Happy Halloween from Gilmer & Giglio! Stay safe and have fun!
The Louisiana Code of Criminal Procedure allows for the setting aside of convictions under certain circumstances. Article 893 applies to felonies and article 894 applies to misdemeanors.
Article 893(E) says, in relevant part:
E. (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3 or that is defined as a sex offense by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than ten years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only twice with respect to any person.
(3)(a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses.
(b) The court may extend the provisions of this Paragraph to any person who has previously successfully completed a drug court program and satisfactorily completed all other conditions of probation.
(c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only twice with respect to any person.
(4) When a defendant, who has been committed to the custody of the Department of Public Safety and Corrections to serve a sentence in the intensive incarceration program pursuant to the provisions of Article 895(B)(3), has successfully completed the intensive incarceration program as well as successfully completed all other conditions of parole or probation, and if the defendant is otherwise eligible, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Subparagraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only twice with respect to any person.
Article 894 provides, in relevant part:
A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
(2) When a suspended sentence in excess of six months is imposed, the court may place the defendant on probation under the supervision of the Department of Public Safety and Corrections, division of probation and parole, for a period of not more than two years and under such conditions as the court may specify.
(3) When a defendant has been convicted of the misdemeanor offense of operating a vehicle while intoxicated, second offense, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised or supervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
(4) The court may suspend, reduce, or amend a misdemeanor sentence after the defendant has begun to serve the sentence.
(5) At the time that any defendant petitions the court to set aside any plea for operating a vehicle while intoxicated pursuant to this Article, the court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor vehicles, a certified copy of the record of the plea, fingerprints of the defendant, and proof of the requirements as set forth in Code of Criminal Procedure Article 556.1 which shall include the defendant's date of birth, social security number, and driver's license number. An additional fifty dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records.
(6) When a case is assigned to the drug division probation program pursuant to the provisions of R.S. 13:5304, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the drug division probation program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.
(7) When a case is assigned to an established driving while intoxicated court or sobriety court program certified by the Louisiana Supreme Court Drug Court Office, the National Highway Traffic Safety Administration, or the Louisiana Highway Safety Commission, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that the successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the driving while intoxicated court or sobriety court program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.
B. (1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. However, prior to setting aside any conviction and dismissing the prosecution for any charge for operating a vehicle while intoxicated, the court shall require proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the requirements of Subparagraph (A)(5) of this Article have been complied with.
(2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten-year period.
(3) Discharge and dismissal pursuant to the provisions of this Subparagraph may occur on a single subsequent prosecution and conviction which occurs during the ten-year period provided for in Subparagraph (B)(2) of this Article if the following conditions are met:
(a) The offender has successfully completed a driving while intoxicated court or sobriety court program pursuant to Subparagraph (A)(7) of this Article.
(b) The conditions imposed by the court pursuant to the provisions of Subparagraph (A)(3) of this Article have been met.
What these articles allow for is, after completion of a term of probation, a person may set aside their conviction. This allows them to say that they have not been convicted of the offense, but also makes them eligible to expunge the arrest record immediately upon granting of the set aside, rather than waiting the otherwise requisite time periods for an expungement.
If you or someone you know is facing criminal charges and would like to set up a consult, give us a call at (318) 459-9111 to set up a consult.
Every year, the Louisiana Legislature passes a slew of new legislation, most of which will take effect on August 1. And so, each year, I like to do a run-down of the new legislation related to or impacting criminal law. This week’s topic: Firearms!
The Louisiana legislature amended Louisiana Revised Statutes 40:1379.1.4 to edit the definition of “qualified retired law enforcement officers” who are permitted to carry concealed weapons as individuals who “[were] properly certified by the Council on Peace Officer Standards and Training at the time of retirement, in accordance with R.S. 40:1379.3(D)(1)(f).” In keeping with this additional definition, the Louisiana legislature amended the Illegal Carrying of Weapons statute to allow for this change.
The Louisiana Legislature also amended the concealed carry permit statute (La. R.S. 40:1379.3) to remove the restriction from obtaining a concealed carry permit if one has been convicted of operating a motor vehicle while intoxicated. The restriction on individuals who “chronically and habitually use alcoholic beverages to the extent that his normal faculties are impaired” remains in effect. This statute was further amended to state that “No permit shall be suspended or revoked solely upon the basis of an arrest for a violation of R.S. 14:98.1.” La. R.S. 40:1379.3(I)(6).
The Louisiana Legislature also amended the definition of a “machine gun” to define it as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one show without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, and any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun.
