The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

The Louisiana Legislature enacted legislation that effectively does away with parole entirely in the State of Louisiana effective for offenses committed on or after August 1, 2024. (Note: there are a few exceptions for juveniles sentenced to life without parole and a few other limited circumstances.)

For offenses committed prior to August 1, 2024, the legislature has enacted legislation that makes individuals parole eligible after serving 25% of their sentences (unless the convictions were for crimes of violence, sex offense, or a fourth or subsequent felony conviction or unless the person is eligible at an earlier date based on another statute).

At the time of making a determination about eligibility for parole, the committee may make a determination as to whether the individual is eligible for administrative sanctions.

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

The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Taking effect on July 1, 2024, the legislature has extended the conditions for which a driver who is arrested for driving while intoxicated must be required to install an ignition interlock in their vehicle.

The legislature increased the period of suspension for a first breath test with a result over a .08 from 90 days to 6 months (unless the arrested individual is under 21). An ignition interlock is now required for reinstatement and/or hardship qualifications for any refusal, whether a first or a fifth.

Finally, and probably most consequentially, the legislature now requires the Court to order for any DWI conviction that the defendant not drive a motor vehicle unless that vehicle has been equipped with a functioning ignition interlock device. For a first conviction, this requirement would be in place for 6 months. For a second conviction, this requirement would be in place for four years.

The one positive change to the DWI laws made by the legislature this term is that installations of ignition interlock devices for submissions or refusals to breath tests can now be given credit toward installations for convictions, which means an individual will not be required to install an ignition interlock device twice to meet the requirements of both statutes.

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

The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Taking effect on July 1, 2024, the legislature modified Louisiana Code of Criminal Procedure Article 320 requiring pretrial drug testing as a condition of bail. The statute now requires that every person arrested for a drug offense or crime of violence must be drug tested within 24 hours of booking and at random testing thereafter, if the initial test is positive. Also, if positive, the individual shall then be screened for eligibility for speciality courts (i.e.: drug court, veteran’s court, etc…). The statute limits disclosure of these records to anyone except the District Attorney, defense counsel, treatment professionals affiliated with the drug court program, and the court, but shall be inadmissible in court except for the purposes of determining eligibility for specialty court admission.

The legislature also amended and enacted Louisiana Code of Criminal Procedure Articles 893 and 904 regarding the procedures for admission to specialty courts in Louisiana.

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

The Louisiana Legislature met in a special session at the request of Governor Landry in February and passed several new laws impacting the criminal justice system.

Effective on March 5, 2024, the Legislature extended the prescriptive period for sex offenses under limited circumstances. Louisiana Code of Criminal Procedure Article 572 now says:

[…] prosecutions for any sex offense may be commenced beyond the time limitations set forth in this Title if the identity of the offender is established after the expiration of such time limitation through the use of a DNA profile or newly discovered photographic or video evidence.

La. C.Cr.P. Art. 572. This change requires that the out-of-time prosecution be brought within 3 years of the date on which the offender’s is identified based on the newly discovered photographic or video evidence.

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

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

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

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

(emphasis added).

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

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

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

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

(1) Solicitation for murder.

(2) First degree murder.

(3) Second degree murder.

(4) Manslaughter.

(5) Aggravated battery.

(6) Second degree battery.

(7) Aggravated assault.

(8) Aggravated kidnapping of a child.

(9) Aggravated or first degree rape.

(10) Forcible or second degree rape.

(11) Simple or third degree rape.

(12) Sexual battery.

(13) Second degree sexual battery.

(14) Intentional exposure to AIDS virus.

(15) Aggravated kidnapping.

(16) Second degree kidnapping.

(17) Simple kidnapping.

(18) Aggravated arson.

(19) Aggravated criminal damage to property.

(20) Aggravated burglary.

(21) Armed robbery.

(22) First degree robbery.

(23) Simple robbery.

(24) Purse snatching.

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

(26) Assault by drive-by shooting.

(27) Aggravated crime against nature.

(28) Carjacking.

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

(30) Terrorism.

(31) Aggravated second degree battery.

(32) Aggravated assault upon a peace officer.

(33) Aggravated assault with a firearm.

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

(35) Second degree robbery.

(36) Disarming of a peace officer.

(37) Stalking.

(38) Second degree cruelty to juveniles.

(39) Aggravated flight from an officer.

(40) Sexual battery of persons with infirmities.

(41) Battery of a police officer.

(42) Trafficking of children for sexual purposes.

(43) Human trafficking.

(44) Home invasion.

(45) Domestic abuse aggravated assault.

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

(47) Aggravated assault upon a dating partner.

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

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

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

(51) Criminal abortion.

(52) First degree feticide.

(53) Second degree feticide.

(54) Third degree feticide.

