The DPSC DWI Administrative Hearing Process after a Motorist’s Driver’s License is Suspended in Louisiana

1. The DPSC DWI Administrative Hearing Process after a Motorist’s Driver’s License is Suspended in Louisiana

 

 

Louisiana law requires the Department of Public Safety and Corrections Office of Motor Vehicles (DPSC) to suspend a person’s driver’s license if the person is arrested for suspicion of driving while intoxicated, that is, when the person was driving with a blood alcohol concentration (BAC) of .08% or greater, or when the person refuses a chemical test upon arrest. This DPSC administrative hearing is a separate process from the criminal action that may be brought against a motorist for driving while intoxicated (DWI ). In Louisiana, there are actually two statutory schemes that a driver who is arrested for DWI faces: (1) the civil process where a person’s driver’s license may be suspended; and (2) the criminal process where a driver who has a blood alcohol concentration (BAC) of 0.08% or more can be prosecuted for DWI. Both statutory schemes proceed independently of the other, and the outcome of one action is of no consequence in the other. In other words, a motorist’s driver’s license can be suspended civilly although the motorist may not be prosecuted for DWI. Further, the motorist may be prosecuted for DWI even though his license is not suspended civilly.

 

 

2. What Happens to the Motorist’s License after the Arrest for DWI/DUI?

 

When a law enforcement officer arrests a person for DWI, the officer will seize the motorist’s driver’s license and issue the motorist a temporary receipt of license on a form approved by the DPSC. This receipt allows the driver the right to operate a motor vehicle upon the public highways of Louisiana for a period not to exceed 30 days from the date of arrest . The temporary receipt provides notice to the driver that he has not more than 30 days from the date of arrest to make a written request to the DPSC for an administrative hearing.

 

 

3. After an Arrest for DWI, What Happens to the Motorist’s Vehicle?

 

After a motorist is arrested for DWI, he has a right to allow a passenger in the vehicle who is not under the influence of alcohol who has a driver’s license to take control of the vehicle. If the vehicle does not create a hazard or obstruction to traffic or the motoring public, and if there is no passenger in the vehicle with a valid driver’s license and who is not under the influence of alcohol, the officer, before ordering or procuring a towing service, shall allow the arrested motorist a reasonable time and opportunity to contact another person to take possession or control of his vehicle.

 

4. Who Conducts the Administrative Hearings for DWI License Suspensions?

 

 

The administrative hearings are conducted by administrative law judges who are employed by the Louisiana Division of Administrative Law.

 

 

5. What Happens at the Administrative Hearings for DWI License Suspensions?

 

When the administrative hearing occurs, law enforcement officer usually do not testify at the administrative hearing. The Administrative Law Judge will begin the hearing by introducing the records of the DPSC or other such evidence as will show whether the license should be suspended or returned to the motorist. These documents will usually include:

 

(1) the DPSC Certification of Arrest Report,

 

(2) the Arrestee’s Rights Form,

 

(3) the Intoxilyzer Check List,

 

(4) the Office of State Police Certificate of Inspection Instrument Recertification Form,

 

(5) the results of the Intoxilyzer Breath Test,

 

(6) the results of field sobriety tests given,

 

(7) the Arrest Report and Probable Cause Affidavit, and

 

(8) the Charge Disposition Report.

 

Although police officers do not usually testify at administrative hearings, attorneys are allowed to call their clients and other witnesses who can contest the findings of the arresting officer or other officers on the scene of the arrest. Further, when the DPSC records are introduced by the administrative law judge, the motorist’s lawyer will usually object to the admissibility of these documents on the grounds that they are hearsay, incompetent evidence, and that they are not authenticated. However, the administrative law judge will usually overrule these objections and these documents are admitted at the administrative hearing notwithstanding the hearsay and authentication issues.

 

 

6. What Do the Documents from the DPSC Show?

 

The documents from the DPSC will contain the affidavit of the arresting officer where the officer describes his observations of the motorist’s driving and behavior that led him to suspect that the motorist was driving under the influence of alcohol. The documents will describe the field sobriety tests given to the motorist as well as a recitation of the facts that led to the motorist’s arrest.

 

 

7. What Issues are Determined by the Administrative Law Judge at the Administrative Hearing?

 

(1) Whether a law enforcement officer had reasonable grounds to believe the motorist had been driving or was in actual physical control of a motor vehicle upon the public highways of this state.

