Chad Ikerd, an attorney with the 15th Judicial District Public Defenders office , along with Chief Public Defender Paul Marx, challenged the constitutionality of this statute. Mr. Ikerd’s position, and a position which I agree with, was that it is unconstitutional for the state to require a foreign resident to provide legal immigration status simply because he or she is driving a car.

Mr. Ikerd fought this at the local trial level, and then took an appeal to the Louisiana 3rd Circuit Court of Appeal. The Court found LA: RS 14:100.13 , or Driving without Lawful Presence, to be unconstitutional. The basis for the ruling was that the state law infringed on the federal law in regard to immigration status. One of the judges called the law “silly.”

We agree – the law was silly. It would be like if you were in Cancun, Mexico driving a rental car. The police stop you and you happen not to have any documentation proving you are in the country legally. So they take you away and they can keep you in jail for up to a year.  This sounds unfair and sounds unconstitutional, and now, thanks to Chad Ikerd and Paul Marx, the law has in fact been found to be unconstitutional. The entire Latino community is breathing a sigh of relief. They no longer have to worry about this silly law and can concentrate on their goal of becoming legal citizens.

This post Driving While Hispanic Law Found Unconstitutional is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

Do Not Wait to Investigate the Accident Scene

My law firm has handled cases in Louisiana and Mississippi for clients who have been injured at an industrial site or plant, and I know how important it is to investigate the accident scene as quickly as possible.  One of our Louisiana clients suffered a severe injury to his hip and spinal cord while on the job. Photographs of the accident scene were taken immediately after the accident by the subcontractor/employer.  These photographs seemed to indicate that the client may have been responsible for his own injuries.

However, our office immediately began an investigation. We hired a professional investigator to take statements and review the photographs in question. After taking depositions and receiving interrogatories submitted to the defendants, it was learned that the accident scene may have been doctored prior to taking the photos. We submitted to the insurance companies that the subcontractor had altered the scene in order to avoid liability.

In addition to the photographs, we took statements from witnesses confirming that the photographs may have been taken after the accident scene was doctored. Once this information was provided to the plant owner and subcontractor, the defendants requested an immediate mediation. The case was subsequently settled for a large sum.

If Scene Is Not Investigated Immediately, Evidence Can Be Lost Forever

The importance of this case, and we have mentioned this in previous blogs, is the necessity of immediate and aggressive investigation. When you hire an experienced personal injury lawyer, he or she will have a personal injury investigator available to work on your case. Some of these investigators have been ex law enforcement personnel who are experienced in obtaining the pertinent and relevant to protect our client’s interests.

In this particular matter, our client’s settlement allowed him to retire with sufficient funds to maintain his prior standard of living. He did not have to worry about going back to work. In fact, because of his injuries, he would have been unable to obtain the type of income he had previously received. In any event, when someone is in an industrial plant explosion, accident, fire, etc., it is important to contact an experienced personal injury lawyer who knows that no time can be wasted.  If factual information, photographs, and diagrams of the accident scene are not obtained quickly, evidence can be lost or unintentionally or intentionally altered. If you are injured at a plant or other industrial site, do not hesitate to contact a personal injury attorney to protect your interests.

My law firm is licensed in Louisiana, Mississippi, Texas and Georgia.  We handle personal injury claims for industrial accidents and injuries on the job.

This post Litigating Accidents at Industrial Plants is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

Jury Selection for a Death Penalty Trial

Picking a jury is more complicated for a capitol trial. Before a potential juror can qualify to sit on a death penalty case, he or she must agree that they can consider any and all mitigating factors prior to rendering a sentence of death or life. If addition, the potential juror must agree that if the evidence and the crime warrant the death penalty, he or she can impose that sentence.  In short, a juror in a death penalty trial must be able to “consider” both a death sentence and a life sentence.

The Guilt Phase

The first trial is the guilt phase.  In this phase, the jury will decide whether or not the defendant is guilty of first degree murder. If the jury returns a lesser verdict, such as second degree murder or manslaughter, the sentence can range from life to 0-40 years. The verdict of the jury must be unanimous on the first degree charge.  For example, if the 12 member jury is deadlocked at 10 to 2, it is a mistrial. But if the jury comes back with a unanimous verdict finding the defendant guilty of first degree murder, the jury must then decide to give the defendant the death penalty or life imprisonment.

