Bail is defined in Louisiana law as “the security given by a person to assure a defendant’s appearance before the proper court whenever required.” La. C.Cr.P. Art. 311(1). Louisiana law also holds that a person is entitled to bail before conviction. La. C.Cr.P. Art. 312(A). (There are some exceptions, which you will be unsurprised to hear if you follow this blog, at all.)

In setting bail, the court must consider 10 factors:

• The seriousness of the offense with which the defendant is charged;

• 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 and/or the community posed by the release of the defendant;

• The defendant’s voluntary participation in a pretrial drug testing program;

• The absence or presence of controlled dangerous substances in defendant’s system at the time of his arrest;

• Whether or not the defendant is on bond for a previous offense at the time of his arrest;

• Any other circumstances which affect bail; and

• The type or form of bail.

  La. C.Cr.P. Art. 316.

Under specific circumstances, the court must consider additional factors and may restrict the defendants activities while out on bail:

Under Article 313, a defendant arrested for domestic abuse battery, violation of a protective order, stalking, or any felony offense involving the use or threatened use of force or the use of a deadly weapon on the defendant’s family member, household member, or dating partner. (Family member, household member, and dating partner are specifically defined terms elsewhere in the criminal code.) In this case, the court may order a defendant held for five days after the determination of probable cause has been made in his case (which must be done within 72 hours of his arrest, if he is arrested without a warrant, or which has been done at the time of his arrest if he is arrested pursuant to a warrant). Weekends and legal holidays are not counted in this five-day window. The court must consider the Article 316 factors, but must also consider: (1) the defendant’s criminal history; (2) the potential threat or danger the defendant poses to the victim, the victim’s family, or any member of the public (especially children) if released; and (3) whether the defendant has a documented history or records of (a) substance abuse, (b) threats of suicide, (c) use of force or threats of force against anyone, (d) whether there is a history of strangulation, forced sex, or controlling the victim’s behavior by the defendant, and (e) whether the defendant has made threats to kill. After considering these factors and those listed in Article 316, the court may deny the defendant bail outright if she finds upon clear and convincing evidence that the defendant poses a risk of flight or imminent danger to any other person and/or the community. If she sets bail, she can also require the defendant to submit to electronic monitoring and/or house arrest and a curfew.

In cases in which a defendant is charged with a sex offense or has previously been convicted of a sex offense, the court may hold the same hearing within five days of the probable cause determination, and may deny bail or set additional restrictions.

If you or someone you know has been arrested and is awaiting the setting of bail, contact our office for a consultation at (318) 459-9111.

Laissez le bons temps rouler from Gilmer & Giglio!

For our final week, the theme is sex offenses and the Internet:

A. Video voyeurism is any of the following:

(1) The use of any camera, videotape, photo-optical, photo-electric, or any other image recording device, or an unmanned aircraft system equipped with any camera, videotape, photo-optical, photo-electric, or any other image recording device, for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the specific instance of observing, viewing, photographing, filming, or videotaping and either:

(a) It is for a lewd or lascivious purpose.

(b) The observing, viewing, photographing, filming, or videotaping is as described in Paragraph (B)(3) of this Section and occurs in a place where an identifiable person has a reasonable expectation of privacy.

(2) The transfer of an image obtained by activity described in Paragraph (1) of this Subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service.

(3) The manipulation of a victim who has not yet attained the age of seventeen or who is reasonably believed to have not yet attained the age of seventeen to use any camera, videotape, photo-optical, photo-electric, or any other image recording device or an unmanned aircraft system equipped with any camera, videotape, photo-optical, photo-electric, or any other image recording device to photograph, film, or videotape oneself to send to the person manipulating the victim for a lewd or lascivious purpose.

La. R.S. 14:283. A first conviction for this offense carries a fine of not more than $2,000 and/or imprisonment, with or without hard labor, for not more than 2 years. For a second or subsequent violation, the fine will be not more than $2,000 and/or imprisonment at hard labor for not less than 6 months nor more than 3 years without benefit of probation, parole, or suspension of sentence. If the filming is of sexual intercourse, masturbation, or the female breasts, or external sexual organs of either gender, the penalty increases to a fine of not more than $10,000 and/or imprisonment at hard labor for not less than 1 year or more than 5 years without benefit of probation, parole, or suspension of sentence. If the person being filmed is under the age of 17 with the intention of gratifying the sexual desires of the person doing the filming, the penalty is a fine of not more than $10,000 and/or imprisonment for not less than 2 years or more than 10 years, without benefit of probation, parole, or suspension of sentence. La. R.S. 14:283(B).

It is illegal in Louisiana to forward intimate photographs taken of or by another person without that person’s consent:

A. A person commits the offense of nonconsensual disclosure of a private image when all of the following occur:

(1) The person intentionally discloses an image of another person who is seventeen years of age or older, who is identifiable from the image or information displayed in connection with the image, and whose intimate parts are exposed in whole or in part.

