Blog

In a continuing move towards rationality in federal criminal law, the U.S. Department of Justice recently announced a new clemency program for certain offenders serving time in the federal system.  Under the program, the DOJ will review thousands of cases, mostly involving drug offenders, and recommend many prisoners to the president as candidates for executive clemency.  The DOJ announced that the program would cover the following types of inmates:

(1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today;

(2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels;

(3) have served at least 10 years of their sentence;

(4) do not have a significant criminal history;

(5) have demonstrated good conduct in prison;

and (6) have no history of violence prior to or during their current term of imprisonment.

It remains to be seen how the program will play out, but it has the potential to offer a second chance to thousands of federal inmates who were sentenced under punitive laws–most particularly laws relating to crack cocaine–that have now been revised.

 

For various reasons, the Louisiana legislature has enacted legislation granting extended prescription dates (otherwise known as statute of limitations dates) on the prosecution of sex crimes.  Although prosecution for most felonies must begin within either four or six years, for a long list of sex crimes the time limit for instituting prosecution has been extended to 30 years after the victim reaches the age of 18.  The list of sex crimes with this extended prescription date is below.  An interesting issue that would bear research is whether the extended prescription date–which was apparently instituted in 1993–would be considered an ex post facto law if used to prosecute someone who allegedly committed the crime before the extended-prescription law took effect.  That is, does changing the prescription date on a crime count as a substantive or procedural change in the law?

Louisiana Code of Criminal Procedure Article 571.1 contains the list of sex crimes with an extended prescription date.  Note also that aggravated rape and forcible rape are never subject to prescription, pursuant to Article 571.

Sexual Battery (R.S. 14:43.1),

Second degree sexual battery (R.S. 14:43.2)

Oral sexual Battery (R.S. 14:43.3)

Human Trafficking (R.S. 14:46.2(B)(2)

Trafficking of Children for Sexual Purposes (R.S. 14:46.3)

Felony Carnal Knowledge of a Juvenile (R.S. 14:80)

Indecent Behavior with Juveniles (R.S. 14:81)

Pornography Involving Juveniles (R.S. 14:81.1)

Molestation of a Juvenile (R.S. 14:81.2)

Prostitution of Persons under eighteen (R.S. 14:82.1)

Enticing persons into prostitution (R.S. 14:86),

Crime against nature (R.S. 14:89)

Aggravated crime against nature (R.S. 14:89.1)

Crime against nature by solicitation (R.S. 14:89.2(B)(3))

Incest (R.S. 14:78),

Aggravated incest (R.S. 14:78.1) which involves a victim under seventeen years of age

Well, Louisiana’s statute for driving while intoxicated (sometimes called driving under the influence, or DUI) is found at LA R.S. 14:98, which is posted below.  As you’ll note, it’s quite long and complicated, with escalating potential penalties based on blood alcohol content and number of prior offenses.  On top of that, there are complicated statutes governing what happens to your license if you catch a DUI– a conviction will result in a suspension.  That part of DUI/DWI law is covered by Title 32 of the Louisiana statutes, specifically, LA R.S. 32:414.

There are a number of ways to work within these statutes to protect yourself– an experienced attorney can be invaluable.

LA RS 14:98.  Operating a vehicle while intoxicated

 

A.(1)  The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:

 

(a)  The operator is under the influence of alcoholic beverages; or

 

(b)  The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or

 

(c)  The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or

 

(d)(i)  The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.

 

(ii)  It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.

 

(e)(i)  The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.

 

(ii)  It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the operator did not knowingly consume quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

 

(2)  A valid driver’s license shall not be an element of the offense, and the lack thereof shall not be a defense to a prosecution for operating a vehicle while intoxicated.

 

B.(1)  On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months.  Imposition or execution of sentence shall not be suspended unless:

 

(a)  The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or

 

(b)  The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program.  An offender, who participates in a litter abatement or collection program pursuant to this Subparagraph, shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

 

(2)(a)  If the offender had a blood alcohol concentration of 0.15 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, at least forty-eight hours of the sentence imposed pursuant to Paragraph (B)(1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (B)(1)(a) or (b) of this Subsection.

