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This Blog is for general information purposes only.  While we do our best to keep all our posts updated, the Louisiana legislature makes changes to our laws every year.  Unfortunately, we sometimes unintentionally fail to make appropriate updates.  If you have any specific questions, please contact our firm.  We are here to assist you with your legal questions.

 

 

May a felon sell rather than give his guns to the government?

 

May a felon sell rather than give up his guns?

 

By: Elizabeth B. Carpenter — Firearm Attorney New Orleans

 

The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.

 

 

New Orleans Firearms Attorney

This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.

 

Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.

 

Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.

 

 

The questions before the court are:

 

Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

 

Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law.  U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.

 

“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that court argued.

But Henderson says the weapons had nothing to do with his crime.

 

Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.

By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.

“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.

 

In this case, I agree with Henderson.  If his criminal offense involved a weapon, then I would feel differently – I see no reason for the government to deprive him of his right to transfer his ownership in this property.  Of course, I will be following this case — I am curious to see what the Supreme’s think.

 

*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

 

 

7 Reasons Prostitution Should Be Legalized

 

7 Reasons Prostitution Should Be Legalized

 

By Elizabeth Bagert Carpenter — New Orleans Prostitution Attorney

 

The subject of prostitution has been analyzed and discussed for thousands of years. It was around 5000 years ago that civilized societies started to regulate prostitution. Those in power decided to use the mutual exchange of sex for money to forward their tax base, provide a regulated and needed service and accept the fact that love for sale was here to stay.

 

In fact, it was not long ago that prostitution was regulated in the city of New Orleans in an area of the city that was known as Storyville.

Storyville was the “red-light district” of New Orleans, Louisiana from 1897 to 1917. It was established by municipal ordinance under the New Orleans City Council by Alderman Sidney Story, a City Councilman, who wrote guidelines and legislation to control prostitution within the city. This municipal ordinance did not legalize prostitution, but rather created a 16 block area of the city wherein prostitution was not illegal. The area was originally referred to as The District, but its nickname Storyville soon caught on. It was bound by the streets of North Robertson, Iberville, Basin, and St. Louis and was found between the French Quarter and Claiborne Ave. Since it was also located by a train station, Storyville was a popular destination for visitors and travelers to the city and became a centralized attraction in the heart of New Orleans.

 

Prostitution Attorney New Orleans

NewOrleans Prostitution Defense Attorney

 

 

I say that we should return to the days of Storyville. The following 7 simple reasons why prostitution should be legalized, seem like a no-brainer to me.. It would result in a Win-Win for all parties involved; public and private.

 

 

 

 

1.  It would make both parties less prone to STDs: Legalization could require that all prostitutes take regular health exams, helping to ensure that she or he is not carrying a sexually transmitted disease.

 

2.  It would give the prostitute employment rights:Many prostitutes are at the financial mercy of a pimp, john or madam who often take more than half their income. Legalization would protect their rights and abolish this form of slavery.

 

3.  It would open the door to unionization:Unions would probably be the best enforcer of the industry. They would help ensure that under the radar (illegal, non-taxpaying, non-health exam participants) would stay off the streets.

 

4.  Illegal prostitution costs us money:While the costs involved are hard to estimate, it taxes the police force, the public defenders offices and the judicial system. All of these resources could be better utilized pursuing and prosecuting violent offenders.

 

5.  Legalized prostitution would pay:We could tax prostitution in the same way we tax hospitality and luxury services, often higher than normal sales tax.

 

6.  It can’t be prevented:There’s a reason it’s called “the world’s oldest profession”. It’s always been around, it always will be. We might as well bring it out into the open.

 

7.  It Would Reduce Violence Against Women: Prostitutes in America (mostly women) are vulnerable to violence from customers and pimps alike. A study of San Francisco prostitutes found that 82% had been assaulted and 68% had been raped while working as prostitutes. Another study of prostitutes in Colorado Springs found they were 18 times more likely to be murdered than non-prostitutes their age and race.

 

Elizabeth B. Carpenter is a Criminal Defense Attorney in the New Orleans area.  She represents many people who are accused of Prostitution related offenses.

 

 

DEA: Medications Containing Hydrocodone Subject To Stricter Prescribing Rules

 

The federal government announced that more than 65 prescription medications containing the most widely-prescribed painkiller, hydrocodone, will now be subject to new, stricter federal prescribing rules as of this past week.

 

The new regulations published by the DEA will make medications which contain hydrocodone subject to the same restrictions as other narcotics such as oxycodone and morphine.

 

The rules cover an array of prescription painkillers which combine hydrocodone with other analgesics such as, acetaminophen (Vicodin) or ibuprofen (Reprexain), as well as some prescription cough medications, all of which will be now be regulated as schedule II drugs.