(2) The person who discloses the image obtained it under circumstances in which a reasonable person would know or understand that the image was to remain private.

(3) The person who discloses the image knew or should have known that the person in the image did not consent to the disclosure of the image.

(4) The person who discloses the image has the intent to harass or cause emotional distress to the person in the image, and the person who commits the offense knew or should have known that the disclosure could harass or cause emotional distress to the person in the image.

La. R.S. 14:283.2(A). The penalty for violating this statute is a fine of not more than $10,000 and/or imprisonment, with or without hard labor, for not more than 2 years.

A. (1) No person under the age of seventeen years shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person.

(2) No person under the age of seventeen years shall knowingly possess or transmit an indecent visual depiction that was transmitted by another under the age of seventeen years in violation of the provisions of Paragraph (1) of this Subsection.

La. R.S. 14:81.1.1. Violations of Paragraph (1) are governed by the Children’s Code. First offense violations of Paragraph (2) carry a fine of not less than $100 nor more than $250 and imprisonment for not more than 10 days, which shall not be suspended unless the offender is placed on probation with a condition that he perform 16 hours of court-approved community service. A second offense violation carries a fine of not less than $250 nor more than $500 and imprisonment for not less than 10 days nor more than 30 days with the same additional requirements for probation. Finally, a third or subsequent conviction carries a fine of not less than $500 nor more than $750 and imprisonment for not less than 30 days nor more than 6 months with the same probation requirements. La. R.S. 14:81.1.1(D).

Louisiana law prohibits the production, promotion, advertisement, distribution, possession, or possession with intent to distribute pornography involving juveniles; and for a parent, legal guardian, or custodian of a child to consent to the participation of that child in pornography involving juveniles.

E. (1)(a) Whoever intentionally possesses pornography involving juveniles shall be fined not more than fifty thousand dollars and shall be imprisoned at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence.

(b) On a second or subsequent conviction for the intentional possession of pornography involving juveniles, the offender shall be fined not more than seventy-five thousand dollars and imprisoned at hard labor for not less than ten years nor more than forty years, without benefit of parole, probation, or suspension of sentence.

(2)(a) Whoever distributes or possesses with the intent to distribute pornography involving juveniles shall be fined not more than fifty thousand dollars and shall be imprisoned at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence.

(b) On a second or subsequent conviction for distributing or possessing with the intent to distribute pornography involving juveniles, the offender shall be fined not more than seventy-five thousand dollars and imprisoned at hard labor for not less than ten years nor more than forty years, without benefit of parole, probation, or suspension of sentence.

(3) Any parent, legal guardian, or custodian of a child who consents to the participation of the child in pornography involving juveniles shall be fined not more than fifty thousand dollars and imprisoned at hard labor for not less than five years nor more than twenty years, without benefit of probation, parole, or suspension of sentence.

(4)(a) Whoever engages in the promotion, advertisement, or production of pornography involving juveniles shall be fined not more than fifty thousand dollars and imprisoned at hard labor for not less than ten years nor more than twenty years, without benefit of probation, parole, or suspension of sentence.

(b) On a second or subsequent conviction for promotion, advertisement, or production of pornography involving juveniles, the offender shall be fined not more than seventy-five thousand dollars and imprisoned at hard labor for not less than twenty years nor more than forty years, without benefit of parole, probation, or suspension of sentence.

(5)(a) Whoever commits the crime of pornography involving juveniles punishable by the provisions of Paragraph (1), (2), or (3) of this Subsection when the victim is under the age of thirteen years and the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than one-half the longest term nor more than twice the longest term of imprisonment provided in Paragraph (1), (2), and (3) of this Subsection. The sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

(b) Whoever commits the crime of pornography involving juveniles punishable by the provisions of Paragraph (4) of this Subsection when the victim is under the age of thirteen years, and the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:81.1(E).

Unauthorized use of a wireless router system is the accessing or causing to be accessed of any computer, computer system, computer network, or any part thereof via any wireless router system for the purposes of uploading, downloading, or selling of pornography involving juveniles as defined in R.S. 14:81.1.

La. R.S. 14:73.8(A). The penalty for violations of this statute are imprisonment at hard labor for not less than 2 years nor more than 10 years without benefit of probation, parole, or suspension of sentence, and a fine of not more than $10,000. If the juveniles depicted in the images are under the age of 13, the penalty increases to a term of imprisonment for not less than 25 years nor more than 99 years at hard labor. At least 25 years of that sentence must be without the benefit of probation, parole, or suspension of sentence.

Computer-aided solicitation of a minor is:

[C]ommitted when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen.

(2) It shall also be a violation of the provisions of this Section when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to arrange for any third party to engage in any of the conduct proscribed by the provisions of Paragraph (1) of this Subsection.