 

(b)  If the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the offender shall be fined not less than seven hundred fifty dollars nor more than one thousand dollars and at least forty-eight hours of the sentence imposed pursuant to Paragraph (B)(1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (B)(1)(a) or (b) of this Subsection.

 

C.(1)  On a conviction of a second offense, notwithstanding any other provision of law to the contrary except as provided in Paragraphs (3) and (4) of this Subsection, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than seven hundred fifty dollars, nor more than one thousand dollars, and shall be imprisoned for not less than thirty days nor more than six months.  At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.  Nothing herein shall prohibit a court from sentencing a defendant to home incarceration, if otherwise allowed under the provisions of Article 894.2 of the Code of Criminal Procedure.  Imposition or execution of the remainder of the sentence shall not be suspended unless:

 

(a)  The offender is placed on probation with a minimum condition that he serve fifteen days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or

 

(b)  The offender is placed on probation with a minimum condition that he perform thirty eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, and participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program.  An offender, who participates in a litter abatement or collection program pursuant to this Subparagraph, shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation therein, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

 

(2)(a)  If the offender had a blood alcohol concentration of 0.15 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, at least ninety-six hours of the sentence imposed pursuant to Paragraph (1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence.  Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (1)(a) or (b) of this Subsection.

 

(b)  If the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the offender shall be fined one thousand dollars and at least ninety-six hours of the sentence imposed pursuant to Paragraph (1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (1)(a) or (b) of this Subsection.

 

(3)  Notwithstanding the provisions of Paragraph (1) of this Subsection, on a conviction of a second offense when the first offense was for the crime of vehicular homicide in violation of R.S. 14:32.1, or first degree vehicular negligent injuring in violation of R.S. 14:39.2, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and shall be fined two thousand dollars.  At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence.  Imposition or execution of the remainder of the sentence shall not be suspended unless the provisions of Subparagraph (1)(a) or (b) of this Subsection are complied with.

 

(4)  Notwithstanding the provisions of Paragraph (1) of this Subsection, on a conviction of a second offense when the arrest for the second offense occurs within one year of the commission of the first offense, the offender shall be imprisoned for thirty days without benefit of parole, probation, or suspension of sentence and shall participate in a court-approved substance abuse program and in a court-approved driver improvement program.

 

D.(1)(a)  On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars.  Except as provided in Paragraph (4) of this Subsection, one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.  The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.  If any portion of the sentence is suspended, except for a suspension of sentence pursuant to the provisions of Paragraph (4) of this Subsection, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

 

(b)  Any offender placed on probation pursuant to the provisions of this Subsection shall be required as a condition of probation to participate in thirty eight-hour days of court-approved community service activities and to submit to and complete either of the following requirements:

 

(i)  To immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months.

 

(ii)  To participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.

 

(c)  In addition to the requirements set forth in Subparagraph (b) of this Paragraph, any offender placed on probation pursuant to the provisions of Subsection D of this Section shall be placed in a home incarceration program approved by the division of probation and parole for a period of time not less than six months and not more than the remainder of the sentence of imprisonment.

 

(d)  If any offender placed on probation pursuant to the provisions of Subsection D of this Section fails to complete the substance abuse treatment required by the provisions of this Paragraph or violates any other condition of probation, including conditions of home incarceration, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.

 

(2)(a)  In addition, the court shall order, subject to the discretion of the prosecuting district attorney, that the vehicle being driven by the offender at the time of the offense shall be seized and impounded, and sold at auction in the same manner and under the same conditions as executions of writ of seizures and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.  If the district attorney elects to forfeit the vehicle, he shall file a written motion at least five days prior to sentencing stating his intention to forfeit the vehicle.  When the district attorney elects to forfeit the vehicle, the court shall order it forfeited.

 

(b)  The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated.  If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.

 

(c)  In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.

 

(d)  The proceeds of the sale shall first be used to pay court costs and towing and storage costs, and the remainder shall be allocated as follows: sixty percent of the funds shall go to the arresting agency, twenty percent to the prosecuting district attorney, and twenty percent to the Louisiana Property and Casualty Insurance Commission for its use in studying other ways to reduce drunk driving and insurance rates.

 

(3)(a)  An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:

 

(i)  Electronic monitoring.

 

(ii)  Curfew restrictions.

