A criminal protective order is issued in conjunction with a criminal charge and most often as a condition of the defendant’s bond obligation. A civil protective order can be issued entirely independently of a criminal investigation and for grounds that may not rise to the level of criminal conduct.

Civil Protective Orders:

Civil protective orders are governed by Louisiana Revised Statutes, Title 46, Chapters 28 & 28-a, c & d; specifically: §§2131, et seq., 2151, et seq., 2171, et seq., and 2181, et seq. 

A civil protective order can be filed on behalf of the petitioner alone, the petitioner’s minor children, alone, or both. 

A Temporary Restraining Order (TRO) shall issue pending a hearing on the permanent order if the petitioner shows an immediate and present danger of abuse in the petition.

Criminal Protective Orders:

Criminal protective orders are governed by Louisiana Code of Criminal Procedure Article 313, known as “Gwen’s Law.”

In any case in which a defendant is accused of using force or violence against a household member or dating partner (as defined in the statute), the court is required to hold a contradictory hearing before setting bail to determine the conditions of bail and whether the defendant should be held without bail.

If the court determines that the defendant poses a threat or danger to the victim, the court shall order that the defendant refrain from going near the victim’s home, school, or place of employment, and shall refrain from having any contact with the victim whatsoever.

These conditions will remain in place (unless modified) while the defendant is on bail (i.e.: until the criminal case has concluded).

If you or someone you know is dealing with a civil or criminal protective order and has questions, please call our office at (318) 459-9111.

In Louisiana there are several types of protective orders. They fall into two main categories: criminal and civil.

A criminal protective order is issued in conjunction with a criminal charge and most often as a condition of the defendant’s bond obligation. A civil protective order can be issued entirely independently of a criminal investigation and for grounds that may not rise to the level of criminal conduct.

In either case, protective orders are issued because there is a threat of harm or harassment from the defendant in the action to the petitioner in the action. Protective orders are not limited to individuals who are married or in intimate relationships and can be issued in situations where one individual is stalking or simply harassing another individual. 

The purpose of a protective order is to prohibit contact between the petitioner and the defendant and to stop the behavior, whether it be physical violence or harassment that is the subject of the protective order.

Protective orders are usually filed by filling out a form available at the Clerk of Court’s office. If you are served with one, you should first note specifically what provisions the Court has ordered you to comply with. The first document you will be served with is a Temporary Restraining Order (or TRO) which will be in place until the hearing date listed in the court’s order. It may prohibit you to go to certain locations or make contact with certain people. In proceedings involving people in relationships, it may permit use of certain property (homes or vehicles, for example) to one of the parties. 

You should contact an attorney as soon as possible upon receiving the TRO because it is likely you will have a hearing date scheduled within two weeks. The purpose of the hearing is to determine whether or not the court will issue a Permanent Restraining Order. At this hearing, you will be permitted to present witnesses and to testify on your own behalf.

A protective order not only has consequences with regard to your contact with the individual filing it. If a protective order is granted, you can lose your concealed carry permit, you will be ordered to dispose of or to surrender to law enforcement all of your firearms, and you may be required to report the existence of the protective order to employers or licensing agencies, depending on the terms of your employment.

If you or someone you know has recently been served with a TRO, call us at (318) 459-9111 to schedule a consult.

Recently, we’ve caught up on Serial: Season Three.

From the show’s website:

Serial is heading back to court. This time, in Cleveland. Not for one extraordinary case; instead, Serial wanted to tackle the whole criminal justice system. To do that we figured we’d need to look at something different: ordinary cases.

So we did. Inside these ordinary cases we found the troubling machinery of the criminal justice system on full display. We chose Cleveland, because they let us record everywhere — courtrooms, back hallways, judges’ chambers, prosecutors’ offices. And then we followed those cases outside the building, into neighborhoods, into people’s houses, and into prison.

We watched how justice is calculated in cases of all sizes, from the smallest misdemeanor to the most serious felony. 

This season, we tell you the extraordinary stories of ordinary cases. One courthouse, week by week.

This is a really interesting view into the inner workings of a criminal courthouse. Take a listen and then come to our facebook and tell us what you thought!

And if you find yourself in need of assistance with a criminal case, call us at (318) 459-9111 to set up a consult.

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.

As we discussed in our Halloween blog post last year, it is illegal to wear masks in public in Louisiana except with a few limited exceptions. Luckily, we are about to arrive at one of those exceptions: La. R.S. 313(C)(2):

“To persons participating in masquerade balls or entertainments, to persons participating in carnival parades or exhibitions during the period of Mardi Gras festivities, to persons participating in the parades or exhibitions of minstrel troupes, circuses, or other dramatic or amusement shows, or to promiscuous masking on Mardi Gras which are duly authorized by the governing authorities of the municipality in which they are held or by the sheriff of the parish if held outside of an incorporated municipality.”

