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.

On Friday, June 21, 2019, the United States Supreme Court issued a ruling reversing the conviction of Curtis Flowers for First Degree Murder after his sixth trial. Four of Flowers’ previous trials had been overturned for prosecutorial misconduct in jury selection and the fifth ended in a mistrial. The issue before the Supreme Court was whether the prosecution’s systematic removal of black potential jurors from the jury was a violation of the Court’s precedent in Batson v. Kentucky. Flowers’ case was the subject of much public and media scrutiny over the past year due to its being featured in the second season of the podcast “In The Dark.”

Scotusblog has a good write-up of the opinion issued by Justice Brett Kavanaugh:

“The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.

Justice Kavanaugh’s full opinion and those of the two dissenting Justices, Thomas & Gorsuch, can be read here.

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.

The Annotated Podcast by BookRiot is one of my favorites because it covers all kinds of topics about books (and makes book recommendations), but this particular podcast is all about something that is also relevant to our work.

The May 7th episode discusses organizations that provide used books to inmates in prisons across the country and some jurisdictions’ attempts to restrict inmates’ access to used books.

Listen here.

Medical Payments insurance, or med-pay, is usually an addition to a liability insurance policy that provides money in the event the insured is involved in an accident which causes him physical injury for which he has to seek medical treatment.

Med-Pay coverage is a great way to pay for medical expenses after you have been in an accident because it will pay for your medical expenses regardless of whether or not you were at fault for the accident. 

Medical Payments coverage will also provide coverage to other passengers in your vehicle who have been involved in an accident and to individuals who have been involved in an accident with you.

If you have been involved in an accident and are not sure what to do next, give us a call at (318) 459-9111 to set up a consult.

UM Insurance is uninsured or underinsured motorist insurance. It is usually an optional addition to a liability policy. Liability insurance is insurance an individual purchases to provide coverage in the event that he causes damage to another person. Uninsured/Underinsured motorist insurance, unlike liability coverage, which provides coverage to the other driver, provides insurance coverage to the purchaser if he is involved in an accident with a driver who has either no insurance or insufficient insurance to compensate him for his damages.

UM insurance kicks in when another driver is at fault for an accident, but that driver has no insurance or has policy limits that are smaller than your damages.

In Louisiana, the minimum coverage allowed for a liability policy is $15,000 per person/$30,000 per accident. If you are injured in an accident with more than a minor soft tissue injury, these minimums are very unlikely to adequately compensate you for your medical expenses, lost wages, and emotional distress damages to which you are entitled. UM coverage steps in to cover you for the loss. 

In Louisiana, UM coverage must be actively declined by the purchaser of an insurance policy. Unless you decline this coverage, or reduce the amount of coverage, it will provide you UM coverage in the same amount as your liability coverage. We recommend that our clients not reject UM coverage. It provides additional protection to you in the event you are in an accident with one of the 12-14% of the population in Louisiana who is uninsured. 

If you have been in auto accident and you are unsure of what steps you should take next, give us a call at (318) 459-9111 to set up a consult.

Immediately after the accident:

Immediately following a car accident, if the vehicles are drive-able and it is safe to do so, you should remove them from any traffic they are blocking. You should not, under any circumstances, leave the general area of the accident; however, because you may be charged with a hit and run or with leaving the scene of an accident. 

Even if the accident occurred on private property, you will likely want to contact law enforcement. This will ensure that a report documenting what happened is created, which is useful if litigation will follow your accident. 

If you or the other people involved in the accident are injured, you should call for emergency medical services. 

Make sure you have your driver’s license, proof of insurance, and registration available to show the law enforcement officers who arrive on scene and exchange that information with the driver(s) of the other vehicle.

Also, take pictures and document the damage to all vehicles involved in the accident, as well as the scene, if it is safe to do so. Law enforcement will usually not do this and this information is incredibly helpful in resolving any property damage or injury claims resulting from the accident. 

If you are visibly injured, you should also photograph those injuries immediately and as the injury progresses or heals. 

Call your insurance company and the insurance company for the other driver(s) involved in the accident and report it.

After the initial report:

If you need additional medical treatment, you should follow-up with a doctor as soon as possible. If you do not have a general practitioner, visit your local urgent care or ER. Make sure you then follow the instructions they give you regarding medication, follow-up treatment with your own physician, or referrals to other physicians.

If your injuries are soft-tissue, you may want to follow-up with a chiropractor who can assist in easing those injuries and get you back on your fee more quickly. A good chiropractor can also help you to locate another doctor if your injuries are more severe than you originally suspected and ensure that you get the right treatment for your injuries.

If you have been in an accident and suffered injuries, we would love to discuss your options for resolution with you.

Sometimes it can be difficult to negotiate with your insurance company (or the other driver(s)) on your own behalf. If you or a loved one has been in an accident and you’re not sure what to do next, give us a call at (318) 459-9111 to set up a consult.