 

(iii)  Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months.  After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.

 

(b)  The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense.  The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.

 

(c)  Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

 

(4)  Notwithstanding the provisions of Subparagraph (1)(a) of this Subsection, the one-year period described in Paragraph (1) of this Subsection which shall otherwise be imposed without the benefit of probation, parole, or suspension of sentence, may also be suspended if the offender is accepted into a drug division probation program pursuant to R.S. 13:5301 et seq.  The provisions of Paragraph (2) of this Subsection shall also be applicable to any offender whose sentence is served with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of this Paragraph.

 

E.(1)(a)  Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars.  Except as provided in Paragraph (5) of this Subsection, two years of the sentence of imprisonment shall be imposed without benefit of parole, probation, or suspension of sentence.  The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.  If any portion of the sentence is suspended, except for a suspension of sentence pursuant to the provisions of Paragraph (5) of this Subsection, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.

 

(b)  Any offender placed on probation pursuant to the provisions of this Subsection shall be required, as a condition of probation, to participate in forty eight-hour days of court-approved community service activities and to submit to and complete either of the following requirements:

 

(i)  To immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months.

 

(ii)  To participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.

 

(c)  In addition to the requirements set forth in Subparagraph (b) of this Paragraph, any offender placed on probation pursuant to the provisions of Subsection E of this Section shall be placed in a home incarceration program approved by the division of probation and parole for a period of time not less than one year nor more than the remainder of the term of supervised probation.

 

(d)  If any offender placed on probation pursuant to the provisions of Subsection E of this Section fails to complete the substance abuse treatment required by the provisions of this Paragraph or violates any other condition of probation, including conditions of home incarceration, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.

 

(2)(a)  In addition, the court shall order, subject to the discretion of the prosecuting district attorney, that the vehicle being driven by the offender at the time of the offense be seized and impounded, and be sold at auction in the same manner and under the same conditions as executions of writ of seizure and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.  If the district attorney elects to forfeit the vehicle, he shall file a written motion at least five days prior to sentencing stating his intention to forfeit the vehicle.

 

(b)  The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated.  If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.

 

(c)  In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.

 

(d)  The proceeds of the sale shall first be used to pay court costs and towing and storage costs, and the remainder shall be allocated as follows: sixty percent of the funds shall go to the arresting agency, twenty percent to the prosecuting district attorney, and twenty percent to the Louisiana Property and Casualty Insurance Commission for its use in studying other ways to reduce drunk driving and insurance rates.

 

(3)(a)  An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:

 

(i)  Electronic monitoring.

 

(ii)  Curfew restrictions.

 

(iii)  Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months.  After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.

 

(b)  The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense.  The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.

 

(c)  Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

 

(4)(a)  If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

 

(b)  If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, after serving the mandatory sentence required by Subparagraph (E)(1)(a), no part of the remainder of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

 

(5)(a)  Notwithstanding the provisions of Subparagraph (1)(a) of this Subsection, the two-year period described in Paragraph (1) of this Subsection which shall otherwise be imposed without the benefit of parole, probation, or suspension of sentence may also be suspended if the offender is accepted into a drug division probation program pursuant to R.S. 13:5301 et seq.  The provisions of Paragraph (2) of this Subsection shall also be applicable to any offender whose sentence is served with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of this Subparagraph.

 

(b)  If the offender has previously participated in a drug division probation program pursuant to the provisions of Paragraph (D)(4) of this Section, the offender shall not be eligible to serve his sentence with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of Subparagraph (a) of this Paragraph, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

 

F.(1)  For purposes of determining whether a defendant has a prior conviction for violation of this Section, a conviction under either R.S. 14:32.1, vehicular homicide, R.S. 14:39.1, vehicular negligent injuring, or R.S. 14:39.2, first degree vehicular negligent injuring, or a conviction under the laws of any state or an ordinance of a municipality, town, or similar political subdivision of another state, which prohibits the operation of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance while intoxicated, while impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance shall constitute a prior conviction.  This determination shall be made by the court as a matter of law.

