The Louisiana Legislature enacted Louisiana Code of Criminal Procedure Article 972.1 to allow for expungements to be filed in:
District courts and their commissioners within their trial jurisdiction.
City or parish court within their trial jurisdiction.
Mayor’s courts and traffic courts within their trial jurisdiction.
Juvenile and family courts within their trial jurisdiction.
Municipal and traffic courts of New Orleans within their trial jurisdiction.
La C.Cr.P. Art. 972.1.
More importantly, however, the Louisiana Legislature has amended the expungement laws regarding misdemeanor marijuana convictions for a limited period of time:
Effective August 1, 2023, “a person may file a motion to expunge his record of arrest and conviction of a misdemeanor conviction for a first offense possession of marijuana, tetrahydrocannabinol, or chemical derivates thereof after ninety days from the date of conviction.” La. C.Cr.P. Art. 977. This means that, beginning August 1, first offense misdemeanor possession of marijuana convictions are able to be expunged 90 days after the date of conviction. For this limited purpose, the requirement of an 894 or 5-year waiting period are reduced to 90 days. Be aware that this change has a sunset provision, meaning that this option is only available until August 1, 2026. La. C.Cr.P. Art. 983(M)(5).
The fees for filing an expungement under this provision are $50 to the Louisiana Bureau of Criminal Identification and Information, $50 to the Sheriff, $50 to the District Attorney’s Office, and $150 to the Clerk of Court. La. C.Cr.P. Art. 983(M)(1). This is $200 cheaper than a normal expungement.
If you or someone you know is looking to expunge a first offense misdemeanor marijuana conviction, give us a call at (318) 459-9111 to set up a consult.
We discussed the first set of hearsay exceptions last week. The second set of exceptions applies only when the declarant is unavailable for some reason.
Louisiana Code of Evidence Article 804 lays out the exceptions to the hearsay rule when the declarant is “unavailable.” Unavailable has a specific meaning under the hearsay statute. A declarant is “unavailable” when:
he is exempted from testifying because of a ruling by the court on the grounds of privilege;
he persists in refusing to testify despite the court ordering him to do so;
he testifies to a lack of memory of the subject matter of his statement;
he is deceased, or has a then existing physical or mental illness, infirmity, or other sufficient cause that causes him to be unable to be present or to testify; or
he is absent from the hearing and the party wishing to present his statement has been unable to procure his attendance by process (subpoena) or other reasonable means. He is not unavailable if a party wanting to present his statement has procured his absence or caused it by wrong-doing in order to prevent him from testifying.
If a witness is “unavailable” as defined above, then one of the exceptions below may apply. In order for a statement to be admissible hearsay, it must meet both one of the requirements above and one of the exceptions below:
Former testimony - testimony given at a prior hearing, but expert testimony at a prior hearing is not admissible under this rule.
Statement under belief of impending death - “A statement made by a declarant while believing that his death was imminent, concerting the cause or circumstances of what he believed to be his impending death.”
Statement against interest - a statement which was so far against his interest at the time he made it that a reasonable man would not have made the statement unless it were true. A statement by an accused in a criminal proceeding that tends to expose him to criminal liability is not admissible unless other corroborating circumstances clearly indicate that the statement is trustworthy.
Statement of personal or family history
Complaint of sexually assaultive behavior - A statement made by a person under 12 which is an initial complaint of sexually assaultive behavior or an otherwise trustworthy statement of sexually assaultive behavior.
Other exceptions - In a civil case, a statement not specifically covered by another exception if the court has made a determination that it is trustworthy after considering all pertinent circumstances. The party intending to introduce the statement must give written notice to the adverse party and the court that he intends to introduce the statement.
Forfeiture by wrongdoing - A statement offered against a party who has engaged in or acquiesced to wrongdoing that was intended to or did cause the declarant to be unavailable. The party seeking to introduce the statement must establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.
If a statement contains multiple types of hearsay, each type must meet an exception in order to be admissible.
If you would like to set up a consult to discuss your case, give us a call at (318) 459-9111.
There are two sets of exceptions to the hearsay rule. The first set apply whether the declarant (the person who made the statement) is available to testify or not. The second set apply only when the declarant is unavailable for some reason. We will discuss the first set in this blog post and the second set next week.
Louisiana Code of Evidence Article 803 lays out the exceptions to the hearsay rule regardless of the declarant’s availability:
Present sense impression - “a statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
Excited utterance - “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
Then existing mental, emotional, or physical condition - “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition…offered to prove the declarant’s then existing condition or his future action.”
Some examples from the statute are: intent, plan, motive, design, mental feeling, pain, and bodily health.
Statements for purposes of medical treatment and medical diagnosis in connection with treatment - “Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or in the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.”
Still subject to the healthcare provider-patient privilege discussed on our blog August 24.