Law Day is celebrated annually on May First and, according to the American Bar Association, is:

a national day set aside to celebrate the rule of law. Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share.

This year’s theme is: Free Speech, Free Press, Free Society. Again, from the American Bar Association’s website:

In the United States and around the world, freedom of speech and the press are among the most important foundations for a free society. Free speech and free press are prominent topics in public discourse and litigation. It is impossible to imagine a free society without these individual liberties, yet historical and current debates surrounding them continually challenge us to consider their boundaries and resilience. Changes in technology have reshaped how free speech and free press work in the everyday world.

To read more about Law Day in the United States, check out the American Bar Association’s website here.

Many of us have fitness apps loaded on our phones: Nike+, Apple’s Health App, Zombies, Run!, and the list goes on and on, but there’s a new option now available from the Federal Bureau of Investigation:

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The FBI Physical Fitness Test App is now available on the Apple App Store and Google Play Store

The FBI markets this app as a way to “learn what it’s like to train as an agent.”

The problem, as we criminal defense lawyers see it? This app tracks your location, as most fitness tracker apps do, so it can log mileage for walks or runs, for example; however, if law enforcement wants that information from your average fitness tracker app, they are going to have to go to that company and ask nicely (most companies will say no as they have determined that the cost of providing their customers’ data to the government is much more expensive than the pain of not acquiescing to the government’s requests), or they have to go to court and get a search warrant ordering that company to provide them the records. And in order to get a search warrant, they must demonstrate to the court’s satisfaction that they have probable cause to believe evidence of a crime will be located in the information they want that company to disclose.

This app? Gives them access to your location data without any type of court order or supervision.

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This app requests your phone provide your precise and approximate location, that it have permission to read the contents of your USB storage, and have full network access, prevent your phone from sleeping, and read your Google service configuration.

There may be nothing harmful, here, but there are so many non-governmental fitness tracker apps, we wouldn't use one that willingly gives information on our every move to the government. Be thoughtful about the apps you install on your phone and think hard before you willingly become a witness against yourself.

If you or someone you know is facing criminal charges and your location data is being used against you, give us a call at (318) 459-9111 to set up a consult.

Remember way back in December when we talked about civil asset forfeiture? Well, on February 20, the United States Supreme Court issued a ruling in Timbs v. Indiana that could change a lot of that.

In that case, Tyson Timbs pleaded guilty to a drug and theft charge in state court. The maximum monetary penalty for those offenses was $10,000. At the time of his arrest, law enforcement had seized a Land Rover that Timbs had purchased for $42,000 using proceeds from his father’s life insurance. Law enforcement alleged that Timbs had used the vehicle to transport heroin, justifying their seizure of the vehicle. After litigation in the state courts over the forfeiture of a vehicle valued at over four times the potential penalty for his drug offense, the United States Supreme Court agreed to hear the case.

The USSC ruled that the Eighth Amendment’s protections against excessive fines apply to the states under the Due Process Clause of the Fourteenth Amendment and, in keeping with its prior ruling in Austin v. United States, 509 U.S. 602, held that these types of forfeitures fall within the protections of the clauses cited above when they are at least partially punitive.

This ruling strikes a blow against civil forfeitures by state law enforcement agencies across the country. If you or someone you know is facing criminal charges and the government is also attempting to seize their assets, give us a call at (318) 459-9111 to set up a consult.

La R.S. 14:79 establishes the criminal consequences for violating a protective order:

On a first conviction that does not involve physical violence, the offender shall be fined not more than $500 or imprisoned for not more than 6 months, or both.

On a second conviction that does not involve physical violence, the offender shall be fined not more than $1,000 or imprisoned with or without hard labor for not less than 14 days nor more than 2 years. The first 14 days must be served without benefit of probation, parole, or suspension of sentence. 

If the violation involves physical violence, the offender shall be sentenced to pay a fine of not more than $1,000 and imprisoned with or without hard labor for not less than 3 months nor more than 2 years. The first 30 days of the sentence shall be without benefit of probation, parole, or suspension of sentence.

On a second or subsequent conviction within 5 years involving physical violence, the offender shall be sentenced to pay a fine of not more than $2,000 and imprisoned with or without hard labor for not less than 1 year nor more than 5 years. The first year without benefit of probation, parole, or suspension of sentence. 

Louisiana Code of Criminal Procedure Article 320(K) states that a violation of any bond condition (including the violation of a protective order issued as a condition of bond) shall be considered constructive contempt of court and shall result in the revocation of bail and the issuance of a bench warrant for the defendant’s arrest or remanding the defendant to custody. The Court may then increase the defendant’s bail, add additional conditions to his bail, or hold him without bail pending trial. 

If you or someone you know is facing charges for violating a protective order, please contact our office to set up a consult at (318) 459-9111.

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.