 

(2)  For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section, under R.S. 14:32.1, R.S. 14:39.1, or R.S. 14:39.2, or under a comparable statute or ordinance of another jurisdiction, as described in Paragraph (1) of this Subsection, if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder.  However, periods of time during which the offender was awaiting trial, on probation or parole for an offense described in Paragraph (1) of this Subsection, under an order of attachment for failure to appear, or incarcerated in a penal institution in this or any other state shall be excluded in computing the ten-year period.

 

G.  The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further, the legislature finds that there are successful treatment methods available for treatment of addictive disorders. Court-approved substance abuse programs provided for in Subsections B, C, and D of this Section shall include a screening procedure to determine the portions of the program which may be applicable and appropriate for individual offenders and shall assess the offender’s degree of alcohol abuse.

 

H.  “Community service activities” as used in this Section may include duty in any morgue, coroner’s office, or emergency treatment room of a state-operated hospital or other state-operated emergency treatment facility, with the consent of the administrator of the morgue, coroner’s office, hospital, or facility.

 

I.  An offender ordered to participate in a substance abuse program in accordance with the provisions of this Section shall pay the cost incurred in participating in the program. Failure to make such payment shall subject the offender to revocation of probation, unless the court determines that the offender is unable to pay.  If the court determines that the offender is unable to pay, the state shall pay for the cost of the substance abuse treatment.  An offender sentenced to home incarceration and to participate in a driver improvement program shall pay the cost incurred in participating in home incarceration and a driver improvement program unless the court determines that the offender is unable to pay.  However, if the court determines that an offender is unable to pay the costs incurred for participating in a substance abuse treatment program, driver improvement program, or home incarceration, the court may, upon completion of such program or home incarceration, require that the offender reimburse the state for all or a portion of such costs pursuant to a payment schedule determined by the court.

 

J.  This Subsection shall be cited as the “Child Endangerment Law”.  When the state proves in addition to the elements of the crime as set forth in Subsection A of this Section that a minor child twelve years of age or younger was a passenger in the motor vehicle, aircraft, watercraft, vessel, or other means of motorized conveyance at the time of the commission of the offense, of the sentence imposed by the court, the execution of the minimum mandatory sentence provided by Subsection B or C of this Section, as appropriate, shall not be suspended.  If imprisonment is imposed pursuant to the provisions of Subsection D, the execution of the minimum mandatory sentence shall not be suspended.  If imprisonment is imposed pursuant to the provisions of Subsection E, at least two years of the sentence shall be imposed without benefit of suspension of sentence.

 

K.(1)  In addition to any penalties imposed under this Section, upon conviction of a first offense if the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood the driver’s license of the offender shall be suspended for two years.  Such offender may apply for a restricted license to be in effect during the entire period of suspension upon proof to the Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device in compliance with the requirements of R.S. 32:378.2.  The ignition interlock device shall remain installed and operative on his vehicle during the first twelve-month period of suspension of his driver’s license following the date of conviction.

 

(2)(a)  In addition to any penalties imposed under this Section, upon conviction of a second offense, any vehicle, while being operated by the offender, shall be equipped with a functioning ignition interlock device in accordance with the provisions of R.S. 15:306.  This requirement shall remain in effect for a period of not less than six months. In addition, the device shall remain installed and operative during any period that the offender’s operator’s license is suspended under law and for any additional period as determined by the court.

 

(b)  In addition to any penalties imposed under this Section and notwithstanding the provisions of Subparagraph (2)(a) of this Subsection, upon conviction of a second offense if the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the driver’s license of the offender shall be suspended for four years.  The offender may apply for a restricted license to be in effect during the period of suspension upon proof to the Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device in compliance with the requirements of R.S. 32:378.2.  The ignition interlock device shall remain installed and operative on his vehicle during the first three years of the four-year period of the suspension of his driver’s license.

 

(3)(a)  Notwithstanding the provisions of Paragraph (1) of this Subsection and R.S. 32:414(D)(1)(b), upon conviction of a third or subsequent offense of the provisions of this Section, any motor vehicle, while being operated by the offender, shall be equipped with a functioning ignition interlock device in accordance with the provisions of R.S. 15:306.  The ignition interlock device shall remain installed and operative until the offender has completed the requirements of substance abuse treatment and home incarceration, or, if applicable, the requirements of the drug division probation program provided in R.S. 13:5301 et seq., pursuant to the provisions of Subsections D and E of this Section.

