Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

On March 26, 2019, prosecutors in Chicago dropped all charges against the Empire actor Jesse Smollett. He was charged in January with staging a hate crime. In exchange for the charges being dropped, Smollett agreed to community service and to forfeit the $10,000 bond he paid for his release. Police Superintendent Eddie Johnson and Mayor Rahm Emanuel criticized the prosecutor’s decision to drop the charges against Mr. Smolett.

Many people are wondering how is it possible for the Chicago state’s attorney to drop all charges against Mr. Smollett. Like most states, the state’s attorney in Illinois is vested with exclusive discretion to determine whether to bring criminal charges against a suspect, and to decide what charges to bring. Van Guilder v. Glasgow, 588 F. Supp. 2d 876 (N.D. Ill. 2008. In other words, it is up to the state’s attorney to decide whether or not to charge Mr. Smollett. Whether the decision to drop the charges against Mr. Smollett is the right thing to do is up to debate.

In Louisiana, district attorneys have the same prosecutorial discretion. Prosecutors in Louisiana have the power and discretion to choose which crime, if any, the defendant should be charged with. State v. Flores, 669 So. 2d 646 (La. App. 2 Cir. 2/28/96). It is not a violation of any law for the prosecutor to decide not to charge someone. Thus, while it appears that the decision to not prosecute Mr. small that is controversial, it is legal.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. 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. © 2019 Gaynell Williams LLC Attorney at Law.

Posted March 27, 2019.

By |2019-03-27T08:46:48-05:00March 27th, 2019|Uncategorized|Comments Off on Jussie Smollett – Was It Legal for Chicago Prosecutors to Drop All Charges Against Jussie Smollett?

Expungements in Louisiana – What Types of Crimes Cannot Be Expunged in Louisiana?

Expungements in Louisiana -What Types of Crimes Cannot Be Expunged in Louisiana?

by Attorney Gaynell Williams

Our previous blog on Expungement of DWI/DUI and Criminal Arrests and Convictions can be found at Louisiana expungements in general.  This blog discusses certain crimes that cannot be expunged. As you may know, 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. However, an expunged record is not destroyed.

Generally, a conviction cannot expunged if it is for any crime or an attempted crime that is designated as a crime of violence by the prosecuting attorney or that  is defined as a sex offense as defined by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).

The following crimes of violence enumerated in R.S. 14:2(B) shall always be designated by the court in the minutes as a crime of violence and cannot ever be expunged: (1) Solicitation for murder; (2) First degree murder; (3) Second degree murder; (4) Manslaughter; (5) Aggravated or first degree rape; (6) Forcible or second degree rape; (7) Simple or third degree rape; (8) Sexual battery; (9) Second degree sexual battery; (10) Intentional exposure to AIDS virus; (11) Aggravated kidnapping; (12) Second degree kidnapping; (13) Aggravated arson; (14) Armed robbery; (15) Assault by drive-by shooting; (16) Carjacking; (17) Terrorism; (18) Aggravated second degree battery; (19) Aggravated assault with a firearm; (20) Armed robbery; use of firearm; additional penalty; (21) Second degree robbery;(22) Disarming of a peace officer; (23) Second degree cruelty to juveniles; (24) aggravated crime against nature; (25) Trafficking of children for sexual purposes; (26) Human trafficking; and (27) Home invasion.

Sex offenses that may not be expunged are: trafficking of children for sexual purposes, crime against nature, aggravated crime against nature, crime against nature by solicitation, felony carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, computer-aided solicitation of a minor, prohibited sexual conduct between an educator and student, prostitution; persons under eighteen, purchase of commercial sexual activity, contributing to the delinquency of juveniles, sexual battery of persons with infirmities, obscenity by solicitation of a person under the age of seventeen, video voyeurism), rape, aggravated or first degree rape, forcible or second degree rape, simple or third degree rape, sexual battery, second degree sexual battery, oral sexual battery, intentional exposure to HIV, a second or subsequent conviction of voyeurism, or a second or subsequent conviction of sexual abuse of an animal) committed on or after June 18, 1992, or committed prior to June 18, 1992, if the person, as a result of the offense, is under the custody of the Department of Public Safety and Corrections on or after June 18, 1992.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. 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. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-03-20T14:04:35-05:00March 20th, 2019|Uncategorized|Comments Off on Expungements in Louisiana – What Types of Crimes Cannot Be Expunged in Louisiana?

Empire’ Star Jussie Smollett Arrested for Filing a False Police Report after Attack Claim

Empire’ Star Jussie Smollett Arrested for Filing a False Police Report after Attack Claim

Actor and singer Jussie Smollett was arrested on Thursday, February 21, 2019 for filing a false police report after claiming he was the victim of a racist and homophobic attack.

Smollett claimed to police on January 29, 2019 that he was physically attacked by two men at approximately 2 a.m. after picking up food at a Subway restaurant in downtown Chicago. He reported that the assailants yelled racist and homophobic slurs before pouring an unknown chemical substance on him and wrapping a rope around his neck. Smollett had allegedly received a threatening letter days before the alleged attack.

The Empire star was taken into custody just hours after he was charged with felony disorderly conduct, an offense that could bring one to three years in prison.

Certain constitutional protections apply to a person charged with a crime. There are also certain procedures that are roughly the same from jurisdiction to jurisdiction. The following is a brief description of what happens when a person is charged with a crime.

After a person is arrested, he will be “booked” at the police department. This entails taking fingerprints and completing other procedural requirements. The person will then be held in police custody pending a court hearing. This hearing will usually take place within 48 hours. One would expect a person like Jussie Smollett to be released on bond after a bail amount is set by the judge. The purpose of the bond is to ensure that the person appears in court for future court appearances.