(55) Aggravated abortion by dismemberment.

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

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

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

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

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

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

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

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

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

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.” La. R.S. 14:35.3(B)(5).

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. La. R.S. 14:35.3(C).

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. La. R.S. 14:35.3(D).

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. La. R.S. 14:35.3(E).

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.'“ La. R.S. 14:35.3(I).

(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.” La. R.S. 14:35.3(K).

(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.” La. R.S. 14:35.3(L).

(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.” La. R.S. 14:35.3(M).

(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.” La. R.S. 14:35.3(N).

(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.” La. R.S. 14:35.3(O).

(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.” La. R.S. 14:35.3(P).

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. La. R.S. 14:35.9(C).

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. La. R.S. 14:35.9(D).

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. La. R.S. 14:35.9(E).

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.'“ La. R.S. 14:35.9(I).

(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.” La. R.S. 14:35.9(K).

(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.” La. R.S. 14:35.9(L).

(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.” La. R.S. 14:35.9(M).

(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.” La. R.S. 14:35.9(N).

(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.” La. R.S. 14:35.9(O).

(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.” La. R.S. 14:35.9(P).

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. La. R.S. 14:37.7B(1), B(2), & C.

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. 14:34.9.1B & C.

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.

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.

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:

1. District courts and their commissioners within their trial jurisdiction.

2. City or parish court within their trial jurisdiction.

3. Mayor’s courts and traffic courts within their trial jurisdiction.

4. Juvenile and family courts within their trial jurisdiction.

5. 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:

1. Former testimony - testimony given at a prior hearing, but expert testimony at a prior hearing is not admissible under this rule.

2. 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.”

3. 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.

4. Statement of personal or family history

5. 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.

6. 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.

7. 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:

1. Present sense impression - “a statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

2. 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.”

3. 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.

4. 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.

5. 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.”

6. 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…”

7. 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.

8. Public records and reports

9. Records of vital statistics

10. Absence of public record or entry

11. Records of religious organizations - records of births, deaths, marriages, etc…

12. Marriage, baptismal, and similar certificates

13. 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.”

14. Records of documents affecting an interest in property

15. Statements in documents affecting an interest in property

16. Statements in ancient documents - ancient in this case being 30 years or older and the authenticity of which is established

17. Market reports, commercial publications

18. Learned treatises

19. Reputation concerning personal or family history

20. Reputation concerning boundaries or general history

21. Reputation as to character

22. Judgment of previous conviction

23. Judgment as to personal, family, or general history, or boundaries

24. 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.

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

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

1. An arrest that did not result in a conviction

2. An arrest that resulted in a misdemeanor conviction.

3. An arrest that resulted in a felony conviction.

Each has slightly different rules and regulations:

An Arrest That Did Not Result in a Conviction:

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

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

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

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

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

La CCrP ART. 976.

An Arrest That Resulted in a Conviction of a Misdemeanor:

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

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

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

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

An Arrest That Resulted in a Felony Conviction

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

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

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

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

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

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

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

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

• Domestic abuse battery.

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

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

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

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

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

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

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

If you or someone you know has been arrested for a domestic violence charge, give us a call at (318) 459-9111 to set up a consultation.

There are several offenses that criminalize physical violence committed in intimate or family relationships: Domestic Abuse Battery, Battery of a Dating Partner, Domestic Abuse Aggravated Assault, and Aggravated Assault Upon a Dating Partner.

Domestic abuse battery

Domestic abuse battery “is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member.” La. R.S. 14:35.3(A).

“Family member” and “household member” are specifically defined in the same statute. “‘Family member’ means spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, foster children, other ascendants, and other descendants. ‘Family member’ also means the other parent or foster parent of any child or foster child of the offender.” La. R.S. 14:35.3(B)(4). “‘Household member’ means any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.”

Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation.

A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service.

A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000.

There are several other provision of La. R.S. 14:35.3 that increase or alter the penalty:

(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“

(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.”

(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.”

(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.”

BATTERY OF A DATING PARTNER

Battery of a dating partner “is the intentional use of force or violence committed by one dating partner upon the person of another dating partner.” La. R.S. 14:35.9(A).

“‘Dating partner’ means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. ‘Dating partner’ shall not include a casual relationship or ordinary association between persons in a business or social context.” La. R.S. 14:35.9(B)(3).

Each of these offenses is enhanceable. Multiple convictions increase the penalty. A first offense carries a fine of not less than $300 nor more than $1,000 and imprisonment for not less than 30 days nor more than 6 months. At least 48 hours of the jail sentence will be without parole, probation, or suspension of sentence. The balance of the sentence cannot be suspended unless the defendant is placed on supervised probation and ordered to complete a court-approved domestic abuse intervention program and perform 64 hours of community service. The court shall also order that the defendant not own or possess a firearm while on probation.

