Criminal Law FAQs

Here to serve you, the Lafayette, Louisiana law office of James Kirk Piccione provides answers to common questions from his clients.

Dealing with the police

Time limitations on prosecution

Pretrial procedures and defenses

Elements and punishments of crimes

General criminal law questions

Dealing with the police

Should I talk to the police?

Client: “I have just been detained by the police for suspicion of (insert crime). They want to talk to me about what happened. They say it will help to tell my side of the story. It sounds reasonable. Should I?”

Lawyer: “No! Absolutely not! Don’t even think about it. Tell them you want to talk to your lawyer.”

All people in America have a fifth amendment right to remain silent. The fifth amendment states that no person in any criminal case shall be compelled to be a witness against himself. This simply means that you do not have to talk to the police. You do not have to answer any questions upon being detained or arrested. The only information you have to give the police is your personal identification information so they know who they are arresting.

But why did the founding fathers see fit to put in the Constitution this right to remain silent? Why can’t people be compelled to give a statement when they are suspected of a crime?

Contrary to popular belief, the fifth amendment right to remain silent was not put in the Constitution to protect wrongdoers. It was put in the Constitution to protect innocent people who might make a statement which is used against them later or a statement which makes them look suspicious because of some unfortunate circumstances.

Click here for the top ten reasons why you should NEVER, under any circumstances, talk to the police.

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A police officer stopped me while I was walking down the street and started asking me questions. Do I have to answer him?

It depends on the circumstances. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. If the officer does not have reasonable grounds to suspect that the person is committing, has committed, or is about to commit an offense, then the officer does not have grounds to stop the person and demand information.

If you are stopped by an officer when there is no reason to suspect you have committed any offense, then you do not have to speak to the officer. You can turn your back and walk away. However, it is always advisable to be polite when speaking to police officers. Rudeness or foul language can itself be considered a disturbance of the peace, which can be cause for arrest.

It is also advisable not to run from the police, but instead just walk away. Running from the police can be considered evidence in and of itself that a person has committed an offense and is fleeing to avoid apprehension. So that act alone can be cause for an officer to stop a person and ask questions.

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I was stopped by a police officer who demanded that I put my hands on the car so that he could frisk my outer clothing. Why did he do this if I had committed no crime?

When a law enforcement officer has stopped a person for questioning, and has reasonable grounds to suspect that the officer may be in danger, the officer may frisk the outer clothing of the person for a dangerous weapon. This is the law of Louisiana.

Thus, if an officer is questioning a person in a safe place, and the person has given the officer no reason to suspect that the officer may be in danger, then the officer does not have the right to frisk the outer clothing of the person for weapons.

But if the officer is in a high crime area of town, if the officer is alone on a dark street with the suspect, or if there are bulges or hard objects clearly sticking out from under the clothing of the person, these things may give the officer reasonable grounds to believe that he is in danger. And for officer safety, he can frisk the outer clothing of the person. Of course, this does not give the officer grounds to conduct a full search of the person by doing things like sticking his hand in the person’s pocket, unless when feeling the outside of the person’s pants, he feels a large object like a gun or a knife in the person’s pocket.

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Do I have to consent to a search?

Client: “The police are at my door and want to search my house. do I have to give consent? They say if I do not give consent, they will just go get a warrant anyway and search the house without my consent. What should I do?”

Lawyer: “No! Don’t do it! You have a right to tell the police that you do not consent to a search.”

People have a common misconception that they are obligated to give the police the right to search their home, car, or persons. But in fact, no one is obligated to give the police consent to search anything. The police will go to great lengths to convince suspects that they should consent to a search. One of the most common is to tell the driver of a car or the owner of a house that if they do not give consent for the police to search, the police will simply go get a warrant from a judge. And their refusal to grant consent will only delay the inevitable.

What the police fail to tell suspects is that judges do not always give police search warrants upon request. If the police do not have probable cause to believe that a crime has been committed, the judge will not grant the search warrant.

The United States Constitution states that all persons shall be secure in their property and effects and shall be free from unreasonable searches and seizures by the police. The Louisiana Constitution goes even further, and includes a right to privacy which is not included in the federal constitution.

“The Louisiana Constitution states that every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy… Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court.”

Make note of the last sentence quoted above. If the police conduct a search without probable cause, this search is in violation of the Constitution. In that case, the suspect can challenge the search in court, and it is possible that the court may throw out any evidence which was seized in violation of the Constitution.

All of these rights disappear the moment a suspect grants police consent to search his car, home or his person.

This is not to say that a suspect should not cooperate with the police. You should always cooperate with the police. And if they insist on searching, you should not physically resist. But no one has to say, “I give you permission to search.” And every person has the right instead to say, even in the midst of the police searching their home, repeatedly, over and over again, “You do not have permission to search my house. I repeat, you do not have permission to search my house.”

