A. To "expunge a record" means to remove the records of an arrest or conviction, photographs, fingerprints, dispositions, or any other information of any kind from public access pursuant to the provisions of this Title. An “expungement by redaction" permits the expungement of records of a person who is arrested or convicted with other persons who are not entitled to expungement. It involves the removal of the name or any other identifying information of the person entitled to the expungement and otherwise retains public access to the records of the incident as they relate to the other persons. Finally, an "interim expungement" allows for the expungement of a felony arrest from the criminal history of a person who was convicted of a misdemeanor offense arising out of the original felony arrest. Only the original felony arrest may be expunged in an interim expungement.
When considering an expungement, it is also important to identify the records subject to expungement. For purposes of an expungement, "records" is defined to include “any incident reports, photographs, fingerprints, disposition, or any other such information of any kind in relation to a single arrest event in the possession of the clerk of court, any criminal justice agency, and local and state law enforcement agencies but shall not include DNA records.”(emphasis added).
Under limited circumstances, Louisiana law allows for the expungement of certain arrest and conviction records. Obtaining an expungement of arrest and conviction records allows for the removal of the record from public access. However, contrary to what many people mistakenly believe, it does not result in the destruction of the records. Once a record is expunged, it is confidential but the records remains accessible to and available for use by law enforcement agencies, criminal justice agencies, and other statutorily defined agencies such as those who issue professional licenses.
A. The offense charged determines the applicable limitations period, but the applicable limitations period may be interrupted or suspended. If the applicable limitations period has not been interrupted or suspended, and except as otherwise provided by law, no trial may be commenced, and no bail obligation shall be enforceable:
- In a capital case, after 3 years from the date of institution of prosecution;
- In other felony cases, after 2 years from the date of institution of prosecution;
- In misdemeanor cases, after 1 year from the date of institution of prosecution.
A. First, it is important to understand which type of limitations period we are talking about:
- The limitations period applicable to how long from the date of the crime does the state have to institute prosecution against an offender for the specific crime charged; or
- The limitations period applicable to how long the State of Louisiana have to bring my case to trial after prosecution has been instituted against me by indictment or the filing of a bill of information.
For many reasons, these are important and sometimes difficult to questions to answer that should be discussed in detail with an experienced criminal defense attorney. A careful review of the specific crime charged, and its penalties, whether the identity of the offender is known, the age of the victim, whether the relationship or status involved has as ceased to exist, and other facts can affect the answer to this question.
It is also important to understand, that the limitations period applicable to the crime charged may be suspended or interrupted. So, for example, the applicable limitations period is interrupted if the accused person flees from the state, is outside of the state, or absent from his usual place of residence for the purpose of avoiding detection, apprehension, or prosecution.
In Louisiana, some crimes have no limitations period on the institution of prosecution. For example, there is no limitations period upon the institution of prosecution for crimes punishable by death or life imprisonment, such as murder, or for the crimes of forcible rape or second degree rape. The limitations period upon the institution of prosecution for certain sex crimes is thirty (30) years.
Generally, and except as otherwise provided by law, no person shall be shall be prosecuted, tried, or punished for an offense which is not punishable by death or life imprisonment unless the prosecution is instituted within the following periods of time after the offense has been committed:
- Six (6) years for a felony that requires imprisonment at hard labor;
- Four (4) years for a felony that authorizes, but does not require, imprisonment at hard labor;
- Two (2) years for a misdemeanor punishable by a fine, imprisonment, or both;
- Six (6) months for a misdemeanor punishable only by a fine or forfeiture.
A. Yes, you do.
In a capital case in which the death penalty may be imposed, are tried before a jury comprised of twelve jurors all of whom must agree to render a verdict. In other words, a unanimous verdict is required in these cases.
Felony cases in which the punishment requires confinement at hard labor shall be tried by a jury comprised of twelve jurors, ten of whom must concur to render a verdict.
Felony cases in which the punishment allows, but does not require, confinement at hard labor shall be tried by a jury comprised of six jurors all of whom must agree to render a verdict. In other words, a unanimous verdict is required in these cases.
A. The collateral consequences of a criminal conviction are the loss of important constitutional rights, eligibility for government benefits, and other sanctions imposed upon the offender as a result of a guilty plea or conviction in addition to imprisonment, fines, restitution, community service, supervised or unsupervised probation, and other terms and conditions imposed the sentencing judge. Examples of collateral consequences include loss of the right to vote, ineligibility for citizenship and deportation for immigrants (even those who hold permanent resident status), and ineligibility to receive public funds such as student loans or welfare benefits.