(3) It shall also be a violation of the provisions of this Section when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen, or a person reasonably believed to have not yet attained the age of seventeen, for the purpose of recruiting, enticing, or coercing the person to engage in commercial sexual activity.

(4) It shall also be a violation of the provisions of this Section when the contact or communication is initially made through the use of electronic textual communication and subsequent communication is made through the use of any other form of communication.

(5) It shall also be a violation of the provisions of this Section when a person seventeen years of age or older knowingly uses another individual who is seventeen years of age or older to contact or communicate with a person who has not yet attained the age of seventeen and there is an age difference of greater than two years between the person contacted and the offender or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger than the offender, for the purpose of or with the intent to engage in any of the conduct proscribed by Paragraph (1) of this Subsection.

B. (1)(a) Whoever violates the provisions of this Section when the victim is thirteen years of age or more but has not attained the age of seventeen shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than five years nor more than ten years, without benefit of parole, probation, or suspension of sentence.

(b) Whoever violates the provisions of this Section when the victim is under thirteen years of age shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence.

(c) Whoever violates the provisions of this Section, when the victim is a person reasonably believed to have not yet attained the age of seventeen, shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.

(d) If the computer-aided solicitation results in actual sexual conduct between the offender and victim and the difference between the age of the victim and the age of the offender is five years or greater, the offender shall be fined not more than ten thousand dollars and shall be imprisoned, with or without hard labor, for not less than seven years nor more than ten years.

(2) On a subsequent conviction, the offender shall be imprisoned for not less than ten years nor more than twenty years at hard labor without benefit of parole, probation, or suspension of sentence.

(3) In addition to the penalties imposed in either Paragraph (1) or (2) of this Subsection, the court may impose, as an additional penalty on the violator, the limitation or restriction of access to the Internet when the Internet was used in the commission of the crime.

La. R.S. 14:81.3.

If you or someone you know has been accused of a crime and you would like to set up a consult, give us a call at (318) 459-9111.

As two avid readers, we would like to celebrate Read Across America day today. Read Across America was started in 1998 by the National Education Association and is focused on motivating children and teens to read year-round, but Read Across America Day is specifically today: March 2, 2023.

Join us in picking up a book and reading somewhere today by yourself or with others. Happy reading!

A quote from an inspiring woman to start off this Women’s History Month:

Happy Valentine’s Day from Gilmer & Giglio!

This week, the theme is the types of communications you should avoid making (at all), but specifically from your phone or (in particular) your social media:

First of all:

A. No person shall:

(1) Engage in or institute a telephone call, telephone conversation, or telephone conference, with another person, or use any telecommunications device to send any text message or other message to another person directly, anonymously or otherwise, and therein use obscene, profane, vulgar, lewd, or lascivious language, or make any suggestion or proposal of an obscene nature or threaten any illegal or immoral act with the intent to coerce, intimidate, or harass any person.

(2) Make repeated telephone communications or send repeated text messages or other messages using any telecommunications device directly to a person anonymously or otherwise in a manner reasonably expected to abuse, torment, harass, embarrass, or offend another, whether or not conversation ensues.

(3) Make a telephone call and intentionally fail to hang up or disengage the connection.

(4) Engage in a telephone call, conference, or recorded communication by using obscene language or by making a graphic description of a sexual act, or use any telecommunications device to send any text message or other message containing obscene language or any obscene content, anonymously or otherwise, directly to another person, when the offender knows or reasonably should know that such obscene or graphic language is directed to, or will be heard by, a minor. Lack of knowledge of age shall not constitute a defense.

(5) Knowingly permit any telephone or any other telecommunications device under his control to be used for any purpose prohibited by this Section.

La. R.S. 14:285(A). The first violation of this statute is a misdemeanor carrying a penalty of a fine up to $500 and/or imprisonment up to 6 months. The second or subsequent violation carries a potential penalty of a fine of up to $5,000 and/or imprisonment, with or without hard labor, for not more than 2 years.

On a similar vein, Louisiana prohibits Cyberbullying: “the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of 18.” The penalty for this offense is a fine of not more than $500 and/or imprisonment for not more than 6 months.

Cyberstalking, or “action of any person to accomplish any of the following:

(1) Use in electronic mail or electronic communication of any words or language threatening to inflict bodily harm to any person or to such person's child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying, or harassing any person.

(3) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person's family or household with the intent to threaten, terrify, or harass.

(4) Knowingly permit an electronic communication device under the person's control to be used for the taking of an action in Paragraph (1), (2), or (3) of this Subsection.

La. R.S. 14:40.3(B). A first conviction for cyberstalking will earn you a fine of not more than $2,000 and/or imprisonment for not more than 1 year. A second conviction within 7 years will earn you imprisonment for not less than 180 days and not more than 3 years and a fine of not more than $5,000. A third or subsequent conviction will result in a fine of not more than $5,000 and imprisonment for not less than 2 years nor more than 5 years. La. R.S. 14:40.3(C).