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Time limitations on prosecution

How much time does the state have to file charges against someone for a crime?

I am frequently asked this question, and the answer is not as simple as you might think. In fact, there are several different answers depending on the crime committed. These time limitations for the institution of prosecution apply to the time period between the date of the offense and the date when the prosecutor files charges with the clerk of court. For this time limitation, the date of arrest is irrelevant.

For most crimes, the time limitation upon institution of prosecution depends upon the type of punishment provided for that crime. For instance, for a felony which is necessarily punishable by imprisonment at hard labor, the time limitation upon institution of prosecution is six years from the date of offense. Thus, if an offense is committed on January 1, 2001, and that particular offense is punishable by imprisonment at hard labor, the state has until January 1, 2010 to file charges with the clerk of court.

For offenses where the court may or may not punish the defendant with imprisonment at hard labor, the time limitation for the institution of prosecution is four years. And for misdemeanors which are punishable by imprisonment without hard labor, the time limitation is two years. For misdemeanors punishable only by a fine or forfeiture, the time limitation is six months.

There are exceptions to this for certain crimes of particular seriousness. For instance, there is no time limitation upon the institution of prosecution for any crime for which the punishment may be death or life imprisonment, or for the crime of forcible rape. So for crimes such as murder, aggravated rape, and forcible rape, there is no time limitation, and prosecution can be instituted for these crimes decades after the date they occurred.

There are also exceptions for certain sex offenses involving particularly vulnerable victims. For instance, with regard to certain sex offenses like sexual battery, molestation of a juvenile, incest, crime against nature, and several others, where the victim is under the age of 17 at the time of the offense, the time limitation within which to institute prosecution is 30 years. Further, the 30-year period does not begin to run until the victim attains the age of 18.

There is also an exception for cold cases solved by DNA profiling many years later. Specifically, prosecutions for any sex offense may be commenced at any time beyond the time limitations set forth in the code if the identity of the offender is established after the expiration of such time limitation using a DNA profile. This exception usually applies to cold cases where the date of offense was in the late 80’s or early 90’s, before DNA profiling was commonly used. Even as you read this, items of evidence in cold cases all around the country are being subjected to DNA testing decades after that evidence was collected and put in storage.

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I have been arrested and I am stuck in jail. How long does the state have to file charges against me?

This is indeed a frequently asked question. And it deals with the third period of time limitations, and the period of time limitation most frequently violated by the state. The relevant time period being discussed here is the time between the date of arrest and the date the prosecutor files charges with the clerk of court, also known as the institution of prosecution.

The time limitation for institution of prosecution varies depending on the seriousness of the offense and whether the defendant is incarcerated.

  • When a defendant is in jail for a misdemeanor, the state must file charges with the clerk (institute prosecution) within 45 days.
  • If the defendant is in jail for a felony, the state must institute prosecution within 60 days.
  • If the defendant is in jail for a felony for which the punishment may be death or life imprisonment, the state must institute prosecution within 120 days.
  • If the state fails to institute prosecution within the above time limitations, the defendant must be released from jail and released from his bond obligation.

This law seems fairly straightforward. Prosecutors frequently fail to institute prosecution within the time limits required above for defendant who are in jail. So why are more defendants not being released from jail under this rule? The answer is that, like most other areas of the law, there is an exception. In this case, the exception was carved out by the Louisiana Supreme Court. And it deals with procedure.

The procedure in this case involves the writ of habeas corpus. If the state has violated the time limitations provided above, the defendant’s remedy is to file a writ of habeas corpus with the court. Once the writ has been filed, it is set for hearing several weeks later. At this hearing, the defendant would show the court that the state failed to institute prosecution within the time limitations required subsequent to the date of arrest. At that point, according to the rules set forth above, the court would be required to release the defendant from jail.

But the Louisiana Supreme Court has stated that if the prosecutor institutes prosecution prior to the hearing date on the writ of habeas corpus, then all is forgiven, and the defendant is not released from jail even though the prosecutor violated the time limitation set forth in the code. This makes it very easy for prosecutors to cure their mistakes, as soon as they see that a defendant has filed a writ of habeas corpus for violation of his speedy trial rights, all the prosecutor has to do is to make sure that he files the charges before the hearing date on the writ, and the defendant will remain in jail.

This exception carved out by the Supreme Court is probably one of the best examples of what people frequently call “judicial activism,” or “legislating from the bench.” Nothing in Louisiana statutes or laws says anything about giving the prosecutor until the hearing date on the writ of habeas corpus to file the charges. In fact, state law indicates clearly and plainly that if the prosecutor fails to file charges within the time limitations specified, the defendant shall be released from custody without having to post bond. The statute contains no exception whatsoever. The exception created by the Supreme Court is purely and simply “legislating from the bench.”