 

(2) Whether the motorist was placed under arrest.

 

(3) Whether the motorist was advised of his rights by the office?

 

(4) Whether the motorist voluntarily submitted to an approved chemical test and whether the test resulted in a blood alcohol reading of 0.08 % or above by weight, or of 0.02 % or above if the motorist was under the age of 21 years on the date of the test.

 

(5) Whether the motorist refused to submit to the test upon the request of the officer.

 

The Administrative Law Judge will not usually render a decision at the hearing. The Judge will issue a written decision within thirty days of the hearing that either recalls or sets aside the suspension or affirms the decision of the DPSC to suspend the motorist’s license.

 

 

8. What Options Does the Motorist Have if his License is Suspended by the Administrative Law Judge?

 

If the suspension is upheld by the administrative law judge, the motorist has a right to file a petition in the appropriate civil district court. The motorist has 30 days from the date he received the written decision of the Administrative Law Judge to file a petition for judicial review with the civil district court. If the motorist does not file a petition for judicial review with the civil district court within thirty days, the order of suspension will become a final one.

 

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive criminal and personal injury lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.

 

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2017 Gaynell Williams LLC Attorney at Law. Published December 14, 2017.




When is an DWI/DUI Ignition Interlock (Blow-and-Go) Device Required for DWI Violations in Louisiana?

 

An ignition interlock device (also referred to as a Blow-and-Go Device) is an in car alcohol breath screening device that is connected to the engine’s ignition system to prevent a vehicle from starting if it detects a blood alcohol level above a preset limit. There are many instances where the ignition interlock device is required to be installed on a motorist’s car in Louisiana. It is required as a condition of reinstatement for some motorists in Louisiana. An ignition interlock device must  be installed in any motor vehicle operated by any of the following persons whose driver’s license has been suspended in connection with the following circumstances as a condition of the reinstatement of such person’s driver’s license: 

 

(a)  Any person who has refused to submit to an approved chemical test for intoxication, after being requested to do so, for a second arrest for DWI.

(b)  Any person who has submitted to an approved chemical test for intoxication where the results indicate a blood alcohol level of 0.08 percent or above and whose driver’s license has been suspended in accordance with the law for an arrest occurring within ten years of the first arrest.

(c)  Any person who is arrested for DWI and is involved, as a driver, in a traffic crash which involves moderate bodily injury or serious bodily injury as defined in R.S. 32:666(A).

(d)  Any person who is arrested for DWI and a minor child twelve years of age or younger was a passenger in the motor vehicle at the time of the commission of the offense.

 

The ignition interlock device is also required for a motorist to be granted a restricted license so that he can drive after he has been arrested and his license has been suspended for a first or second offense DWI. In this instance, the motorist can have his license immediately reinstated so that he can drive and earn a living. The motorist who is eligible for this type of restricted license is that motorist who either refused to submit to the blood alcohol test or who submitted to the blood alcohol test and the test showed a blood alcohol level of least 0.08 percent and less than 0.20 percent. When the motorist has proven to the Louisiana Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device, he is immediately eligible for and will be granted a restricted license.

In other words, these motorists can obtain a restricted license as a result of the ignition interlock devices being stalled on their cars for the entire time that their driver’s licenses are suspended.

 

Further an ignition interlock device is required for those motorists who have been convicted of vehicular negligent injuring or for DWI.

 

An ignition interlock device may also be required as a condition of probation for certain DWI offenders. It is also against the law to tamper with or circumvent the operation of an ignition interlock device that has been installed on a car as a condition of driving a motor vehicle in Louisiana.

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive criminal and personal injury lawyer who will be committed to your case can assist you today. Evenings and weekend appointments are available by appointment. We will work around your schedule.

 

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2015 Gaynell Williams LLC Attorney at Law. Published October 23, 2017.




DWI and Commercial Driver’s License (CDL) Suspensions in Louisiana

Driving While Intoxicated and Commercial Driver’s Licenses (CDLs)

This blog post will discuss the rights of Commercial Driver’s License (CDL) Holders In Louisiana who are arrested for driving under the influence of drugs and/or alcohol.