In Louisiana, it is a crime to post video of yourself committing a crime “for the purpose of gaining notoriety, publicity, or the attention of the public.” La. R.S. 107.4(A). The statute explicitly prohibits:

It shall be unlawful for a person who is either a principal or accessory to a crime to obtain an image of the commission of the crime using any camera, videotape, photo-optical, photo-electric, or any other image recording device and to transfer that image obtained during the commission of the crime by the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service for the purpose of gaining notoriety, publicity, or the attention of the public.

La. R.S. 14:107.4(A). The penalty for violating this statute is a fine of not more than $500 and/or imprisonment for note more than 6 months; however, if the underlying criminal activity results in the serious bodily injury or death of the victim of the underlying crime, the fine shall be not more than $2,000 and the term of imprisonment, with or without hard labor, not more than 8 years. La. R.S. 14:107.4(B).

Finally, terrorizing, menacing, and communicating of threats of violence:

A. (1) Terrorizing is the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.

(2) Whoever commits the offense of terrorizing shall be fined not more than fifteen thousand dollars or imprisoned with or without hard labor for not more than fifteen years, or both.

B. (1) Menacing is the intentional communication of information that the commission of a crime of violence, as defined in R.S. 14:2(B), is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, when committed under any of the following circumstances:

(a) The actions of the offender cause members of the general public to be in sustained fear for their safety, and a reasonable person would have known that such actions could cause such sustained fear.

(b) The actions of the offender cause the evacuation of a building, a public structure, or a facility of transportation, and a reasonable person would have known that such actions could cause an evacuation.

(c) The actions of the offender cause any other serious disruption to the general public, and a reasonable person would have known that such actions could cause serious disruption to the general public.

(2) Whoever commits the offense of menacing shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than two years, or both.

La. R.S. 14:40.1.

A. Communicating of false information of arson or attempted arson is the intentional impartation or conveyance, or causing the impartation or conveyance by the use of the mail, telephone, telegraph, word of mouth, or other means of communication, of any threat or false information knowing the same to be false, including bomb threats or threats involving fake explosive devices, concerning an attempt or alleged attempt being made, or to be made, to commit either aggravated or simple arson.

B. Whoever commits the crime of communicating of false information of arson or attempted arson shall be imprisoned at hard labor for not more than fifteen years.

La. R.S. 15:54.1.

A. The communicating of false information of a bombing threat on school property, at a school-sponsored function, or in a firearm-free zone whether or not such threat involves fake explosive devices is the intentional impartation or conveyance, or causing the impartation or conveyance by the use of the mail, telephone, telegraph, word of mouth, or other means of communication, of any such threat or false information knowing the same to be false.

B. Whoever commits the crime of communicating of false information of a planned bombing on school property, at a school-sponsored function, or in a firearm-free zone as defined in R.S. 14:95.6(A) shall be imprisoned with or without hard labor for not more than twenty years.

La. R.S. 15:54.6.

Next time: Sex Crimes and the Internet!

If you or someone you know has been accused of a crime and you would like to set up a consult, give us a call at (318) 459-9111.

The Internet is ubiquitous. We use it to talk to our friends, video call our relatives, order our groceries and takeout, and post pictures of every single thing we’ve ever eaten. It is a wonderful tool. But with it comes a whole world of new ways to commit criminal acts. We’ll be spending the next few blog posts discussing the various computer and internet-related crimes that exist in Louisiana and the penalties for committing those crimes as an overview of some laws you may not have know were out there.

Title 14 of the Louisiana Revised Statutes (the criminal law section) has an entire subsection just for Computer Related Crime, so that seems like a good place to start (Note: This isn’t an exhaustive list of every. single. computer-related crime in Title 14, just the ones I particularly thought were interesting or might be relevant to our clients and friends.:

First of all, did you know that Louisiana has a statute prohibiting “offenses against intellectual property”? Specifically, Louisiana Revised Statutes §14:73.2 prohibits the “intentional (1) Destruction, insertion, or modification, without consent, of intellectual property; or (2) Disclosure, use, copying, taking, or accessing, without consent, of intellectual property.” Louisiana also prohibits the “intentional modification or destruction, without consent, of computer equipment or supplies used or intended to be used in a computer, computer system, or computer network.” La. R.S. 14:73.3 “Offenses against computer equipment or supplies.” It is a crime to intentionally deny “to an authorized user, without consent, of the full and effective use or access to a computer, a computer system, a computer network, or computer services.” La. R.S. 14:73.4 “Offenses against computer users.”

The penalty for violating any of these statutes is a fine of up to $500 and imprisonment for not more than 6 months, or both; unless the damage or loss is more than $500, in which case, the penalty goes up to a fine of up to $10,000 and/or imprisonment for not more than 5 years.