 

The move was made in an effort to curb the abuse of these medications by limiting how they can be prescribed.

Hydrocodone has been listed as a schedule II drug since the enactment of the Controlled Substances Act in 1971, but many hydrocodone-containing medications remained in the less restrictive, schedule III category.

 

Among the changes in prescribing rules for hydrocodone-containing medications:

 

* A verbal prescription is allowed only in emergencies and a written prescription must follow within seven days or the pharmacist will notify the DEA

* Faxed, original prescriptions are permitted for home infusion/IV pain therapy, long-term-care facilities and hospices or terminally-ill patients.

* Prescriptions are limited to 30-day supplies, but prescribers may write up to three separate prescriptions, each for up to a one-month supply. Prescriptions will be void after 90 days.

 

State Health officials are encouraging doctors and other health professionals to use electronic prescribing for all schedule II medications.

 

Who Can See My Record After an Expungement? – Louisiana

 

By Elizabeth B. Carpenter — New Orleans Expungement Attorney

 

The $25,000 question: Who can see my expunged record?

 

In my law practice, every client wants and needs to know whether he needs to state that he has had a criminal record expunged on a job application.The answer to this question is often best answered on a case-by-case basis, even though the law clearly states that the defendant does not have to disclose the arrest or expungement.

 

Louisiana Code of Criminal Procedure Article 978(C) states “Except as to persons and other entities set forth in Paragraph A of this Article, no person whose record of arrest or conviction has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offense, or the record of arrest or conviction has been expunged.”

 

Louisiana clients should first determine whether the entity where they are seeking employment is one that has confidential access to sealed records.

 

Generally, most state agencies can see felonies, even if they are expunged.  There are several specific agencies that may request a full criminal record, but the agency must keep it confidential. Unless the record was destroyed, all of the following agencies can see an expunged record:

 

Any law enforcement agency

Criminal justice agencies

Louisiana State Board of Medical Examiners

Louisiana State Board of Nursing

Louisiana State Board of Dentistry

Louisiana State Board of Examiners of Psychologists

Louisiana State Board of Social Work Examiners

Louisiana Attorney Disciplinary Board

Emergency Medical Services Certification Commission

Office of Disciplinary Counsel

Louisiana Supreme Court Committee on Bar Admissions

Any person or entity requesting a record of all criminal arrests and convictions pursuant to La R.S. 15:587.1 which deals with job positions where the employee is in a supervisory or disciplinary role of authority over children.

 

If you are wanting to have a criminal record expunged, please contact New Orleans Expungement Attorney Elizabeth B Carpenter for a consultation.

 

Gun Rights and Domestic Battery Convictions — Louisiana Law

 

 

 

During the 2014 legislative session, Louisiana lawmakers added and modified many laws pertaining to domestic violence.  One of the most significant actions taken was the creation of Louisiana Revised Statute 14:95.10, which prohibits someone previously convicted of domestic abuse battery from possessing a firearm or carrying a concealed weapon for 10 years. The statute was created by House Bill 753 – also known as the Susan “Pixie” Gouaux Act – which was signed into law earlier this year by Governor Bobby Jindal.

 

Possession of a Firearm or Carrying a Concealed Weapon by a Person Convicted of Domestic Abuse Battery — La. R.S. 14:95.10

 

It is unlawful for anyone convicted of domestic abuse battery at 14:35.3 to possess a firearm or carry a concealed weapon.

 

Whoever is found guilty of this offense shall be imprisoned with or without hard labor for not less than 1 year nor more than 5 years and shall be fined not less than $500.00 nor more than $1,000.00.

 

A person cannot be found guilty of this offense if the original domestic battery conviction has been set aside, expunged or pardoned.

 

The statute applies to anyone who has been convicted of domestic abuse for  a period of 10 years from the date of completion of the sentence, probation, parole or suspended sentence.

 

The law went into effect August 1, 2014.

 

If you know someone who has a domestic battery conviction, please inform that person of the new law — this ban on possession of firearms includes hunting rifles.

 

By Elizabeth B Carpenter — New Orleans Weapons Offense Attorney

 

 

U.S. Sentencing Commission Weighs Lesser Penalties White Collar Crimes

 

New Orleans White Collar Crime Defense Attorney

 

United Sentencing Commission considers softer sentences for federal white collar crimes

 

 

In the coming year the Feds will consider changes to sentencing guidelines for some white-collar crimes.

The U.S. Sentencing Commission, which earlier this year reduced guideline ranges for nonviolent drug crimes, unanimously approved its latest set of items on the books. The top priority will be working with Congress on reducing mandatory minimum penalties for many white-collar crimes. Another goal will be measuring the fairness of sentences for fraud and other economic crimes.