La. R.S. 40:1751.
This same Act increases the penalty range for the manufacture, transfer, or possession of a machine gun in Louisiana from imprisonment at hard labor for not less than one year nor more than five years to not less than one year nor more than ten years. La. R.S. 40:1755(A). If the person has a prior conviction of a felony crime of violence (as defined in La. R.S. 14:2), that person shall be imprisoned at hard labor for not less than three years nor more than ten years. La. R.S. 40:1755(B). This change in the law also removes “flame thrower” from the definition of “firearm” in La. R.S. 40:1781.
The Louisiana Legislature expanded the definition of “utility service employee” for purposes of the offense of Aggravated Assault Upon a Utility Service Employee with a Firearm to include:
any person employed under contract, of any utility service that provides electricity, gas, water, broadband, cable television, heat, steam, telecommunications services, or sewer services, whether privately, municipally, cooperatively, or investor-owned."
La. R.S. 14:37.5(B)(3).
Finally, the Legislature increased the penalty for Assault by Drive-By Shooting from not less than one year nor more than five years to not less than three years nor more than 10 years, and expanded the definition of “drive-by shooting” to include interstate highways along with the previously included “public street or highway.” La. R.S. 14:37.1.
If you or someone you know is facing prosecution for a firearm charge in Louisiana, give us a call at (318) 459-9111 to set up a consult.
So this week we might be getting a bit into the weeds, but it is always useful to know about procedural changes in criminal courts, and not just the substantive changes to the offenses, themselves.
Over the last few years, the Louisiana Legislature has made some changes to the posting of booking photographs on the internet. This year, they amended the statute again, adding two exceptions to the prohibition if:
(f) The individual is released on a bail undertaking and the law enforcement officer or agency is equated to release or disseminate the booking photograph to the individual’s surety agent.
(g) A law enforcement officer or agency determines that releasing or disseminating the booking photograph is necessary for investigative purposes.
Louisiana Code of Criminal Procedure Article 234(C)(1).
The Louisiana Legislature also enacted Louisiana Code of Criminal Procedure Article 388 to require additional information be provided in the charging document, including:
(1) Date of the offense.
(2) Date of arrest or summons, if a summons was issued in lieu of an arrest.
(3) The state identification number of the defendant, if one has been assigned to the defendant for the offense or for any prior offenses.
(4) Defendant demographic data to include sex, race, and date of birth, if known.
La. C.Cr.P. Art. 388(A). This information is required to be provided to various agencies including the Louisiana Supreme Court and the Louisiana Bureau of Criminal Identification and Information. Failure to provide this information; however, does not provide grounds for a motion to quash. La. C.Cr.P. Art. 388(B)-(D).
The Legislature also passed some new rules regarding the behavior of jurors in Code of Criminal Procedure Article 791 requiring that they be sequestered “during active deliberations” and requiring the Court to charge the jury about the rules of deliberation when breaking from sequestration overnight.
Finally, the Legislature amended Louisiana Code of Evidence Article 404(B) relative to character evidence in criminal prosecutions to establish that the following is not admissible character evidence, except as provided in Article 412, or as otherwise provided in 404(B):
(b)(i) For purposes of this Subparagraph, “creative or artistic expression” means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.
(ii) Except as provided in Article 412 or has otherwise provided by law, creative or artistic expression is not admissible in a criminal case to prove the character of a person in order to show that he acted in conformity therewith, provided that the accused provides reasonable notice to the prosecution in advance of trial asserting that the evidence is creative or artistic expression. Evidence of creative or artistic expression may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral pat of the act or transaction that is the subject of the present proceeding.
La C.E. Art. 404(B).
If you or someone you know is facing criminal prosecution and you would like to set up a consult, please give us a call at (318) 459-9111.
The Louisiana Legislature this year amended the Schedule II penalties with regard to Fentanyl and established a new offense for the production, manufacturing, distribution, or possession of Xylazine.
Louisiana Revised Statutes 40:967 has been amended, with regard to Fentanyl, to increase the penalties as follows:
For a conviction involving less than 28 grams, the penalty shall be imprisonment at hard labor for not less than 5 years nor more than 40 years, and a fine of up to $50,000. The legislature established a mandatory minimum penalty of 5 years without benefit of probation, parole, or suspension of sentence.
For a first conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment at hard labor for not less than 7 years nor more than 40 years, at least 7 years of which shall be without benefit of probation, parole, or suspension of sentence (and a fine).
