The right to a first offender pardon is established in the Louisiana Constitution of 1974, Article IV, Section 5(E), and states in relevant part:
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.
Louisiana Constitution of Article IV, Section 5(E). Louisiana Revised Statutes 15:572 elaborates on this power:
B.(1) A first offender 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.
(2) No person convicted of a sex offense as defined in R.S. 15:541 or determined to be a sexually violent predator or a child predator under the provisions of R.S. 15:542.1 et seq. shall be exempt from the registration requirements of R.S. 15:542.1 et seq., as a result of a pardon under the provisions of this Subsection.
(3) Notwithstanding any provision of law to the contrary, no pardon shall be issued to a first offender unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.
C. For the purposes of this Section, "first offender" means a person convicted within this state of a felony but never previously convicted of a felony within this state or convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would have been a felony, regardless of any previous convictions for any misdemeanors. Convictions in other jurisdictions which do not have counterparts in this state will be classified according to the laws of the jurisdiction of conviction.
D. On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained. However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.
E. Notwithstanding any provision herein contained to the contrary, any person receiving a pardon under the provisions of Subparagraph (1) of Paragraph (E) of Section 5 of Article IV of the Louisiana Constitution of 1974 and this Section may be charged and punished as a second or multiple offender as provided in R.S. 15:529.1.
A first offender pardon does not remove the record from public access and it can still be used against a person in a subsequent prosecution.
If you or someone you know is facing a first felony prosecution and would like to set up a consult, give us a call at (318) 459-9111.
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 prior 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:
An arrest that did not result in a conviction
An arrest that resulted in a misdemeanor conviction.
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.
Today is the 65th anniversary of Law Day, an annual event established by the American Bar Association to commemorate the rule of law and its role in our society.
This year’s Law Day theme is Cornerstones of Democracy: Civics, Civility, and Collaboration.
Our local bar association has planned a week’s worth of events in celebration and culminating in the annual Red Mass on Friday, May 5.
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.
If you or someone you know has been arrested for a domestic violence charge, give us a call at (318) 459-9111 to set up a consultation.
There are several offenses that criminalize physical violence committed in intimate or family relationships: Domestic Abuse Battery, Battery of a Dating Partner, Domestic Abuse Aggravated Assault, and Aggravated Assault Upon a Dating Partner.
Domestic abuse battery
Domestic abuse battery “is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member.” La. R.S. 14:35.3(A).
“Family member” and “household member” are specifically defined in the same statute. “‘Family member’ means spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, foster children, other ascendants, and other descendants. ‘Family member’ also means the other parent or foster parent of any child or foster child of the offender.” La. R.S. 14:35.3(B)(4). “‘Household member’ means any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.”
Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation.
A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service.
A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000.
There are several other provision of La. R.S. 14:35.3 that increase or alter the penalty:
(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“
(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.”
(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.”
(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.”
BATTERY OF A DATING PARTNER
Battery of a dating partner “is the intentional use of force or violence committed by one dating partner upon the person of another dating partner.” La. R.S. 14:35.9(A).
“‘Dating partner’ means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. ‘Dating partner’ shall not include a casual relationship or ordinary association between persons in a business or social context.” La. R.S. 14:35.9(B)(3).
Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation.
A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service.
A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000.
There are several other provision of La. R.S. 14:35.9 that increase or alter the penalty:
(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“
(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”
(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.”
(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.”
(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.”
DOMESTIC ABUSE AGGRAVATED ASSAULT
Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member or family member upon another household member or family member. La. R.S. 14:37.7A.
Assault is defined in La. R.S. 14:36 as an “attempt to commit a battery; or the intentional placing of another in reasonable apprehension of receiving a battery.”
“Family member” and “household member” are defined the same way as they are in La. R.S. 14:35.3. The penalty for domestic abuse aggravated assault is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000.
If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:37.7D.
AGGRAVATED ASSAULT UPON A DATING PARTNER
Aggravated assault upon a dating partner “is an assault with a dangerous weapon committed by one dating partner upon another dating partner.” La. R.S. 14:34.9.1A.
“Dating partner” is defined in this statute the same way it is defined in battery of a dating partner. The penalty for this offense is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000. La. R.S. 14:34.9.1C.
If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:34.91.1D.
If you or someone you know is facing charges related to domestic violence, give us a call at (318) 459-9111 to schedule a consultation.
What happens immediately after you’ve been arrested is a bit dependent on the circumstances of your arrest. For individuals who have been arrested for a misdemeanor, depending on the court and the jail, their bond may be set by schedule, and they may be able to post bond and be released within hours. For those arrested on a felony, if arrested without a warrant, the court must make a determination that there was probable cause for the arrest within 72 hours of the arrest. This can be done either by a court appearance or by the court simply reviewing the arrest affidavit submitted by the arresting officer and making a probable cause determination from that document. If the person was arrested pursuant to an arrest warrant, then the probable cause determination has already been made. If bond was not set on the warrant, itself, it will be within 72 hours (unless the arrest was for domestic abuse battery, violation of a protective order, stalking, a sex offense, or a crime involving acts or threats of violence against a family member, household member, or dating partner. (For more information about that, see last week’s post.)
Once bail has been set, whether or not the arrested individual is able to post bail, her case will likely be set for either an initial appearance, bond return date, or arraignment. if bond is posted and the defendant is released, the court may set a bond return date on which the defendant must appear in court. This is simply a date to ensure that the defendant is following the rules of his bail obligation. Arraignment is the first court date on which anything of substance will likely happen in the case (assuming there has not been a bond hearing previously). Arraignment is the court appearance at which the State will file the Bill of Information or other charging document and that document will be read to the defendant in its entirety (unless she waives that reading).
The defendant will then be asked how she pleads to the charges. If she pleas guilty, she will be waiving all additional rights to trial, representation by counsel, against self-incrimination, for compulsory process, etc… and she will be sentenced by the court at that time.
If she pleas not guilty, the case will continue and the State will have to provide her attorney with the discovery in the case. Discovery is simply any evidence the State intends to use against the defendant at the trial of the case.
The case will likely be set for several additional court appearances as the parties negotiate and/or fight about potential resolutions, discovery issues, suppression issues, etc…
If you or someone you know has been arrested and is looking for legal representation, give us a call to set up a consult at (318) 459-9111.
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.