set forth the following guidelines for evaluating whether the checkpoint's intrusiveness will withstand constitutional muster under the Fourth Amendment and Louisiana's Article I, § 5:17

(1) the location, time and duration of a checkpoint, and other regulations for operation of the checkpoint, preferably in written form, established by supervisory or other administrative personnel rather than the field officers implementing the checkpoint;

(2) advance warning to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;

(3) detention of the motorist for a minimal length of time; and

(4) use of a systematic nonrandom criteria for stopping motorists.

In evaluating a checkpoint under this test, the guiding principle must be that the procedures utilized curtail the unbridled discretion of the officer in the field. Prouse, 440 U.S. at 662, 99 S.Ct. 1391; **12 Brown, 443 U.S. at 51, 99 S.Ct. 2637.

State v. Jackson, 2000-0015 (La. 7/6/00, 11–12); 764 So.2d 64, 72–73.

Subsequently, the Louisiana Fourth Circuit Court of Appeal held that the act of attempting to avoid a checkpoint was sufficient to establish reasonable suspicion to detain a driver and conduct further investigation.

If you are out celebrating the holidays with friends and loved ones, please drive carefully and safely.

And if you would like to set up a consult, give us a call at (318) 459-9111.

During the 2022 Regular Legislative Session, the Louisiana Legislature made a few changes to various criminal offenses as well as a couple of additions.

The legislature amended the penalty provisions of Louisiana Revised Statutes Title 14, §56 - Simple criminal damage to property - to state that when the offense involves “damage to multiple properties by a number of distinct acts of the offender which are part of a continuous sequence of events, the aggregate amount of the damages shall determine the grade of the offense.” La. R.S. 14:56(C).

The legislature amended Louisiana Revised Statutes Title 14, §34.2 - Battery of a police officer and §108.2 - Resisting a police officer with force or violence - to include “juvenile detention facility officers” in its definition of “police officer.” La. R.S. 14:34.2

The legislature amended Louisiana Revised Statutes Title 14, §40.1 - Terrorizing - to add the crime of “Menacing.”

“Menacing is the intentional communication of information that the commission of a crime of violence, as defined in R.S. 14:2(B), is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, when committed under any of the following circumstances:

(a) the actions of the offender cause members of the general public to be in sustained fear for their safety, and a reasonable person would have known that such actions could cause such sustained fear.

(b) the actions of the offender cause the evacuation of a building, a public structure, or a facility of transportation, and a reasonable person would have known that such actions could cause an evacuation.

(c) The actions of the offender cause any other serious disruption to the general public, an a reasonable person would have known that such actions could cause serious disruption to the general public.”

La. R.S. 14:40.1(B)(1). The penalty for this offense is a fine of not more than $1,000 and/or imprisonment with or without hard labor for not more than 2 years. La. R.S. 14:40.1(B)(2).

The Louisiana Legislature also added Louisiana Revised Statutes Title 14, §67.12, which criminalizes the “Theft of a catalytic converter or engine control module.”

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

Effective August 1, 2022, the Louisiana Legislature amended several provisions of the Louisiana Children’s Code and the Code of Criminal Procedure to define a “child” as a person under the age of 18. These changes primarily impact the videotaping of statements of witnesses or victims in criminal cases.

This act also amended Louisiana Code of Criminal Procedure Article 571.1 to establish that the prescriptive period (time within which the case must be initiated) for the following offenses is 30 years when the victim is under the age of 18 and does not begin to run until the victim reaches the age of 18:

• attempted first degree rape,

• attempted second degree rape,

• sexual battery,

• second degree sexual battery,

• oral sexual battery,

• human trafficking,

• trafficking of children for sexual purposes,

• felony carnal knowledge of a juvenile,

• indecent behavior with juveniles,

• pornography involving juveniles,

• molestation of a juvenile or a person with a physical or mental disability,

• prostitution of persons under eighteen,

• enticing persons into prostitution,

• crime against nature,

• aggravated crime against nature, and

• crime against nature by solicitation.

La. C.Cr.P. Art. 571.1.

If you or someone you know is facing prosecution for a crime against a juvenile, give us a call at (318) 459-9111 to schedule a consultation.

Effective August 1, 2022, the Louisiana Legislature made it an affirmative duty of law enforcement to fingerprint those arrested for Driving While Intoxicated.

"It shall be the duty of the sheriff of every parish, the chief of police of each municipality, and every chief officer of every other law enforcement agency operating within this state to record the fingerprints of all persons arrested for any offense involving the operation of a vehicle while intoxicated, including local ordinances pertaining to operating a motor vehicle while intoxicated.”

La. R.S. 15:545(A)(3).