Bear in mind that masks are permissible only after a permit is obtained from the local law enforcement agency.

Have a safe and happy masked or unmasked Mardi Gras!

If you or anyone you know needs assistance with some Mardi Gras related mischief, please call our office at (318) 459-9111 or click the “contact us” link on our website!

Mardi Gras in Louisiana is a time of celebration and revelry! We love the parades and bals and fun that come to our community every year! That said, we want our clients, family, and friends to have a safe and legal Mardi Gras, as well.

Some common arrests we see during this time of year involve alcohol: driving while intoxicated and public drunkeness or disturbing the peace.

We also often see people arrested for criminal property damage and resisting an officer, again, often resulting from alcohol consumption and large unruly crowds.

Please avoid trespassing on private property during the Mardi Gras season

All of these offenses (unless this is a third or fourth offense DWI) are misdemeanors but, like any criminal charge, can cause vast and far-reaching consequences in your personal and professional life.

If you or someone you know runs into legal trouble at Mardi Gras festivities this year, please call our office at (318) 459-9111 or click the “contact us” link on our website!

Depending on the nature of the charge, the jurisdiction where the expungement will be filed, and whether or not the offense was a DWI, an expungement will cost approximately $600 in filing fees and expenses.*

In general, the filing fees for an expungement are broken down as follows:

• $200.00 money order payable to Clerk of Court

• $250.00 money order payable to Louisiana Bureau of Criminal Identification/Information

• $ 50.00 money order payable to Caddo Parish Sheriff

• $ 50.00 money order payable to Caddo Parish District Attorney

Some parishes will charge slightly less or more to the Clerk of Court and in some circumstances, a DWI arrest will cost an additional $50 because certain records have to be sent to the Department of Motor Vehicles, along with the documentation of the expungement.

In addition to these costs, a background check must be filed with the expungement, which costs $26 from Louisiana State Police. In order to obtain the background check, you must send a fingerprint card to the LSP and the cost will vary by police department. If you are eligible for expungement because of sentencing pursuant to Article 893 or 894, there may be costs associated with filing the motion to set aside.

*Attorney Fees are charged separately from expenses and will vary by attorney. If you would like to set up a consult to discuss an expungement, please call our office at (318) 459-9111 or click the “contact us” link on our website!

We get asked all the time about the benefits of an expungement when applying for a job. For your average job that is simply going to require a background check and doesn’t have additional licensing requirements, often an expungement will help you.

In the event your job requires more than a simple background check, or has specific licensing requirements, you may be required to disclose an arrest even if you have had your record expunged.

Louisiana Code of Criminal Procedure Article 973 establishes the effects of an expungement:

A. 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 except for the following:

(1) To a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification pursuant to the provisions of R.S. 15:540 et seq.

(2) On order of a court of competent jurisdiction and after a contradictory hearing for good cause shown.

(3) To the person whose record has been expunged or his counsel.

(4) To a member of a law enforcement or criminal justice agency, prosecutor, or judge, who requests that information in writing, certifying that the request is for the purpose of defending a law enforcement, criminal justice agency, or prosecutor in a civil suit for damages resulting from wrongful arrest or other civil litigation and the expunged record is necessary to provide a proper defense.

B. Upon written request therefor and on a confidential basis, the information contained in an expunged record may be released to the following entities that shall maintain the confidentiality of such record: 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 Examiners of Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the Louisiana Department of Insurance, the Louisiana Licensed Professional Counselors Board of Examiners, the Louisiana State Board of Chiropractic Examiners, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.

C. Except as to those persons and other entities set forth in Paragraph A of this Article, no person whose record of arrest or conviction has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offense, or that the record of the arrest or conviction has been expunged.

Subsection (B) establishes the organizations who are exempt from the expungement order:

• Office of Financial Institutions;

• Louisiana State Board of Medical Examiners;

• Louisiana State Board of Nursing;

• Louisiana State Board of Dentistry;

• Louisiana State Board of Examiners of Psychologists;

• The Louisiana Board of Pharmacy;

• The Louisiana State Board of Social Work Examiners;

• Emergency Medical Services Certification Commission;

• Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions;

• Louisiana Department of Insurance;

• Louisiana Licensed Professional Counselors Board of Examiners;

• Louisiana State Board of Chiropractic Examiners;

• or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.

Despite the fact that your un-expunged record will still be visible if you are applying to one of the above state agencies for a license to work in Louisiana, it is often a good idea to obtain the expungement anyway. The fact that your record has been expunged will also be known to the above agencies and it will show that you are either a first-time offender who was sentenced pursuant to Articles 893 or 894 or that you have served a 5 or 10 year cleansing period with no subsequent arrests so as to be eligible for the expungement.