 

1. What Types of Driver’s Licenses are Available in Louisiana?

 

Louisiana issues five classes of driver’s licenses:

 

A. Commercial Driver’s License (Class “A” [Combination Vehicle],

B. Class “B” [Heavy Straight Vehicle] and

C. Class “C” [Light Vehicle]),

D. Chauffeur’s License (Class “D”) and

E. Personal Vehicle Driver’s License (Class “E”).
 

2. What Happens if a Commercial Driver’s License Holder (CDL) is Arrested for DWI?

 

The Louisiana Legislative has enacted laws to hold commercial license vehicle operators to a higher standard than that for non-commercial vehicle operators. For example, when a commercial driver’s license holder is disqualified, there is no economic hardship license to operate a commercial motor vehicle as there is for noncommercial vehicles. That means that although the CDL holder may be able to get a hardship license to drive a personal vehicle, he will be unable to obtain a hardship license to drive a commercial vehicle.

 

Thus, once a commercial driver’s license (CDL) is disqualified, there is no economic hardship license to operate a commercial motor vehicle as there is for noncommercial vehicles. Here are a few of the laws that apply to holders of commercial driver’s licenses:

 

1. If a CDL holder is arrested and his blood alcohol concentration (BAC) is greater than 0.8% or he was under the influence of a controlled dangerous substance (CDS) while driving any vehicle (a commercial vehicle or a non-commercial vehicle), he can be disqualified from driving a commercial vehicle for one year.

 
2.If a CDL holder is arrested and his BAC is between 0.4% & 0.8% while driving a commercial vehicle, he can be disqualified from driving a commercial vehicle for 1 year.

 

3. If a CDL holder is convicted for DWI, he can be disqualified from driving a commercial vehicle for one year.

 

4. If it is determined that a commercial driver has left the scene of an accident while operating any vehicle, a commercial vehicle or a non-commercial vehicle, he can be disqualified from driving a commercial vehicle for one year.

 

5. If a CDL holder refuses to submit to a BAC test or drug test while operating any vehicle, commercial or otherwise, he can be disqualified from driving a commercial vehicle for one year. S

 

3. What Are Some Serious Driving Offenses for Which a CDL Holder May Be Disqualified?

 

1. Excessive speeding, involving any single offense for any speed of fifteen miles per hour or more above the posted speed limit.

2. Reckless driving

3. Improper or erratic traffic lane changes.

4. Following the vehicle ahead too closely.

5. A violation arising in connection with a fatal accident

6. Texting while driving.

7. Use of a handheld mobile telephone while driving a commercial motor vehicle.
 

4. Can a Person With a Suspended CDL Drive a Personal Vehicle?

 
Yes. The strict laws for drivers of commercial vehicles do not prohibit drivers from driving their personal vehicles. For example under some circumstances, any driver should be able to obtain a hardship license as allowed under Louisiana law.
 

5. Do the Administrative Hearings Apply to Holders of CDLs?

 

Yes. After the license of a CDL holder has been suspended under the Louisiana Implied Consent Laws, he has thirty days from the date of his arrest to file a request for an administrative hearing before an Administrative Law Judge to contest the suspension. The Implied Consent Laws apply to commercial driver’s license holders as well as to all other drivers.

 

Legal Disclaimer

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2017 Gaynell Williams LLC Attorney at Law. Published October 11, 2017.

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.




Expungement of Criminal Arrests and Convictions

 

After a person is arrested and/or convicted of certain crimes, he may wish to have the arrest or conviction expunged. To expunge a criminal record means to remove a record of arrest or conviction, photographs, fingerprints, disposition, or any other information of any kind from public access pursuant to the expungement provisions of the state’s or federal government’s criminal laws. When records are expunged, they are not destroyed.

 

After an expungement, the records of arrest or conviction are confidential and no longer considered a public record. But even if records of arrest and/or conviction are expunged, certain people or entities such as law enforcement personnel, criminal justice agencies, and prosecutors may still have access to those records in the event that the person is arrested and/or convicted in the future. But future employers will not usually be able to gain access to these records because they will not be available when one does a search of the public records. Thus, if potential employers or landlords do a background check of a person with expunged records, the employers or landlords will not be able to find those records.
Therefore, when a person completes an application for a job or for an apartment and is required to state whether he has been arrested or convicted and such a record has been expunged, he can answer truthfully under the law that he has not been arrested or convicted because the effect of an expunged record is that such arrest or conviction never happened. Stated differently, because an expunged record is confidential to the “outside world,” the person with the expunged record will not generally have to disclose to the potential employer or landlord that the record has been expunged.