Computer fraud is defined as “the accessing or causing to be accessed of any computer, computer system, computer network, or any part thereof with the intent to: (1) Defraud; or (2) Obtain money, property, or services by means of false or fraudulent conduct, practices, or representations, or through the fraudulent alteration, deletion, or insertion of programs or data.” The penalty for violating this provision is a fine of not more than $10,000 and/or imprisonment at hard labor for not more than 5 years. La. R.S. 14:73.5.

Computer tampering is “the intentional commission of any of the actions enumerated in this Subsection when that action is taken knowingly and without the authorization of the owner of a computer:

(1) Accessing or causing to be accessed a computer or ay part of a computer or any program or data contained within a computer.

(2) Copying or otherwise obtaining any program or data contained within a computer.

(3) Damaging or destroying a computer, or altering, deleting, or removing any program or data contained within a computer, or eliminating or reducing the ability of the owner of the computer to access or utilize the computer or any program or data contained within the computer.

(3) Introducing or attempting to introduce any electronic information of any kind and in any form into one or more computers, either directly or indirectly, and either simultaneously or sequentially, with the intention of damaging or destroying a computer, or altering, deleting, or removing any program or data contained within a computer, or eliminating or reducing the ability of the owner of the computer to access or utilize the computer or any program or data contained within the computer.

La. R.S. 14:73.7(A). The penalty for violating Paragraphs (1) or (2) is a fine of not more than $500 and/or imprisonment for not more than 6 months. The penalty for violating Paragraphs (3) or (4) is a fine of not more than $10,000 and/or imprisonment, with or without hard labor, for not more than 5 years. If the individual violates Paragraphs (3) or (4) with the intention of disrupting vital services or operations of the state or local government or utility company, or with the intention of causing death or great bodily harm to one or more people, the penalty is a fine of not more than $10,000 and/or imprisonment at hard labor for not more than 15 years.

My favorite statute in this part of Title 14 is §73.9 which prohibits the “Criminal use of Internet, virtual, street-map”: “When an Internet, virtual, street-level map is used in the commission of a criminal offense against a person or against property, an additional sentence for a period of not less than one year shall be imposed. The additional penalty…shall be served consecutively with the sentence imposed for the underlying offense.” (emphasis added) (Note: If you need to commit a crime and you aren't sure how to get there, make sure you go to AAA and get a paper map to avoid being charged with this sentencing enhancement!) (When an online map is used in the commission or attempted commission of terrorism (R.S. 14;100.12(1), the additional sentence is 10 years.

Finally, the Louisiana Legislature prohibits “Only Impersonation.”

(1) It shall be unlawful for any person, with the intent to harm, intimidate, threaten, or defraud, to intentionally impersonate another actual person, without the consent of that person, in order to engage in any of the following:

(a) Open an electronic mail account, any other type of account, or a profile on a social networking website or other Internet website.

(b) Post or send one or more messages on or through a social networking website or other Internet website.

(2) It shall be unlawful for any person, with the intent to harm, intimidate, threaten, or defraud, to send an electronic mail, instant message, text message, or other form of electronic communication that references a name, domain address, phone number, or other item of identifying information belonging to another actual person without the consent of that person and with the intent to cause the recipient of that communication to believe that the other person authorized or transmitted the communication."

La. R.S. 14:73.10. The penalty for violating this provision is a fine of not less than $250 nor more than $1,000 and/or imprisonment for not less than 10 days nor more than 6 months.

Next time: Cyberbullying, Terrorizing, etc…

If you or someone you know has been accused of a Computer Related Crime and you would like to set up a consult, give us a call at (318) 459-9111.

Article 4, Section 5, Subsection (E of the Louisiana Constitution grants the Governor of the State of Louisiana the following powers:

(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons,1 may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(emphasis added).

This section of the Louisiana Constitution grants those never before convicted of a felony to automatically receive a “first offender pardon” under several circumstances:

(1) If they are convicted of a “non-violent crime”

Crimes of violence are defined in Louisiana Revised Statutes §14:2 as: “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.”

La. R.S. 14:2 further gives an enumerated list of crimes the legislature defines as “crimes of violence”:

(1) Solicitation for murder.

(2) First degree murder.

(3) Second degree murder.

(4) Manslaughter.

(5) Aggravated battery.

(6) Second degree battery.

(7) Aggravated assault.

(8) Aggravated kidnapping of a child.

(9) Aggravated or first degree rape.

(10) Forcible or second degree rape.

(11) Simple or third degree rape.

(12) Sexual battery.

(13) Second degree sexual battery.

(14) Intentional exposure to AIDS virus.

(15) Aggravated kidnapping.

(16) Second degree kidnapping.

(17) Simple kidnapping.

(18) Aggravated arson.

(19) Aggravated criminal damage to property.

(20) Aggravated burglary.

(21) Armed robbery.

(22) First degree robbery.

(23) Simple robbery.

(24) Purse snatching.

(25) False imprisonment; offender armed with dangerous weapon.

(26) Assault by drive-by shooting.