If you or someone you know is having difficulty obtaining employment as a result of a criminal arrest and would like to know if you are eligible for expungement, please contact our office at (318) 459-9111 for a consultation.

Anywhere from 6 - 9 months from beginning to end.

The first step will depend on the grounds under which you are eligible for an expungement. If you are able to expunge your arrest because you were sentenced under Article 893 or 894, you will first need to file and have granted a motion to set aside your conviction. Once that is completed, you can move on to the first step for everyone else:

(1) Obtain a background check from the Louisiana State Police. This usually takes anywhere from 30-60 days to obtain once you have sent the fees and fingerprints off to the Bureau of Criminal Identification and Information.

(2) Obtain all minutes and fill out your forms and then file for the expungement.

(3) Wait. The State has 60 days to file an objection to the Motion for Expungement.

(4) Depending on what jurisdiction the expungement is filed in, the procedure at this point will differ slightly. Some parishes will grant the expungement automatically if no objection is filed; some will require a hearing even if no objection is filed. A hearing will be required if the state objects.

(5) Note that your rap sheet may still show the arrest until you have received certification letters from the arresting agency and Louisiana State Police confirming that their records have been removed from public view.

Because so much of the process is dependent on the actions of third parties (LSP, the State of Louisiana, the court), I always recommend clients begin the expungement process as early as possible in the event they will need their record cleared for a specific purpose.

If you have a conviction you’d like to know if you can remove from your record, give us a call at (318) 459-9111.

We’ve all been inundated with the advertising slogan: “New Year: New You!” But in our case, we’d actually like to help give you a blank slate. The new year is a great time to think about clearing up a criminal record.

In Louisiana, people convicted of most misdemeanors and certain felonies can be eligible to have their convictions removed from their public record under certain circumstances:

(1) If that person was originally sentenced pursuant to Code of Criminal Procedure Article 893 or 894 and has successfully completed their probation; or

(2) after remaining arrest-free for 5 or 10 years (depending on the seriousness of the offense).

If the person meets one of these requirements and an expungement is not excluded for some other reason (i.e.: the person has already received an expungement for another charge within the last 5 or 10 years, the offense is a violation of the Uniform Controlled Dangerous Substances Act, certain sex offenses, or certain crimes of violence), then that person may be eligible to have the arrest expunged.

An expungement in Louisiana does not “make it like it never happened,” but for many purposes, it will allow the person to say when asked that they have not been arrested or convicted for the offense which has been expunged.

Expungements are great tools for first-offenders or those who have an old criminal record that may be causing them difficulties when job-hunting or apartment-hunting.

If you or someone you know is interested in cleaning up a criminal record this new year, give us a call at (318) 459-9111! And happy new year from us at Gilmer & Giglio!

Yes.

Driving While Intoxicated in Louisiana prohibits the 

operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:

1. The operator is under the influence of alcoholic beverages.

2. The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

3. The operator is under the influence of any controlled dangerous substances listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

4. (i) The operator is under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

5. (i) The operator is under the influence of one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

La. R.S. 14:98A(1). Further, if you are under the age of 21, it is illegal to operate a motor vehicle with a BAC of .02. La. R.S. 14:98.6.

What all of the above means is that, in order to prove a person is operating a vehicle while intoxicated, the State of Louisiana must prove: (1) that the person was operating a motor vehicle and (2) that the person was “under the influence” of alcoholic beverages. This can be done in a number of ways: via presumption if the driver submits to a breath test, blood test, or urine test, and the results show a BAC of .08 or above; or if the driver performs poorly on Standardized Field Sobriety Tests (SFSTs) and sufficient other evidence shows that the driver is under the influence of alcohol, controlled dangerous substances, or other drugs.

This New Year’s Eve, if you are going to celebrate, please drink responsibly and arrange for alternate transportation.

Happy New Year from Gilmer & Giglio!

Both State and Federal law allow for, under certain circumstances, the seizure of property belonging to an individual if that property is the proceeds from illegal activity, obtained using the proceeds of illegal activity, or was used in the commission of a crime. 

These seizures are often conducted in cases involving controlled dangerous substances in state court. In federal court, they are often seen in cases involving white collar transactions and large drug cases.

Many people are aware that the government can seize the assets of a person convicted of a crime, but far fewer people are aware that the assets of third parties can also be subject to seizure. For example, the parents of a person charged with distribution of a controlled substance, who lives with them, may find themselves the subject of a civil asset forfeiture if their child is alleged to have sold drugs out of their home. Any asset can be seized by the government using civil asset forfeiture including: money, land, vehicles, buildings, and jewelry.