The legal panel had been reviewing data for several years, but plans to hear more from judges, victims and others.

Defense lawyers who have sought the changes, say an opportunity to act opened once the sentencing commission cut sentencing guidelines for drug crimes. This cleared a major priority from its big agenda.

Given the public outrage at those executives and huge companies who stole their clients’ life savings and lingering anger over the damage inflicted by the 2008 financial crisis, it seems a strange time to re-vamp the present guidelines. The discussion about adjusting sentences for economic crimes comes as some federal judges have chosen to ignore the existing guidelines in some cases. The Justice Department welcomes a fresh set of eyes as it looks for ways to cut costs in an overpopulated federal prison system. Sentencing guidelines are advisory rather than mandatory, but judges still rely on them many times to add a degree of consistency to their penalties.

White collar sentences are similar to federal drug sentences, but instead of relying on drug quantity to determine a sentence, white collar guidelines use monetary loss. In both cases, considerations bearing on culpability, such as harm, motive, and mitigating circumstances hold almost no sway. With Congress poised to reform drug sentencing, the next logical step is tackling the guidelines for economic crimes. It’s increasingly likely that the U.S. Sentencing Commission will do exactly that during its next session. In anticipation of this opportunity, Families Against Mandatory Minimums (FAMM) announces the launch of the “Fit the Crime” project. This project will raise awareness about the shortcomings of the current fraud guidelines and possible reforms for 2015.

No one is seeking leniency for the likes of imprisoned financier Bernie Madoff, who’s serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground. But defense lawyers are calling for a sentencing structure that takes into account the broad continuum of economic crime and that better differentiates between, for example, a thief who steals a dollar each from a million people versus $1 million from one person.

 

It’s time to make the time fit the crime!

 

If you or a loved one is facing allegations of a white collar crime or other federal criminal offense, contact attorney Elizabeth B. Carpenter for a consultation.  We are ready to give you a strong defense.

 

New Louisiana Motorist Laws Effective August

Louisiana DWI Dui Defense Attorney

 

Today is August 1st.  This means that many laws and amendments passed during the 2014 Louisiana Legislative Session will affect motorists throughout the state starting today. Below I have listed a few notable changes affecting motorists.  Please note: the new laws pertaining to DWI arrests and convictions are not included in this list.  I will post those next week.

 

1. School Zone Cell Phone Ban: Motorists are now prohibited from using any type of hand held wireless communications device while traveling through schools zones during posted hours. The law includes use of a cellular/wireless device for engaging in a voice call, accessing, reading, or posting to a social networking site, and/or writing, sending, or reading a text-based communication. The school zone cell phone ban does not apply if the device is being used to report an emergency, is being used in a hands-free manner, or while the vehicle is lawfully parked. Upon first violation of the school zone ban the fine is $175, subsequent violations can be up to $500, and if a crash occurs during the time of the violation, fines can be increased.

 

2. LA Litter Law Updates: Amendments to the LA litter law now specifically include cigarettes and cigarette butts to the official definition of litter. Additionally, the fine for a first offense increases to $300 with 8 hours of community service in a litter abatement program, second offense to $700 with 16 hours of litter abatement, and a third and subsequent offense to $1500 with 80 hours of service in a litter abatement program.

 

3. Six Year Driver’s License Renewal: The renewal period for Louisiana driver’s licenses has been extended from four years to six years with a fee increase to cover the extension of the renewal period. Fee increases vary by class of license, area of residence, and age of license applicant. (This amendment does not go into effect until July 1st, 2015).

 

4. Inspection Exemptions for Certain Trailers: New amendments to LA inspection sticker requirements exempt single axle two-wheeled trailers and boat trailers from state inspection requirements and the obligation to bear a valid safety inspection certificate/sticker. While exempted from the inspection process, the trailers must still possess the required safety equipment to operate on Louisiana roadways.

 

5. Vehicle Inspections Can be Conducted in Rain: Another amendment added to the LA inspection sticker requirements changes an old requirement that vehicle inspections stations could not inspect vehicles on rainy days. This new amendment allows vehicles to be inspected when it is raining if the conditions are safe and the vehicle can accurately be checked.

 

6. Increased Penalties for Fatigued Drivers in Fatal Crashes: Motorists who fail to maintain control of their vehicle due to falling asleep and directly or proximately cause the death of a human being, face increased penalties under Louisiana’s Careless Operation law. In addition to the Careless Operation penalties, motorists involved in a fatality crash may also be charged with Negligent Homicide.

