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

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

So can you introduce those traits?

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

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

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

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

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

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

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

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

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

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

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

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

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

Examples of relevant evidence:

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

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

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

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

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

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

1. the danger of unfair prejudice;

2. confusion of the issues;

3. misleading the jury; or

4. undue delay or waste of time.

Some examples:

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

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

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

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

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

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

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

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

• cherry bombs,

• tubular salutes,

• two-inch American-made salutes,

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

• repeating bombs,

• aerial bombs,

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

• Roman candles larger than 10 ball, and

• sky rockets heavier than 6 ounces.

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

• sky lanterns,

• Chinese lanterns,

• Hawaii lanterns,

• sky candles,

• Kongming lanterns,

• fire balloons, and

• flying luminaries.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you have been arrested for DWI and are concerned about the status of your driver’s license, please call us for a consult at (318) 459-9111.

SR-22 in Louisiana is a certificate of insurance filed by an insurance company with the Office of Motor Vehicles (OMV) that simply confirms that an individual has “proof of future financial responsibility” or: proof of sufficient insurance coverage or a sufficient bond or cash deposit with the state ($30,000) in the event that he causes an accident.

A person may be required to provide an SR-22 certificate to the OMV after a judgment has been obtained against them for an accident, after a conviction for driving while intoxicated, or after first refusal to submit to a chemical test for an arrest for driving while intoxicated.

For any of these reasons, SR-22 will need to be maintained for three years.

If you or someone you know is unsure whether you are required to provide an SR-22 certificate of insurance to the OMV, call our office to set up a consultation: (318) 459-9111.

Most states require that, before being allowed to operate a motor vehicle on its roads, a driver purchase a certain amount of motor vehicle insurance. This is commonly known as compulsory motor vehicle insurance or compulsory MVI.

Louisiana is no different.

Louisiana Revised Statutes Title 32, Section 861 requires that every “self-propelled motor vehicle” registered in Louisiana maintain a policy of motor vehicle liability insurance with limits as defined by “R.S. 32:900(B)(2) or (M)”. Failure to maintain the required insurance policy can result in the revocation of the vehicle’s registration, impounding of the vehicle, and cancellation of the vehicle’s plates, fines and imprisonment.

Louisiana Revised Statutes Title 32, Section 900, establishes the required minimum limits for insurance in Louisiana. A liability insurance policy in Louisiana must include a minimum of $15,000 in bodily injury or death limits per person, with a total $30,000 limit per accident. Each policy must also include $25,000 in damage or destruction of property limits.

Any individual operating a motor vehicle without compulsory motor vehicle insurance who is involved in an accident is prohibited from recovering the first $15,000 of any bodily injury damages sustained in the accident and the first $25,000 of any property damages sustained in the accident, regardless of fault. (La. R.S. 32:866).

If you or someone you know has been involved in an accident and has questions about what to do next, give us a call at (318) 459-9111.

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

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

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

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

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

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

In the final pending Supreme Court case we will discuss this year, a tragically sad set of facts led to a question about the insanity defense.

Kraig Kahler was in the middle of a divorce with his wife and began suffering from depression and obsessive-compulsive disorder. He sought psychiatric treatment and was prescribed antidepressants, anti-anxiety medication, and sleep aids, but refused to take the medication as directed. After his divorce had been pending for some time, he went to his wife’s grandmother’s house, where they were visiting, and shot and killed his wife, two daughters, and his wife’s grandmother.

Experts who examined Kahler agreed that he suffered from major depressive disorder, obsessive-compulsive, borderline, paranoid, and narcissistic personality tendencies and a defense expert testified that, due to his mental illnesses, Kahler did not make the rational choice to kill his family and had “completely lost control.”

Under Kansas law, a jury cannot consider a mental disease or defect as a defense except to the extent that it shows “that the defendant lacked the mental state required as an element of the offense,” which essentially eliminates the insanity defense as it otherwise exists in most other states.

The question pending before the US Supreme Court was whether a state may abolish the insanity defense without violating the Eighth and Fourteenth Amendments right against cruel and unusual punishment?

