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

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

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

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

The written notice must include:

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

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

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

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

The factors that must be considered by each agency are:

(a) The nature and seriousness of the offense.

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

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

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

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

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

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

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

Effective May 26, 2022, the legislature amended Louisiana Code of Criminal Procedure Article 983 to allow for a district attorney to certify that an applicant for expungement was a victim of human trafficking and that the offense for which the expungement is sought was committed, in substantial part, as the result of that status as a victim of human trafficking. The applicant must establish by a preponderance of the evidence that they are the victim of human trafficking to obtain the certification (in accordance with La. R.S. 14:46.2) but, once obtained, the certification will serve as prima facie proof within all other Louisiana jurisdictions that during the time period the applicant was a victim of human trafficking, that all other offenses were as a result of their status as a victim of human trafficking.

If the applicant obtains this certification, all waiting periods for expungement are waived, and the applicant shall not be required to pay any fees for the expungement.

Effective August 1, 2022, applicants for expungement who are factually innocent and entitled to compensation for wrongful conviction pursuant to La. R.S. 15:572.8 are exempt from filing fees for obtaining an expungement for that record.

Further, an applicant who has received a pardon shall also be exempt from the filing fees, unless it was a first offender pardon.

If you or someone you know has questions about obtaining an expungement of an arrest record, call us at (318) 459-9111 to schedule a consultation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(v) Video voyeurism.

(vi) Cruelty to animals.

(vii) Dogfighting.”

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

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

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

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

The US Supreme Court considered the question:

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

Source: Oyez.org.

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

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Here at Gilmer & Giglio, we’d like to wish everyone a very happy first day of summer!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Happy father’s day to all the father’s we know and love!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Merle Denezpi, a member of the Navajo Tribe, pled guilty to an assault charge in the Court of Indian Affairs. Subsequently, he was indicted in federal court for charges arising from the same set of facts. He was convicted and sentenced to 30 years in prison.

He challenged his conviction in federal court alleging that the Double Jeopardy Clause of the United States Constitution prohibited his subsequent conviction in federal court after he was convicted in the Court of Indian Affairs.

The question pending before the Supreme Court this term is:

Does a prosecution in the Court of Indian Offenses trigger the Constitution’s Double Jeopardy Clause?

Source: Oyez.org

We would like to take this day to thank those who gave, as Abraham Lincoln once said, “the last full measure of devotion” to our country.

In 1997, William Wooden broke into a storage facility and stole objects from 10 different storage units. He was charged with and subsequently pled guilty to 10 counts of burglary. In 2014, officers found him in possession of a rifle and charged him with being a felon in possession of a firearm and was indicted by a federal court. After trial, and during his sentencing hearing, Wooden was determined to be an Armed Career Criminal in violation of 18 U.S.C. § 922(g)(1) and 924(e).

The Supreme Court addressed the following question:

Are offenses committed as part of a single criminal spree but sequentially in time “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act?

In a unanimous decision drafted by Justice Kagan, the Court found that offenses committed as part of a single criminal episode did not occur on different “occasions” and thus count as only one offense for purposes of the Armed Career Criminal Act.

Source: Oyez.org.

Larry Thompson was arrested for resisting an officer and obstructing governmental administration after he refused to allow officers entry into his home when they told him they did not have a warrant. He spent two days in jail and after three months his case was dismissed. The initial complaint was made by his sister-in-law who believed diaper rash on her nephew was a sign of abuse. After EMTs arrived on scene and found nothing wrong, four law enforcement officers arrived and Mr. Thompson, who did not know about his sister-in-law’s call, denied them entry, resulting in his arrest.

After his case was dismissed, Mr. Thompson filed a lawsuit against the officers for malicious prosecution. The trial court dismissed the case because it found that a dismissal was not a proceeding that “formally ended in a manner not inconsistent with his innocence,” or “ended in a manner that affirmatively indicates his innocence”.

In a 6-3 decision authored by Justice Kavanaugh, the Supreme Court held that an acquittal was not required to sustain an §1983 action.

Source: Oyez.org

We wish a happy mother’s day to all the mother’s in our lives, especially our own!

In April 2006, two men got into a fight with several other people in the Bronx. Shortly thereafter, someone opened fire with a 9 millimeter handgun and a child in a passing car was killed. Nicholas Morris was identified by witnesses as the shooter and pursuant to a warrant, officers found a 9 millimeter cartridge and ammunition for a .357 revolver in his home. They did not find the weapon. Morris’ trial ended in a mistrial and rather than re-try him, Morris pled to possessing a firearm at the scene of the shooting. Because the prosecution did not have sufficient evidence to prove possession of a firearm at the scene, Morris testified during the plea that he possessed a .357 revolver at the scene.

In 2013, Darrell Hemphill was charged with the murder. At trial, Hemphill presented evidence that a 9 millimeter cartridge was located at Morris’ home shortly after the shooting. In response, the State presented the testimony of Morris at his plea that he had possessed a .357 revolver at the scene.

Hemphill appealed and the question presented to the United States Supreme Court was:

When, if ever, does a criminal defendant who “opens the door” to evidence that would otherwise be barred by the rules of evidence also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause?

The Supreme Court, in an 8-1 decision authored by Justice Sonia Sotomayor, held:

The Confrontation Clause of the U.S. Constitution guarantees criminal defendants the right to confront witnesses against them, and the Court has recognized no open-ended exceptions to this requirement—only those exceptions established at the time of the founding. In People v. Reid, New York’s highest court held that a criminal defendant “opens the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was “reasonably necessary” to correct a misleading impression made by the defense’s argument. Contrary to the State’s contention, the Reid rule is not merely procedural, but a substantive principle of evidence that dictates what material is relevant and admissible. Such an exception is antithetical to the Confrontation Clause.

Source: Oyez.com.

In Lousiana, some cases are tried by a judge and some are tried by a jury. The dividing line between the two are that cases in which the defendant may be sentenced to imprisonment at hard labor must be tried by a jury, unless the defendant waives that right and chooses to be tried by a judge. This is solely the defendant’s right to waive. The State cannot force a defendant to give up his right to trial by jury.

In Louisiana, jury trials are also broken down into two types: 6-person juries and 12-person juries.

A defendant is entitled to a 12-person jury trial when the charge for which he is being prosecuted is either capital (meaning he can be executed or imprisoned at hard labor for life) or if the sentence requires that he be sentenced to hard labor. If the potential punishment only carries the possibility of imprisonment at hard labor, then the defendant is only entitled to a trial by 6 jurors.

See Louisiana Code of Criminal Procedure Article 782.