 

However, certain licensing boards for professionals such as doctors, nurses, dentists, lawyers, psychologists, pharmacists, social workers, emergency medical technicians, and professionals in the financial industry will generally have access to expunged records. As a result, applicant in those fields will quite often have to report that they have expunged records. For more information on Expungements in DWI cases in Louisiana, please see Bobby Harges, Louisiana DWI (Thomson/Reuters 2017) (http://legalsolutions.thomsonreuters.com/law-products/Treatises/Louisiana-Practice-Louisiana-DWI-2017-ed/p/104752124).

 

If you are in need of a serious, aggressive, and experienced expungement, DWI/DUI, or criminal defense attorney in the greater New Orleans area, please contact Gaynell Williams Law at 504-302-2462.

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2017 Gaynell Williams LLC Attorney at Law. Published August 19, 2017.




Cardell Hayes Sentenced to 25 Years for Killing former New Orleans Saints football star Will Smith

1. Cardell Hayes Sentenced to 25 Years for Killing former New Orleans Saints football star Will Smith

On Thursday, April 20, 2017, Judge Camille Buras sentenced Cardell Hayes, the man who was convicted of killing former New Orleans Saints star Will Smith, to 25 years in prison.  Hayes could have received 60 years in prison, 40 years for the manslaughter conviction for the death of Will Smith  plus 20 years for the attempted manslaughter of Racquel Smith if the sentences had run consecutively. When sentences are served concurrently, the sentences are served at the same time, as in Hayes’s case. If the sentences were to run consecutively, Hayes would have to finish serving the sentence for one offense before he started serving the sentence for any other offense.

2. Comments of Hayes’s Attorney John Fuller and District Attorney Leon Cannizzaro, Jr. After the Sentencing

According to Hayes’s attorney John Fuller, who gave an interview outside of the Orleans Criminal Court Building located at 2900 Tulane Avenue, and commonly known as Tulane and Broad, Judge Buras must have considered many things in sentencing Cardell Hayes, including the loss to Will Smith’s family, the loss of income to the Smith family, the loss of a father, as well as Cardell Hayes’s background. A spokesperson for District Attorney Leon Cannizzaro, Jr. said that the Smith family and the District Attorney are both disappointed with the length of the sentence. Cannizzaro had advocated for the longer sentence of 60 years.

3. The Crime of Manslaughter in Louisiana

Manslaughter is a less serious crime and a responsive verdict to the charge of second degree murder.  Under Louisiana Code of Criminal Procedure, Article 814, Responsive verdicts; in particular, the only verdicts which may be rendered by the jury when the indictment charges second degree murder are 1. Guilty of second degree murder, 2. Guilty of manslaughter, 3. Guilty of negligent homicide, or 4. Not guilty. In other words, the jury in the trial of Cardell Hayes had no choice but to render one of the four verdicts mentioned above. By finding Cardell Hayes guilty of manslaughter, the jury found that the elements of second degree murder were not proven by the prosecution. Under La. R.S. 14:31, manslaughter is defined as

(1)  A homicide which would be murder under either [first degree murder] or [second degree murder], but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.  Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or

(2)  A homicide committed, without any intent to cause death or great bodily harm.

(a)  When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or

(b)  When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.
death.

4. The Crime of Attempt in Louisiana

The crime of attempt in Louisiana can be found in La. R.S. § 14:27, which recognizes an attempt to commit any crime, whether a misdemeanor or a felony.  The attempt statute article must be read with the article proscribing the crime in question. For example, for the attempted manslaughter conviction of Cardell Hayes for his act of shooting Racquel Hayes, the attempt statute, La. R.S. § 14:27, must be read in conjunction with the manslaughter statute, La. R.S. 14:31. The attempt statute reads as follows:

La. R.S. § 14:27. Attempt; penalties; attempt on peace officer; enhanced penalties

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
(1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
(2) Further, the placing of any combustible or explosive substance in or near any structure, watercraft, movable, or forestland, with the specific intent eventually to set fire to or to damage by explosive substance such structure, watercraft, movable, or forestland, shall be sufficient to constitute an attempt to commit the crime of arson as defined in R.S. 14:51 through 53.

