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WHEN CAN A COMMERCIAL DRIVER’S LICENSE (CDL) IN LOUISIANA BE SUSPENDED?

WHEN CAN A COMMERCIAL DRIVER’S LICENSE (CDL) IN LOUISIANA BE SUSPENDED?

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

This blog post will discuss the the circumstances under which a Commercial Driver’s License (CDL) in Louisiana can be suspended for DWI related offenses.

La. R.S. 32:414.2 contains different suspension periods for commercial licensees for different offenses, ranging from 60 days to a lifetime suspension or disqualification. A person may not drive a commercial motor vehicle in Louisiana if he is disqualified for any reason.

Generally, Louisiana drivers can lose their CDL licenses either on a temporary or permanent basis.

The degree of loss depends on whether the violation in question is characterized as major (which always gives rise to some form of disqualification) or serious (which cumulatively leads to disqualification).

 

First, an act of operating a commercial motor vehicle (CMV) constitutes implied consent to be tested for any trace of alcohol, or controlled substances.

A person will lose his commercial driver’s license for at least one year for a first offense for:

  • being convicted of, or being disqualified from operating a commercial motor vehicle at an administrative hearing, after a first reported submission to a chemical test in connection with an arrest, while operating any motor vehicle, commercial or noncommercial, for (1) operating under the influence of alcohol, (2) operating with an alcohol concentration of 0.08 percent or more, or (3) operating under the influence of a controlled dangerous substance;

 

  • being convicted of, or being disqualified from operating a commercial vehicle at an administrative hearing, after a first reported submission to a chemical test in connection with an arrest, while operating a commercial motor vehicle, for operating with an alcohol concentration of at least 0.04 percent but under an alcohol concentration of 0.08 percent or more;

 

  • a first conviction, while operating any vehicle, commercial or noncommercial, for operating under the influence of a controlled dangerous substance;

 

  • using any motor vehicle, commercial or noncommercial, in the commission of a felony not described in Subparagraph (A)(2)(a) of La. R.S. 32:414.2;

 

  • a first offense of leaving the scene of an accident in any vehicle, commercial or noncommercial;

 

  • a first offense of refusal to submit to an alcohol concentration or drug test, while operating any motor vehicle, commercial or noncommercial;

 

  • a first offense of operating a commercial motor when, as a result of prior violations committed while operating a commercial motor vehicle, the driver’s commercial driver’s license is suspended, revoked, canceled or disqualified;  or

 

  • a first offense of causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the offenses of manslaughter, negligent homicide, and vehicular homicide.

 

Under La. R.S. 32:414.2, a conviction, for purposes of compliance with federal motor carrier rules, means a disqualification under La. R.S. 32:414.2(A)(4) for which a timely administrative hearing  request has not been received or a disqualification which has been affirmed after an administrative hearing.  Additionally, a conviction under La. R.S. 32:414.2 also means an unvacated adjudication of guilt or a determination in a court of original jurisdiction or by an authorized administrative tribunal that a person has violated or faled to comply with the law. A conviction also includes “an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court; a plea of guilty or nolo contendere accepted by a court; the payment of a fine or court costs; or a violation of a condition of release without bail, regardless of whether the penalty is rebated, suspended, or probated.” La. R.S. 32:414.2(A)(9)(a).

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 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. © 2018 Gaynell Williams LLC Attorney at Law. Published June 4, 2018.

By | 2018-06-04T09:27:33+00:00 June 4th, 2018|Uncategorized|Comments Off on WHEN CAN A COMMERCIAL DRIVER’S LICENSE (CDL) IN LOUISIANA BE SUSPENDED?

PROTECTIVE ORDER LAWS

A protective order is a court-certified document prohibiting the person named in the order from getting within a certain distance of the person who requested that the order be issued. Protective orders, also known as restraining or stay away orders, are mostly used in cases involving domestic abuse, stalking, and sexual assault. If the protective order is violated, the likely consequence is an arrest and a criminal charge.

Although obtaining and enforcing a protective order may sound like a rather simple process, the truth is that it involves a number of legal and emotional intricacies. There are three types of protective orders: long-term protective orders, temporary restraining orders, and emergency temporary restraining orders. Regardless of the type of protective order, the federal government has put in place certain protection order laws, and the federal government, demands that individual states honor and enforce valid orders issued by other states. This is only one of the reasons why it is imperative that one seeks legal assistance when dealing with a protective order matter. Don’t wait, we are here to help! Call us today to schedule an appointment for a free consultation to discuss your case. Call (504) 302-2462.

Our goal is to keep you out of jail and at home with your family where you belong. Regardless of the seriousness of the crime you have been accused of, we can help. Don’t wait! Call us today to schedule an appointment for a free consultation to discuss your case. Call (504) 302-2462.

“Play your cards well, call Gaynell!”

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. © 2018 Gaynell Williams LLC Attorney at Law.

Published May 28, 2018.

