Big River

August 2022

Criminal Defense

All About Louisiana Drug Court Programs

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All About Louisiana Drug Court Programs According to the Bureau of Justice report in 2017, an estimated 21% of incarcerated individuals in state and local jails are sentenced for crimes related to obtaining drugs or money for drugs; while over 40% of people incarcerated for property crimes and 14% of people incarcerated for violent crimes stems from drug-related reasons. According to data from the Louisiana Department of Public Safety and Corrections, as of October 2000 total prison population was 35,998, of which over 30 percent are incarcerated for drug-related crimes. Although it is not further determined the exact nature of the drug-related crimes for this data, it is noted in the report that a significant number of the 30 percent population are for charges that often have a root cause in drug abuse or distribution. Given these high numbers of drug and alcohol-related crimes, the Louisiana legislature has created the Drug Diversion Probation Program, commonly referred to as Drug Court. Under the statute, district courts operate and provide for drug and alcohol treatment programs through drug diversions. Essentially, the drug court’s goal is curtailing crimes attributed to drugs and alcohol. Thus, they created the Drug Diversion Probation Program to implement the legislature’s purposes. Who Are Eligible To Participate In The Drug Diversion Probation Program? For a defendant to be eligible for the drug diversion probation program, they must satisfy the following criteria: The defendant must not have any prior felony convictions for any offenses classified as a crime of violence; The defendant’s current charge cannot be a crime of violence, including domestic violence; driving under the influence of alcohol or any drugs that have resulted in the death of a person; or multiple counts of distribution, possession with intent to distribute, production, manufacture, or cultivation of dangerous controlled substances; The defendant must not have any other pending criminal proceedings that involve the commission of a crime of violence; If the defendant has a record of one or more felonies, then the defendant must not have been convicted of aggravated burglary or simple burglary of an inhabited dwelling; However, eligibility based on the criteria above is not sufficient to get into the drug diversion probation program. As discussed below, the judge decides whether a defendant can be accepted to the program. Who Makes The Final Determination If The Defendant Is Eligible To Participate In The Drug Diversion Probation Program? The judge decides whether the defendant is eligible to participate in the drug diversion probation program. To make a proper determination on the suitability of the defendant for the drug diversion probation program, the judge would assess numerous factors, including the recommendations of the district attorney and the defense counsel, the Examiner’s report, and other relevant information, including but not limited to: Nature of the crime charged and the circumstances involved in the crime; Whether the defendant is a first-time offender of a crime related to alcohol or drug-related offense, if the defendant has previously participated in the same or similar program, and whether they have shown any degree of success in the previous treatment program; The probability that the defendant will willfully participate and benefit from the program; Whether the program is appropriate to meet the needs of the defendant; Impact on the community of the defendant’s probation and treatment; Recommendations, if any, of the involved law enforcement agency or victim; Likelihood of obtaining restitution from the defendant throughout their probation; If there are any mitigating circumstances; Other circumstances that are reasonably related to the defendant’s case. The judge shall state their reasons for the record if they decide to reject the defendant from participating in the drug diversion probation program. What Criteria Does The District Attorney Use To Make Their Recommendation? As mentioned above, the district attorney recommends whether a defendant is deemed eligible to participate in the program to the court. The criteria used by the district attorney to determine whether they would recommend a defendant to be admitted to the drug diversion probation program are as follows: If the defendant is charged with using and possessing any narcotic drugs, coca leaves, marijuana, stimulants, depressants, hallucinogenic drugs, or significant association with alcohol or drug use, or both; If the district attorney has a reason to believe that the defendant suffers from alcohol or drug addiction, or both; and If the district attorney believes that it is in the best interest of the community and justice to provide the defendant with treatment to their addition instead of incarceration or other sanctions. What Is The Examiner’s Report, And What Does It Entail? As stated above, the judge uses an Examiner’s Report to determine whether a defendant is eligible to participate in the drug diversion probation program. The Examiner’s report is ordered by the court and is conducted by one of the court’s designated licensed treatment programs. These treatment programs are certified and approved by the State of Louisiana, and they have experience working with criminal justice clients suffering from alcohol or drug-related addictions. The report examines the defendant using standardized testing and evaluation protocols to assess whether the defendant is an eligible candidate for a treatment program. Generally, only defendants determined by the report to suffer from alcoholism or drug addiction, or both, or if they are in danger of developing alcohol or drug dependency and likely to be rehabilitated through treatment, can be considered for treatment. In addition, the Examiner may request the following information from the defendant and use these as part of their recommendation: Any prior criminal charges Educational, working or training background Family history, including their residence or ties in the community Medical and mental history, including treatments Any other information that is reasonably related to determining the treatment program’s success. In addition to the defendant’s eligibility, the Examiner’s Report would include a recommendation to the court of the level of care and length of stay for the defendant. The report’s recommendation will be forwarded to the court and the district attorney. Does The Defendant Waive