 

7. Vehicular Homicide classified as a Crime of Violence: The act of Vehicular Homicide (causing the death of a person due to a crash where the driver was impaired) will now be classified as a crime of violence when the offender’s blood alcohol concentration exceeds 0.20 grams percent. The amended classification allows for increased penalties for impaired drivers involved in fatality crashes.

 

 

If you or a loved one are in need of an attorney to assist with motorist related offenses, please contact Attorney Elizabeth B Carpenter.

 

 

Federal Drug Prisoners May Be Released Sooner

It’s Time to Open these Gates!

The U.S. Sentencing Commission (USSC) voted in favor of making new federal drug guideline sentence reductions retroactive.

 

Most of you know by now, our country is in the midst of an incarceration crisis.  Our great nation locks up more, per-capita, than any other nation.  Many of these inmates are victims of harsh sentencing initiatives resulting from the failed war on drugs.

Last week, we received good news from Washington.  Nearly, 46,000 federal drug offenders (25% of BOP population) will be able to file a motion in court to have their sentence reduced by an average of 2 years. This will only apply for those sentenced before November 1, 2014.  The average sentence reduction for those who qualify will be two years!

Those of you with loved ones in federal prison may be asking, “Now what?”

Remember: not all federal drug offenders sentenced before November 1, 2014, will be eligible for a sentence reduction, and the reductions are not automatic.

Who won’t be helped by this decision?

1.  Prisoners sentenced for other than a drug offense.
2.  Prisoners serving a mandatory minimum for a drug offense.
3.  Prisoners sentenced as Career Offenders.

While courts can begin considering and granting motions for sentence reductions starting on November 1, 2014, prisoner releases will not begin until November 1, 2015. The Commission is giving courts and probation officers a chance to handle the big influx of motions for sentence reductions before probation officers must turn their attention to supervising the prisoners upon release.

 

If you are wondering if your loved one qualifies for this sentencing reduction, contact Federal Criminal Defense Attorney Elizabeth B. Carpenter.

 

 

Is Vehicular Homicide a Crime of Violence?

New Orleans Criminal Attorney

 

Is Vehicular Homicide a Crime of Violence in Louisiana?

During the past few weeks, I have been asked this question a few times.

Coping When a Loved One is Sentenced to Prison

Grief When a Family Member is Incarcerated

 

I just returned to my office after a difficult morning in court.  My client was sentenced to serve 25 years in prison for a crime that I believe does not merit such a harsh penalty.  This is an aspect of my work that I dislike to say the least.  Of course, I replay all my defense strategies in my mind, making sure that I did not fail my client along the way.  I also try to comfort the family members in this time of grief. In all honesty, I cannot say that I know what they are experiencing because I have never lost a loved one in the criminal justice system.  The only thing that I can imagine is that the pain is similar to the death of a loved one, only worse. 

Today, I would just like to offer some words of advice on how to make it through the first months after your loved one is sentenced to a lengthy prison term. I really think that someone should create a support group for families who are coping with the incarceration of a loved one.

 

1) Take it one day at a time — Your body, mind and spirit are totally consumed with pain.  Focus on today, tomorrow will come soon enough.

 

2) Drop the feeling of “normal” — Nothing is going to be normal for quite some time because what you are going through is not “normal.” As time moves forward, you will adjust and experience a new “normal”.

 

3) Brace yourself for many loses — The loss of a loved one in your daily life can start a domino effect of losses.  Personal possessions will be given away.  Relationships with friends and other family members may be strained. Don’t be alarmed if one loss seems to escalate until you feel overwhelmed.

 

4)  Tell people what you need — people will not know how to relate to your loss.  Be specific about your wants and needs.  Ask for help.

 

5) Remember to eat — grieving affects the mind in many ways.  It requires a lot of energy.  You may not be hungry, you may forget to eat, but you need to keep your strength.

 

6) Sleep when you can — Your sleep most likely will be affected by your loss. You need sleep to function mentally and physically.  Take a nap if you are tired. Try sleeping in a different place in the house if you cannot sleep in your bed. See your doctor is sleeplessness continues.

 

7) Crying is okay — Let the tears flow either when you are alone or in public. Crying is a natural outlet to grief.

 

8) Exercise every day — Exercising will help you deal with the multitude of emotions that are rippling through your body. It will also help you sleep at night.

 

9) Seek support early — Get support through family, friends or a grief counselor. You don’t have to walk through this alone.

 

10) Lean on your faith — If you are a spiritual person, remember to touch base with your faith. It will bring comfort, strength and internal wisdom. If you have no belief system, then get in touch with nature. The beauty of the world around us can be very soothing. Your faith will help your loved one cope better with being incarcerated.

 

Peace.

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