The federal government has established several special criminal offenses that govern the behavior of individuals traveling by air.

Title 18, §31 defines several terms that are important for further review of the offenses that follow:

(1) Aircraft - The term “aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.

…

(4) In flight - The term “in flight” means —

(A) any time from the moment at which all the external doors of an aircraft are closed following embarkation until the moment when any such door is opened for disembarkation; and

(B) in the case of a forced landing, until competent authorities take over the responsibility for the aircraft and the persons and property are on board.

(5) In service - The term “in service” means —

(A) any time from the beginning of preflight preparation of an aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing; and

(B) in any event includes the entire period during which the aircraft is in flight.

18 USC 31(a).

Section 32 of Title 18 prohibits (among other things) destroying, setting fire to, damaging, wrecking, placing a destructive device or substance on or in proximity to an airplane, air navigation facility, or maintenance area for an aircraft. This statute is very broad and probably covers any action you could take that could cause damage while in an airport or on an airplane. There are some limitations, such that the action must be done “willfully” or with the intent to damage, destroy, or disable the aircraft, or with the intent to endanger the safety of another person. it also prohibits performing any act of violence against or incapacitating any individual on an aircraft if such act is likely to endanger the safety of the aircraft. The penalty for violating these offenses is a fine and/or imprisoned for up to 20 years.

So that disagreement with the flight attendant is just not worth resorting to physical violence over.

For those traveling internationally this summer, a reminder:

Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces or attempts to smuggle or clandestinely introduce into the United States any merchandise which should have been invoiced, or makes out or passes or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper, or

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—

Shall be fined under this title or imprisoned not more than 20 years, our both.

Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this Section.

18 USC 545.

On a lighter note, it is also a federal crime to aim the beam of a laser pointer at an aircraft and carries a fine and/or imprisonment up to 5 years. 18 USC 39A.

If you or someone you know is facing criminal charges and would like to schedule a consult, give us a call at (318) 459-9111.

Even though the first (official) day of summer won’t be here until the 21st, schools are out and summer travel season is here!

This is your annual reminder that ignorance of the law is not a defense and so you should familiarize yourself with the driving rules of each state (or country) through which you are choosing to drive and stay safe on the highways this summer.

We have decided to take this opportunity to give you all some reminders about some Louisiana state traffic laws you may have forgotten, or that may be more obscure:

The majority of Louisiana’s traffic laws (at least those passed by the state legislature) are located in Title 32 of the Louisiana Revised Statutes. These provisions govern everything from speed limits to the number of lights or reflectors required on your vehicle, to the required amount of liability insurance you must carry while operating a motor vehicle that is registered in Louisiana.

Some lesser known rules of the road in Louisiana follow for your information and entertainment:

Louisiana Revised Statutes 32:284 prohibits, under certain circumstances, a person from riding in horse trailers, on the fender of a vehicle, or in the bed of a truck:

A. No person or persons shall occupy a horse trailer while it is being moved upon a highway of this state.

B. No person shall be allowed to ride on running boards, fenders, tail gates, or rear racks of motor vehicles while moving upon a highway of this state, provided, that this section shall not apply to emergency and public sanitation vehicles.

C. No person or persons under the age of twelve years shall be permitted to be a passenger in the open bed of a truck with a gross weight of six thousand pounds or less, commonly referred to as a pickup truck, or in a utility trailer while moving upon a highway of this state. The provisions of this Subsection shall not apply to a pickup truck traveling not more than fifteen miles per hour while participating in an authorized parade in a controlled situation. The provisions of this Section shall be inapplicable in an emergency situation if the child is accompanied within the truck bed by an adult.

D. No person shall be permitted to be a passenger in the open bed of a truck with a gross weight of six thousand pounds or less, commonly referred to as a pickup truck, while the truck is moving upon an interest highway of this state. The provisions of this Subsection shall be inapplicable in an emergency situation.

La. R.S. 32:284. (Note: “highway” is a defined term in the statute and basically means any public road, not just the interstate highways.)