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Once the state has instituted prosecution, how long does it have to bring a defendant to trial?

I am usually asked this question particularly by defendants who are in jail. A person sitting in jail is usually anxious to move things along and get his day in court as soon as possible. The time limitation which applies to this is called the limitation upon trial. This time limitation begins not with the date of offense, or even with the date of arrest, but begins with the date the prosecutor files charges with the clerk of court. In other words, the date of institution of prosecution. From that date, the prosecution has a certain time limit to bring the defendant to trial, depending on the charge.

In capital cases, the trial must be commenced within three years from the date of institution of prosecution.

In all other felony cases, the case must be tried within two years from the date of institution of prosecution.

In misdemeanor cases, the case must be tried within one year from the date of institution of prosecution.

Of course, like most areas of the law, there are exceptions. This time limitation period can be interrupted by certain circumstances. If the time period is interrupted, it shall commence to run anew from the date the cause of interruption no longer exists. In other words, the period of limitation of one, two, or three years starts over when the cause of interruption no longer exists.

What can be a cause of interruption of the time limitation? Specifically, there are four causes for interruption:

  • When the defendant, for the purpose of avoiding detection, flees from the state
  • When the defendant cannot be tried because of insanity
  • When the defendant cannot be tried because he is a fugitive from justice (in other words, he is hiding and cannot be served with a subpoena for court)
  • The defendant has been served with a subpoena to appear in court, but fails to appear and a bench warrant is issued

There is another exception which does not interrupt the period of the time limitation, but does suspend the running of the time limitation. When the time limitation is suspended, the period of suspension is simply not counted toward the time limitation. When the cause of the suspension ends, the counting of the time limitation picks up where it left off when the cause of the suspension began.

The Code of Criminal Procedure provides that when a defendant files a Motion to Quash or some other preliminary motion, the running of the period of limitation for trial is suspended until the court rules on the motion. When the court rules on the motion, the suspension ends. But in no case shall the state have less than one year after the court’s ruling on a defense motion to commence the trial.

For example, in a normal felony case, the state has two years from the institution of prosecution to bring the case to trial. Let’s say there is a trial date set one year and nine months after the institution of prosecution. On that trial date, the defense moves to continue the case and the judge grants the motion. Since the judge ruled upon the motion immediately after it was made, the time limitation for bringing the defendant to trial is not suspended for any significant period of time. So initially, you might think that the state would have to bring the case to trial within three months of that date, since there’s only three months left in the two-year period of limitation.

But since the court ruled on a defense motion, the exception kicks in which provides that the state shall have no less than one year after the court’s ruling on a defense motion to commence the trial. In the example given above, that exception effectively extends the time limitation for bringing the defendant to trial, in that particular case, to two years and nine months from the date of institution of prosecution.

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Pretrial procedures and defenses

Is an arrestee always entitled to bail?

Client: “My son has been arrested. But the court has not set bail. Isn’t he entitled to bail under the Constitution? Doesn’t he have the right to have a bail set?”

Lawyer: “Yes, there is a constitutional right to bail in the federal and state constitutions. But not every defendant is entitled to have bail set. There are exceptions.”

Under the Louisiana Constitution, before and during trial, a person shall be entitled to bail by a personal or commercial surety. However, there are two exceptions. The first exception is when the suspect is charged with a capital offense and the proof is evident and the presumption of guilt is great. The second exception is similar. It applies when a person is charged with a crime of violence or a drug trafficking crime and the proof is evident and the presumption of guilt is great, and after a contradictory hearing, the judge finds by clear and convincing evidence that there is a substantial risk that the suspect may flee or poses imminent danger to other persons or the community. Louisiana Code of Criminal Procedure provides for three types of bail:
bail through surety, bail through cash deposits, and bail without surety. But, most people are familiar with the different types of bail by their more common or customary names:

  • A commercial surety is a company that accepts a fee in exchange for posting your bond. The typical fee is 12 percent of the amount of the face of the bond. Once you have paid this fee, it is gone. You do not get the money back, even if you show up for court as required. Further, if your bail is pulled, and you are put back in jail, you may have to pay the fee a second time in order to get bailed out again. For example, if you miss court and the judge issues a bench warrant for your failure to appear, the bonding company does not have to bail you out again when you are picked up on the warrant. If  you are picked up on the warrant and put back in jail, the bonding company can insist on the payment of the 12% fee all over again in order to bond you out again.
  • A property bond is when your relatives put up their land, home or other immovable property as security for your bond. Family members can only use property as security for a property bond to the extent that it is free and clear of debt. For example, if your family has a house worth $100,000, but they owe the mortgage company $40,000 on the house, then they have $60,000 of equity ownership. They can put up the house as security for $60,000 of your bond. The advantage of a property bond over a commercial surety bond is that when the case is over, the property is release from the bond obligation, and you have essentially spent nothing.
  • A cash bond is similar to a property bond, except that instead of putting up property, you are putting up cash with the sheriff’s department. So if your bond is $100,000, you have to deposit $100,000 cash with the sheriff’s department. The sheriff’s department will hold your cash, and will not forfeit it as long as you show up for all your court dates. Once your case is over, the cash will be returned. So in that sense, it’s less expensive to put up a cash bond than use a commercial surety. The disadvantage is that it ties up your cash and you have to have a lot of cash on hand to be able to do it.
  • A personal surety is when a judge specifically allows family members or relatives to put up their future income as security for your bond obligation. This is often called a W-2 bond because your family members have to bring in their W-2s to prove to the judge how much income they expect to have in the future.
  • Unsecured surety, or bonding out on one’s own recognizance

At a bond reduction hearing, the judge considers a number of factors that do not necessarily have anything to do with guilt or innocence. For instance, the judge considers:

  • The seriousness of the offense and whether it is a crime of violence
  • The weight of the evidence against the defendant (the judge will look into the weight of evidence against the defendant, but will not conduct a full blown trial of the case)
  • The defendant’s previous criminal records
  • The ability of the defendant to give bond
  • The danger to the community that would be posed by the defendant’s release, if any
  • The defendant’s voluntary willingness to participate in a drug testing program
  • If tested at the time of arrest, whether the defendant was on drugs at the time of arrest
  • Whether the defendant was already out on bond on some other offense at the time of arrest
  • Any other circumstances the judge thinks are relevant.

A court can also impose certain conditions upon a person’s release on bond. For example, the court can require that the defendant refrain from having any contact with the alleged victim. In certain cases, the court can require that the defendant submit to wearing an electronic monitoring device or to home incarceration. And in cases involving drunk driving, in certain instances the court can insist that the defendant install an ignition interlock device on any vehicle which he operates. Failure to comply with any of these conditions can result in the revocation of bail.

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What grounds do I have to file a Motion to Quash?

Particularly in cases where an innocent client is anxious to have the charges against him dismissed as quickly as possible, I am oftentimes asked to file a Motion to Quash. Many people have the common misconception that a motion to quash a criminal charge can be filed on the grounds that the defendant is innocent. In other words, I am often asked to file a Motion to Quash on the grounds that the state does not have enough evidence to prove the defendant’s guilt. However, that is not a proper foundation for a Motion to Quash.

The proper forum for determining whether the state has sufficient evidence to convict is a trial itself. The motion to quash a criminal charge prior to trial is only allowed in certain circumstances and based on certain grounds. The more commonly used of those allowable grounds for filing a Motion to Quash are the following:

  • Trying the defendant for the offense would constitute double jeopardy
  • The time limitation for the institution of prosecution or for the commencement of trial subsequent to the institution of prosecution has expired

There are several other grounds for filing a Motion to Quash on behalf of the defendant, but the circumstances occur so rarely, they are not worthy of discussion here. A Motion to Quash can be filed at any time before the commencement of trial when based on double jeopardy grounds or the expiration of the time limitation. Of course, if a Motion to Quash is granted on the two grounds mentioned above, the court orders the defendant discharged from custody and dismisses the charge.

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I am calling for someone who has court soon, but does not speak English. How will he understand what is going on?

If a non-English speaking person is a defendant or an interested party before the court, and has requested an interpreter, the courts are required to appoint a competent interpreter to translate the proceedings for him. This is provided for by law in the Louisiana Code of Criminal Procedure, and is not discretionary with the courts.

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Elements and punishments of crimes

What are the different types of assault and battery?

In other states, the word “assault” means a physical attack. In Louisiana, that act is defined as a battery, and assault is essentially an attempted, but unsuccessful battery. A battery is the intentional use of force or violence upon the person of another. An assault is an unsuccessful attempt to commit a battery, or the intentional placing of another person in reasonable apprehension of receiving a battery.

There are different kinds of battery and different kinds of assault. An aggravated battery is a battery committed with a dangerous weapon and carries a term of imprisonment of up to 10 years. A second-degree battery is a battery where the offender intentionally inflicts serious bodily injury, and carries a penalty of up to eight(8) years. Combine those two and you have the offense of aggravated second-degree battery, which is a battery committed with a dangerous weapon that results in serous bodily injury. Aggravated second-degree battery carries a potential penalty of up to 15 years.