A. First, be prepared to listen carefully to your loved one, write down important information, and ask important questions. Resist the urge to yell at, criticize, or argue with the person during the telephone call and while they are in jail.
If you are financially able to do so, quickly tell them that you are going to retain an attorney for them. If law enforcement agents try to question them, tell them to tell the agents that they want a lawyer and they are not going to answer any questions without their lawyer present. Tell them that they should then remain silent, and not to answer any questions from law enforcement agents about the incident, without their lawyer present with them, they should not to make any voluntary statements to the police about the incident without their lawyer present, and not to sign any documents waiving their legal rights.
To assist you in retaining counsel and talking to a bail bondsman, you need to ask them the following questions and carefully write down their answers:
- The name of the jail, prison or detention center where they are currently being held and, if they are going to be transferred to another facility for booking, the name of the facility to which they are being transferred;
- What specific crimes have been charged, including the statute numbers if known, and how many counts of each crime have been charged;
- Where did their arrest occur (i.e. city and parish);
- What law enforcement agency made the arrest (i.e. State Police, Sheriff’s Office, or City Police)
- Has a bond amount been set? Is so, what is the amount of the bond?
- The current location of their vehicle.
- Have they currently impaired by alcohol or drugs because, if so, you want to make sure that someone will pick them up when they bond out and they will not be attempting to drive home in an impaired condition.
Next, call an experienced criminal defense attorney. An experienced criminal defense attorney will be able to find out the exact charges you loved one was charged with during booking, whether bond has been set, and the amount of the bond. He can also explain to you the different alternative methods for posting bond and the advantages and disadvantages of each method. If you are unable to afford the amount of the bond, your attorney can assist with attempting to have the bond lowered to an amount that you can afford, although your loved one will most likely remain in jail until the Judge or Commissioner lowers the bond. At David E. Stanley, APLC, we accept calls for legal assistance around the clock, 24 hours a day, 365 days a year. It only takes one call to (225) 306-8881 to get help!
Lastly, if you do not wish to retain an attorney, or you cannot afford to retain an attorney, telephone a bail bondsman of your choice. You can find the contact information for bonding companies either on line or in the yellow page of your telephone book. Provide the bondsman with your loved one’s full, name, address, and date of birth and all of the information you loved one provided to you when they called. Ask them to:
- Determine if bond has been set for your loved one and, if so, the amount of the bond.
- Tell you the amount the bonding company will charge for the bond premium and the methods of payment that they accept.
- If you are able to pay the bond premium, make arrangements to go to the bonding company office to pay the premium and ask the bail bondsman to handle posting the bond and getting your loved one released from jail. Be sure to bring with you the necessary method for paying the bond premium. You will not get the money you pay to the bonding company for the bond premium back.
A. Do not speak with law enforcement agents. When they want to talk to you, do not talk with them. Ever. You have the constitutional right to remain silent and you should always exercise it. Still not convinced, do not take my word for it, listen to what former United States Attorney General and Supreme Court Justice Robert N. Jackson had to say on the subject: “Any lawyer worth his salt will tell [a] suspect in no uncertain terms to make no statement to police under any circumstances.”
But, why you ask? Because he already believes that you may have committed a crime, and he may have some evidence to support his belief, but he wants to talk to you to strengthen is case against you before you speak to a lawyer and before he arrests you. Yes, that is right, he is going to arrest you, but he will not tell you that up front.
You will not be able to talk your way out of trouble. Forget it. Won’t happen. Why? Because there are too many ways it can go badly for you. Even if you are completely innocent, he will not believe anything you say anyway, except the parts of your statement where you either confess to the crime or incriminate yourself. If your lawyer is not present in the room with you, do not say anything, don’t nod your head yes or no, don’t make any gestures indicating agreement or disagreement, and don’t sign any written statements, consent forms, or written statements.
But, you may ask, if I am innocent and have nothing hide, what could possibly be wrong with talking to a law enforcement agent. Well, for starters, you are helping them build their case, instead of letting them build it without your help. Other risks include:
- You may be misled, deceived, or threatened into confessing to a crime that you did not commit.
- You also might inadvertently or knowingly make false statements to the law enforcement agent, in order to avoid going to jail, which will damage your credibility and impact your ability to testify if the case goes to trial. A false statement will allow the prosecutor to argue that you were lying to coverup the crime.