By | 2018-05-28T08:54:59+00:00 May 28th, 2018|Uncategorized|Comments Off on PROTECTIVE ORDER LAWS

KNOW YOUR RIGHTS – LOUISIANA DOMESTIC VIOLENCE LAWS

With domestic violence cases being discussed almost daily on various media outlets, there is hardly anyone who is not at least slightly familiar with the nature and consequences of these kinds of offenses. However, what often goes unsaid is that law enforcement and the judiciary have zero tolerance for domestic violence cases and are reluctant to show any leniency, often imposing the harshest sentences available. Because domestic violence cases usually occur in family settings or between individuals who are emotionally close — causing a societal and political condemnation — they may be extremely hard to defend. Furthermore, what makes defending these cases even harder are some common misconceptions.

First, following the arrest of the accused abuser, chances are that the alleged victim would likely to either drop the charges or not press any charges. However, the decision whether or not to proceed with the case will actually be made by the prosecutor, not by the victim. And, given the aforementioned policy to fight these kinds of cases, prosecutors will not pass on an opportunity to put the alleged abuser behind bars.

Second, an arrest for domestic violence will frequently be accompanied by a stay away order or a protective order. And the violation of a protective order may be a separate criminal charge in itself.

Lastly, domestic violence charges are very serious and can lead to grave consequences such as jail time, hefty fines, home evictions, deprivation of the right to own a firearm, and difficulty in finding or keeping a job. Regardless of whether one is facing a misdemeanor or a felony charge, the penalties can be quite severe. And because domestic violence is an enhanceable offense, stricter sentences come with each additional conviction. These offenses are also not eligible for expungement under Louisiana law.

Our goal is to keep you out of jail and at home with your family where you belong. Regardless of the seriousness of the crime you have been accused of, we can help. Don’t wait! Call us today to schedule an appointment for a free consultation to discuss your case. Call (504) 302-2462.

“Play your cards well, call Gaynell!”

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. © 2018 Gaynell Williams LLC Attorney at Law. Published May 1, 2018.

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.

By | 2018-05-01T19:34:26+00:00 May 1st, 2018|Uncategorized|Comments Off on KNOW YOUR RIGHTS – LOUISIANA DOMESTIC VIOLENCE LAWS

Why Was Ronald Gasser Guilty of Manslaughter of Former New York Jets Running Back Joe McKnight?

1. Why Ronald Gasser was Found Guilty of Manslaughter of former New York Jets Running Back Joe McKnight?

In a nutshell, the jury reached a compromise verdict and found that Ronald Gasser committed manslaughter, not second degree murder. This case is very similar to the verdict in the State of Louisiana versus Cordell Hayes regarding the killing of former New Orleans Saints player Will Smith.

DWI Administrative Hearing

2. The Charges

The defendant, Ronald Gasser, was charged by grand jury indictment with committing the second degree murder of Joe McKnight. The jury found that Gasser was guilty of manslaughter.

3. 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.

4. The Facts Alleged by the District Attorney

It was undisputed at trial that Ronald Gasser killed Joe McKnight, the former NFL and New York Jets football player, on December 1, 2016, after a road rage incident that began on the New Orleans Crescent City Connection Bridge and ended in Terrytown as both Gasser and McKnight shouted vulgarities at each other and raced back and forth during the five-mile chase. McKnight was killed when he exited his vehicle in Terrytown, stood at the passenger-side window of Gasser’s car, and attempted to get into Gasser’s vehicle. Gasser did not leave the driver’s seat of his car. The District Attorney contended that Ronald Gasser intentionally killed McKnight by shooting him three times, hitting him in the shoulder, chest, and left hand.

5. The Facts Alleged by Ronald Gasser’s Defense

Gasser’s attorneys argued self-defense, claiming that Joe McKnight was the aggressor and that Gasser feared for his life when he shot and killed McKnight. They also contend that McKnight was under the influence of several drugs at the time of the encounter.

6. Louisiana’s Stand Your Ground Self-Defense Law (The Castle Doctrine)

Louisiana Revised Statutes, 14:20(A)(1), Justifiable Homicide, provides,
Justifiable homicide
A. A homicide is justifiable:
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) 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.
B. For the purposes of this Section, there shall be 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.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

7. The Verdict Against Ronald Gasser

From the evidence presented and from the jury’s verdict on January 26, 2018, the jury found that Ronald Gasser was in the heat of passion when he killed Joe McKnight. Thus, Ronald Gasser was found not guilty of second degree murder. He was found guilty of manslaughter.

8. 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 Ronald Gasser had no choice but to render one of the four verdicts mentioned above. By finding Ronald Gasser 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; …
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. © 2018 Gaynell Williams LLC Attorney at Law. Published February 2, 2018.

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.

By | 2018-04-04T18:15:29+00:00 February 2nd, 2018|Uncategorized|Comments Off on Why Was Ronald Gasser Guilty of Manslaughter of Former New York Jets Running Back Joe McKnight?

DWI Administrative Hearing Process in Louisiana

DWI Administrative Hearing

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

The Department of Public Safety and Corrections (DPSC) DWI Administrative Hearing Process after a motorist’s driver’s License is suspended in Louisiana law requires the DPSC Office of Motor Vehicles (OMV) 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. To learn more about the administrative hearing, go to the web site of the Louisiana Department of Public Safety and Corrections .

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 at the DWI Administrative Hearing?

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. For more information on Louisiana DWI laws, click here.

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.

By | 2018-04-04T18:20:05+00:00 December 14th, 2017|Uncategorized|Comments Off on DWI Administrative Hearing Process in Louisiana