(27) Aggravated crime against nature.

(28) Carjacking.

(29) Molestation of a juvenile or a person with a physical or mental disability.

(30) Terrorism.

(31) Aggravated second degree battery.

(32) Aggravated assault upon a peace officer.

(33) Aggravated assault with a firearm.

(34) Armed robbery; use of firearm; additional penalty.

(35) Second degree robbery.

(36) Disarming of a peace officer.

(37) Stalking.

(38) Second degree cruelty to juveniles.

(39) Aggravated flight from an officer.

(40) Sexual battery of persons with infirmities.

(41) Battery of a police officer.

(42) Trafficking of children for sexual purposes.

(43) Human trafficking.

(44) Home invasion.

(45) Domestic abuse aggravated assault.

(46) Vehicular homicide, when the operator's blood alcohol concentration exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.

(47) Aggravated assault upon a dating partner.

(48) Domestic abuse battery punishable under R.S. 14:35.3(L), (M)(2), (N), (O), or (P).

(49) Battery of a dating partner punishable under R.S. 14:34.9(L), (M)(2), (N), (O), or (P).

(50) Violation of a protective order punishable under R.S. 14:79(C).

(51) Criminal abortion.

(52) First degree feticide.

(53) Second degree feticide.

(54) Third degree feticide.

(55) Aggravated abortion by dismemberment.

(56) Battery of emergency room personnel, emergency services personnel, or a healthcare professional.

(57) Possession of a firearm or carrying of a concealed weapon by a person convicted of certain felonies in violation of R.S. 14:95.1(D).

(58) Distribution of fentanyl or carfentanil punishable under R.S. 40:967(B)(4)(b).

(59) Distribution of heroin punishable under R.S. 40:966(B)(3)(b).

La R.S. 14:2(B). All individuals convicted of the crimes listed above will not receive a first offender pardon unless:

(2) They are convicted of “aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities” because the legislature explicitly excluded these offense and allows for first offender pardons for these convictions.

A First Offender Pardon is not like a Pardon with restoration of gun rights signed by the Governor because it does not restore an individual’s right to possess a firearm under either State or Federal law. Nor does it impact that person’s right to vote as voting rights are restored for all felons immediately upon completion of their sentence as of other legislation that was passed several years ago.

At this point, the only effect a first offender pardon appears to have is that it allows an individual to file for an expungement of a felony conviction immediately upon receiving his pardon, rather than having to wait 10 years to establish a clean record as would otherwise by required by Louisiana Code of Criminal Procedure Article 978.

If you or someone you know has received a first offender pardon and would like to know if you are eligible for an expungement, give us a call at (318) 459-9111 to set up a consult.

Today we take some inspiration from Dr. King.

Since it is the new year, we always like to take this time when people are thinking about “new year, new me,” to talk about expungements.

An expungement, in Louisiana, is a process by which an individual with an arrest on his record may, under certain circumstances, remove that arrest record from public view on his rap sheet. It is important to note that in Louisiana an expungement does not make it like the arrest never happened. The arrest record can still be seen by law enforcement and the court system (and therefore, if the person was convicted, can be used against them as a predicate offense for purposes of multiple offender sentencing, for example) and there are many state agencies which are exempt from the expungement order and will still be able to see the record (the Louisiana State Bar Association, Louisiana State Nursing & Medical Boards, and Insurance Board, just to name a few).

There are three types of arrest records that may be eligible for expungement:

1. An arrest that did not result in a conviction

2. An arrest that resulted in a misdemeanor conviction.

3. An arrest that resulted in a felony conviction.

Each has slightly different rules and regulations:

An Arrest That Did Not Result in a Conviction:

"A. A person may file a motion to expunge a record of his arrest for a felony or misdemeanor offense that did not result in a conviction if any of the following apply:

(1) The person was not prosecuted for the offense for which he was arrested, and the limitations on the institution of prosecution have barred the prosecution for that offense.

(2) The district attorney for any reason declined to prosecute any offense arising out of that arrest, including the reason that the person successfully completed a pretrial diversion program.

(3) Prosecution was instituted and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

(4) The person was judicially determined to be factually innocent and entitled to compensation for a wrongful conviction pursuant to the provisions of R.S. 15:572.8. The person may seek to have the arrest and conviction which formed the basis for the wrongful conviction expunged without the limitations or time delays imposed by the provisions of this Article or any other provision of law to the contrary."

La CCrP ART. 976.

An Arrest That Resulted in a Conviction of a Misdemeanor:

A. A person may file a motion to expunge his record of arrest and conviction of a misdemeanor offense if either of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 894(B) of this Code.

(2) More than five years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole, and the person has not been convicted of any felony offense during the five-year period, and has no felony charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that to his knowledge the applicant has no felony convictions during the five-year period and no pending felony charges under a bill of information or indictment.

