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]]>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 expunged.
An interim motion to expunge shall not be subject to the time limitations of 5 or 10 years for misdemeanor or felony expungements and there shall be no restriction on the number of interim expungements which may be granted.
Louisiana Code of Criminal Procedure Article 985.1A & D.
Expungement of certain controlled dangerous substance convictions:
Convictions for the following violations of the Controlled Dangerous Substances Law may be expunged under the following circumstances:
(1) A conviction for possession of a controlled dangerous substance as provided for in R.S. 40:966(C), 967(C), or 969(C), or 970(C).
(2) A conviction for possession of a controlled dangerous substance with the intent to distribute.
(3) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which is punishable by a term of imprisonment of not more than 5 years.
(4) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which may be expunged pursuant to Article 893(E).
Louisiana Code of Criminal Procedure Article 978B(3).
Limitations on expungement:
Arrests that did not result in conviction:
No person arrested for a violation of R.S. 14:98 (operating a vehicle while intoxicated) or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated, impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance, and placed by the prosecuting authority into a pretrial diversion program, shall be entitled to an expungement of the record until 5 years have elapsed since the date of arrest for that offense.
Louisiana. Code of Criminal Procedure Article 976B.
Limitations on expungement of misdemeanor convictions:
No person shall be entitled to expungement of a record under any of the following circumstances:
(1) The misdemeanor conviction arose from circumstances involving or is the result of an arrest for a sex offense as defined in R.S. 15:541, except that an interim expungement shall be available.
(2) The misdemeanor conviction was for domestic abuse battery.
(3) The misdemeanor conviction was for stalking (R.S. 14:40.2).
Expungement of a record of arrest and conviction of a misdemeanor offense shall occur only once with respect to any person during a 5-year period, unless the person was sentenced pursuant to Article 894(B).
Expungement of a record of arrest and conviction of a misdemeanor offense of operating a vehicle while intoxicated shall occur only once with respect to any person during a 10-year period.
Louisiana Code of Criminal Procedure Article 977C & D.
Limitations on expungement of felony convictions:
No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest and conviction of a felony offense if the person was convicted of the commission or attempted commission of any of the following offenses:
(1) A crime of violence as defined by or enumerated in R.S. 14:2(B).
(2)(a) A sex offense or a criminal offense against a victim who is a minor as each term is defined in R.S. 15:541, or any offense which occurred prior to June 18, 1992, that would be defined as a sex offense or a criminal offense against a victim who is a minor had it occurred on or after June 18, 1992 (subject to Article 893).
(3) A violation of the Uniform Controlled Dangerous Substances Law (with some exceptions).
(4) The conviction was for domestic abuse battery.
Expungement of a record of arrest and conviction of a felony offense shall occur only once with respect to any person during a 15-year period.
Louisiana Code of Criminal Procedure Article 978B & D.
Expungement by redaction of records with references to multiple individuals:
If a record includes the name of more than 1 individual and 1 or more of the individuals is entitled to an expungement of an arrest or conviction, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.
Louisiana Code of Criminal Procedure Article 985.
The costs for filing a motion for expungement begin at around $500. They increase for varying reasons, including whether the conviction was for driving while intoxicated. All motions for expungement must be filed on forms promulgated by the Legislature and (sometimes) downloadable from the websites for the various clerks of court. All costs paid to the court are non-refundable and if a motion is rejected for any reason, those fees are not recoverable, nor can the filer correct his application and re-file without having to pay the costs again.
If you are curious about your eligibility for an expungement, please contact our office for a consultation at 318-227-1460.
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The Mission
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The Tactics
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]]>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 risk.
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]]>The post Remaining Charges Against Former Southwood High School Softball Coach Greg Frazier are Dismissed appeared first on Shreveport-Bossier | Criminal Defense & Personal Injury Law | Elton B. Richey & Associates, LLC.
]]>Press Release after the dismissal of the remaining charges in State v. Greg Frazier
Shreveport, Louisiana
Tuesday, June 7, 2011
Remaining Charges Against Former Southwood High School Softball Coach Greg Frazier are Dismissed
Over a year after a Caddo Parish jury acquitted former Southwood softball Coach Greg Frazier of accusations that he molested several of his former players as well as his ex-wife, remaining charges against Frazier have been dismissed.
In March 2010, a Caddo Parish jury voted unanimously to acquit Frazier of allegations that he molested a former softball player. Although Mr. Frazier was charged with multiple counts of molestation, the Caddo Parish District Attorney chose to bring him to trial on only one count. Nevertheless, in an effort to prove its case, the prosecutors presented the testimony of all complaining witnesses.
The “not guilty” verdict was rendered after two weeks of testimony. Prosecutors presented six complaining witnesses, in addition to an airport security officer, a private investigator. Three complainants were former softball players who asserted that Frazier had repeated consensual sexual relations with them while they played for the Southwood team he coached. The remaining three made allegations that Frazier touched them inappropriately and made lewd remarks.
During four hours of questioning by his attorney, Elton Richey, Frazier acknowledged having sexual relations with three of the women who had played on his teams. His testimony explained that the relationships occurred after the women had graduated and were no longer minors, making the relationships lawful. Frazier further explained that he had married and divorced one of the complainants, his ex-wife Tammy, who played softball at Parkway when Frazier coached there in the late 1980’s. The couple had a contentious divorce and child-custody battle that continued through the time of his arrest.