If you or someone you know is facing prosecution for a driving while intoxicated offense, give us a call at (318) 459-9111 to schedule a consultation.

Effective August 1, 2022, the Louisiana Legislature made some changes to the drug laws.

With regard to marijuana, the legislature enacted Louisiana Code of Criminal Procedure Article 162.4 to state explicitly that the mere odor of marijuana is insufficient to provide probable cause for the search of a person’s home without a warrant. La. C.Cr.P. Art. 162.4

The legislature further enacted La. R.S. 32:300.4.1 which prohibits the smoking or vaping of marijuana in a motor vehicle. The fine for violating this statute is $100. The statute further prohibits officers from using this offense as the primary basis for a traffic stop, and establishes it as a non-moving violation which shall not be reported on a person’s driving record. La. R.S. 32:300.4.1.

The Legislature also re-categorized several controlled substances on the drug schedules, notably moving fentanyl to Schedule I. La. R.S. 40:964.

Finally, the Legislature amended Louisiana Revised Statutes Title 14, §403.10 to provide immunity for prosecution for those seeking medical treatment for an individual believed to be suffering from an overdose for the offense of possession of drug paraphernalia. The change also prohibits individuals from seeking medical treatment for an individual suffering an overdose from violations of probation or parole or civil forfeiture of property.

If you or someone you know is facing prosecution for violations of the controlled dangerous substances laws, give us a call at (318) 459-9111 to schedule a consultation.

Effective today, Act 486 of the 2022 Louisiana Legislative Regular Session, amends several state statutes to allow those with criminal convictions to seek review of their conviction by certain state licensing agencies to determine whether they will be denied for the license before spending money to obtain any necessary educational requirements.

Previously, Louisiana Revised Statutes Title 37, §33 simply allowed an “ex-offender” to apply for a state license to perform certain work that required one. The law now states:

“An individual convicted of a crime may request at any time including before obtaining any required education or training, that an entity. issuing licenses to engage in certain fields of work pursuant to state law determine whether the individual’s criminal conviction disqualifies the individual from obtaining a license issued or conferred by the licensing entity.”

La. R.S. 37:33(A). Within 45 days, the licensing agency must notify the applicant whether, “based on the criminal record information submitted, the individual is disqualified from receiving or holding the license about which the individual inquired.” La. R.S. 37:33(B)(1)

The written notice must include:

(1) The specific conviction that is the basis for the intended denial.

(2) The reasons the conviction was determined to be directly related to the licensed activity, including findings for each of the factors provided in R.S. 37:2950 that the licensing authority deemed relevant to the determination.

(3) The right to submit additional evidence relevant to each of the factors listed in R.S. 37:2950 within sixty days, which the licensing authority shall consider before issuing a final determination.

La. R.S. 37:34(A). The final determination must be in writing and give the applicant notice of the right to appeal and notice of the earliest date on which she can reapply. La. R.S. 37:34(B).

The factors that must be considered by each agency are:

(a) The nature and seriousness of the offense.

(b) The nature of the specific duties and responsibilities for which the license, permit, or certificate is required.

(3) (sic) The amount of time that has passed since the conviction.

(4) (sic) Facts relevant to the circumstances of the offense, including any aggravating or mitigating circumstances or social conditions surrounding the commission of the offense.

(5) (sic) Evidence of rehabilitation or treatment undertaken by the person since conviction.

La. R.S. 37:2950(A)(2).

The following agencies are not subject to this change: the State Boxing and Wrestling Commission; the Louisiana Gaming Control Board; the Louisiana Lottery Corporation; the Louisiana State Racing Commission; the office of charitable gaming, Department of Revenue; and the gaming enforcement division, office of state police, Department of Public Safety and Corrections. La. R.S. 37:36(C).

If you or someone you know is facing criminal prosecution and has questions about its impact on your career, call us at (318) 459-9111 to schedule a consultation.

The Legislature during the 2022 Regular Session passed several bills that altered the Illegal Carrying of a Weapons statute.

Louisiana Revised Statutes Title 14, §95 prohibits the carrying of a weapon under certain circumstances. Act No. 126, which took effect on May 26, 2022, expanded the exceptions in subsection K. Subsection K previously permitted retired members of the judiciary, retired district attorneys, and retired legislators to carry concealed weapons provided they qualify annually in the use of firearms by the Council on Peace Officer Standards and Training and carry valid identification of their retired status. Act 126 extends this exception to now include retired federal judges, justices, and United States attorneys and assistant United States attorneys, and retired federal investigators.