It is also illegal to follow an emergency vehicle (ambulance, fire truck, or police car, for example) closer than 500 feet or drive into an area or park your vehicle within a block where that emergency vehicle has stopped in answer to an official call. La. R.S. 286.

Hunting or the discharge of firearms on public roads or highways located in this state is hereby prohibited except by law enforcement officers when in the performance of their duties."

La. R.S. 32:292.

It is also illegal to wear headphones while operating a motor vehicle:

The wearing of headphones by any operator of a motor vehicle is hereby prohibited. For purposes of this Section, “headphones” shall mean a headset, headphone, or listening device other than a hearing aid or instrument for the improvement of defective human hearing which covers both ears or which is inserted into both ears. Any headset, headphone, or other listening device which covers or is inserted into only one ear may be used at any time."

La. R.S. 32:295.2(A). Subsection (D) of this statute says, however, that the wearing of headphones on both ears cannot be the sole reason for a traffic stop.

As of August 1, 2022, it is now illegal to smoke marijuana in a moving vehicle. It has been illegal to smoke cigarettes (or cigars, etc…) in a moving vehicle in which a child is also present.

It shall be unlawful for the operator or any passenger in a motor vehicle, while the motor vehicle is being operated on a public highway or right-of-way, to smoke or vape any form of marijuana as defined in R.S. 40:961, or a substance classified in Schedule I that is marijuana, tetrahydrocannabinol, or chemical derivates thereof.

La. R.S. 32:300.4.1(A). A violation of this statute, alone, can not justify a traffic stop, either. La. R.S. 32:300.4.1(D)(1).

A. It shall be unlawful for the operator or any passenger in a motor vehicle to smoke cigarettes, pipes, cigars, or any vaping devices in a motor vehicle, passenger van, or pick-up truck, when a child who is required to be restrained in a rear-facing child safety seat, a forward-facing child seat, a booster seat, or a motor vehicle’s safety belt, as required in R.S. 32:295, is also present in such vehicle, regardless of whether windows of the motor vehicle are down.

…

C. Probable cause for a violation of this Section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person smoking as prohibited by this Section. Violation of this Section shall be considered a primary offense, and any law enforcement officer may stop a motor vehicle solely because of a violation of this Section; however, a law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.

La. R.S. 32:300.4.

And finally, because many people in my neighborhood Facebook group (and I’m certain some of yours) ask this question regularly: it is illegal to operate a golf cart on the public roads in Louisiana, except under very limited circumstances:

The operation of a golf cart upon the public roads or streets of this state is prohibited, except as otherwise provided in this Subsection:

(1) A golf cart may be operated only upon a parish road that has been designated by a parish or a municipal street that has been designated by a municipality for use by a golf cart. Upon a designation that a golf cart may be operated on a designated road or street, the responsible government entity shall post appropriate signage indicating that such operation is authorized.

(2) A golf cart may be used to cross a part of a state highway where a golf course is constructed on both sides of the state highway if the Department of Transportation and Development has issued a permit for the crossing.

La. R.S. 32:299.4. If the street you are choosing to operate your golf cart on meets the above requirements, there are additional requirements for the golf cart, itself:

C. A golf cart operated on a parish road or municipal street shall be equipped with efficient brakes, a reliable steering apparatus, safe tires, a rearview mirror, and red reflectorized warning devices in both the front and rear of the vehicle. Such golf cart shall also be equipped with headlamps, front and rear turn signal lamps, tail lamps, and brake lamps.

D. Any golf cart operated upon a parish road or municipal street shall be registered with the State of Louisiana through the Department of Public Safety and Corrections, office of motor vehicles, as an off-road vehicle and shall display a decal issued by the office of motor vehicles.

E. No person shall operate a golf cart upon a parish road or municipal street without a valid driver’s license.

F. Any golf cart operated upon a parish road or muncipal street shall have liability insurance with the same minimum limits as required by the provisions of R.S. 32:900(B).

La. R.S. 32:299.4

If you or someone you know is facing a traffic violation this summer and would like to set up a consult, give us a call at (318) 459-9111, and travel safe!

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.

La. R.S. 15:542.

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:

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.

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!