Unsatisfied with the verdict, prosecutors decided to bring Frazier back to court on the remaining two counts. That trial was scheduled to begin Monday June 13th. Prosecutors also asked Caddo Parish District Court Judge John Mosley to exclude significant evidence of Frazier’s innocence from the second trial which Richey had presented to the jury at the first trial. That evidence was, key to Frazier’s acquittal.
Judge Mosley refused to grant most of the state’s request, and prosecutor’s appealed to the Louisiana Supreme Court. On Monday Morning the Louisiana Supreme Court refused the Caddo Parish District Attorney’s request to overturn Judge Mosley’s decision. Later that day the remaining charges were dismissed
Background:
Frazier was originally arrested in March of 2007 after a Southwood student accused him of improperly touching her and lewd comments to here when she was in his office at the Southwood softball building. Frazier denied the accusation. Several softball players, including Frazier’s two daughters, were present at the time. Each testified at trial that nothing had occurred. Frazier explained at trial that a comment, made to the girl as she left the softball building, that “it’s our little secret,” dealt with the girl telling him that a friend was pregnant rather than in reference to any misconduct with the girl.
Mr. Frazier was originally charged with four counts of Molestation of Juvenile. After his initial release on $100,000.00 bond, he was re-arrested on another allegation of molestation of a juvenile. Each count involved allegations that Mr. Frazier had abused his position of trust as a Coach and teacher. Two of the counts alleged he had illicit sexual relationship with women when they were his minor students, and three others alleged he had “groped” the students in an illicit, sexual manner.
On July 7, 2008, after extensive investigation and pretrial litigation, the Defense was able to obtain a dismissal of one count on which the statute of limitations had run. Shortly before the March 1, 2007 trial date, prosecutors unilaterally dismissed another count when their witness changed her original story.
Although three counts remained, prosecutors chose to proceed to trial on only one of the three remaining accusations. As noted, testimony from all six women was nonetheless permitted under a rule of evidence that allows prosecutors to try and show a person is guilty of a sex offense because they have a “lustful disposition.” Regardless, all allegations of each and every complaining witness were fully presented and aired to the jury which then found Frazier “not guilty”.
Frazier’s attorney, Elton Richey, argued that each of the women accusing Frazier of sexual misconduct had unique motives to make false allegations against him. “Heaven hath no wrath like love to hatred turned; Hell no fury like that of a woman scorned,” Richey told the jury, referring to Tammy and the other two women who, after they had become adults, had sexual relationships with Frazier. “None of those relationships blossomed,” the way the women had expected, Richey noted. Richey added, “Now, years later, they tell you the sexual relations happened when they were minors and when they were students. They have been untruthful with you.” Richey told the jury that Tammy was particularly motivated by her tremendous jealousy of Frazier’s relationship with their daughters, his success as a coach, and bitterness over their failed marriage.
Richey also explained that the three women who claimed Frazier made lewd comments to them, and touched them in sexually inappropriate ways, had unique motivations to testify falsely. The girl who claimed he had touched her when she visited the softball building had recently transferred from another high school where she was a popular cheerleader, and said she had no friends at Southwood. After multiple witnesses refuted the girl’s claim that Frazier molested her when they were alone in his office, Richey explained that her story had been fabricated in order to avoid returning to school after she started a rumor that day about another student’s pregnancy.
The defense also presented multiple witnesses who refuted the story of another woman who said Frazier had molested her on a school bus when returning from a softball game and during a sleep-over at his home. Richey presented evidence that the story was fabricated out of a dislike for Frazier after other coaches had found alcohol in the girl’s softball locker, and Frazier had reported it to her father.
Richey argued that the final complaining witness who had contacted investigators after Frazier’s initial arrest, along with an Airport security officer who claimed Frazier had confessed to her, were fabricating their testimony out of a simple desire to be part of the investigation and prosecution. Richey established that the charges brought by the woman were dismissed after further investigation revealed she was not entirely truthful with the investigators. He also established that the story the Airport Security Officer claimed Frazier had told her about his alleged misconduct was completely different from the versions the complaining witness had told investigators.
Prosecutors tried to rebut the defense with testimony by a private investigator who claimed that in 1992 he had followed Frazier and one of the women from Southwood high school to his home in Keithville. The allegation claimed Frazier and the woman would have sexual trysts between 3:15 and 4:15 on Fridays during the 1992 football season. Richey, however, had previously established that Frazier, who was the offensive line coach and coordinator for the Southwood football team at the time, would be at school preparing the team for that evening’s game, and would not have been able to leave without the head coach and others being aware of it.
Richey added that the private investigator had been sitting in the court room when the complaining witness had given her testimony, and was not called as a witness until after the defense had established that her testimony about the supposed Friday afternoon liaisons was fabricated. Richey demanded the investigator produce records relating to his surveillance of Frazier, and those records showed the surveillance took place in 1993, when the complaining witness was no longer a student or a minor. Those records corroborated Frazier’s frank testimony that his relationship with the woman only started after she had graduated and was an adult.
Link to Shreveport Times News Article
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