The Penalty Phase

This is the second phase of the trial and is known as the penalty phase. During this phase, the defendant’s criminal defense attorney will put on mitigating evidence. The evidence does not justify the crime but will explain to the jury certain factors they must consider before deciding whether to give defendant the death penalty or a life sentence.  For example, if the defendant suffered extreme abuse as a young child, this is something the jury may take into account when making their decision.  Other mitigating factors could be if the defendant was young or mentally incapacitated at the time of the crime or under the influence of another person.   During this phase, the prosecution can introduce aggravating circumstances – these could be if the crime was committed in a particularly atrocious manner or the defendant was a contract killer.

Capital cases in Louisiana are not that common. A charge of second degree murder is much more likely. Second degree homicide carries an automatic life sentence but not the possibility of death. Since there is no option of the death penalty, the trial will be handled pretty much like any other felony trial. For second degree, there is only one phase of the trial and picking the jury is less time consuming and less expensive. Many times the District Attorney will simply try the matter as a Second Degree murder and avoid the pressure and expense of a capitol trial.

This post Death Penalty Trials in Louisiana Have Separate Rules is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

Many of those charged have never been in trouble before and suddenly find themselves navigating the criminal justice system.   It’s a shame because an arrest or conviction can have serious lifelong repercussions.

No Arrests for Small Amounts of Marijuana in NY

As a criminal defense attorney I was interested to read that New York has a state law that prohibits the police from arresting people with small, personal amounts of marijuana (under 25 grams) unless they are displaying the drugs in a public manner.  This means that police officers would not arrest someone who had the marijuana hidden from view in their purse or in their car.  The goal of the law is to allow the police to focus on more serious, violent crimes and to avoid putting young people in the criminal justice system.

Study Shows Simple Possession Does Not Usually Lead to Violent Crime

Opponents of this law argue that marijuana use is a gateway to more serious crimes and cracking down on offenses early on is important for public safety. To test the assumption that marijuana possession leads to violent felonies, the organization Human Rights Watch conducted a study of roughly 30,000 people who were arrested for simple possession of marijuana in New York City and had no prior convictions. The study followed them for a period of 6 ½ – 8 ½ years to determine whether they were convicted of any violent crimes.  During that time, over 90% of the people followed were not convicted of a subsequent violent felony.  Over 80% had no criminal convictions at all.  In this study, possession of a personal amount of marijuana did not usually lead to violent crime and therefore, arrests for simple possession did not significantly improve public safety.

Personally I think the New York law is a great idea. Possession of a small amount of marijuana, intended for personal use and not to sell to others, is not a violent crime and usually does not harm anyone else.   A charge for simple possession brings otherwise law-abiding citizens into the criminal justice system without measurably improving public safety.  However, for the time being Louisiana considers possessing any amount of marijuana a misdemeanor offense that is punishable by possible jail time, although jail is unlikely on a first offense. There are pre trial diversion programs for first time offenders with a clean record, but it would be better to keep them out of the courts altogether.

This post Arrests for Simple Possession of Marijuana and Public Safety is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you.”

The wording can vary as long as the rights are clearly stated and understood.  This means that if you do not speak English, the officer needs to provide a translation that you can understand.

Police Must Read You Your Rights ONLY if You Are in Custody

The police are required to give the Miranda warning to a person that they have in custody and who is considered a suspect. However, if you are just being questioned by the police and are in not in custody, the police do not have to inform you of these rights.  It is important to know that if you become a suspect later on, your statements can be used against you.

You Have the Right to Consult with an Attorney Before Answering Any Questions

This is what your Miranda Rights mean in practice: you do not have to answer any questions without an attorney present. This is true whether you are an official suspect or not. If you are being questioned by the police, all you have to say is –“I appreciate the job you are doing, but I wish to consult with my attorney prior to giving any statements.”  Remain polite, but insist upon your rights.  The police will respect your decision and your 5th Amendment right not to incriminate yourself will be protected.

As a criminal defense attorney, I HIGHLY recommend that you do not give any statements without talking to an attorney first.  Even if you feel that you are completely innocent of all possible charges, it is in your best interest to avoid giving statements that could unintentionally implicate you.  It is not uncommon for people who are being questioned by the police to be scared and emotionally overwhelmed or could possibly be intoxicated or impaired in some way. This is not the time to give any official statements.

This post Your Miranda Rights Explained is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

This is the official process, but what does this mean in real life?  Practically speaking, it is difficult for many people to say no to the police, especially if they are unsure about their rights. So it is important to know specifically what your rights are. Here are the top questions people ask me about police searches:

Q: If the police ask to search my car/house, don’t I have to let them?

A:  No.  If the police do not have a search warrant, you can say no.

Q: The police say they can easily get a search warrant, so why don’t I just say yes and get it over with?

A:  The police may in fact be able to get a search warrant, but then again, they may not. It’s unpleasant to have your house and car searched, so you will want to avoid it if you can.

