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.
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
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.
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.
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.
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.
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.
FACTS, LIES and VIDEOTAPED INTERROGATIONS
The Justice Department recently said that the F.B.I. and other federal law enforcement agencies are encouraged to videotape interviews with suspects in most instances. This new policy does not apply in cases where agents need urgent national security-related information that could expose sources or methods or where the interviewed subject request to not be videoed. This is one of the most significant changes in F.B.I. policy under James B. Comey, who took charge as the bureau’s director in September. Mr. Comey’s predecessor, Robert S. Mueller III, and senior bureau officials had once opposed the video requirement, saying the tapes could reveal agents’ interrogation tactics and discourage witnesses from talking.
The new policy, which goes into effect in July 2014, applies to the F.B.I., the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration and the Marshals Service. These federal law enforcement agencies are also encouraged to use electronic recording in other parts of their investigations, like witness interviews.
The former official, Paul K. Charlton, said federal prosecutors were unnecessarily losing cases because they were unable to present to jurors the most damning evidence available to them: videotaped confessions.
“The most difficult part of proving a crime involves the state of mind, and that is almost always obtained through a statement of the suspect.“
I think this is one of the most significant improvements in the criminal justice system in a long time. Cameras are on neighborhood poles, the corner of big box stores and spread all throughout modern society. Cameras help cops when stops are made. Many Officers now must wear a mini camera on their person. Why would anyone suggest a video-taped interview, hot after a crime would not provide a closer look at the truth, is beyond me.
Of course, I could see how law enforcement would not like the eye in the sky recording their “strategic approach” to obtaining information, confessions and what-have you. Now, the very first time an interviewee asks for a lawyer, the agents can’t just offer the subject a cigarette, cup of bad coffee and hit it again an hour later with some new angle. Now the interview will actually be over. “I want my lawyer…I don’t want to talk anymore!” ACTUALLY means that.
That is Power- and that is good for justice
Governor Bobby Jindal has signed three bills into law. Two of these bills expand gun rights, while the third one restricts gun rights.
Carrying Weapons in Establishments that Serve Alcohol
A new law that allows concealed-carry permit holders to carry their weapons into restaurants that serve alcohol — the establishment must make most of its money from the sale of food rather than alcohol. This law will also permit off-duty law enforcement officers to carry their guns into bars. However, no one will be allowed to drink alcohol while carrying a weapon in restaurants.
The state’s concealed-carry law already allows for permit-holders to carry guns in restaurants that serve alcohol, the criminal statute outlawing guns at places that sell alcohol didn’t list an exception for restaurants that also serve alcohol.
Expand Louisiana “Stand Your Ground” Law
Under current law, a person who kills an intruder coming into his car or house is given the benefit of the doubt and can use self-defense as a lawful reason for the killing. But the same self-defense argument could not be legally applied to situations where a person hurt, but didn’t kill, the intruder.
This law essentially closes a loophole. The belief is that people who end up harming — but not killing — an intruder or a carjacker should not be charged with attempted murder if those who kill those people don’t face those similar consequences.
Restricted Gun Rights for People Convicted of Domestic Battery
The National Rifle Association — which usually fights gun restrictions — remained neutral on the domestic battery provision, which is probably why Jindal agreed to sign the bill.
It has been said that Louisiana leads the nation when it comes to spouses murdering spouses with firearms. I do not know if this is true.
Attorney Elizabeth B Carpenter is a New Orleans Criminal Defense Attorney who represents many people who have been accused of gun crimes.
In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right. This places gun ownership on the same level as freedom of speech or freedom of religion. This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review. In other words, the law should favor the constitutional right or principle more than the government’s interest.
Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts. The issue is whether the amendment applies to convicted felons who are barred from having firearms. District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.
I am on the edge of my seat waiting for the justices to release their decision. Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm. Unfortunately, the state court judge ruled against me. I think that he just did not feel comfortable making that call. One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad. I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.
I know that I will revisit this topic when the justices release their decision.
If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses. Contact attorney Elizabeth B Carpenter for a consultation.