In both state and federal courts there are procedures that the government must follow to seize assets they believe were obtained through criminal activity. These processes usually involve notice to the person whose property the government is intending to seize; an opportunity to object and request a hearing which may include an opportunity to prove that the property was not used in the commission of a criminal offense, that the property was not owned by the individual who was engaging in criminal activity, or to provide further evidence to show why the government should not be allowed to seize the property. If the property is ordered seized after this hearing, there are usually options for appeal.

The time periods to request these hearings or appeal the forfeiture are usually very short, sometimes less than 30 days.

If you or someone you know has received notice that the government is attempting to seize their property as part of a civil asset forfeiture claim, call us for a consult at (318) 459-9111.

Swallowing your drugs to keep the police from seizing them as evidence is a bad idea for a LOT of reasons. From a legal standpoint:

First, the officer may charge you with obstruction of justice.  The Louisiana Obstruction of Justice Statute is pretty long, but the relevant part says:

“A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as described in this Section:

(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:

(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or

(b) At the location of storage, transfer, or place of review of any such evidence…” 

The punishment for committing obstruction of justice? If the crime you’re trying to cover up is a misdemeanor or non-hard labor felony: a fine of up to $10,000 and imprisonment for up to FIVE YEARS. For hard labor felonies, the punishment is a fine of up to $50,000 and imprisonment up to 20 years. The punishment for first offense simple possession of less than 14 grams of marijuana? A fine of up to $300 and 15 days in jail.

Secondly, just because you swallow the drugs doesn’t mean you can’t be prosecuted for possession of the drug if the officer saw it in your possession before you swallowed it. The officer will be able to testify about what he observed and a jury may still find beyond a reasonable doubt that you possessed a controlled dangerous substance.

If you or someone you know has been arrested for possession of a controlled dangerous substance, call us for a consult at (318) 459-9111.

Common Questions regarding State Court and Federal Court:

1. Is there a difference between State Court and Federal Court?

   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 and 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.

2. I have been charged with a drug offense in a Louisiana District Court, can I be charged with a crime in Federal court?

   That depends. If the drugs were transported across state lines, yes, if the drugs you are charged with possessing are illegal to possess under both state and federal law (currently, most of them are, although some states marijuana laws differ from federal law). 

3. If I’ve been convicted or acquitted of a crime in state court that is also a crime in federal court, doesn’t double jeopardy mean the federal court can’t prosecute me

   No. 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 for another shot, 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.

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.

An arrest warrant is issued under several circumstances, usually after a law enforcement officer has shown a judge that there is probable cause to believe you have committed a crime, or if you have failed to appear in court after receiving proper notice of the court date. Under both circumstances, the warrant will allow law enforcement in any jurisdiction to take you into custody. If you are outside the jurisdiction where the warrant was issued, you can be held for some time before you are transported to that jurisdiction.

If there is an outstanding warrant for your arrest, you should make arrangements to turn yourself in to the jurisdiction where the warrant was issued. In most cases, when the warrant was issued, the issuing judge will set a bond amount. The bond amount is the amount of money you will need to pay to be released pending the resolution of your case. In Louisiana, you can pay bond in cash for the full amount, with property valued at the same or more than the amount of the bond, or through a bondsman by paying the bondsman a portion of the full amount of the bond.

If you have an outstanding warrant for your arrest, you should not attempt to flee the jurisdiction nor should you attempt to hide from law enforcement or resist arrest. If there is a warrant out for your arrest and you are not sure what to do, call us at (318) 459-9111 to set up a consult.

In a civil case, the parties are the plaintiff, the party who claims an injury, and the defendant, the party who is alleged to have caused the injury. 

But in a criminal case, the parties are the person accused of the crime (the defendant) and the state, who is prosecuting it. The person who alleges he was harmed by the accused is not a party; rather, he is simply a witness in the state’s case. 

In a civil lawsuit, a plaintiff can dismiss his case at any time and for any reason. In a criminal case, the victim has no power to dismiss the case. Only the state has that power.

So what happens when a victim wants to drop charges against a defendant in a criminal case?

(1) Most District Attorneys offices have a Victim Assistance Office or Coordinator. These people are employees of the DA’s office whose job it is to help walk victims through the legal proceeding. Among their duties are also to communicate with victims regarding their wishes in the case.

(2) If the defendant has hired an attorney, a victim can also contact that attorney directly regarding signing an affidavit of non-prosecution. Although, again, the prosecutor does not have to accept this affidavit, it is a sworn statement by the victim in the case that he does not want the case prosecuted. 

(3) Some District Attorney’s offices have “drop slips” or forms that can be filled out in the district attorney’s office to notify the prosecutor that the victim does not want to see the defendant prosecuted.