We often hear from both the accused and complainants in domestic abuse cases that the complainant wants to drop the charges against the accused. The next question is always: Won’t the state just dismiss my case, then?
The answer to that question is almost always no.
In Louisiana, the victim in a criminal case is not a party to the prosecution. In a civil case, the person who committed the wrongful act and the victim are both parties. The Plaintiff is the person who was hurt and the Defendant is the person who did the hurting. For example, in a car accident in which John Doe rear-ended Jane Roe, Doe would be the defendant sued by Roe.
In a criminal case, the State steps in to the shoes of the wronged party and brings the case against the defendant. So, for example, if John Doe were accused of committing a domestic abuse battery against Jane Roe, the case would be filed as State of Louisiana versus John Doe. And Jane Roe would merely be a witness in the State’s case.
That said, victims in Louisiana have certain rights established in our constitution and laws. Louisiana Constitution Article I, Section 25 establishes the rights of a victim:
“Any person who is a victim of crime shall be treated with fairness, dignity, and respect, and shall be informed of the rights accorded under this Section. As defined by law, a victim of crime shall have the right to reasonable notice and to be present and heard during all critical stages of preconviction and postconviction proceedings; the right to be informed upon the release from custody or the escape of the accused or the offender; the right to confer with the prosecution prior to final disposition of the case; the right to refuse to be interviewed by the accused or a representative of the accused; the right to review and comment upon the presentence report prior to imposition of sentence; the right to seek restitution; and the right to a reasonably prompt conclusion of the case. The legislature shall enact laws to implement this Section. The evidentiary and procedural laws of this state shall be interpreted in a manner consistent with this Section.
Nothing in this Section shall be construed to inure to the benefit of an accused or to confer upon any person the right to appeal or seek supervisory review of any judicial decision made in a criminal proceeding. Nothing in this Section shall be the basis for an award of costs or attorney fees, for the appointment of counsel for a victim, or for any cause of action for compensation or damages against the state of Louisiana, a political subdivision, a public agency, or a court, or any officer, employee, or agent thereof. Remedies to enforce the rights enumerated in this Section shall be provided by law.”
And Louisiana Revised Statutes Title 46, Chapter 21-B, Section 1844 establishes additional rights that victims and witnesses in criminal cases may have.
One of the rights established by these laws is notification and consultation with the district attorney’s office handling the case. This is the opportunity for the victim in a domestic abuse case to be heard about the resolution of the case. Often, a Victim Assistance Coordinator, an employee of the District Attorney’s Office, will be assigned to the case to whom the victim can make their requests.
If you or someone you know is facing criminal charges and would like to set up a consult, give us a call at (318) 459-9111.
Katherine and Sarah want to take this Mother’s Day to send love and gratitude to all of the mothers in our lives.
No.
There are multiple reasons why you should speak to an attorney if you are accused of a crime, even if you know you did it:
The consequences of pleading guilty may be more severe than you realize.
Many people think that if they just go in to court and plea guilty, they will receive a fine and be allowed to go on with their day. Almost every criminal offense (and many traffic offenses) allow for a court to impose a jail sentence instead of or in addition to a fine. Pleading guilty without knowing what the likely sentence will be could result in jail time for you.
In addition to those consequences, many felonies will result in the loss of gun rights under State law and all felonies will result in the loss of gun rights under Federal law. Some misdemeanors that involve domestic violence may also result in the loss of gun rights.
Finally, any criminal conviction usually must be disclosed on job applications which can cause problems for young people who are not established in their careers.
There may be another resolution available to you.
Even if you are guilty of the offense with which you are charged, depending on your criminal history, an attorney may be able to advocate on your behalf for a plea to a lesser offense, or a referral to a diversion program which may result in your charge being dismissed. These options will usually not be relayed to you by the prosecutor if you are not represented by an attorney. (It isn’t the prosecutor’s job to advocate for you. That’s why you need a lawyer!)
The State may not have sufficient evidence to prove you committed the offense.
Even if you are guilty of the offense, the State may not have enough evidence to prove it. Your criminal defense lawyer will review all of the evidence and see if there are grounds to suppress some of the evidence against you or if there is simply insufficient evidence to convict you of the crime.