An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
Whoever attempts to commit any crime shall be punished as follows:
(1)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

(b) If the offense so attempted is punishable by death or life imprisonment and is attempted against an individual who is a peace officer engaged in the performance of his lawful duty, he shall be imprisoned at hard labor for not less than 20 nor more than 50 years without benefit of parole, probation, or suspension of sentence.

(2)(a) If the offense so attempted is theft of receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, imprisoned for not more than six months, or both.

(b) If the offense so attempted is receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, imprisoned for not more than one year, or both.

(c)(i) If the offense so attempted is theft of an amount not less than three hundred dollars nor more than five thousand dollars, he shall be fined not more than five hundred dollars, imprisoned for not more than one year, or both.

(ii) If the offense so attempted is theft of an amount over five thousand dollars, he shall be fined not more than two thousand dollars, imprisoned, with or without hard labor, for not more than five years, or both.

(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

For the purposes of Subsection D of this Section, the term “peace officer” means any peace officer, as defined in R.S. 40:2402.
This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2017 Gaynell Williams LLC Attorney at Law. Published April 22, 2017.

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.




New Book on Louisiana DWI Laws Recently Published

A new book on Louisiana DWI laws was recently published by my husband, Loyola law professor and criminal and DWI attorney Bobby Harges. The book was published by Thomson Reuters and is available for purchase online at : http://legalsolutions.thomsonreuters.com.

 

The book on Louisiana DWI laws has been reviewed in the Louisiana bar journal by clinical professor Judson Mitchell of the Loyola University College of Law in New Orleans. The book review is available at http://files.lsba.org/documents/publications/BarJournal/Journal-Feature4-Feb-Mar-2017.pdf and can be found below. This book is a result of five years of legal research and writing. As the book was written, Bobby Harges and I spent numerous hours discussing the many concepts that appear the book. It was also quite a joy proofreading the book, debating the various topics, and proofreading the many drafts of the book. Professor Mitchell’s book review follows:

 

Bobby M. Harges makes an invaluable contribution to the field of Driving While Intoxicated (DWI) laws in Louisiana with his newly published Louisiana Practice: Louisiana DWI (2016 ed., Thomson Reuters, 678 pages). This unique volume provides a comprehensive, scholarly overview of Louisiana DWI statutes and regulations, along with valuable practice-related tips.

 

Prior to the publication of this book, attorneys wanting to get up to speed on DWI had to rely on the statutes alone, old CLE manuals and/or advice from wizened veterans at the courthouse. Now, all information relevant to prosecuting, defending or judging a DWI case can be found in this one Louisiana-specific treatise.

 

The book is ideal for lawyers new to DWI practice who are looking to learn this complicated field and indispensable for experienced practitioners who seek guidance on complex, technical areas. Indeed, this reviewer used a draft copy of Harges’ chapter on field sobriety tests in a recent successful DWI defense and can attest personally to the book’s indispensability for the serious DWI practitioner.

 

Harges, a law professor at Loyola University College of Law in New Orleans for more than two decades, structured the book to provide the most efficient understanding of DWI laws and regulations, presenting educational (and rather interesting) information relevant for parties on either side of a DWI case.

 

The book is clearly intended to serve as a neutral and reliable source, beneficial to all practitioners regardless of whether they are looking to use DWI provisions as a sword or as a shield. The book is large in scope, covering virtually every issue arising under Louisiana DWI laws. It touches upon many “nonlegal” and scientific areas that are useful, if not essential, for understanding the DWI law practice. The opening chapters thoroughly cover the statutes and case law related to driving while intoxicated and implied consent. From there, Harges provides an illuminating explanation of the rules relating to suspension of driving privileges, a subject that is surely arcane but of vital importance to those facing a DWI. Chapters 4 and 5 provide a detailed look at the major and minor offenses related to DWI, such as vehicular homicide and hit-and-run.

 

After a thorough discussion in Chapter 6 of search and seizure as it relates to this topic, Harges then provides a masterful chapter dealing with field sobriety tests which, along with probable cause, are the areas in which most DWI cases are won and lost. In addition to providing the history and scientific background of field sobriety testing (FST), Harges provides specific explanations of how each part of the field test works (e.g., there is a thorough discussion of the Horizontal Gaze Nystagmus Test and related criticisms) and tips to help practitioners determine the validity of the FST in a given case.