There are also different kinds of assault. Most assaults are misdemeanors punishable by imprisonment up to six months. However, assault by drive by shooting is a felony. Assault by drive by shooting is an assault committed with a firearm when the offender uses a motor vehicle to facilitate the assault. The potential penalty is imprisonment with or without hard labor for not less than one or more than five years, without benefit of suspension of sentence. There are also special statutes for assault on a child welfare worker, assault on a schoolteacher, and the unlawful use of a laser on a police officer. The unlawful use of a laser on a police officer is the intentional projection of a laser on a police officer when the offender has reasonable grounds to believe that the officer will be placed in fear of receiving bodily harm.

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What is cyberstalking?

Most people know what stalking is or at least have a general idea, but few people know that there is a law in Louisiana that prohibits cyberstalking. In Louisiana, cyberstalking is the use in email or electronic communication of any words threatening to inflict bodily harm or physical injury to the person or property of another. It also includes using email or electronic communication to communicate with another person repeatedly for the purpose of harassing that person. The potential penalty for cyberstalking is imprisonment for up to one year.

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What are the penalties for possession or distribution of a particular illegal drug?

Even lawyers have to look up the potential penalty for a particular type of drug. And for each drug, the penalties differ depending on whether the suspect is charged with possession or distribution or possession with intent to distribute or manufacturing. And once you know what drug you are looking for, and whether the suspect is charged with possession or distribution, it can still take quite some time to muddle through the lengthy provision of Title 40 of Louisiana’s criminal code to find what you are looking for.

The attached document has been created as a helpful guide for determining the penalties for common street drugs, which are possessed and distributed illegally.

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What is the state doing to prohibit drunk driving?

There are many offenses which include as an element of the offense, the crime of drunk driving. Although drunk driving is itself a crime, it is also an element of several other crimes.

When the drunk driving results in the death of another person, this is called vehicular homicide. The potential sentence for vehicular homicide is imprisonment with or without hard labor for not less than five, nor more than 30 years. And at least three years of the sentence has to be imposed without benefit of parole, probation or suspension.

When the drunk driving causes serious bodily injury to another person, but not death, this is called first-degree vehicular negligent injuring. Serious bodily injuring includes unconsciousness, extreme pain or protracted and obvious disfigurement or loss of the function of a bodily member or organ, or a substantial risk of death. The sentence for first-degree vehicular negligent injuring is imprisonment with or without hard labor for up to five years.

When the drunk driving causes some injury to another person, but not a serious bodily injury, this is called vehicular negligent injuring. This crime is a misdemeanor, and the potential sentence is imprisonment for not more than six months.

Of course, drunk driving is itself a crime. In Louisiana, it is called operating a vehicle while intoxicated (OWI). There are four different potential penalties, depending on whether this is the defendant’s first, second, third, or fourth offense. Anything over four is treated as a fourth offense. The statute governing OWI is very complicated, and covers over six pages in the Louisiana Criminal Code book. But a quick summary of the potential penalties is as follows:

  • For a person whose blood alcohol concentration is .08% or more by weight based on grams of alcohol per 100 cubic centimeters of blood, the potential sentence for a first conviction is a fine of $300–$1000, and imprisonment from 10 days to six months.
  • For a second offense, a fine of $750–$1000 and imprisonment for 30 days to six months.
  • For a third offender, imprisonment with or without hard labor for not less than one year, nor more than five years and a fine of $2000.
  • For a fourth offender, imprisonment with or without hard labor for not less than 10 years, nor more than 30 years and a fine of $5000.

First and second offense OWI are misdemeanors. Third and fourth offense OWI are felonies. In all cases, the terms of imprisonment detailed above can be suspended, and the offender placed on probation, if certain conditions are met. Even so, OWI second, third, and fourth have certain mandatory minimum jail terms which cannot be suspended, regardless of the conditions. All four levels of OWI also contain a more severe sentence if the driver has a blood alcohol concentration of 0.15% or more by weight based on grams of alcohol per 100 cubic centimeters of blood.

For persons under the age of 21, there is a separate drunk driving statute called underage driving under the influence. It is similar to regular OWI, except that the state is only required to prove that the driver’s blood alcohol concentration is 0.02%. Underage driving under the influence is a misdemeanor, and the penalty is less severe than OWI first offense, but the blood alcohol concentration level is so low that a young person could be convicted under this statute after having had only one drink. Consult with competent legal counsel for details concerning the potential sentences for OWI and defenses.

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Does Louisiana have an identity theft statute? If so, how does Louisiana define identity theft?