- The law enforcement agent may not hear you correctly, or misunderstand or misinterpret what you are saying, or write it down wrong.
- You might unwittingly admit to facts that are elements of the crime being investigated, and which they may never be able to prove without your admitting them. Examples include admitting being present at the scene when the crime occurred; knowing a codefendant or victim; having consensual intercourse with a victim claiming sexual assault; or making a statement that suggests that you had a motive for committing the crime, that you conspired with another person to commit the crime, or that you were an accessory after the fact.
- The law enforcement agent may write down or only remember part of what you say, just the one or two bad or incriminating parts, and forget the other twenty good, non-incriminating parts that show your innocence.
- Finally, the law enforcement agent may lie to you or deceive you to induce you into confessing or making an incriminating statement, or may lie about, misrepresent or embellish what you said, or say that you said things you never said, to make you appear guilty to get a conviction.
A. Under Louisiana law, a misdemeanor is any crime other than a felony. Thus, a misdemeanor is any crime for which the offender cannot be sentenced to death or to imprisonment at hard labor. Misdemeanors are considered less serious than felonies because the penalties are typically less serve and they do not ordinarily produce the same collateral consequences as a felony. The maximum term of imprisonment provided for a misdemeanor is typically one year or less.
A. Under Louisiana law, a felony is defined as any crime for which an offender may be sentenced to death or imprisonment at hard labor. For example, a criminal statute that provides that whoever commits that crime shall be imprisoned with, or without hard labor, then that crime is a felony. The offender may be sentenced to imprisonment at hard labor even though the court could alternatively choose to sentence him to a term imprisonment without hard labor. Felony crimes are more serious than misdemeanors. They carry more severe penalties and have serious collateral consequences such as the loss of the right to vote, the loss of the right to carry a firearm, loss of government benefits, and, in some cases, deportation and loss of the ability to become a United States citizen.
A. With very narrow and limited statutorily created exceptions, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final. Therefore, it is critical that a person desiring to file an application for post-conviction relief retain experienced counsel as soon as possible after the conviction and sentence become final, or as soon as the facts upon which the claim is predicated are discovered, so that a valid ground for post-conviction relief does not become time barred.
A. When you plead guilty, you ordinarily waive all non-jurisdictional defects in the proceedings that led up to the guilty plea, and you are precluded from seeking a review of any such defects by appeal or post-conviction relief. Once sentence has been imposed by the court, the only guilty pleas that be withdrawn by appeal or post-conviction relief are those that are constitutionally infirm. A guilty plea is considered constitutionally infirm, if it was not entered freely and voluntarily, if the court’s Boykin examination prior accepting the plea was inadequate, or when the guilty plea was induced by a plea bargain, or what was justifiably believed to be a plea bargain, and that bargain is not kept by the state. Under those circumstances, the person who entered the guilty plea has been denied due process of law because the guilty plea was not given freely and knowingly.
A. In Louisiana, post-conviction procedures are strictly enforced. A person in custody after a sentence for conviction of a crime may obtain post-conviction relief only on the following specific and exclusive grounds:
- The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
- The court exceeded its jurisdiction:
- The conviction or sentence subjected him to double jeopardy;
- The limitations on the institution of prosecution had expired;
- The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
- The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
- The results of DNA testing performed pursuant to an application granted under Article 926.1 prove by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.
Post-conviction proceedings do not provide a basis for review of claims of excessiveness of sentence or other sentencing errors. Likewise, a challenge to an adjudication as a multiple offender is not a proper ground for post-conviction relief.
The district court may deny relief if the application alleges a claim which the person in custody knew about but failed to raise in the proceedings prior to the conviction. Post-conviction relief may also be denied if the application raises a claim raised at trial but not on appeal, and a successive application may be dismissed if it raises a new or different claim. A successive application may be dismissed if it raises a new or different claim that was omitted from a prior application without a legitimate excuse. Finally, a person in custody is barred from raising a post-conviction relief claim if he could have done so on appeal or in prior applications for post-conviction relief.
If the court determines that the claim is procedurally barred, it will not reach or decide the merits of the claim. Should the court determine that the factual and legal issues raised by the person in custody can be resolved based upon the application itself, and the answer, and the supporting documents, the court may grant or deny relief without the necessity of holding a hearing or any further proceedings.
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