 

The book closes with a helpful chapter on expungements and DWI, which includes relevant forms. Harges’ professorial skills and experience are apparent from the organization and structure of the book. He opens each chapter with the basics, i.e., the statutory language. Every DWI statute is closely scrutinized so that any unfamiliar word or phrase deserving explanation is subsequently defined within the meaning of each statute. These clarifications and add-ons are detailed and, oftentimes, engaging. Individual sections of Louisiana DWI thoroughly examine how the different statutes and rules governing DWI are applied in Louisiana, offering commentary on most recent court decisions, laws and regulations. By ensuring uniformity of structure and information covered in relation to various DWI topics throughout the book, Harges made the book practical and user friendly.

 

Regardless of whether readers are looking for a little or a lot of information on a specific DWI regulation, they will find it effortlessly. To the extent possible, Harges manages to turn somewhat dry material into an arresting and educational treatise suitable for any audience. Louisiana DWI is a remarkable treatise on DWI laws in Louisiana and is sure to become the authoritative reference on the subject in the years to come. As the first of its kind, the book is a significant achievement and deserves close attention. This reviewer highly recommends Louisiana Practice: Louisiana DWI to any practitioner, layperson or a student of DWI laws for contextual information, analysis and understanding of this area of law.

 

The book is available for purchase online at: http:// legalsolutions.thomsonreuters.com. R. Judson Mitchell, Jr. is a clinical professor at Loyola University College of Law in New Orleans. He focuses in the fields of criminal defense and the application of technology to law practice. (jmitchel@ loyno.edu; 540 Broadway, New Orleans, LA 70118).

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2016 Gaynell Williams LLC Attorney at Law.

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.

 

Published February 18, 2017




Why the Jury Found Cardell Hayes Guilty of Manslaughter of Former NFL and New Orleans Saints Player Will Smith Instead of Second Degree Murder

In a nutshell, the jury found that Cardell Hayes did not have the specific intent to kill either Will Smith or Racquel Smith.

 

1. The Charges

The defendant, Cardell Hayes, was charged by grand jury indictment with committing three crimes: (1) the second degree murder of Will Smith; (2) the attempted second degree murder of Racquel Smith, and (3) aggravated criminal damage to property for ramming his Hummer H2 into Smith’s Mercedes Benz SUV on the night of April 9, 2016. Hayes was found guilty of manslaughter of Will Smith and attempted manslaughter of Racquel Smith. He was found not guilty of aggravated criminal damage to property.

 

2. The Law

In Louisiana, second degree murder is defined, in part, under La. R.S. 14:30.1 as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Attempted second degree murder, under La. R.S. 14:27 and La. R.S. 14:30.1, requires proof of specific intent to kill and the commission of an act tending to accomplish that purpose. And aggravated criminal damage to property, under La. R.S. 14:55, requires the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.

 

3. The Facts Alleged by the District Attorney

It was undisputed at trial that Cardell Hayes killed Smith and shot Racquel Smith, the wife of Will Smith, former NFL and New Orleans Saints football player at about 11:30 p.m. on April 9, 2016 after a three-car collision on a street in the Lower Garden District. The District Attorney contended that Cardell Hayes intentionally crashed into the back of Smith’s SUV in retaliation for an apparent bump to the rear of his own vehicle two blocks earlier on Magazine Street. Video evidence at the trial showed Will Smith’s vehicle bumping into and then going around Hayes’s vehicle. Hayes’ vehicle then chased the Smith vehicle, resulting in a three car collision. After the collision, the occupants of all three vehicles exited their vehicles. An argument ensued between Hayes and Smith. Apparently, Hayes left his vehicle with a .45-caliber handgun intending to kill Smith which he did. Smith, 34, during the argument, returned to his vehicle, was shot seven times in the back, while his wife, Racquel Smith, also was shot twice, once in each leg.

 

4. The Facts Alleged by the Defense

Hayes’ attorneys argued that Will Smith started the incident with a hit-and-run in when his Mercedes Benz SUV hit Hayes’ on Magazine Street. The defense argued that Hayes fired in self-defense after Smith and members of his entourage rushed Hayes and his passenger, Kevin O’Neal, after Hayes accidently ran into the back of Smith’s vehicle.

 

5. Louisiana’s Stand Your Ground Self-Defense Law

Louisiana Revised Statutes, 14:20(A)(1), Justifiable Homicide, provides,

Justifiable homicide

A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

This provision means that a person who is justified in using self-defense has no duty to retreat before he uses force or violence. In other words, a person who is legally allowed to use self-defense if he reasonably believes that he is imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. In Louisiana, jurors cannot consider the possibility of retreat in deciding whether a killing was reasonable.