There are sentencing provisions that may help you clear your record down the road that you will not be aware of representing yourself.
Finally, even if your case resolves with you pleading guilty to the charge, an attorney may be able to position you so that you can expunge your record at some point down the line.
If you or someone you know is facing criminal charges and you would like to set up a consult to discuss the case, call us at (318) 459-9111.
Happy Law Day from Gilmer & Giglio!
In Louisiana, criminal charges are either misdemeanors or felonies. As a general rule, misdemeanors are less serious and much less punitive than felonies. Louisiana’s criminal definition statute is found in Title 14 of the Revised Statutes, Section 2. Subsections (4) and (6) define “felony” and “misdemeanor”.
A felony in Louisiana is
“Any crime for which an offender may be sentenced to death or imprisonment at hard labor."
A misdemeanor in Louisiana is
“Any crime other than a felony.”
The other major difference between a felony and a misdemeanor in Louisiana is that individuals charged with felonies are entitled to trial by jury. Although an individual charged with a felony can waive his right to a jury trial, people charged with misdemeanors are only entitled to trial by judge.
One of the questions we are asked very frequently during consultations is: What motions will you file in my case? Our answer is always first: It depends. But there are some motions that we will always file and many others that we will always consider.
In every case, we will file a Motion to Enroll. A motion to enroll notifies the court that we represent our client and allows us to, as I often put it, do the talking. We will also file a Motion for Discovery. This motion requests the court to order the state to provide to us all of the evidence they intend to use against our client. We ask for copies of police reports, arrest affidavits, photographs, police body and dash cam videos, and interviews, among many other things.
The other motions that we will file are all dependent on the facts of each client’s case. Sometimes we will file a Motion to Quash, which is filed usually when there is something technically wrong with the charging document (the bill of information or indictment). This motion is how we say that there is something wrong with the charge and it needs to be fixed.
In some cases, we will file a motion to suppress. A motion to suppress is appropriate in cases where there has been a violation of a client’s constitutional rights. If granted, a motion to suppress will order the state to exclude evidence seized as a result of that violation.
Every case is different and will require different motions that should be filed at different times. We look at each case thoroughly to find what motions are appropriate and when they should be filed.
If you or someone you know is looking for an attorney for a criminal case, call us at (318) 459-9111 to set up a consult.
The likely answer to this question is, unfortunately, no. Your case will likely not be dismissed just because the officer didn’t read you your rights. To explain why, we’ll have to give you a brief run-down of what Miranda actually involved.
In Miranda v. Arizona, decided in 1966, the United States Supreme Court consolidated several cases in which individuals who had been placed under arrest were interrogated by law enforcement or prosecutors and who, during those interrogations, gave statements that were subsequently used against them.
Prior to 1966, the Supreme Court had recognized that criminal defendants had certain rights during police interrogation, among them the right to have counsel present and the right to remain silent, but Miranda was the first case where the Court really recognized that many people didn’t actually know that they had these rights and this lack of knowledge could be taken advantage of by law enforcement attempting to obtain confessions. Miranda now requires that an arrestee who is subject to interrogation must be advised of his right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that if he cannot afford an attorney, the court will appoint one to represent him. If he is not so advised, any statements he makes then cannot be used against him.
So, back to your set of facts: you were placed under arrest, and the officers did not read you your rights. Does this mean that your case will automatically be thrown out? No. If you were not interrogated about the facts surrounding the arrest, Miranda isn’t implicated. If you were interrogated, there may be grounds to file a motion to suppress your statement because it was taken in violation of Miranda requirements, but that does not mean that your case will automatically be dismissed if there is sufficient other evidence to prosecute you.
If you or someone you know has been arrested and interrogated for a crime and are looking to hire an attorney, give us a call at (318) 459-9111 to set up a consult.
Sarah Giglio appeared on the Lawyer Show with Jeremy Rosenthal on April 1. Check out their discussion about the differences between Texas and Louisiana criminal law, the Bachelor & Bachelorette, and the Independence Bowl.