More importantly, when you allow the police to search your property, you are allowing a “consent search” – this means that the police are free to search for anything that might be considered illegal. With a search warrant, the police are limited to looking for what was permitted in the search warrant, but with a consent search, they can look anywhere they like.

Q: What if the police ask to search my purse/briefcase?

A: Your rights are still protected like any other property and you can say no.

Q: I know someone who was stopped for speeding and the police found a bag of pot in his car and arrested him. Wasn’t that a violation of his rights?

A: It depends. If the drugs were in the cup holder or somewhere else easily visible to the police officer, they were considered to be in “plain view” and subject to search and seizure. But if the drugs were locked in the glove compartment and not visible to the police officer, there would not be probable cause to search the vehicle just because the driver was speeding.

Q: If the police do have a search warrant to search my property, what will happen?

A: The police must show you the warrant, which will list what the police are searching for, the place they are searching, the people they are searching, and when the search is to take place. The search warrant must be signed by a judge. With a valid warrant, the police can begin searching for what is outlined in the warrant and will certainly be very thorough. However, they are not supposed to search for things, people or in places that are not mentioned in the warrant.  My criminal defense law firm helped represent a man whose room was improperly searched  — the warrant was for his housemate, whose room had already been searched and who had already been arrested. The search warrant was not for my client and there was no need to keep searching, so the search was improper.

This post Top 5 Questions about Police Searches and Your Constitutional Rights is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

1. Formal Reprimand

You never want to get a letter from the Nursing Board, but if you do, it would be best to receive a Formal Reprimand.  This is a letter explaining what issues the Nursing Board is concerned about.  This is essentially a warning, and no official action is taken. However, the fact that the nurse has received a Formal Reprimand is noted in their license file.

2. License Probation

The second least serious form of discipline is License Probation.  The nursing license is technically suspended, but the nurse is allowed to continue working under the supervision of a representative of the nursing board.  If the requirements of the probation are met, the probationary period will end and the license will be reinstated.  If conditions are not met, the license will be fully suspended.

3. License Suspension

License Suspension is the third most serious type of discipline.  The length of time the suspension is in affect varies – it can be for a certain period of time, or more seriously, for an indefinite period of time. Generally, suspension lasts from 1 – 5 years.  And depending on the type of violation, there can be additional requirements that go along with the suspension. During the suspension, the nurse is not allowed to continue working.

4. Voluntary Surrender of License

The next most serious action is the loss of the nursing license for a period of time.  This is Voluntary Surrender of License, which means the nurse consents to surrendering their license for at least two years or maybe more.  During this time, they will need to fulfill certain requirements in order to reinstate their nursing license.  In this instance, the board is giving the nurse a chance to address the issue — such as undergoing drug treatment or taking educational courses or counseling– in order to get their license back.

5. Summary Suspension of License

If the Board is very concerned about a nurse’s conduct, they can immediately suspend the nursing license and schedule a disciplinary hearing. This is called Summary Suspension of License.  The nurse will not be able to work during this period, and their license may be subject to other restrictions.

6. License Revocation

The worst action the Board can take is to completely revoke a nurse’s license. This means that the nurse can never again practice nursing in Louisiana.

If you are facing any type of discipline by the Louisiana State Board of Nursing, please call my Louisiana law office for a free initial consultation about your defense.

This post Louisiana Nursing Board Disciplinary Actions is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

You can be eligible for pre trial diversion if you meet all of the following conditions:

1.  The criminal charge is considered a non-violent offense. The charge can be either a misdemeanor or a felony as long as it is non- violent.
2. You have no prior felony convictions.
3. You have one or no prior misdemeanor convictions.
4. If you do have one prior misdemeanor conviction, it is not a drug charge or a violent charge.  (i.e. previous charge cannot be simple assault, simple battery, simple drug possession)
5. The current charge is not the same offense as your previous misdemeanor conviction.
6.  The prior misdemeanor conviction was not originally a felony charge that was reduced to a misdemeanor.
7. You were not previously terminated or rejected from the Pretrial Diversion Program. However, if you were rejected due to the reason “unable to locate” — meaning that you could not be located because of a bad address — then you may be eligible.
8. You did not already complete a pretrial diversion program. This condition applies whether you completed the program in the 15th Judicial District or any other jurisdiction. The only exception is if you completed the pretrial diversion program for the charge of Minor in Possession of Alcohol or Tobacco, then you can be eligible.
9. You do not have any outstanding warrants or pending charges in the 15th Judicial District or any other jurisdiction.  The District Attorney can decide to allow you into the program even if you have a pending charge, as long as you have no prior convictions, but this is at their discretion.
10. You have the victim’s approval to enter the Pre trial Diversion Program.