Defensa Criminal

Todo sobre los programas de los tribunales de drogas de Luisiana

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  Todo Sobre Los Programas De Los Tribunales De Drogas De Luisiana Según el informe de la Oficina de Justicia en 2017, se estima que el 21% de las personas encarceladas en las cárceles estatales y locales son condenadas por delitos relacionados con la obtención de drogas o de dinero asociadas con las drogas; mientras que más del 40% de las personas encarceladas por delitos contra la propiedad y el 14% de las personas encarceladas por delitos violentos provienen de motivos relacionados con las drogas. Según datos del Departamento de Seguridad Pública y Correccional de Luisiana, en octubre de 2000 la población penitenciaria total era de 35,998 personas, de las cuales más del 30% están encarceladas por delitos relacionados con las drogas. Aunque no se determina la naturaleza exacta de los delitos relacionados con las drogas para estos datos, se observa en el informe que un número significativo de la población del 30% son por cargos que a menudo tienen una causa de origen en el abuso o la distribución de drogas. Dado el elevado número de delitos relacionados con las drogas y el alcohol, el poder legislativo de Luisiana ha desarrollado el Programa de Libertad Condicional para la rehabilitación de Drogas, comúnmente conocido como Tribunal de Drogas. De acuerdo con la ley, los tribunales de distrito gestionan y proporcionan programas de tratamiento de drogas y alcohol a través de desviaciones de drogas. Esencialmente, el objetivo del tribunal de drogas es reducir los delitos atribuidos a las drogas y el alcohol. Por ello, crearon el Programa de Libertad Condicional para la rehabilitación de drogas para poner en práctica los propósitos del legislador. ¿Quiénes Pueden Participar En El Programa De Libertad Condicional Para La Rehabilitación De Drogas? Para que un acusado pueda acogerse al programa de libertad condicional para la rehabilitación de drogas, debe cumplir los siguientes criterios: El demandado no debe tener ninguna condena previa por cualquier delito clasificado como crimen de violencia; El cargo actual del acusado no puede ser un delito de violencia, incluida la violencia doméstica; manejar bajo la influencia del alcohol o de cualquier droga que haya provocado la muerte de una persona; o múltiples cargos de distribución, posesión con intención de distribuir, producción, fabricación o cultivo de sustancias controladas peligrosas; El acusado no debe tener ningún otro proceso penal pendiente que implique la comisión de un delito de violencia; Si el acusado tiene antecedentes por uno o más delitos graves, no debe haber sido condenado por robo agravado o por robo simple de una vivienda habitada; Sin embargo, la elegibilidad basada en los criterios anteriores no es suficiente para participar en el programa de libertad condicional de desviación de drogas. Tal como se explica más adelante, el juez decide si un acusado puede ser aceptado en el programa. ¿Quién Toma La Decisión Final Si El Acusado Es Elegible Para Participar En El Programa De Libertad Condicional De Rehabilitación De Drogas? El juez decide si el acusado puede participar en el programa de libertad condicional de desviación de drogas. Para tomar una decisión adecuada sobre la idoneidad del acusado para el programa de libertad condicional de desviación de drogas, el juez evaluaría numerosos factores, incluidas las recomendaciones del fiscal y del abogado defensor, el informe del Examinador y otra información pertinente, entre otras cosas: La naturaleza del delito imputado y sus circunstancias; Las características o circunstancias únicas del acusado; Si el acusado es la primera vez que comete un delito relacionado con el alcohol o las drogas, si el acusado ha participado previamente en el mismo programa o en uno similar, y si ha mostrado algún grado de éxito en el programa de tratamiento anterior; La probabilidad de que el acusado participe voluntariamente y se beneficie del programa; Si el programa es adecuado para satisfacer las necesidades del acusado; Impacto en la comunidad de la libertad condicional y el tratamiento del acusado; Recomendaciones, si las hay, de las fuerzas del orden implicadas o de la víctima; Probabilidad de obtener la restitución del acusado a lo largo de su libertad condicional; Si existen circunstancias atenuantes; Otras circunstancias que estén razonablemente relacionadas con el caso del acusado. El juez expondrá sus razones para que conste en acta si decide rechazar la participación del acusado en el programa de libertad condicional para la desviación de drogas. ¿Qué Criterios Utiliza El Fiscal Para Hacer Su Recomendación? Tal como se ha mencionado anteriormente, el fiscal del distrito recomienda al tribunal si un acusado es considerado apto para participar en el programa. Los criterios utilizados por el fiscal del distrito para determinar si recomiendan que un acusado sea admitido en el programa de libertad condicional de desviación de drogas son los siguientes: Si el acusado es acusado de usar y poseer cualquier estupefaciente, hojas de coca, marihuana, estimulantes, depresores, drogas alucinógenas, o asociación significativa con el uso de alcohol o drogas, o ambos; Si el fiscal tiene motivos para creer que el acusado sufre de adicción al alcohol o a las drogas, o de ambas cosas; y Si el fiscal considera que es en el mejor interés de la comunidad y de la justicia proporcionar al acusado un tratamiento a su adición en lugar del encarcelamiento u otras sanciones. ¿Qué Es El Informe Del Examinador Y En Qué Consiste? Tal como ya se ha dicho, el juez utiliza un Informe del Examinador para determinar si un acusado es elegible para participar en el programa de libertad condicional de desviación de drogas. El informe del examinador es ordenado por el tribunal y es realizado por uno de los programas de tratamiento autorizados por el tribunal. Estos programas de tratamiento están certificados y aprobados por el Estado de Luisiana, y tienen experiencia en trabajar con clientes de la justicia penal que sufren adicciones relacionadas con el alcohol o las drogas. El informe examina al acusado utilizando pruebas estandarizadas y protocolos de evaluación para valorar si es un candidato elegible para un programa de tratamiento. Por lo general, sólo se puede considerar la posibilidad