 

(b)  Any offender convicted of a third or subsequent offense of the provisions of this Section shall, after one year of the suspension required by R.S. 32:414(D)(1)(a), upon proof of the Department of Public Safety and Corrections that the motor vehicles being operated by the offender are equipped with functioning interlock devices, be issued a restricted driver’s license.  The restricted license shall be effective for the period of time that the offender’s driver’s license is suspended.  The restricted license shall entitle the offender to operate the vehicles equipped with a functioning interlock device in order to earn a livelihood and to travel to and from the places designated in Paragraphs (D)(3) and (E)(3) of this Section.

 

(4)  The provisions of this Subsection shall not require installation of an ignition interlock device in any vehicle described in R.S. 32:378.2(I).

 

A recent case in the Fifth Circuit highlights the on-going evolution of legal doctrines addressing race and jury selection.  Courts have been wrestling with these issues at least since the Supreme Court announced in Batson v. Kentucky that attorneys could not discriminate on the basis of race during jury selection.  (Batson was a criminal case, but the Supreme Court has extended its rule to civil cases as well.  See Edmonson v. Leesville Concrete Co.  The Supreme Court has also prohibited discrimination on the basis of ethnicity and gender in jury selection.  See Hernandez v. New York (ethnicity) and J.E.B. v. Alabama (gender)).  In the recent United States v. Thompson, the Fifth Circuit addressed issues related to “pretext”– that is, when the attorney accused of racially discriminating in jury selection offers a “race neutral” reason for striking a prospective juror but there is suspicion that the proffered reason is not in fact true.

Batson issues generally involve a three step inquiry.  First, a litigant alleges that the other side’s attorney has used his or her jury challenges in a discriminatory manner.  Second, if the court believes a prima facia case of discrimination has been shown–for example, if the accused attorney has used all or most of his or her strikes against a certain demographic group–then the court will require the accused attorney to explain his or her reasons for the strikes.   Third and finally, the court will determine whether the proffered reasons are credible or whether they are actually just pretexts masking impermissible discrimination.

In Thompson, the prosecutor used 71% of his strikes against African-American jurors, and the district court believed that was sufficient to make out a prima facia case of discrimination.  The court therefore required the prosecutor to provide his reasons for the strikes.  The reasons the prosecution proffered were primarily based on his (alleged) perception of the potential jurors’ demeanor in court.  For example, for one of the jurors, the prosecutor claimed to have struck him because “he sat there with his arms folded . . . with a mean look on his face.”

In relying on in-court demeanor to justify his strikes of these jurors, the prosecutor took a somewhat risky course.  Although Batson challenges are very difficult to win, those that are won usually involve an attorney’s claim to have based the strike on the juror’s demeanor or the attorney’s “gut feeling” about the juror.  Such subjective reasons are much more likely to be found to be pretexts than are objective reasons supported by the record.  See, e.g, the Supreme Court’s decision in Snyder v. Louisiana, which found a prosecutor’s proffered race-neutral reasons for striking a juror, one of which was based on demeanor, to be likely pretext and remanded the case for an evidentiary hearing on the issue.

The Fifth Circuit in Thompson, however, ultimately agreed with the district court that the prosecutor’s reasons, though based on a subjective evaluation of demeanor, were credible.  In doing so, the Court also held that Snyder does not require the district court to make specific factual findings on the record regarding a prospective juror’s demeanor.  The Fifth Circuit thus aligned itself with the Eleventh Circuit on this issue, and rejected the contrary reading of Snyder adopted by the Seventh Circuit in United States v. McMath.

Although somewhat involved and technical, these issues regarding diversity on juries are vitally important both for the individual and society.  Being able to serve on juries is a constitutional right, and, according to 19th century commenter  Alexis de Tocqueville, one of the most vitally important institutions in American democracy.  In our heterogeneous society, diverse juries also probably add legitimacy to the verdicts they render– witness the widespread social upheaval that occurred after a nearly all-white jury (and one which contained no African-Americans) acquitted the officers in the Rodney King beating.  Furthermore, and in some ways even more interesting, empirical research has shown that juries containing a diverse collection of people from different races, genders, and socio-economic backgrounds may in fact work better as fact finders.   Samuel Sommers of Tufts University has conducted a number of intriguing studies in this area, and his findings suggest that jurors within a diverse group tend to get fewer facts wrong and rush to judgment less often.