If you meet the above criteria and would like assistance entering the Lafayette, Acadia and Vermilion Parish Pre Trial Diversion program, please call my office to set up an appointment. For a list of the Diversion Program’s fees and conditions for specific criminal charges, please see our Louisiana Criminal Defense Information page.

This post 10 Eligibility Guidelines for Pretrial Diversion in Louisiana is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

The number of jurors who must agree in order to obtain a conviction, and avoid a mistrial, depends on the size of the jury. Felony criminal trials will have either a 12 person jury or a 6 person jury.  With a 12 person jury, the verdict does not have to be unanimous, but with a 6 person jury, all jurors must agree to get a conviction.

Mistrials with a 12 Person Jury

If you are accused of a crime that carries a sentence of mandatory hard labor – that is, the criminal statute requires that you spend time in jail if convicted, then you will have a 12 person jury.  For example, in Louisiana the crime of Armed Robbery has a prison sentence exposure of 10 years to 99 years. The criminal statute specifically states that you will be sentenced to hard labor, so the jury for an armed robbery charge will be 12 people.
With a 12 person jury, 10 must agree that the defendant is guilty for a conviction.  If 3 jurors believe you are not guilty and 9 find you guilty, the result is a mistrial. Judges vary in what is the appropriate time to deliberate before a mistrial is declared, but if the jury is adamant that it can’t reach a verdict, the state will have to try the defendant again.

Mistrials with a 6 Person Jury

For a Simple Robbery charge, the sentence exposure in Louisiana is 0 to 7 years, with or without hard labor. Since prison time is not mandatory, you will only be entitled to a 6 person jury. However, with a 6 person jury, all jurors must agree to the verdict.  If one juror finds you not guilty and the other 5 jurors find you guilty, then the judge will declare a mistrial.

Benefits of a Mistrial

I always try to explain to my clients is that while a mistrial is more favorable than a guilty verdict, the State can try you again. However, sometimes when a prosecutor does not obtain a guilty verdict in a trial, he or she may feel it’s best to dismiss the case.  The prosecutor knows that getting a conviction at the second trial could be tougher since the criminal defense attorney knows what the prosecution’s case is going to be and will be even more prepared.

Recently, I defended a client in Lafayette, Louisiana in a criminal trial with a 6 person jury. All 6 jurors could not reach a unanimous verdict. The judge explained to the jury that if they could not all agree to a conviction, a mistrial would be declared. He sent the jury back to deliberate for more time. The jury still could not agree and the judge was forced to declare a mistrial. My client was happy – while it was not a Not Guilty verdict, it was certainly a loss for the prosecution. The State may decide to retry the case, but now we know what their evidence is and exactly what their case is going to be. It’s always better to get a Not Guilty verdict, but sometimes a mistrial can eventually mean the same thing.

This post Mistrial — What this Means in a Criminal Trial is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo

Immediate Resolution is Sometimes Possible

As a nursing license defense attorney, I recently represented two Louisiana nurses who had been told by their employer to self report a possible nursing board violation. In these two cases, we had evidence which disproved the allegations, so I immediately arranged a meeting with the investigator to explain our side of the story.  Our goal is to get a favorable report from the investigator who will then forward that report on to the nursing board prosecutor. At this point, we schedule a meeting with the prosecutor to bring the possible violation to an immediate close, thereby ending any possible formal petition filed against my client. Generally, when a nurse is ordered to self report a possible violation and it is clearly not a violation, we cooperate and facilitate an immediate close to the investigation.

Other Times It’s Better to Wait and Have a Full Hearing

However, I only do this in cases where the facts are favorable to my client. When the facts are less favorable to my client, I am not inclined to provide information which may be detrimental to my client’s position. For example, if a nurse has failed to properly document medication, or has tested positive for drugs, or was not being completely honest on the nursing license re-application, I generally wait to see if any formal petition is filed against my client. If a petition is filed, then we begin requesting discovery and prepare for a full hearing in front of the board. (See related post: Protecting Your Nursing License at a Revocation Hearing).

The key here is to maintain the possibility of employment and to avoid exposing the client to the unnecessary loss of their nursing license. Each case must be dealt with according to the specific allegations of misconduct. But it is good to know that when the facts are on your side, you can possibly reach an immediate resolution to the nursing board’s investigation.

This post Two Defense Strategies for Nursing Board Violations is written by the Thomas V. Alonzo Law Firm, specializing in criminal defense and personal injury litigation in Louisiana and Mississippi. Thomas V. Alonzo