Defensa Criminal

¿Qué es un programa de intervención previa al juicio?

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All About Pre-Trial Intervention Programs Being arrested and accused of a crime does not necessarily mean you will have a criminal conviction on your record. One way to avoid having a criminal conviction is to beat your case at trial. Another way to avoid having a criminal conviction on you record is to enter into a pretrial diversion program that may be offered through the local District Attorney’s Office. However, getting into one of these programs is not automatic. Different parishes have different rules about who gets accepted and the program conditions vary from parish to parish. What Is The Pretrial Diversion Program Or Pretrial Intervention (PTI)? The pretrial diversion program is also known as pretrial intervention or DA probation. This program allows first-time offenders of non-violent charges to get their charges dismissed and avoid serving jail or prison time in exchange for either: Agreeing with the prosecutor or DA’s office to pay a fine, take some classes, perhaps do community service, and the charges get dismissed; or Enroll in the program and get the charges dismissed The ultimate goal of the pretrial diversion program is to keep first-time non-violent offenders out of the criminal justice system by diverting them to get the rehabilitation treatment they need to prevent them from committing future criminal charges. Does The Defendant Have To Plead Guilty To Participate In The Pretrial Diversion Program? No, the defendant would not have to plead guilty to be admitted to the pretrial diversion program. Who Is Eligible For The Pretrial Diversion Program? However, the specific conditions that a defendant must meet to gain eligibility for the pretrial diversion program are as follows: The charge is a non-violent offense. The defendant has no prior felony convictions. The defendant does not have any or more than one prior misdemeanor conviction, of which the misdemeanor conviction must not be a violent crime or drug-related or was not an original felony charge that is reduced to a misdemeanor. The current charge is not the same as the initial misdemeanor charge. The defendant has not previously completed the pretrial diversion program. The defendant has not previously been terminated or rejected from the pretrial diversion program. An exception is if the defendant was dismissed from the program because they could not be located due to miscommunication. The defendant has no outstanding warrants or charges. The victim has approved the defendant’s admission to the pretrial diversion program. Are Eligible Defendants Automatically Offered To Participate In The Pretrial Diversion Program? No. The defendant has no absolute right to get offered or be admitted to the pretrial diversion program even if they are eligible. Instead, it is solely up to the prosecutor’s office to provide a defendant an opportunity to participate in the program. The prosecutor evaluates each case individually and assesses numerous factors to determine whether they could extend an offer to the defendant to be admitted to the pretrial diversion program. Some of the factors that the prosecutor may use to evaluate the defendant may include but are not limited to the nature of the crime, any mitigating factors, any prior offenses or criminal history, and the surrounding facts of the case. Since a defendant could not automatically be offered to participate in the pretrial diversion program, it is valuable to have a reputable and highly experienced criminal attorney to appeal the defendant’s interest to the prosecutor. How Long Is The Pretrial Diversion Program? Generally, the length of the program lasts between six months to a year. However, the total length of the pretrial diversion program highly depends on the nature of the crime charged to the defendant. Are There Any Costs For Participating In The Pretrial Diversion Program? Yes, there are costs associated with participating in the pretrial diversion program, and the defendant must bear these costs. However, if the defendant could prove that they are indigent, then the prosecutor would modify the charges associated with the pretrial diversion program. How Much Does It Cost To Participate In The Pretrial Diversion Program? The general costs charged to the defendant to enter the pretrial diversion program are as follows: For non-drug-related charges, there is an administration supervision fee of $30 per month, a $35 fee for random drug testing, charges for classes or services the defendant must attend, and any restitution owed. Moreover, there is a $200 enrollment fee for misdemeanors plus $50 for each additional charge and a $100 evaluation charge. There is a $400 enrollment fee for felonies, plus $50 for each additional charge and a $250 evaluation charge. For drug-related charges, there is a minimum fee of $35 for the required random drug screening and charges for any classes and services required of the defendant. Specifically for misdemeanor charges, there is a $500 enrollment fee and a $250 drug evaluation fee, whereas there is a $1,000 enrollment fee and a $375 drug evaluation fee for felony charges. For DUI/DWI charges, there is a $1,000 enrollment fee, fees for the required alcohol screening and monitoring, charges for any required services or classes imposed on the defendant, and a $30 monthly administrative fee. Participating in the pretrial diversion program provides a valuable opportunity for a defendant. However, having the chance to be admitted to this program may be difficult since it is strictly up to the prosecutor of the case. Thus, availing of the legal guidance and representation by a reputable criminal lawyer may provide valuable assistance to your cause as they can negotiate with the prosecutor and present reasons that you may be a good candidate for the program. If you or your loved one has been accused of a charge, and would like to know about the chances of getting into a pretrial diversion program, please call (225) 963-9638, or you can click here to contact us for a free consultation. Our highly experienced criminal lawyers can help you assess your case and represent your interests.