Recorded recollection - “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”
Records of regularly conducted business activity - “A memorandum, report, record, or data compilation…of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation…”
Absence of entry in records of regularly conducted business activity - Evidence that a matter is not included in the records described in (6) to show that it did not happen.
Public records and reports
Records of vital statistics
Absence of public record or entry
Records of religious organizations - records of births, deaths, marriages, etc…
Marriage, baptismal, and similar certificates
Family records - “Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.”
Records of documents affecting an interest in property
Statements in documents affecting an interest in property
Statements in ancient documents - ancient in this case being 30 years or older and the authenticity of which is established
Market reports, commercial publications
Learned treatises
Reputation concerning personal or family history
Reputation concerning boundaries or general history
Reputation as to character
Judgment of previous conviction
Judgment as to personal, family, or general history, or boundaries
Testimony as to one’s own age
Any of the above documents or information is admissible even though it is hearsay and whether or not the declarant is present to testify about it.
If you have questions about a case and would like to set up a consult, give us a call at (318) 459-9111.
(All right, y’all. Full disclosure. Everyone hates hearsay. It is confusing. The exceptions are even MORE confusing. This is a very quick summation of the Rules of Evidence that define it and set up the exceptions.)
Hearsay is defined in Chapter 8 of the Louisiana Code of Evidence. Article 801 defines hearsay as: “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is generally not admissible, though there are exceptions, which we will discuss in our next blog posts. (La CE Art. 802, 803 & 804)
Some statements, despite being made outside of the present trial or hearing, are not hearsay, according to Article 801, and are therefore admissible:
In a criminal case, a prior statement that is inconsistent with his testimony at the trial or hearing at which the declarant is testifying. In order for the prior inconsistent statement to be admissible, it must be brought to the attention of the declarant, and he must have been given the opportunity to admit the fact and there must be additional evidence to corroborate the prior statement.
a prior statement that is consistent with his present testimony that is used to rebut allegations that he has recently fabricated this statement or that he has been improperly influenced or has an ulterior motive for his present testimony.
A statement that is one of identification after seeing the person.
An initial complaint of sexually assaultive behavior that is consistent with the declarant’s present testimony.
A statement made during a Sexual Assault Nurse Examination (SANE) that has been documented in a report.
A statement offered against a party that is:
That party’s statement;
A statement which the party has adopted or manifested his belief in its truth; or
A statement by the party’s authorized representative.
A statement offered against a party that is:
Made by an agent or employee of the party concerning a matter within the scope of his employment and made during his term of employment; or
A statement made by a declarant while participating in a conspiracy to which the party is a co-conspirator after a prima facie case of conspiracy has been established.
Statements that are events speaking for themselves under the immediate pressure of the occurrence.
The general rule is that a statement made outside of court (intended to be introduced at court to prove that the subject matter of the statement is true) is not admissible.
If you would like to set up a consult, give us a call at (318) 459-9111.
It is time for my (kinda) regular reminder that marijuana is still illegal under federal (and state - under most circumstances) law!
In the United States it is illegal to possess marijuana. The possession of any amount is a criminal offense that carries a potential fine and/or imprisonment.
In Louisiana, it is illegal to possess marijuana (in any quantity); however, the possession of 14 grams or less is punishable by only a fine of up to $100. (NOTE: This is still. a. crime. It will still go on your rap sheet and you will still have to disclose it to potential employers.)
The one exception to the prohibition on possession under Louisiana law is that
Any person who is a patient of the state-sponsored medical marijuana program in Louisiana, and possesses medical marijuana in a form permissible under R.S. 40:1046 for a condition enumerated therein, a caregiver as defined in R.S. 15:1503, any person who is a domiciliary parent of a minor child who possesses medical marijuana on behalf of his minor child in a form permissible under 40:1046 for a condition enumerated therein pursuant to a legitimate medical marijuana prescription or recommendation issued by a licensed health professional authorized by R.S. 40:1046(B) to recommend medical marijuana to patients, or any visiting qualifying patient as defined in R.S. 40:1046.1 shall be exempt from the provisions of this Section. This Paragraph shall not prevent the arrest or prosecution of any person for diversion of marijuana or any of its derivatives or other conduct outside the scope of the state-sponsored medical marijuana program.
La. R.S. 40:966F(1).
With regard to traveling with marijuana, beyond its illegality under federal law, the chart below (thanks to statista.com for the chart!) shows the current state of legalization across the United States. Traveling to another state, even with a medical marijuana authorization from Louisiana, may still render you in legal trouble if it is not legal in the state to which you travel (or through which you travel).
Finally, strangely, the Transportation Security Administration (TSA) has an interesting perspective on air travel while carrying marijuana on their website:
The second paragraph of this blurb from the TSA’s website is, I think, the most important despite the permissiveness of the first paragraph.
If you or someone you know is being prosecuted for charges related to marijuana and would like to set up a consultation, give us a call at (318) 459-9111.
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.
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(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.
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.