At the court hearing, the judge will read the charges against the person, who is called the defendant. The judge will try to make sure that the defendant understands the charges. The judge will then ask the defendant to enter a plea. A defendant can enter a plea of “not guilty”, of “no contest”, or of “guilty”.

If you’ve been accused of a crime, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. 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. © 2019 Gaynell Williams LLC Attorney at Law.

By |2019-02-21T12:11:24-05:00February 21st, 2019|Uncategorized|Comments Off on Empire’ Star Jussie Smollett Arrested for Filing a False Police Report after Attack Claim

Will Louisiana Be the Next State to Lower Its DWI Limit to .05 Percent?

Will Louisiana Be the Next State to Lower Its DWI Limit to .05 Percent?

 

On December 30, 2018, the state of Utah lowered its DUI limit to .05 percent. Click here for the Utah statute. Will Louisiana be next? As you know, the DWI limit in Louisiana is currently .08 percent. The DWI limit in Louisiana has been .08 percent since 2003, when Louisiana lowered its DWI limit from 0.10 percent to .08 percent.

In 1983, Utah was the first state to lower its DUI limit from 0.10 percent to 0.08 percent. Now, some 25 years later, Utah was the first state in the nation to lower its DUI limit to .05 percent. Michigan was the last state to adopt 0.08 bac in 2005. Thus, it took almost 23 years for all states to adopt the .08 BAC limit. How long will it take all states to adopt the .05 BAC limit?

The push to lower the DWI limit from 0.10 to .08 began in 1998 when then President Bill Clinton took the initiative to establish nationwide standards to define legal intoxication for purposes of DWI/DUI. President Clinton called for a national limit of a blood alcohol concentration (BAC) of 0.08% or higher to be established as a federal standard to define legal intoxication. Any person operating a vehicle with this BAC or higher would be operating the vehicle illegally, whether or not the person displayed physical signs of being intoxicated.

After this push by President Clinton, several laws were enacted by the U.S. Congress encouraging this decrease. One law declared that Congress would cut federal funding for states that did not adopt the 0.08% or higher limit. A later law declared that states must pass the 0.08% BAC law or begin losing federal highway construction funds. As a result, all states eventually adopted 0.08% BAC level as the standard to identify legal intoxication. Now, Utah has gone a step further and lowered its BAC level for DUI to 0.05%.

Louisiana’s per se DWI law is found in Louisiana Revised Statue 14:98(a)(1)(b) which states that a person is guilty of DWI when she operates a motor vehicle when her blood alcohol concentration (BAC) is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

 

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. © 2019 Gaynell Williams LLC Attorney at Law. Published  January 18, 2019.

By |2019-01-18T17:35:59-05:00January 18th, 2019|Uncategorized|Comments Off on Will Louisiana Be the Next State to Lower Its DWI Limit to .05 Percent?

Do Motorists in Louisiana Have to Submit to the Breathalyzer Test after a DWI Arrest?

Do Motorists in Louisiana have to Submit to the Breathalyzer Test or a Blood Test after a DWI Arrest?

Another frequently asked question that motorists ask about DWI or DUI law is, “Can I refuse to take the breathalyzer test after a DWI arrest?” The short answer yes. But there are serious consequences upon refusal. If an arrested motorist in Louisiana refuses to submit to the breathalyzer test or other chemical test or tests (alcohol analysis test) ordered by the arrested officer, his driving privileges will be suspended for a year for such refusal.

Louisiana has an implied consent statute which states that each motorist in Louisiana who was arrested for DWI after operating a motor vehicle upon the public highways of Louisiana has given consent to a breathalyzer or chemical test or tests of his blood, breath, urine for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance in his blood at the time that the motorist was DWI. This means that the law requires the motorist who was arrested for DWI to submit to a breathalyzer or other alcohol analysis test that can determine if the motorist was driving under the influence of drugs and/or alcohol. If the motorist refuses to submit to one of these tests, he has violated the law and there are severe consequences.

The Louisiana Implied Consent law allows a motorist to refuse the breathalyzer test or other alcohol analysis test and requires that the motorist be advised by the arresting officer of the consequences of such refusal. If the officer does not advise the motorist of the consequences of a refusal to take an alcohol analysis test, then the motorist’s license could not be suspended.

What are the consequences of a refusal to submit to the breathalyzer test? When the motorist refuses the breathalyzer, the motorist’s driving privileges will be suspended and his driver’s license seized by the law enforcement officer. The officer will then issue a temporary license to the motorist. The motorist can drive with the temporary license until he has been informed by the Louisiana Department of Public Safety and Corrections that his license has been officially suspended for an entire year. After the motorist’s license has been seized by the arresting officer, the motorist has a right to make a written request for an administrative hearing before an administrative law judge within thirty (30) days of his arrest.  The administrative law judge will determine if the DWI arrest was proper and if the motorist’s license should be suspended. If the motorist does not make a written request for an administrative hearing within thirty days of the arrest, or if the administrative law judge determines that a suspension of the person’s license is proper, the motorist’s license will be officially suspended for one year from the date of suspension.

So, whether you should refuse the breathalyzer test after a DWI arrest is entirely up to you. But it is important to know that there are serious consequences upon refusal.

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  December 22, 2018.

By |2018-12-22T21:27:18-05:00December 22nd, 2018|Uncategorized|Comments Off on Do Motorists in Louisiana Have to Submit to the Breathalyzer Test after a DWI Arrest?
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