Sarah Giglio appeared on the Lawyer Show with her former employer, Jeremy Rosenthal. Watch now!
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.
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 dealing with a protective order, please contact our office to set up a consult at (318) 459-9111.
Diversion programs are an alternative to criminal prosecution established by many District Attorney’s Offices in Louisiana.
In many ways, diversion functions like probation: a criminal defendant, having been arrested for a criminal offense is referred to a “diversion coordinator” or “diversion office” run by the District Attorney’s Office, instead of being sent to court for prosecution of his case.
The defendant agrees, in writing, to certain conditions. If she completes those conditions and after a set period of time has passed, the District Attorney will, in exchange, dismiss or reduce the criminal case against the defendant. There is usually a fee for participating in a diversion program. The standard conditions can range from community service to alcohol abuse screening and treatment, theft prevention courses, and obtaining gainful employment or a G.E.D. or its equivalent. Most diversion programs last from 6 months to 2 years.
The benefit of participation in a diversion program is that dismissal of the charge upon completion of the program keeps the defendant from having a criminal conviction on her record, and also allows her to expunge the arrest immediately (except in the case of a DWI arrest).
If you have been arrested and would like to discuss your options in more detail, please call us at (318) 459-9111 to set up a consult.
At Gilmer & Giglio, we frequently handle bond matters, including reduction requests. Here are our answers to a few basic bond-related questions that we often receive. Of course, each case is different, so if you or a loved one needs help, give us a call at (318) 459-9111, to talk to us about your case specifically.
Q: What is the purpose of bond?
A: Per Louisiana Code of Criminal Procedure Art. 316, bond must be fixed “in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community.”
Q: What does the judge consider when setting the bond?
A: The Louisiana Code of Criminal Procedure sets out ten factors to be considered in setting a defendant’s bond. They are:
The seriousness of the offense charged (including whether it is a crime of violence or involved a controlled dangerous substance;
The weight of the evidence against the defendant;
The previous criminal record of the defendant;
The ability of the defendant to post bail;
The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release;
The defendant’s voluntary participation in a pretrial drug testing program;
The absence or presence in the defendant of any controlled dangerous substance;
Whether the defendant is currently out on bond for another felony;
Any other circumstances affecting the probability of the defendant’s appearance; and
The type or form of bail
Q: Why is it taking so long to get a bond set in my Domestic Abuse Battery case?
A: This is likely because of Gwen’s law. If you are charged with domestic abuse battery, violation of protective orders, stalking or any felony offense involving the use or threatened use of force or a deadly weapon upon a family member, household member or dating partner, the court can hold you for a contradictory hearing (a “Gwen’s law hearing”) for up to five days after the finding of probable cause (usually the arrest day). This five-day window is exclusive of weekends and holidays. At that hearing, the court will make a determination as to whether or not the Defendant will have to remain incarcerated pending trial. Additionally, if bond is set at that hearing, there is a high likelihood that a protective order will be issued in favor of the complainant. If possible, you should hire an attorney before this hearing.
Q: I’ve already bonded out, but now I think that the bond was too high. Can we go back and get a reduction?
A: No.
Q: I bonded out, but now the State is asking for a bond increase. Can they do that?
A: Just like you can ask for a bond reduction, they can ask for a bond increase. We see this frequently, when a Defendant bonds out and subsequently picks up a new charge. Whether a bond increase is granted depends on many circumstances, just as a reduction does.
Q: What are my bond conditions?
A: Bond conditions are specific to each case, so each Defendant’s bond may be a little bit different. The jail or your bondsman should give you your bond conditions when you leave the jail. Common conditions of bond include: orders to refrain from criminal activity and drug use, avoid associating with felons, not to leave the state without prior written permission of the court, and to obey any orders of protection.
In more serious cases, the court may require global position monitoring (ankle monitoring). It is incredibly important in cases where there is a protective order or no-contact order is in place, you abide by that order. It does not matter how friendly you are with that person or that you are in a romantic relationship with them—violation of these orders is the fastest way to get your bond revoked. Don’t do it!
Q: What is the process to get a bond reduction?