For a second conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment at hard labor for not less than 30 years nor more than 40 years, at least 10 years of which shall be without benefit of probation, parole, or suspension of sentence (and a fine).
For a third conviction of 28 grams or more but less than 250 grams, the penalty shall be imprisonment or hard labor for not less than 99 years without benefit of probation, parole, or suspension of sentence (and a fine).
Distribution which “is the direct cause of serious bodily injury to the person who ingested or consumed the substance”:
Shall be classified as a crime of violence
Penalty shall be imprisonment at hard labor for an additional period of five years without benefit of probation, parole, or suspension of sentence to be served consecutively.
La. R.S. 40:967.
The Louisiana legislature also enacted Louisiana Revised Statutes 40:989.4 - Unlawful production, manufacturing, distribution, or possession of Xylazine
A.(1) It shall be unlawful for any person to knowingly or intentionally produce, manufacture, distribute, or possess with intent to produce, manufacture, or distribute Xylazine.
(2) Whoever violates the provisions of this Subsection shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years, and, in addition, may be required to pay a fine of not more than fifteen thousand dollars.
B.(1) it shall be unlawful for any person to knowingly or intentionally possess Xylazine.
(2) Whoever violates the provisions of this Subsection shall be imprisoned for not more than six months and, in addition, may be required to pay a fine of not more than five hundred dollars.
C. The provisions of this Section shall not apply to the following:
(a) The production, manufacturing, distribution, or possession of Xylazine in the course of a legitimate veterinary practice.
(b) The production, manufacturing, distribution, or possession of Xylazine bulk chemical for pharmaceutical compounding by a licensed pharmacist or veterinarian.
(c) The possession of Xylazine pursuant to a valid prescription from a licensed veterinarian.
D. As used in this Section, “Xylazine” means Xylazine and any salt, sulfate, isomer, homologue, analogue, or other preparation of Xylazine, and any salt, isomer, compound, derivative, precursor, homologue, analogue, or other preparation thereof that is substantially chemically equivalent or identical to Xylazine.
La. R.S. 40:989.4.
If you or someone you know is facing prosecution for a drug offense, give us a call at (318) 459-9111 to set up a consult.
This week, we are addressing some changes the Louisiana Legislature made to the Driving While Intoxicated laws as well as a new sentencing enhancement for operating a vehicle without a properly attached license plate.
The Louisiana Legislature amended all of the Operating a Vehicle While Intoxicated to mandate that the Department of Motor Vehicles shall suspend a defendant’s Driver’s License if he submitted to a blood alcohol test and the results were 0.15 or higher. For a first offense, the Driver’s License shall be suspended for 2 years. For a second offense, 4 years. This amendment does allow the defendant to obtain a hardship license during the term of his suspension, as long as his vehicle is equipped with an ignition interlock device (a breathalyzer).
Louisiana Revised Statutes 32:57 has been amended to create a sentencing enhancement under the following circumstances:
If a violation of R.S. 32:53(A)(2) [improper display of a license plate] is committed in the preparation of or during the commission of a felony offense in order to escape detection, the violator shall be punished by an additional fine of two hundred dollars or by imprisonment of an additional thirty days, or both. For any violation of R.S. 32:53(A)(2), the vehicle may be immediately impounded.
La. R.S. 32:57(A)(2).
The Louisiana Legislature also enacted La. R.S 14:93.2.4 - Unlawful Swimming in Certain Waterways:
A. It shall be unlawful for any parent or legal guardian who has care and control of a minor, to permit a minor, either knowingly, willfully, or through criminal negligence to swim without wearing a Type 1, type II, Type III, or Type V personal floatation device approved by the United States Coast Guard in the portion of any river beginning from a water-controlled structure through which that river flows to a point seventy miles downstream when that structure creates a reservoir used to generate hydroelectric power. The distance provided for in this Subsection shall be measured from the structure along a line drawn downstream in the middle of the river bed.
(B)(1) On a first conviction, the parent or legal guardian shall be issued a warning ticket, fined not more than twenty-five dollars, or both.
(2) On a second conviction, the parent or legal guardian shall be fined not more than fifty dollars, imprisoned for not more than seven days, or both.
(3) On a third or subsequent conviction, the parent or legal guardian shall be fined not more than seventy-five dollars nor more than two hundred fifty dollars, imprisoned for not more than thirty days, or both.
La. R.S. 14:93.2.4.
If you or someone you know is facing criminal prosecution, give us a call at (318) 459-9111 to set up a consult.
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.
…
(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.
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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.