Louisiana does have an identity theft statute, and it is defined as the intentional use with fraudulent intent of any personal identifying information of another person to obtain money, goods, services or anything of value without the authorization or consent of that other person. It is punishable by imprisonment with or without hard labor for up to 10 years.

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Does Louisiana have a joyriding statute?

Yes, it is called unauthorized use of a motor vehicle. Generally, in most states, joyriding is prohibited, but it is not a theft. When someone goes joyriding in someone else’s vehicle, they usually do not intend to deprive the other person of the vehicle permanently—they are just using it for a while without the other person’s authorization. It is defined as the intentional taking or use of a motor vehicle which belongs to another without the other’s consent, but without any intent to deprive the other of the motor vehicle permanently. It carries a potential sentence of imprisonment with or without hard labor for up to 2 years.

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What are the different kinds of rape?

There are many different kinds of rape. And the definitions get quite complicated. Aggravated rape is the most serious, forcible rape is next most serious, and simple rape is the least serious.

Rape is defined as the act of anal, oral or vaginal sexual intercourse committed without the person’s lawful consent. Emission is not necessary, and any sexual penetration, however slight, is sufficient to complete the crime. An First Degree rape is a rape committed where the offender is armed with a dangerous weapon or where the victim resists the act to the utmost but whose resistance is overcome by force. It also includes a rape where the victim is under 13 or where there are two or more offenders participating in a rape. Second Degree rape is a rape committed where the victim is prevented from resisting by force or threats of violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. A Third Degree rape is a rape committed where the victim is incapable of resisting because of some infirmity or where the female submits under the mistaken belief that the perpetrator is her husband, and such belief is intentionally induced by concealment by the offender.

The penalty for 1st degree rape is life imprisonment. The penalty for 2nd degree rape is five(5) to forty(40) years. And the penalty for 3rd degree rape is up to twenty five(25) years.

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What are the different types of robbery, and what are the potential sentences?

There are a number of different types of robbery, and included in the prohibitions on robbery are prohibitions against carjacking and purse snatching.

Simple robbery is taking something from another by use of force or intimidation, but not while armed with a dangerous weapon. The punishment is imprisonment with or without hard labor for up to seven years.

Second-degree robbery is taking something from another when the offender intentionally inflicts serious bodily injury. The punishment for this is imprisonment at hard labor for not less than three not more than 40 years.

First-degree robbery contains the same penalty as second-degree robbery, but the elements are slightly different. First-degree robbery is taking something from another person where the offender is not actually armed, but the offender leads the victim to reasonably believe that he is armed with a dangerous weapon.

Finally, armed robbery is the intentional taking of something from another person by use of force or intimidation while armed with a dangerous weapon. This is obviously the most serious type of robbery and carries a penalty of imprisonment at hard labor for not less than 10 not more than 99 years, without benefit of suspension of sentence.

Carjacking is the intentional taking of a motor vehicle belonging to another in the presence of that person by use of force or intimidation. It carries a penalty of imprisonment at hard labor for not less than two not more than 20 years.

And purse snatching is the taking of a purse or wallet from another person by use of force of intimidation or by snatching, but not armed with a dangerous weapon. The potential sentence for this is imprisonment with or without hard labor for not less than two and not more than 20 years.

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I have been charged with sexual battery. What are the potential penalties?

Sexual battery is the intentional touching of the anus or genitals of the victim by the offender, or touching of the anus or genitals of the offender by the victim, without the consent of the victim, or where the victim is under 15 years old.

The potential sentence for sexual battery is imprisonment with or without hard labor for not more than 10 years, without benefit of parole, probation or suspension of sentence.

But where the victim is under the age of 13 years and the offender is 17 years or older, the imprisonment at hard labor shall be for not less than 25 years nor more than 99 years. And the 25 years is a mandatory minimum without benefit of suspension. The legislature recently made this change to sexual battery. Thus, a sexual battery, which is a very simple crime to commit, and which can be committed spontaneously in less than a few seconds, can result in a mandatory minimum sentence of 25 years, which for many offenders can nearly a life sentence.

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The police picked me up with an item in my possession that I bought on the streets. They say it was stolen property, but I didn’t know it was stolen. Can I be convicted for that?

The answer is maybe. In Louisiana, it is illegal to possess stolen things. Illegal possession of stolen things is defined as the intentional possessing or concealment of anything of value which has been the subject of a robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of a robbery or theft.  The potential penalties is as follows:

Value $25,000 or more Up to 25 years hard labor, fine up to $50,000
Value $5,000 or more but less than $25,000 Up to 10 years with or without hard labor, fine up to $10,000
Value $1,000 or more but less than $5,000 Up to 5 years with or without hard labor, fine up to $3,000
Value less than $1,000 Up to 6 months, fine up to $1,000

The key language in the statute is “under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of a robbery or theft.”

