Expungements in Louisiana

Criminal convictions, and arrests that do not result in conviction, have many collateral consequences and few things create barriers to obtaining a good job like a criminal record.A record of arrest or conviction that is expunged in Louisiana is not destroyed. It becomes confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and other statutorily defined agencies.In 2014, the Louisiana Legislature recognized that “the inability to obtain an expungement can prevent certain individuals from obtaining gainful employment.” Louisiana. Code of Criminal Procedure Article 971(4). As a result, the Legislature enacted a series of revised and consolidated expungement statutes under Title XXXIV of the Criminal Code allowing for expungement of a broad range of both misdemeanors and felonies under certain circumstances.The Legislature’s stated intent is to “provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” Louisiana Code of Criminal Procedure Article 971(6).Records that may be expunged:Records of an arrest that did not result in a conviction:A person may file a motion to expunge a record of his arrest for a felony or misdemeanor offense that did not result in a conviction if any of the following apply:(1) The person was not prosecuted for the offense for which he was arrested, and the limitations on the institution of prosecution have barred the prosecution for that offense.(2) The district attorney for any reason declined to prosecute any offense arising out of that arrest.(3) Prosecution was instituted and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.Louisiana Code of Criminal Procedure Article 976A.Records of an arrest and conviction of a misdemeanor offense:A person may file a motion to expunge his record of arrest and conviction of a misdemeanor offense if either of the following apply:(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 894(B) of this Code.(2) More than 5 years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole, and the person has not been convicted of any felony offense during the 5-year period, and has no felony charge pending against him.Louisiana Code of Criminal Procedure Article 977A.Records of an arrest and conviction of a felony offense:A person may file a motion to expunge his record of arrest and conviction of a felony offense if either of the following apply:(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E) of this Code.(2) More than 10 years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the 10-year period, and has no criminal charge pending against him.Louisiana Code of Criminal Procedure Article 978A.Any person who was convicted of carnal knowledge of a juvenile (R.S. 14:80) prior to August 15, 2001, is eligible for an expungement pursuant to the provisions of this Title if the offense for which the offender was convicted would be defined as misdemeanor carnal knowledge of a juvenile (R.S. 14:80.1) had the offender been convicted on or after August 15, 2001.Louisiana Code of Criminal Procedure Article 978B(2)(b).Records of an arrest for a felony when conviction is for a misdemeanor:A person may file an interim motion to expunge a felony arrest from his criminal history when that original arrest results in a conviction for a misdemeanor. In such cases, only the felony arrest may be...

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Gun Rights in Louisiana

In 2012, the citizens of the State of Louisiana amended the state constitution to provide emphatically that the right to bear arms is fundamental “and shall not be infringed,” and further subjected any restrictions placed on this right to strict scrutiny.In 2014, the Legislature passed Act 195, which enacted La. R.S. 14:95.10 and 46:2136.3. Each of these statutes limited the rights of individuals to possess guns in particular circumstances. La. R.S. 14:95.10 restricted those convicted of Domestic Abuse Battery (La. R.S. 14:35.3) from possessing a firearm or carrying a concealed weapon. Firearm is defined in the statute as “any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.” “Weapon,” strangely, is not defined in the statute. La. R.S. 46:2136.3 involves the possession of weapons by individuals against whom protective orders have been issued.The statute makes possession or carrying of such a firearm a felony punishable by a minimum sentence of one year and up to five years (potentially at hard labor) and a fine of not less than $500 nor more than $1,000; and criminalizes the possession of a firearm for ten years from the date of completion of sentence, probation, parole, or suspension of sentence for the underlying offense.In July of this year, the legislature passed Act 440, which extended the reach of the Domestic Abuse Battery statute to criminalize the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member. (The italicized language was added by Act 440.)A “household member” is defined as “any person of the opposite sex presently or formerly living in the same residence with the offender as a spouse, whether married or not, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides.” A “family member” “means spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children.”Important to note, also, is the fact that the legislature removed a former limitation on the statute’s application. Prior to this year, if a defendant had not resided with the complainant within five years, the crime of Domestic Abuse Battery did not apply (a battery could still have been committed, but that’s a blog for another day). Now, there is no limitation on the time since the cohabitation.Thus, despite a state constitutional amendment providing that gun ownership is a fundamental right, the Louisiana legislature has passed legislation in the intervening years broadening the circumstances under which gun ownership can be criminalized or restricted.(It should be noted that the Federal government has had such restrictions in place for many years (see 18 USCA §922(g)(9)).)If you or someone you know is facing charges of Domestic Abuse Battery, seek legal advice immediately so that you don’t place your fundamental rights at...

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