 

6. The Verdict

From the evidence presented and from the jury’s verdict on December 11, 2016, the jury found that Cardell Hayes did not have the specific intent to kill Will Smith or Racquel Smith. Thus, Cardell Hayes was found not guilty of second degree murder and attempted second degree murder. On the aggravated criminal damage to property charge, the jury apparently believed that there was not enough evidence to believe that Cardell Hayes intended to ram his Hummer H2 into the back of Will Smith’s Mercedes Benz. Consequently, Cardell Hayes was found not guilty of aggravated criminal damage to property.

 

A critical fact at the trial was Will Smith’s high level of intoxication and the fact that he was driving while intoxicated (DWI). The New Orleans Coroner’s Office said Will Smith’s blood alcohol content was .235, nearly three times the legal limit for driving. The legal limit for driving is a blood alcohol less that 0.08%. Thus, it appears that the jurors considered the fact that Will Smith actions may have contributed to the scenario that resulted his death. In other words, the jurors apparently believed that Cardell Hayes did not have the specific intent to kill Will Smith.

 

7. Manslaughter in Louisiana

 

Manslaughter is a less serious crime and a responsive verdict to the charge of second degree murder. Under Louisiana Code of Criminal Procedure, Article 814, Responsive verdicts; in particular, the only verdicts which may be rendered by the jury when the indictment charges second degree murder are 1. Guilty of second degree murder, 2. Guilty of manslaughter, 3. Guilty of negligent homicide, or 4. Not guilty. In other words, the jury in the trial of Cardell Hayes had no choice but to render one of the four verdicts mentioned above. By finding Cardell Hayes guilty of manslaughter, the jury found that the elements of second degree murder were not proven by the prosecution. Under La. R.S. 14:31, manslaughter is defined as

 

(1) A homicide which would be murder under either [first degree murder] or [second degree murder], but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or

 

(2) A homicide committed, without any intent to cause death or great bodily harm

 

(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2016 Gaynell Williams LLC Attorney at Law. Published December 24, 2016.

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.




Louisiana Stand Your Ground and Self-Defense Law

Louisiana Stand Your Ground and Self-Defense Law

 

Louisiana Revised Statutes, 14:20(a), that is, La. R.S. 14:20(4)(a)  provides,

Justifiable homicide

“A.  A homicide is justifiable:

When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.

 

This provision means that a person who is justified in using self-defense has no duty to retreat before he uses force or violence. In other words, a person who is legally allowed to use self defense and who is in a person where he has a right to be has no duty to retreat before using force or violence and may stand his ground and meet force with force.”

 

Thus, if a person is lawfully in his car and someone tries to make an unlawful entry into the car, the person in the car has no duty to retreat. That person may use whatever force is reasonable under the circumstances in order to defend himself. This includes the use of “deadly force” if the person reasonably believes that the force is necessary to prevent the intruder from entering the car.  So the person in the car does not to have to retreat or run from the car to seek safety elsewhere because there is no duty to retreat in Louisiana. A person may “stand his ground.”

 

The same applies to a person who is in a house, apartment, or a place of business. It is not necessary for the a person in those places to believe that he is in danger of losing his life or receiving great bodily harm for the law allows the victim to use deadly force to prevent the intruder from entering the car, dwelling, or place of business.

 

La. R.S. 14:20(B) provides that there is a “presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:

 

(1)  The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

 

(2)  The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.”

 

 

If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2016 Gaynell Williams LLC Attorney at Law. Published April 18, 2016.

 




New Book on Louisiana DWI Laws Published

A new book on Louisiana DWI laws has been written by my husband, Loyola Law Professor Bobby Harges. The book was published by Thomson/Reuters, and an is available on on the Internet at http://tmsnrt.rs/2fveYPj .

 

Louisiana DWI presents a broad overview of the DWI laws in Louisiana. The text serves as a guide to prosecutors, defense attorneys, and judges who have to apply and interpret Louisiana DWI laws. More specifically, this book provides analysis and discussion of the wide variety of Louisiana DWI statutes and regulations. It is not designed to favor the prosecution or the defense in DWI cases, but to provide a resource that both sides can refer to for information in DWI cases.