It is commonly known that drug users who are addicted will do almost anything to get money to buy more drugs. Hence, drug abuse results in many thefts, robberies and burglaries of homes and automobiles. The items stolen in these crimes are usually sold by the drug user on the streets for pennies on the dollar in order to raise money to buy drugs. Anyone who is familiar with this fact, and who is approached by someone on the street offering to sell something of value for pennies on the dollar should have a healthy suspicion that the object was the subject of a robbery, theft, or burglary.

Thus, if you buy an object from someone under these circumstances, you stand a good chance of being convicted of the offense of illegal possession of stolen things, even if you did not have “actual knowledge” that the item was stolen.

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Sometimes police officers issue a summons or ticket for minor offenses, but sometimes police officers arrest people for minor offenses. What is the difference?

Normally, for a traffic offense or some similar minor misdemeanor, the police issue a summons or a ticket, requiring the person to either pay a fine or appear in court. For more serious misdemeanors like OWI or possession of marijuana, the police usually make a full arrest. But in some cases, police have been known to issue a ticket for possession of marijuana or make a full arrest for a traffic offense like driving under suspension.

So how does one know what the police will do in a particular situation? Well, the answer is found in the Louisiana Code of Criminal Procedure, Article 211. It provides that it is lawful for a police officer to arrest a person without a warrant for a misdemeanor. This includes any misdemeanor, such as a traffic violation. However, the law gives the officer the option to issue a written summons or a ticket instead of making an arrest if—

  • The officer has reasonable grounds to believe that the person will appear in court for the summons
  • The officer has no reasonable grounds to believe that the person will cause injury to himself or another if he is not immediately arrested

So it all depends on the circumstances. For instance, if a person is being loud or obnoxious or drunk in a public place, an officer can issue a ticket for disturbing the peace. But if that same person is being loud and obnoxious and belligerent toward other people, the officer can arrest him for disturbing the peace if the officer thinks that by leaving him there, a fight or further disturbance may ensue.

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Does Louisiana have special statutes on terrorism?

The answer is yes. Louisiana has two statutes dealing with terrorism. The first is called terrorizing. Terrorizing is the intentional communication of information that the commission of a crime of violence is imminent or that a circumstance dangerous to human life exists with the intent of causing fear or causing the evacuation of a building or causing serious disruption to the general public. The potential penalty for terrorizing includes imprisonment with or without hard labor for not more than 15 years.

Louisiana also has a statute prohibiting actual terrorism. Terrorism is the commission of any killing, injuring, kidnapping, arson, or damage to property when the offender has the intent to intimidate or coerce the civilian population, influence the policy of a government, or affect the conduct of government. When terrorism involves a killing, the potential penalty is life imprisonment at hard labor. When the terrorism involves serious injury, the potential penalty includes imprisonment at hard labor for up to 30 years. When the terrorism involves a kidnapping, the potential penalty includes imprisonment at hard labor for up to 10 years. When the terrorism involves arson, the potential penalty includes imprisonment at hard labor for not less than six and not more than 40 years, with four years of the sentence without benefit of suspension, parole or probation. And when the terrorism involves criminal damage to property, the potential punishment is imprisonment at hard labor for not less than one, not more than 30 years.

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General criminal law questions

Can I make a citizen’s arrest?

Under Louisiana law, the answer is definitely yes. Louisiana law provides that a police officer may, without a warrant, arrest a person when—

  • The person has committed an offense in the officer’s presence
  • There is reasonable cause to believe that the person has committed an offense, although not in the presence of the officer.

Further, the Louisiana Criminal Code provides that a private person may make an arrest when the person to be arrested has committed a felony, whether in or out of his presence, under circumstances similar to those which would allow a police officer to make an arrest. There are no restrictions on this, and it is specifically provided for by law. When a citizen’s arrest is made, it is the duty of the citizen to turn over the arrested person to the sheriff’s department as quickly as possible.

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What is the Louisiana law on self-defense? What force can I use to defend myself against an intruder to my home?

The use of force or violence upon the person of another is justified under Louisiana law when committed for the purpose of preventing a violent offense against yourself or your property. However, the force or violence used must be reasonable and apparently necessary to prevent the attack.

Louisiana law provides special protection for persons who are inside their home or motor vehicle and must protect themselves against an intruder. The law states there shall be a presumption that a homeowner had a reasonable belief that the use of force or violence was necessary if the intruder had actually entered or was in the process of entering the home or car.

In some states, there is an obligation to retreat, if possible, prior to resorting to force or violence in self-defense. But Louisiana law specifically provides that a law-abiding citizen who is in a place where he or she has the right to be shall have no duty to retreat before using force or violence in self-defense, and may stand his or her ground and meet force with force.