Criminal Defense

All About Pre-Trial Intervention Programs

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Being arrested and accused of a crime does not necessarily mean you will have a criminal conviction on your record. One way to avoid having a criminal conviction is to beat your case at trial. Another way to avoid having a criminal conviction on you record is to enter into a pretrial diversion program that may be offered through the local District Attorney’s Office. However, getting into one of these programs is not automatic. Different parishes have different rules about who gets accepted and the program conditions vary from parish to parish. What is the Pretrial Diversion Program or Pretrial Intervention (PTI)? The pretrial diversion program is also known as pretrial intervention or DA probation. This program allows first-time offenders of non-violent charges to get their charges dismissed and avoid serving jail or prison time in exchange for either: Agreeing with the prosecutor or DA’s office to pay a fine, take some classes, perhaps do community service, and the charges get dismissed; or Enroll in the program and get the charges dismissed The ultimate goal of the pretrial diversion program is to keep first-time non-violent offenders out of the criminal justice system by diverting them to get the rehabilitation treatment they need to prevent them from committing future criminal charges. Does the Defendant Have to Plead Guilty To Participate in the Pretrial Diversion Program? No, the defendant would not have to plead guilty to be admitted to the pretrial diversion program. Who is Eligible for the Pretrial Diversion Program? However, the specific conditions that a defendant must meet to gain eligibility for the pretrial diversion program are as follows: The charge is a non-violent offense. The defendant has no prior felony convictions. The defendant does not have any or more than one prior misdemeanor conviction, of which the misdemeanor conviction must not be a violent crime or drug-related or was not an original felony charge that is reduced to a misdemeanor. The current charge is not the same as the initial misdemeanor charge. The defendant has not previously completed the pretrial diversion program. The defendant has not previously been terminated or rejected from the pretrial diversion program. An exception is if the defendant was dismissed from the program because they could not be located due to miscommunication. The defendant has no outstanding warrants or charges. The victim has approved the defendant’s admission to the pretrial diversion program. Are Eligible Defendants Automatically Offered to Participate in the Pretrial Diversion Program? No. The defendant has no absolute right to get offered or be admitted to the pretrial diversion program even if they are eligible. Instead, it is solely up to the prosecutor’s office to provide a defendant an opportunity to participate in the program. The prosecutor evaluates each case individually and assesses numerous factors to determine whether they could extend an offer to the defendant to be admitted to the pretrial diversion program. Some of the factors that the prosecutor may use to evaluate the defendant may include but are not limited to the nature of the crime, any mitigating factors, any prior offenses or criminal history, and the surrounding facts of the case. Since a defendant could not automatically be offered to participate in the pretrial diversion program, it is valuable to have a reputable and highly experienced criminal attorney to appeal the defendant’s interest to the prosecutor. How Long is the Pretrial Diversion Program? Generally, the length of the program lasts between six months to a year. However, the total length of the pretrial diversion program highly depends on the nature of the crime charged to the defendant. Are There Any Costs for Participating in the Pretrial Diversion Program? Yes, there are costs associated with participating in the pretrial diversion program, and the defendant must bear these costs. However, if the defendant could prove that they are indigent, then the prosecutor would modify the charges associated with the pretrial diversion program. How Much Does It Cost to Participate in the Pretrial Diversion Program? The general costs charged to the defendant to enter the pretrial diversion program are as follows: For non-drug-related charges, there is an administration supervision fee of $30 per month, a $35 fee for random drug testing, charges for classes or services the defendant must attend, and any restitution owed. Moreover, there is a $200 enrollment fee for misdemeanors plus $50 for each additional charge and a $100 evaluation charge. There is a $400 enrollment fee for felonies, plus $50 for each additional charge and a $250 evaluation charge. For drug-related charges, there is a minimum fee of $35 for the required random drug screening and charges for any classes and services required of the defendant. Specifically for misdemeanor charges, there is a $500 enrollment fee and a $250 drug evaluation fee, whereas there is a $1,000 enrollment fee and a $375 drug evaluation fee for felony charges. For DUI/DWI charges, there is a $1,000 enrollment fee, fees for the required alcohol screening and monitoring, charges for any required services or classes imposed on the defendant, and a $30 monthly administrative fee. Participating in the pretrial diversion program provides a valuable opportunity for a defendant. However, having the chance to be admitted to this program may be difficult since it is strictly up to the prosecutor of the case. Thus, availing of the legal guidance and representation by a reputable criminal lawyer may provide valuable assistance to your cause as they can negotiate with the prosecutor and present reasons that you may be a good candidate for the program. If you or your loved one has been accused of a charge, and would like to know about the chances of getting into a pretrial diversion program, please call (225) 963-9638, or you can click here to contact us for a free consultation. Our highly experienced criminal lawyers can help you assess your case and represent your interests.