La CCrP Art. 977(A). However, there are some exceptions to the above rules: Expungements of convictions arising from circumstances involving or as the result of an arrest for a sex offense and convictions for domestic abuse battery and stalking are not eligible for expungement under any circumstances. La CCrP Art. 977(C).

An Arrest That Resulted in a Felony Conviction

A. Except as provided in Paragraph B of this Article, a person may file a motion to expunge his record of arrest and conviction of a felony offense if any of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E).

(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.

(3) The person is entitled to a first offender pardon for the offense pursuant to Article IV, Section 5(E)(1) of the Constitution of Louisiana, provided that the offense is not defined as a crime of violence pursuant to R.S. 14:2(B) or a sex offense pursuant to R.S. 15:541.

La CCrP Art. 978(A). Just as in the case of misdemeanor convictions, there are exceptions to these eligibility requirements, as well:

• Crimes of violence, unless an exception to this exception applies (yes, I know. I’ll get to that.)

• A sex offense or crime against a victim who is a minor as defined in the sex offender registry statute.

• Violations of the Uniform Controlled Dangerous Substances Law, except: simple possession, possession with intent to distribute, if the possible term of imprisonment is less than five years, if the person was sentenced pursuant to Article 893, or if the person is eligible for a first offender pardon for the offense.

• Domestic abuse battery.

La CCrP Art. 978(B). The crimes of violence exception (the first bullet point above) allows for the expungement of only the following crimes of violence: aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities; if all of the following conditions are also met:

(a) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction.

(b) The person has not been convicted of any other criminal offense during the ten-year period.

(c) The person has no criminal charge pending against him.

La CCrP Art. 978(E)(1).

If you are interested in seeing if you are eligible for an expungement, give us a call at (318) 459-9111 to schedule a consult.

We wish you a happy and safe 2023!

Sarah and Katherine wish all our friends, family, clients (past, present, and future), and colleagues, a wonderful holiday season and the happiest of holidays!

Or…do you have to give a breath sample when you’re pulled over for DWI?

The short answer: Yes and no.

Louisiana Revised Statutes §32:661 states: "Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964." La. R.S. § 32:661(A)(1).

The rest of this statute contains the requirements a law enforcement officer must meet (including advising an arrestee of the consequences of submitting to or refusing the requested chemical test for intoxication) in order for the subsequent test to be admissible in court and also for that test to be used to suspend the arrestee’s driver’s license.

In Louisiana, if a person under arrest for DWI who is asked to submit to a chemical test refuses to provide one, her driver’s license will be suspended. For the first refusal, her license will be suspended for 365 days. For the second or subsequent refusal (within 10 years of each other), her license will be suspended for 730 days.

If a person submits to a chemical test and the result is below .08 (for a person 21 years or older) or below .02 (for a person under 21 years old), his license will not be suspended.

If a person 21 years old or older submits to a chemical test for the first time and the result is over .08, depending on the additional circumstances (whether this was a first, second, or subsequent submission to a chemical test within 10 years; whether the results were above .08 or above .20; etc…), his license will be suspended for a period ranging from 90 days to 4 years, depending on the circumstances. (The DMV puts all of their regulations online here and the specific regulation governing chemical tests can be found here.)

Also, any test results that comply with the procedural requirements laid out in Louisiana Revised Statutes, Title 32, Chapter 3, Part XIV, are admissible in court and many allow the State a presumption that the driver whose test results they are was intoxicated at the time she was driving.

The longer answer to the question posed above, then, is that, no, you do not have to give a breath sample when you are arrested for driving while intoxicated; however, there may be serious consequences to your driving privileges if you do not. That said, if you do give a breath sample, there may be serious criminal consequences and consequences to your driving privileges if the results are above the legal limit.

If you or someone you know has been arrested for driving while intoxicated and you would like to schedule a consult, please give us a call at (318) 459-9111.

Since it is the season for holiday parties, it seemed prudent to remind you all that DWI Checkpoints are legal in Louisiana and have been determined to be so by the Louisiana Supreme Court since 2000. In State v. Jackson, 2000-0015 (La. 7/6/00); 764 So.2d 64, the Louisiana Supreme Court found that DWI checkpoints could satisfy the limitations of the Louisiana constitution if they met certain requirements:

[W]e set forth the following guidelines for evaluating whether the checkpoint's intrusiveness will withstand constitutional muster under the Fourth Amendment and Louisiana's Article I, § 5:17

(1) the location, time and duration of a checkpoint, and other regulations for operation of the checkpoint, preferably in written form, established by supervisory or other administrative personnel rather than the field officers implementing the checkpoint;

(2) advance warning to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;

(3) detention of the motorist for a minimal length of time; and

(4) use of a systematic nonrandom criteria for stopping motorists.

In evaluating a checkpoint under this test, the guiding principle must be that the procedures utilized curtail the unbridled discretion of the officer in the field. Prouse, 440 U.S. at 662, 99 S.Ct. 1391; **12 Brown, 443 U.S. at 51, 99 S.Ct. 2637.