 

The individual sections of Louisiana DWI explore in depth how the different statutes and rules governing DWI are applied, providing commentary of current court decisions, statutes, and regulations. Each section provides background information about each statute, along with the available caselaw, illustrating how courts in Louisiana have applied the rules and regulations to a particular case. In short, this book presents substantive information that will not only educate readers about the DWI statutory and regulatory schemes, but will also increase the reader?s overall knowledge and understanding of the DWI laws and how they operate in practice.

 

This book begins with a discussion in Chapter 1 of the criminal laws affecting driving under the influence of drugs and/or alcohol. Chapter 2 contains a discussion of the Louisiana Implied Consent Laws (the civil laws affecting DWI). Chapter 3 covers suspension of driving privileges for DWI related offenses. Chapter 4 addresses related serious driving offenses, while Chapter 5 summarizes related non-serious driving offenses. Chapter 6 deals with stops, searches, and seizures of motorists suspected of driving under the influence of drugs and/or alcohol. Chapter 7 reviews the many field sobriety tests used by law enforcement officers to determine if a person is driving under the influence. Finally, Chapter 8 serves as an introduction to the laws pertaining to the expungement of DWI arrests and convictions. This chapter also contains a list of the various expungement laws in Louisiana as well as the forms that must be filed with expungement requests.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2016 Gaynell Williams LLC Attorney at Law. Published December 2, 2016.




WHAT TO EXPECT WHEN GOING TO COURT – GETTING READY FOR YOUR DAY IN COURT

 

•Everyone who enters the courthouse is subject to a walk-through metal detector and/or hand held scanning device. The security screening process creates long lines of people waiting to enter the courthouse during peak hours.
•Have items that may set off the alarm ready to place in the tray or on the x-ray machine when you enter the building. This will expedite your entry into the Courthouse.
•If you have a pacemaker, tell the security officer about it before you enter the metal detector.
•Cell phones are not permitted to be taken into the courthouse.
•Leave all weapons of any kind and sharp edged objects in your vehicle or at home. The security staff will not hold unauthorized items for return.

 

DO’S AND DON’TS WHEN GOING TO COURT

 

Do’s
•Leave children with a babysitter.
•Get there early. There are many things that could delay you on the day that you go to court.
•Do exercise self-control, no matter what is said in the court room.
•Do be respectful to the other side whenever you meet them.
•Do speak clearly and loudly enough to be heard by the Judge and opposing side.
•Do ask the questioner to repeat or clarify any questions you do not understand.
•Do direct your answers to the person who asked the question. Make eye contact with them.
Don’ts
•Do not chew gum.
•Do not argue with the opposing party or his/her attorney.
•Do not interrupt.
•Do not react to the answers of witnesses or to the questions from the opposing attorney to indicate your displeasure.
•If you are questioned by the other side, do not argue with the questioner.
•If cell phones are allowed in court, make sure that you cell phone is turned off. Many judges will take cell phones from those that ring, buzz, or make sounds during hearings or trials.

 

WHILE YOU ARE WAITING IN THE BACK OF THE COURTROOM

 

•Do appear to be paying attention. It is helpful to actually listen and learn about the process (and the Judge) before your case.
•Do try to appear pleasant and interested in the proceedings.
•Do be polite to the courtroom staff- the clerk, bailiff, and others. They work with the Judge and will report behavior.
•Do not read the newspaper, listen to your iPod, work on your laptop, use your cell phone, or talk to other people while waiting.
•Do not make faces or roll your eyes or otherwise show negative reactions to something happening in the court.

 

WHEN SPEAKING TO THE JUDGE

 

•Do refer to him/her as “Your Honor” and speak with respect.
•Do not act angry or short-tempered with the Judge, even if you are upset by your case.
•Do not roll your eyes or act negatively towards anything that the Judge says or does.

 

HOW TO DRESS FOR COURT

 

•Formal dress is not required in the courtroom but males should wear a collared shirt and slacks. Females should avoid low necklines, bare midriffs, and short skirts. Short pants should not be worn in court.
•Do not wear t-shirts with messages, tank tops, jeans, sheer clothing, tight clothing, oversized clothing, shorts, or flip flops.
•If you are dressed inappropriately, you may not be allowed into the courtroom.

 

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2016 Gaynell Williams LLC Attorney at Law. Published July 21, 2016.




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