 

 

Stephen Haedicke was recently selected as one of the Top 100 Criminal Defense Lawyers in Louisiana by the National Trial Lawyers Association.  The National Trial Lawyers is a professional organization of America’s top trial lawyers.  Membership into the organization is by invitation only and is extended to those individuals who exemplify superior qualifications, trial results, and leadership in their respective fields.

A case newly filed by the Law Office and alleging a police beating and subsequent cover up is receiving extensive coverage from Fox 8 news here in New Orleans.  The new suit alleges that police beat a young tourist from Alabama while he was chained to a bench at the 8th District Police Station in the French Quarter.  It also alleges a subsequent cover up, including attempts to destroy surveillance video of the incident.

You can read the story and watch the segment, which includes an interview with me, at the link below.

http://www.fox8live.com/story/21292878/attorney-for-alabama-teen-talks-about-nopd-custody

This past Tuesday, I secured another not guilty verdict for a client at Orleans Parish Criminal Court.  The client was charged with burglary and unauthorized possession of stolen things.  After over a year of wrangling with the State– first to secure all the discovery to which we were entitled (the discovery that they repeatedly refused to disclose was quite beneficial to the client), and then to get necessary police witnesses to come to court– we finally made it to trial, which was before the court alone.  After hearing from the police witnesses and the alleged victim, who had changed his story numerous times at that point, Judge Van Davis indicated she’d heard enough.  The verdict:  Not Guilty.  A good day in court.

Impact of the 2012 Louisiana Legislative Session on Criminal Law—Part 2

Here is the remainder of my summaries of selected changes to the criminal law made during the 2012 Legislative Session.  Note that this list is not complete; these are just the changes that appeared most important to me.

Substantive Criminal Law (Title 14)

HB 47, effective August 1, 2012, amends the Louisiana DWI law to provide a stiff new penalty for repeat offenders in some circumstances.  Now, if someone commits a second DWI offense within one year of a first offense DWI, then he or she must spend at least 30 days in jail.  The new law specifically provides that this 30 day jail term must be served “without benefit of probation, parole, or suspension of sentence.”  That means that the defendant who finds himself in this position will have to serve at least 30 days in jail—there’s no getting around it.

HB 96, effective August 1, 2012, creates the crime of “online impersonation.”  This new misdemeanor criminalizes stealing someone’s identity by opening an email or social networking account in that person’s name with “intent to harm, intimidate, threaten or defraud.”  The penalty is a fine and 10 days to 6 months in jail.

HB 600, effective August 1, 2012, creates the crimes of failure to report a missing or deceased child (the new provisions are LA RS 14:403.7 and 403.8).  This act appears to be in response to the verdict in the Casey Anthony case in Florida.  Although perhaps laudable in some ways, the new laws contains some provisions that are potentially troubling.  Specifically, under the new law, a parent can be found guilty of failing to report their child as missing if the parent does not know where the child is and has not had contact with him or her for 12 hours (if the child is under 13) or 24 hours (if the child is older than 13).  The act also contains stiff penalty provisions:  If the child is harmed during the time the parent has not reported them missing, then the parent faces up to 10 years in prison without the possibility of parole, probation, or suspension of sentence.  If the child is killed during the relevant period, then the parent faces a mandatory minimum 2 years in prison and up to 50 years.  These seem like pretty stiff consequences for what could be honest mistakes by otherwise good parents.

This act also creates the crime of failing to report a deceased child.  If a child’s caretaker discovers that a child is deceased, he or she must report the death to appropriate authorities within one hour of the discovery.  The penalty for failure to do so is up to five years in prison and a fine.

SB 121, effective June 5, 2012, creates the new crime of Domestic Abuse Aggravated Assault (LA RS 14:37.7).  This provision applies where a domestic partner assaults another with a dangerous weapon.  The penalty is 1 to 5 years in jail and a fine.  If a child is present in the household or on the scene when the assault occurs, there is a mandatory minimum penalty of 2 years in prison, without benefit of probation, parole, or suspension of sentence.  The maximum is still 5 years.