In fact, judges and juries are specifically prohibited from considering the possibility of retreat as a factor in determining whether the person who used force or violence had a reasonable belief that force or violence was necessary.

Justifiable homicide—A homicide is justified if committed in self-defense by one who reasonably believes that he is in imminent danger of being killed or receiving great bodily harm and that the killing is necessary to save himself. Similarly, a homicide is justifiable when committed in defense of another person who the defender reasonably believes is in imminent danger of losing his or her life or receiving great bodily harm and that the killing is necessary to save the other person.

A killing is also lawful to prevent a violent felony. The law states that a homicide is justifiable when committed for the purpose of preventing a violent felony involving danger to life by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite fear in a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

The provisions of this law do not apply when the person committing the homicide is engaged in the acquisition of illegal drugs.

As with the self-defense law, there is a presumption that a person lawfully inside his home or car had a reasonable belief that the use of deadly force was necessary to prevent entry thereto or to compel an unlawful intruder to leave. And even when using deadly force, there is no obligation for a law-abiding citizen to retreat from a place where they have a right to be before using deadly force.

Aggressor doctrine—Of course, a person who is the aggressor cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

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If someone is harassing me, how do I get a peace bond? I have heard of peace bonds, but do not know what they are or how to get one.

In Louisiana, a magistrate or justice of the peace may order a peace bond against someone who is harassing or being violent toward a victim.

The person requesting a peace bond must file an affidavit with the magistrate or justice of the peace claiming that the defendant has threatened or is about to breach the peace. The magistrate may then question the person under oath and any witnesses they produce. If the magistrate is satisfied there is just cause to fear that the defendant is about to commit the threatened offense, he shall issue a summons ordering the defendant to appear before him.

A hearing shall then be held, and if the magistrate determines there is just cause to fear that the defendant is about to commit an offense against the victim, the judge may order the defendant to give a peace bond.

A peace bond shall not exceed six months in duration, and its condition shall be that the defendant shall not commit the threatened offense or in any way breach the peace. When fixed by a justice of the peace, the maximum amount of the bond shall not exceed $1,000.

If the defendant fails to give the required peace bond, he shall be committed to jail. However, a defendant who has been committed to jail cannot be held longer than five days. If a magistrate later determines that a defendant has breached the peace in violation of a peace bond, the court shall order that the peace bond be forfeited. Thus, the court is essentially holding the defendant’s peace bond as security to prevent the defendant from committing the breach of the peace. If the defendant wants his money back at the end of the six months, he must refrain from breaching the peace. If he breaches the peace in violation of the peace bond, he will lose his money.

At the end of the six-month period, the peace bond is automatically discharged and the money returned to the defendant if he has complied with its conditions and not breached the peace.

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Can two or more defendants be represented by the same criminal defense attorney?

The general answer to this question is yes, but it is not advisable, and can often result in a conflict of interest.

In criminal cases, where there are multiple defendants, individual defendants are often faced with the choice of saving themselves versus being loyal to their co-defendant, who may be a relative or friend. It is common practice in the prosecution of criminal cases for prosecutors to offer one defendant favorable treatment if he or she will agree to testify against the other, usually more culpable, co-defendant. When the prosecutor makes such an offer, the defendant and his attorney must be free to rationally and logically consider the advantages and disadvantages of the offer.

But if the defendant’s attorney also represents the co-defendant, then the attorney is now in a conflict of interest. He is in the position of having to advise one client as to the advantages and disadvantages of testifying against his other client. This is the reason why it is usually advisable that each criminal defendant have his own individual lawyer.

In fact, the Louisiana Code of Criminal Procedure requires the court to have a special hearing whenever two or more defendant have been jointly charged in a single case and are represented by the same lawyer. In that hearing, the court inquires with respect to such joint representation and advises each defendant on the record of his right to separate counsel. After hearing the evidence, the court is required to take measures as may be appropriate to protect each defendant’s right to counsel, unless the evidence shows that no conflict of interest is likely to arise.

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Once a person is arrested, when does he have the right to talk to an attorney?

The Louisiana Code of Criminal Procedure specifically provides that a person arrested has, from the moment of his arrest, a right to procure and confer with counsel and to use a telephone or send a messenger for the purpose of communicating with his friends or with counsel. This is provided in Article 230 of the Louisiana Code of Criminal Procedure. Thus, if you are arrested, you need only say the magic words, “I want to talk to a lawyer,” and the police immediately cease all questioning and interrogation and provide you access to a telephone to call a lawyer or to call your friends and family for the purpose of finding a lawyer. The only delay may be if you make this request in the middle of the booking procedures.

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