A: If you hire us for your case, and would like us to seek a bond reduction, our first step would be to get you a court date as soon as possible, so the judge can hear the evidence quickly and hopefully get the bond reduced so you can get out of jail. Sometimes getting set on a docket takes a day, and sometimes it takes weeks, but that is the first step. Once we have a court date, we may subpoena witnesses to testify as to your ties to the community, work history, lack of drug history, etc. We may also start collecting character letters on your behalf. Additionally, we usually speak to the prosecutor to see if they will agree with the bond reduction. It is the policy of most District Attorneys to oppose bond reductions, but we have been able to get them to agree in some situations. At the bond hearing, we will present evidence, the state will present evidence, and then both sides will argue to the judge. Typically, the judge will rule on the bond reduction that day in open court, although sometimes they take the matter under advisement, which means we have to come back to court to get the answer.
Q: I need to travel out of state, but my bond conditions say I can’t. Can you do anything about this?
A: Yes. We often file motions to amend bond conditions, requesting that the judge sign an order allowing you to travel out of the state even though it is otherwise a violation of bond. We work to make sure your bondsman has no opposition, and then explain the reason for travel to the judge, find out if the State has any opposition, and hopefully the judge will approve your travel. If he or she does approve it, we give you a copy of the signed order to take with you while you travel, so you don’t run into any issues.
If you have been arrested and would like to discuss your options in more detail, please call us at (318) 459-9111 to set up a consult.
Both Sarah and I love to read, so when I saw there was a Read Across America day, I got very excited and knew I needed to share it. First, some history: Read Across America day began in 1997 as an initiative to encourage children to read. It is held on the nearest school day to March 2 every year because Thedor Geisel, or Dr. Suess, was born on March 2, 1904. Dr. Suess was a prolific author of children’s books that are beloved to this day.
In honor of Read Across America Day, we’ve got some recommendations for books for you:
I know, I know, I didn’t have to tell you to read this one. But it is THE quintessential book about the law and justice in America. I don’t know very many lawyers who haven’t read this book. And an aside, when students sign up to take the bar exam in Louisiana, they have to pick a pseudonym so the graders can’t identify whose exam they are reading and, well, cheat. The examiners advise students not to choose the name “Atticus Finch” because SO MANY people have done it in the past that they run the risk of not being able to identify their own results.
Continuing our theme of books made into movies, you could pick any of a very long list of Grisham novels, but this was his first, and was inspired by To Kill a Mockingbird. Another book that attempts to grapple with the issues of race and justice in America that we have yet to solve.
As someone who uses the phrase “Kafkaesque” much more often than is really justifiable, I couldn’t resist the opportunity to include this book. This is the story of a man struggling with the bureaucracies of a court system that will not tell him what crime he has been accused of nor will it allow him to defend himself. It is absurd and frustrating but worth a read.
This is a non-fiction book that gives a good background in the development of DNA forensics and then delves deeply into the issues with said forensic evidence. For anyone with an interest in DNA, science-based evidence, or how exactly courts began to accept DNA evidence, this book is fantastic!
We hope you found something here worth picking up on this National Read Across America day! Happy reading!
As always, if you or someone you know is accused of a crime, call us at (318) 459-9111 to schedule a consultation.
A common mistake that people make is thinking this: “I didn’t do anything wrong, so I will just go and explain everything to the detective and everything will be okay.” There are a few things to remember before you do this:
First, if you are getting called in by a detective to “give your side of the story” you must remember that the detective has likely already labeled you as a suspect. This means he is going to view everything you say with great skepticism, and likely not believe you, which could mean you are giving a statement in vain.
Second, don’t forget that detectives go to extensive training in interrogation and interview tactics, so you are rarely actually going in for a “conversation” with them—you are going in for an interrogation, and you need to be prepared for what that means.
Does this mean that we never take people to speak with the police? Absolutely not! We frequently take clients to give statements to the police. When you hire us, we make a plan with you, the client, to determine whether or not it is in your best interested to give a statement. We have taken many clients in to give statements who were never arrested. Taking an attorney with them provided those clients with an advocate and someone who was comfortable in the interrogation room, calling out unfair statements or tactics that the police use, when they may not have been able to accomplish that themselves, without an attorney.