SB 243, effective June 7, 2012, creates the crime of failure to report certain felonies, specifically, homicide, rape, or sexual abuse of a child (new provision is LA RS 14:131.1).  The penalty for a violation is up to 1 year in jail.

Criminal Procedure and Sentencing (Title 15)

HB 228, effective August 1, 2012, provides a window of possibility for non-violent, non-sex-offender defendants who have been sentenced under 15:529.1, Louisiana’s habitual offender law.  Previously, people who were “billed”—that is, sentenced as someone who has previously been convicted of one or more felonies—were completely ineligible for “good time” credit while in prison.  (“Good time” credit is the reduction in the amount of time a person must do on their prison sentence when they do not cause any problems in the prison).  Under this new law, people sentenced under section 529.1 can obtain reduction in their prison sentences if they participate in certain treatment and rehabilitation programs offered by the Department of Corrections (DPSC).  It will likely be left up to the Department to determine how to administer this law.

HB 994, effective August 1, 2012, also deals with good time.  This act increases the amount of good time credit that a prisoner can earn.  Previously, it was 35 days for every 30 days of good behavior.  Now, it is 45 days for every 30 days of good behavior (1 and ½ days for every day of good behavior).

HB 1026, effective August 1, 2012, appears to make second offenders eligible for parole at the same time as first offenders.  A first offender is eligible for parole after serving 1/3 of his or her sentence.  Under the old law, a person who is a second offender was not eligible for parole until serving ½ of their sentence.  The new law reduces that requirement to 33 and 1/3 percent.  Note that this law does not apply if a person has been convicted of a crime of violence, sex offense, or as a habitual offender.

Title 32 (Driver’s Licenses)

SB 489, effective August 1, 2012, provides that law enforcement officers can no longer be compelled to appear and testify at an administrative hearing to revoke someone’s license after a DWI arrest.  This means that a person’s license can be suspended on the basis of a police report alone, without an opportunity to cross examine or otherwise challenge the officer at the administrative hearing.

 

This past session in the Louisiana legislature was an active one for the criminal law.  In addition to some laws that did not pass—most notably (and unfortunately) a provision to require prosecutors to divulge all excupatory information to the defense—there were significant changes in a number of areas.  Below is a summary of some of the highlights.  I’ll complete the review in a later post.  For a complete list of the new laws, go to http://lapda.org/site76.php.

Evidence:

HB512, effective August 1, 2012, provides that admissions of criminal conduct that occur during certain parole revocation proceedings (see LA C.Cr.P. Art. 899.1 and LA RS 15:574.7) cannot be introduced in evidence during a criminal trial.  The act modifies LA Code of Evidence Article 803(8)(b)(i), which specifies certain exceptions to the rule.  This act restricts one of those exceptions so that the exception does not cover reports from the parole proceedings.

Constitution:

HB9 would amend the state constitution to permit the legislature to strip retirement benefits from public employees who are convicted of felony acts associated with their positions.  As this is a proposed constitutional amendment, it will be submitted to the voters on November 6, 2012.

SB 303 would amend the state constitution to provide that the right of each citizen to keep and bear arms is fundamental and shall not be abridged.  Any infringement of the right would be subject to strict scrutiny by the courts.  Again, this will be voted on November 6, 2012.

Criminal Procedure:

HB581, effective August 1, 2012, makes an important change to provisions regarding bail.  This Act creates C.Cr.P. Art. 334.4, which addresses the situation where the District Attorney dismisses a case but then reinstitutes the same or lesser charge in another prosecution.  The new code provision requires a judge to reinstate a defendant to the bail that he or she posted in the case that was dismissed, so long as the surety consents in writing.  Additionally, the new code provisions permits Orleans Parish judges to establish rules allowing them to issue bonds and releases telephonically.

Practice Thought:  Defense attorneys may want to speak with their clients’ bondsmen to make sure the bondsmen will agree to reinstate the bond if there is a dismissal/reinstitution.  Or, hopefully, bondsmen will modify their standard contracts to agree up front.

HB980, effective August 1, 2012, limits a court’s ability to issue a warrant when there has been an “at-large” screening, meaning that the district attorney has filed a bill of information charging someone with a crime, but there has never been any probable cause determination that the person actually committed the crime.  This provision modifies C.Cr.P. Art. 496 to state that a court shall issue an arrest warrant in such situations only if the bill of information is accompanied by an affidavit establishing probable cause.