A second offense increases the fine to a minimum of $750 and the minimum jail sentence to 60 days. 14 days of the sentence must be without parole, probation, or suspension of sentence. The balance may be suspended if the defendant is ordered to complete a domestic abuse intervention program and perform 240 hours of community service.

A third offense is a felony, which carries a penalty of imprisonment with or without hard labor for not less than 1 year nor more than 5 years and a fine of $2,000. The first year of the sentence must be without probation, parole, or suspension of sentence. A fourth or subsequent offense increases the mandatory minimum sentence to 10 years up to 30 years and a fine of $5,000.

There are several other provision of La. R.S. 14:35.9 that increase or alter the penalty:

(1) “When the state proves, in addition to the [other] elements of the crime…that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.'“

(2) If the victim is pregnant, and the defendant knew that the victim was pregnant at the time of the offense, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(3) If the battery involves strangulation, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(4) If the battery involves burning, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.”

(5) If the offender intentionally inflicts serious bodily injury, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.”

(6) If the offender uses a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than ten years.”

(7) If the offender intentionally causes serious bodily injury with a dangerous weapon, “the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than fifteen years.”

DOMESTIC ABUSE AGGRAVATED ASSAULT

Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member or family member upon another household member or family member. La. R.S. 14:37.7A.

Assault is defined in La. R.S. 14:36 as an “attempt to commit a battery; or the intentional placing of another in reasonable apprehension of receiving a battery.”

“Family member” and “household member” are defined the same way as they are in La. R.S. 14:35.3. The penalty for domestic abuse aggravated assault is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000.

If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:37.7D.

AGGRAVATED ASSAULT UPON A DATING PARTNER

Aggravated assault upon a dating partner “is an assault with a dangerous weapon committed by one dating partner upon another dating partner.” La. R.S. 14:34.9.1A.

“Dating partner” is defined in this statute the same way it is defined in battery of a dating partner. The penalty for this offense is imprisonment at hard labor for not less than 1 year nor more than 5 years and a fine of not more than $5,000. La. R.S. 14:34.9.1C.

If a child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence is 2 years at hard labor without benefit of probation, parole, or suspension of sentence. La. R.S. 14:34.91.1D.

If you or someone you know is facing charges related to domestic violence, give us a call at (318) 459-9111 to schedule a consultation.

What happens immediately after you’ve been arrested is a bit dependent on the circumstances of your arrest. For individuals who have been arrested for a misdemeanor, depending on the court and the jail, their bond may be set by schedule, and they may be able to post bond and be released within hours. For those arrested on a felony, if arrested without a warrant, the court must make a determination that there was probable cause for the arrest within 72 hours of the arrest. This can be done either by a court appearance or by the court simply reviewing the arrest affidavit submitted by the arresting officer and making a probable cause determination from that document. If the person was arrested pursuant to an arrest warrant, then the probable cause determination has already been made. If bond was not set on the warrant, itself, it will be within 72 hours (unless the arrest was for domestic abuse battery, violation of a protective order, stalking, a sex offense, or a crime involving acts or threats of violence against a family member, household member, or dating partner. (For more information about that, see last week’s post.)

Once bail has been set, whether or not the arrested individual is able to post bail, her case will likely be set for either an initial appearance, bond return date, or arraignment. if bond is posted and the defendant is released, the court may set a bond return date on which the defendant must appear in court. This is simply a date to ensure that the defendant is following the rules of his bail obligation. Arraignment is the first court date on which anything of substance will likely happen in the case (assuming there has not been a bond hearing previously). Arraignment is the court appearance at which the State will file the Bill of Information or other charging document and that document will be read to the defendant in its entirety (unless she waives that reading).

The defendant will then be asked how she pleads to the charges. If she pleas guilty, she will be waiving all additional rights to trial, representation by counsel, against self-incrimination, for compulsory process, etc… and she will be sentenced by the court at that time.

If she pleas not guilty, the case will continue and the State will have to provide her attorney with the discovery in the case. Discovery is simply any evidence the State intends to use against the defendant at the trial of the case.

The case will likely be set for several additional court appearances as the parties negotiate and/or fight about potential resolutions, discovery issues, suppression issues, etc…

If you or someone you know has been arrested and is looking for legal representation, give us a call to set up a consult at (318) 459-9111.

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

In setting bail, the court must consider 10 factors:

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

• The weight of the evidence against the defendant;

• The previous criminal record of the defendant;

• The ability of the defendant to post bail;

• The nature and seriousness of the danger to any other person and/or the community posed by the release of the defendant;

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

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

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

• Any other circumstances which affect bail; and

• The type or form of bail.

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

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

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

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

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