The Supreme Court ruled that the Constitution’s Due Process clause does not require Kansas to “adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.”

The third Supreme Court case of interest to us this term is New York State Rifle & Pistol Association Inc. v. City of New York.

New York State requires a license to possess a firearm. To obtain a license in New York City, an applicant must apply to the police commissioner and the application process includes investigations into the applicant’s mental health history, criminal history, and moral character. New York issues two types of licenses: a carry license and a premises license. The premises license restricts the owner to possessing the firearm only in his dwelling at a specific address, except under limited circumstances; one of which is to transport the weapon directly to and from an authorized gun range. All authorized ranges are locate within the city limits. The owners who have sued wanted to be able to carry their weapons to ranges outside the city, or to another home they owned in another city.

The question before the US Supreme Court is whether the rule violates the Second Amendment, the Commerce Clause, or the Constitutional right to travel.

As a follow-up to our blog post from April 13, the United States Supreme Court issued its ruling in Ramos v. Louisiana today holding that non-unanimous jury verdicts are unconstitutional. They also held that this ruling applies to those whose cases are currently pending trial or are on direct appeal.

Read the opinion here.

We are ecstatic that the Supreme Court has made this ruling requiring that in all serious cases, jury verdicts must be unanimous!

If you have questions about how this ruling may apply to your case, give us a call at (318) 459-9111.

The second US Supreme Court case we’d like to discuss this spring is Kansas v. Glover.

Charles Glover, Jr., was driving a pickup truck when a police officer following him decided to run his license plate. Glover had given the officer no reason to pull him over; however, the vehicle was shown as registered to him and his driver’s license had been revoked. The officer, acting only on the assumption that the registered owner (Charles Glover) was driving the vehicle and with no other reason to stop the vehicle, initiated a traffic stop. Glover was indeed the driver of the vehicle and the officer charged him for being a habitual violator of Kansas’ traffic laws.

Glover moved to suppress the stop and all evidence seized as a result of the stop arguing that the officer had no grounds to pull him over and therefore violated his Fourth Amendment right against unreasonable searches and seizures.

The question before the US Supreme Court was whether it is reasonable for an officer to suspect that the registered owner of a vehicle is the operator of a vehicle absent any information to suggest that he is not. The Supreme Court ruled on this case on April 6, 2020, and held that when the officer lacks information negating an inference that the owner is driving the vehicle, an investigative traffic stop made after running a vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. Essentially, this means that the defendant challenging the traffic stop bears the burden of showing that the officers inference is unreasonable.

The United States Supreme Court has several cases before it this year that will have an impact on criminal cases across the country. We’d like to take the next few weeks to talk about a few of them.

Of particular importance to Louisiana residents, Ramos v. Louisiana, will be decided this term.

At the end of 2018, Louisiana voted to require unanimous jury verdicts in felony criminal cases. Evangelisto Ramos was charged with second-degree murder, tried, and found guilty by 10 out of the 12 jurors deciding his case. Because Louisiana only required 10 votes to convict, he was found guilty and sentenced to life imprisonment.

The question pending before the United States Supreme Court is whether the Fourteenth Amendment to the US Constitution requires that the Sixth Amendment’s guarantee of a unanimous jury apply to the states.

This decision could impact a lot of individuals currently serving sentences for felony convictions where less than 12 jurors voted to convict.

UPDATE:

The US Supreme Court has reversed Ramos and held that non-unanimous jury verdicts are unconstitutional. Read the full opinion here.

We know this year’s Easter is not what most of us had planned, but we at Gilmer & Giglio wish you and your loved ones a safe and healthy holiday.

The two types of protective orders can be criminal or civil. They can both have criminal consequences if violated.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In these strange times, there are a lot of rumors about what actions the governor has taken so far and what obligations Louisianans have to comply with his executive orders.

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

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

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

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

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

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

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

Domestic Abuse Battery is defined in Louisiana Revised Statutes 14:35.3. It prohibits the use of force or violence upon a household or family member without their consent. A household member is defined as “any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.” A family member is defined as, “spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children.”

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

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

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

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