Practice Thought:  Although the new provision does not expressly state that arrest warrants cannot issue unless the bill is accompanied by an affidavit, that is the way it should be interpreted.

HB1068, effective May 17, 2012, provides a welcome avenue to deal with certain mandatory minimum sentences.  The act should, hopefully, make meaningful change in Louisiana’s over-imprisonment culture possible.

The bill creates C.Cr.P. Art. 890.1, which permits the prosecution, defense, and the court to agree to waive mandatory minimum penalties for any crime except crimes of violence or sex offenses.  This will likely have the most effect in non-violent drug cases, where mandatory minimum sentencing provisions can result in extended prison terms.

Practice Thought:  Such agreements should be expressed clearly in the record, preferably in writing, so that there is no confusion once the defendant is transferred to DOC custody.

SB329, effective August 1, 2012, prohibits judges from allowing defendants to be released on their own recognizance (meaning they don’t have to post a bond first) if they have been charged with certain listed offenses.  Although it would be unlikely for anyone charged with most of the offenses to be released on an OR bond, there are some surprises.  For example, alleged second-offense DUI offenders can no longer get an OR bond.

SB659, effective August 1, 2012, makes some important revisions to the discovery provisions of the Code of Criminal Procedure.  It primarily modifies Article 521 and 717, and it creates a new Article 725.1.

The act modifies Article 521 to provide that if the defendant requests exculpatory material from the state within 15 days of arraignment (or a later date if permitted by the court), then the court must fix a date by which the state will provide that information.  This could be an important tool for defense counsel to ferret out beneficial information that the state has in its possession.

–Practice Thought:  How will this provision be enforced?  Will the court impose sanctions on the state if it is shown that prosecutors failed to comply with a court order to produce exculpatory material by a certain date?

The act also modifies Article 717, which deals with what information the state must provide to the defense upon a defense request.    The act creates subsections to Article 717 that require the DA to provide the defense with (1) the criminal records of any state witnesses and (2) any inducement offered by the district attorney to secure the testimony of a witness in its case in chief against the defendant.  The act states that the district attorney does not have to turn this information over until trial.

Practice Thought:  Brady v. Maryland already required the district attorney to provide this type of material to the defense, and there are Supreme Court cases acknowledging that exculpatory materials can radically effect plea negotiations.  Is the part of this act permitting the district attorney to hold this material until trial constitutional?  I don’t think it is, especially considering the Supreme Court’s recent cases on plea negotiations and effective assistance of counsel.  See Missouri v. Frye and Lafler v. Cooper.  How can an attorney effectively advise a client on whether to accept a plea offer if the state is withholding information that effects the evaluation of the situation? 

Finally, the act creates Article 725.1, which mandates that the defense provide the state a witness list before the beginning of the defense case.  This provision applies only if the defense has requested information regarding the state’s witnesses pursuant to Article 71

Quoting Billy Joel’s “We Didn’t Start the Fire,” federal Judge Carl Barbier recently denied the City of New Orleans’s Motion for Summary Judgment on two plaintiffs’ false arrest claims.  The Law Office represents the two plaintiffs, along with AJ Ibert and JC Lawrence.  The plaintiffs’ claims are based on the Supreme Court’s decision in Franks v. Delaware, 438 US 154 (1978), which held that it is a violation of the Fourth Amendment for a police officer to include false information in an arrest warrant for an individual.  Subsequent cases in the Fifth Circuit have held that it is also a Franks violation if an officer omits material exculpatory information from the warrant application.  Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997).  In both situations, if there is no probable cause once the false information is removed and/or the true exculpatory information is added to the warrants, then the arrest violates the plaintiff’s rights.

In this case, Judge Barbier held that the plaintiffs’ evidence established a Franks violation.  According to his opinion, the New Orleans Police Officer involved in the case violated Franks by including false information in the arrest warrants, and by leaving out material, exculpatory information.

You can read the opinion in Richardson et al. v. Serpas et al.  below.  After this decision, the City agreed to a favorable settlement for the plaintiffs.

Ruling on Summary Judgment-Starks