State v. Jackson, 2000-0015 (La. 7/6/00, 11–12); 764 So.2d 64, 72–73.

Subsequently, the Louisiana Fourth Circuit Court of Appeal held that the act of attempting to avoid a checkpoint was sufficient to establish reasonable suspicion to detain a driver and conduct further investigation.

If you are out celebrating the holidays with friends and loved ones, please drive carefully and safely.

And if you would like to set up a consult, give us a call at (318) 459-9111.

On two upcoming elections, the Louisiana Legislature has two proposed amendments to the state constitution on the ballot:

On November 8, 2022, the following amendment to Article I, Section 3 of the Louisiana Constitution will be on the ballot:

§3. Right to Individual Dignity

Section 3. (A) No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.

(B)(1) Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

(2) Subparagraph (1) of this Paragraph does not apply to the otherwise lawful administration of criminal justice.

The amendment would remove “except in the latter case as punishment for crime” and add Paragraph (2).

On the ballot, the language presented to the electorate will read: “Do you support an amendment to prohibit the use of involuntary servitude except as it applies to the otherwise lawful administration of criminal justice?”

On December 10, 2022, the following amendment to Article I, Section 10 of the Louisiana Constitution will be on the ballot:

§10. Right to Vote; Disqualification from Seeking or Holding an Elective Office

Section 10. Right to Vote. (1) Every person who is both a citizen of the state and of the United States, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended for a person who is interdicted and judicially declared mentally incompetent or who is under an order of imprisonment for condition of a felony.

(2) No person who is not a citizen of the United States shall be allowed to register and vote in this state.

On the ballot, the language presented to the electorate will read: “Do you support an amendment to provide that no person who is not a citizen of the United States shall be allowed to register and vote in this state?”

If you or someone you know has pending criminal charges and questions about your right to vote in Louisiana, give us a call at (318) 459-9111 to set up a consultation.

In August 2022, the Legislature added several crimes to those already contained in Louisiana Revised Statutes Title 14, §2, defined as “crimes of violence.” These additions are relevant because designating an offense as a “crime of violence” has implications for a person’s sentence, eligibility for a first offender pardon, ability to expunge his conviction, and many other aspects of the criminal justice system.

Specifically, Act 173 now includes aggravated kidnapping of a child, molestation of a juvenile or a person with a physical or mental disability, and sexual battery of persons with infirmities. La. R.S. 14:2(B). It further clarifies the definitions of “sexual intercourse” for purposes of the definition of “rape.” It also adds a rape committed when engaged in “burglary offenses” a first degree rape pursuant to Louisiana Revised Statutes Title 14, §42. Finally, it adds the language “directly or through clothing,” to both the second degree sexual battery and sexual battery statutes.

Act 75 adds the language “where the violation involves the offender going to the residence or household, school, or place of employment of the person for whose benefit the protective order is in effect while in possession of a firearm” to subsection (C)(1) of Louisiana Revised Statutes Title 14, §79 - Violation of a protective order and makes that behavior a felony. It further defines that behavior as a “crime of violence” pursuant to Louisiana Revised Statutes Title 14, §2.

Finally, Act 129 adds “patient transporter, dietary worker, patient access representative, security personnel, patient relations advocate, or any other person who otherwise assists in or supports the performance of healthcare services,” to those defined as “healthcare professionals” for purposes of the criminal prohibition against "Battery of emergency room personnel, emergency services personnel, or a healthcare professional. La R.S. 14:34.8(B)(3). It also makes the charge enhanceable for second or subsequent offenses and makes it a crime of violence pursuant to Louisiana Revised Statutes Title 14, §2. La. R.S. 14:34.8(C)(1)(b).

This Act also creates the offense of “assault on emergency room personnel, emergency services personnel, or a healthcare professional” which prohibits assaults on the named group of people. La. R.S. 14:38.5(A)(1). It also creates the offense of “Unlawful disruption of the operation of a healthcare facility” which prohibits “the intentional communication of information that the commission of a crime of violence is imminent or in progress, or that a circumstance dangerous to human life exists or is about to exist, when committed under any one or more of the following circumstances:”

“(1) When the offender’s actions cause emergency room personnel, emergency services personnel, or healthcare professionals. at a healthcare facility to be in sustained fear for their safety and a reasonable person would have known that his actions could cause sustained fear.

(2) When the offenders actions cause the evacuation of a healthcare facility and a reasonable person would have known that his actions could cause an evacuation.

(3) When the offender’s actions cause any other serious disruption to the operation of a healthcare facility and a reasonable person would have known that such actions could cause serious disruption to the operation of a healthcare facility.”

La. R.S. 14:40.9(A).

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

Gilmer & Giglio are in trial this week. If you contact our office, leave a message, and we will return your call as quickly as possible. We appreciate your patience!