Effective August 1, 2022, additional exceptions were made to allow “city prosecutors, designated assistant city prosecutors, a United States representative from Louisiana and his designated, employed congressional staffer, a United States senator from Louisiana and his designated, employed congressional staffer” and “retired members of the United States Congress” to carry concealed weapons provided they meet the same training requirements as stated above.

Act 587 further altered 14:95 to repeal the prohibitions against carrying a “switchblade” knife. Finally, Act 465 makes “possession of a firearm or carrying of a concealed weapon by a person convicted of certain felonies in violation of La. R.S. 14:95(D)” a crime of violence pursuant to La. R.S. 14:2. La. R.S. 14:95(D) states: “If a violation of this Section is committed during the commission of a crime of violence as defined in R.S. 14:2(B), and the defendant has a prior conviction of a crime of violence, then the violation of this Section shall be designated as a crime of violence.” La. R.S. 14:95(D).

If you or someone you know is facing a prosecution for possession of a firearm, give us a call at (318) 459-9111 to schedule a consultation.

Effective June 16, 2022, the Louisiana Legislature passed and Governor John Bel Edwards signed into law Act 494, which regulates the publication of booking photos of arrested individuals. Act 494 enacts Louisiana Code of Criminal Procedure Article 234.

Article 234 prohibits Louisiana law enforcement agencies from releasing booking photographs of individuals to a person requesting a copy unless it is subject to one of the following exceptions:

“(a) The individual is a fugitive, and a law enforcement officer or agency determines that releasing or disseminating the booking photograph will assist in apprehending the individual.

(b) A law enforcement officer or agency determines that the individual is an imminent threat to an individual or to public safety and determines that releasing or disseminating the booking photograph will assist in reducing or eliminating the threat.

(c) A judge of a court of competent jurisdiction orders the release or dissemination of the booking photograph based on a finding that the release or dissemination is in furtherance of a legitimate interest.

(d) The individual is convicted of or pleads guilty or nolo contendere to a crime, lesser crime, or lesser included offense as defined in Article 558 in response to the same crime for which he was arrested or if there is criminal litigation related to the same crime that is pending or reasonably anticipated.

(e) The individual is charged with a crime of violence as defined in R.S. 14:2(B), except stalking, or charged with any of the following offenseS:

(i) Sex offenses as defined in R.S. 15:541.

(ii) Human trafficking offenses as defined in R.S. 14:46.2 and 46.3.

(ii) Offenses affecting the public health and morals of minors, R.S. 14:91 et seq.

(iv) Offenses affecting the health and safety of persons with infirmities, R.S. 14:93.3 et seq.

(v) Video voyeurism.

(vi) Cruelty to animals.

(vii) Dogfighting.”

La CCrP Art. 234(C)(1). If a law enforcement agency publishes a booking photo pursuant to one of these exceptions and prior to a conviction, it must contain the disclaimer: “all persons are presumed innocent until proven guilty.” La CCrP Art 234(C)(3). This statute further requires “remove-for-pay” websites to remove booking photographs without payment under certain circumstances and establishes that failure to do so will subject the website to prosecution for extortion pursuant to Louisiana Revised States Title 14, §66.

If you or someone you know has been arrested and is seeking criminal representation, call our office at (318) 459-9111 to schedule a consultation.

Terence Tekoh worked as a patient transporter for a hospital in Los Angeles. A patient accused him of sexual assault. The Los Angeles Police Department, upon receiving the report, sent Deputy Carlos Vega to the hospital to interview Tekoh. Deputy Vega took a statement from Tekoh without advising Tekoh of his rights pursuant to Miranda v. Arizona.

Tekoh was acquitted after trial and filed a lawsuit against Vega for violating his Fifth Amendment right against self-incrimination. A jury found in favor of Vega in the civil trial. Tekoh appealed and the Ninth Circuit vacated the decision and remanded for a new trial.

The US Supreme Court considered the question:

Is the use of an un-Mirandized statement against a defendant in a criminal case sufficient support a 42 U.S.C. § 1983 action?

Source: Oyez.org.

The Supreme Court held on June 22, 2022, that the use of an un-Mirandized statement against a defendant in a criminal case is not sufficient to support a cause of action under 42 U.S.C. §1983. A defendant may not sue an officer in civil court for failing to advise him of his Miranda rights; however, the statement is still subject to suppression in the criminal proceeding against him.

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 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.

So I usually write one of these about once every six months or so to update on any changes to the expungement law that have occurred in the intervening time. I can’t remember the last time I wrote one, so it seems like a reasonable enough time has passed to write another.