Why should you hire an attorney prior to giving a statement? Aside from the fact that it is much less expensive to hire us for a pre-arrest matter than it is to litigate your case, you also may end up avoiding an arrest altogether.
If you are wondering whether you should hire an attorney for your pre-arrest matter give us a call at (318) 459-9111 to discuss your case.
You had a court date and you missed it—here’s what you need to know:
When you miss court, the judge will issue a bench warrant for your arrest.
Typically they will set a bond significantly higher than your original bond (usually at least double). This means that if you are pulled over and that warrant has been entered into the system, you will go back to jail.
Of course, you want to avoid going back to jail, so what should you do? Your attorney needs to get the warrant recalled, if possible. This means that you need to immediately gather any documentation or proof you have regarding why you missed court. For example, if you were in rehab, provide your attorney with a certificate of completion, so that she can provide that to the State and the Court. You will likely need to appear in court with your attorney to explain your absence to the court (through your attorney), and request that the bench warrant be recalled. This process needs to be done quickly—the more time passes once you have missed your court date, the more difficult it becomes to get the warrant recalled.
If you need an experienced attorney to help you navigate a situation like this one, call us for a consult 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.
Many of our clients have never appeared in court, and as a result they have questions about what to expect. We want to answer some of those questions for you here. Below are a few courtroom basics that we hope you will find helpful in preparing for your first court appearance
1. Show up—on time!
One of the fastest ways to frustrate the prosecutor handling your case and the judge presiding is to not be present when they call your case up. If your notice to appear says 9:30 a.m., don’t pull into the parking lot at 9:30. You need to allow time to park, go through security, figure out which courtroom you are in, and wait for an elevator. It is a good idea to plan to be in the courtroom at least 15 minutes prior to your notice to appear, unless otherwise instructed by your attorney. We have experienced judges who issue bench warrants one minute after the notice to appear told you to be present, so don’t push your luck on something so easy. Just get there early—and this goes without saying, but no you can’t just skip your court date.
2. Dress like it’s an important appointment—because it is…
Wear what you would wear to church or to an important interview or meeting. Don’t wear your Budweiser t-shirt that you got for free at some festival to your court appearance for DWI or have your marijuana leaf tattoo visible for your court appearance for possession of drug paraphernalia. No ballcaps. No chewing gum. You are trying to communicate to the prosecutor and the judge that you take this seriously, and being dressed inappropriately for court is the first thing they will notice.
3. Be patient—sometimes good results take time…
While everyone in the courtroom is trying to move the docket as fast as possible, these things take time. Sometimes the lawyers need time to work out a resolution or issue in your case. Keep in mind that there are usually dozens of cases on the docket, so there is a lot of activity going on. Typically, if you have retained an attorney, you will get called up at the beginning of the docket.
4. Be the best-behaved person in the courtroom…
Sometimes people get testy during long days in court—don’t be this person. This means if the victim/opposing party/opposing counsel is in the courtroom, there is no need to speak to them, glare at them, or otherwise communicate with them. Don’t get on the elevators with opposing parties—it’s awkward—trust us. Let the lawyers do the arguing—that’s what you pay us for.
5. Don’t be the person whose cell phone rings…
Don’t let your cell phone make any noise at all in the courtroom—if the bailiff says turn them off, then please do that. Nobody wants their phone to be confiscated because they were defiant. It’s really best to leave your phone in the car altogether.
6. Be aware of new COVID procedures…
We all know the world looks a little different now. Make yourself aware of the court’s mask requirements, temperature checks, or staggered start times and social distancing rules. If you have tested positive for COVID-19, or been exposed, alert your attorney as quickly as possible to make sure that alternative arrangements can be made for you.
We hope these tips help you feel well-prepared for your first court appearance. If you would like to consult us regarding your upcoming court appearance, call Gilmer & Giglio for an appointment at (318) 459-9111.
1. How often can I get an expungement?
Early and often - if you were not convicted of any offense resulting from the arrest, you can expunge these arrests any time and as many of them as you want. If you were arrested for a felony but convicted of a misdemeanor, you can apply for an interim expungement of the felony arrest anytime, but cannot remove the record of the misdemeanor conviction until the delays discussed below have passed.