Expungements, in Louisiana, are a method by which a person arrested for a crime (felony or misdemeanor) under certain circumstances may remove the record of that arrest from public access on his criminal record (rap sheet). Some of that language needs clarification as it applies to expungements, so here’s some terminology for you:

• Rap Sheet - this is the document maintained by the Louisiana State Police, Bureau of Criminal Identification and Information (LSP) which compiles all records of arrests throughout the State of Louisiana as well as the final dispositions of those matters.

• Disposition - how the case finally resolved, whether that be a rejection by the prosecutor’s office, dismissal, conviction, guilty plea, etc… If the case resulted in a conviction, the rap sheet will show the charge the defendant was convicted of as well as the sentence.

• Arrest record - a list of the crime for which the individual was arrested (i.e. booked into jail or issued a summons for), the date of the arrest, arresting agency, and final disposition.

In Louisiana, an expungement does not erase one’s criminal record. It does not ‘make it like it never happened.’ In Louisiana, an expungement merely orders LSP to remove that record from access by the general public. This means that the record will still exist and be accessible to certain individuals, groups, or organizations, but not to the general public. Some examples of groups who can still access the record are: law enforcement and certain state licensing agencies including the Nursing Board, Medical Board, Louisiana State Supreme Court (for purposes of bar admissions), and Insurance Board, to name a few.

Under some circumstances, a person arrested for an offense can apply for an expungement if his arrest did not result in conviction, or if he was arrested for a misdemeanor or a felony.

Expungement eligible…If not convicted:

1. if the time limits for prosecution have passed.

2. if the district attorney declined to prosecute (including if the person participated in a pre-trial diversion program unless that participation in pre-trial diversion was for a charge of Driving While Intoxicated, in which case the person will not be eligible for expungement until 5 years from the date of his arrest have passed).

3. if the person was found to be factually innocent and entitled to compensation.

…if convicted of a misdemeanor:

1. if the conviction was set aside pursuant to Article 894.

2. if 5 years have passed from completion of the sentence and the person has not been convicted of any felonies in the intervening 5 years nor has any pending felonies.

A person convicted of a misdemeanor that arose from a Sex Offense (as defined in La. R.S. 15:541), or domestic abuse battery, or stalking is not eligible for expungement.

…if convicted of a felony:

1. if the conviction is set aside pursuant to Article 893(E).

2. if 10 years have passed from completion of the sentence and the person has not been convicted of any criminal offense in the intervening 10 years nor has any pending criminal charges.

3. if the person is eligible for a first offender pardon pursuant to Article IV, §5(E)(1) of the Louisiana Constitution unless the conviction was for a crime of violence (as defined in La.R.S. 14:2) or a sex offense (as defined in La. R.S. 15:541).

Certain offenses are not eligible for expungement:

• a felony crime of violence (as defined in La. R.S. 14:2)

  • except aggravated battery, second degree battery, aggravated criminal property damage, simple robbery, purse snatching, or illegal use of a weapon only after a contradictory hearing on the motion for expungement is held.

• a Sex Offense (as defined in La.R.S. 15:541)

• certain controlled dangerous substances offenses

  • except simple possession, possession with intent to distribute, offenses set aside pursuant to Article 893(E), or offenses that carry a penalty of less than 5 years imprisonment)

• and Domestic Abuse Battery.

A person arrested for a felony but convicted of a misdemeanor may also be eligible for an interim expungement of the felony arrest under certain circumstances.

If you or someone you know is curious about their eligibility for an expungement, give us a call to set up a consult at (318) 459-9111.

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.

Slowly but surely, the Louisiana Legislature is taking steps impacting marijuana accessibility to the public. Act 424 of the 2021 Louisiana Regular Legislative Session amended La. R.S. 40:1046.

That statute had previously provided that doctors “in good standing” with the Louisiana State Board of Medical Examiners and licensed to practice in Louisiana could recommend marijuana for use by a patient “clinically diagnosed as suffering from a debilitating medical condition.” The amendments to this statute removed the restriction on marijuana in a form that could be inhaled but limited the amount that could be dispensed by any pharmacy so authorized:

(5)(a) No pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense more than to and one-half ounces, or seventy-one grams, of raw or crude marijuana every fourteen days to any individual patient.

(b) No pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense raw or crude marijuana. to any person under twenty-one years of age without a recommendation from a physician specifically recommending marijuana in raw or crude form for that person."

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

Act 252 of the 2021 Regular Legislative Session amended Code of Criminal Procedure Article 701 to reduce the period of time by which the prosecution must file a Bill of Information charging a defendant who is incarcerated on a misdemeanor charge. §(B)(1)(a) now provides that the Bill of Information must be filed within 30 days of the defendant’s arrest (reduced from 45 days) in misdemeanor cases. However, this change in the law does not take effect until January 1, 2022.

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.