Immediately after the sentence is completed - Under some circumstances, a condition can be expunged immediately when the person seeking the expungement has completed their sentence:
If the individual was convicted of a misdemeanor and sentenced pursuant to Article 894, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.
If the individual was convicted of a felony and sentenced pursuant to Article 895, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.
If the individual was convicted of a felony for the first time and is eligible for a first offender pardon, they may file for an expungement immediately upon completion of their sentence.
5 Years - for most misdemeanors after the date the individual was last serving any portion of their sentence (including probation).
10 years - for most felonies after the date they were last serving any portion of their sentence (including probation or parole).
As of August 1, 2020, the limitations on the number of arrests that can be expunged within a certain period of time (15 years for a felony, and 5 for a misdemeanor) have been repealed. It appears from this change in the law, that provided that an individual otherwise meets the requirements to expunge ALL of his arrests, he now no longer has to choose only one and wait 5 or 15 years to expunge another. He can expunge all of his arrests at once.
2. Are there any charges that can’t be expunged?
Yes. Sex offenses as defined in La. R.S. 15:541, and domestic abuse battery convictions cannot be expunged. Under certain circumstances, crimes of violence as defined in La. R.S. 14:2(B) and violations of the Uniform Controlled Dangerous Substances laws (Title 40) cannot be expunged.
3. How long will this process take?
Approximately 6 - 9 months.
The first step is to apply for a background check from Louisiana State Police. Once that is received, the Petition for Expungement must be filed within 30 days. There is a 60-day waiting period during which the State may file an objection to the Petition. Once the 60-day waiting period has passed, the Court will set the matter for a court appearance and either grant or deny the Petition. If it is granted, the Court will sign the order and the expungement will be granted.
There is often a delay between the signing of the order and the removal of the record because the Clerk of Court must send a copy of the order to each police agency involved in the case. Once each agency has removed the record from public access, they will send a certification letter stating so to the Clerk of Court. This entire process from background check request to receipt of final certification letter takes approximately 6 months.
4. Once I have gotten an expungement, can I tell people I’ve never been arrested?
Under most circumstances and with regard to the specific charge you have gotten expunged, yes. (If you have multiple arrests and are not able to expunge them all, you may still have to disclose those arrests depending on the wording of the question.)
5. Does an expungement make it like my charge “never happened?”
Short Answer: No.
Longer Answer: Expungements are different in every state. In Louisiana, an expungement removes the record from “public access” but does not result in the record’s destruction. In effect, this means that most background checks will not reveal the existence of the arrest; however, there are many exceptions to this rule. This also means that the arrest can be seen by law enforcement and the courts and can be used against you in subsequent prosecutions.
If you have a specific question about whether an expungement is a good idea for your circumstances, call us at (318) 459-9111 to set up a consult.
Effective August 1, 2020, the Louisiana legislature added subsection (L) to Louisiana Revised Statutes 14:95, which added an exception to the statute’s prohibition against concealed carrying of a firearm or other dangerous weapon on one’s person.
Subsection L allows any person (provided that person is not prohibited from possessing a firearm under La. R.S. 14:95.1 - the felon in possession of a firearm prohibition statute or any other state or federal law) to carry a concealed firearm on his person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency or disaster declared pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act.
The section further defines “in the act of evacuating” as: “the immediate and urgent movement of a person away from the evacuation area within 48 hours after a mandatory evacuation is ordered.” It also allows for the 48-hour window to be extended by an order issued by the governor.
My favorite of the new laws passed by the Louisiana legislature in 2020 is the law regarding Daylight Savings Time.
Effective August 1, 2020, if the United States Congress amends 15 U.S.C. 260(a) to authorize states to observe daylight saving time year-round, Louisiana will, by the enactment of La. R.S. 1:50, adopt daylight saving time as the year-round standard of time for the entire state.
So far, we’re still subject to springing forward and falling back, but if the US Congress acts to change that, Louisiana will spring forward and stay there!