Family Law

How Does The Court Determine Child Custody?

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How Does The Court Determine Child Custody? Another issue in getting divorced or breaking up is the matter of child custody or visitation of minor children. This issue is a sensitive topic and a grave concern for everybody involved. Generally, family courts grant orders that focus on the phrase “best interest of the child” regarding child custody and visitation matters regarding minor children. Given the complex application of the law in the child custody orders, the guidance of a reputable family attorney well-versed in child custody matters is valuable to ensure that your child’s best interest is honored in court. What Does The Term “Best Interest Of The Child” Mean? The term “best interest of the child” is the bottom line in every child custody matter. This phrase means that the court is first to put what is best for the minor children given the circumstances of the case. To determine the child’s best interest, the court assesses the facts of the case and the factors listed by the Louisiana Civil Code 134. What Factors Does The Family Court Consider To Determine Child Custody? The Louisiana Civil Code 134 enumerates the essential factors the family court evaluates and considers to determine a proper child custody order that would serve the child’s best interest. The following factors that the family court must consider and assess to determine how to grant a child custody order that would reflect the best interest of the child are as follows:  The first consideration for the family court is to assess the disposition of the child to be abused in each parent’s custody, as defined by Children’s Code Article 603. Potential to continually foster love, affection, and other emotional ties between each parent and the child. The ability and disposition of each parent to give the child love, affection, and spiritual guidance and to continue to provide education and rearing of the child. The ability of each parent to provide the child with their essential needs such as food, clothing, medical care, and other material necessities. The ability of the child to continue living in a stable environment. Potentially allow the child to have permanence or resemblance of permanence in their living environment by living in the custodial home. The moral fitness of each parent as it relates to and affects the welfare of the child or children. The mental capacity and physical health of each parent. The connection of the home, school, and community to the child. The court may consider the child’s preferences if they are of sufficient age and maturity to express their desires. Assess whether each parent is willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent. The distance between each parent’s residence. Determine how each parent has previously provided care and rearing to the child. How Does The Family Court Determine Child Custody Or Visitation When There Is A History Of Family Violence? The family court could prohibit custody of a child or limit visitation between a parent and children in child custody cases that involve documented history of family violence, domestic abuse, or sexual abuse. These limitations and prohibitions, as stated in the law, are as follows: The family court would prohibit visitation between the abusive parent and abused child until such parent can prove that any visitation would not cause physical, emotional, or psychological harm to the child. If visitation is granted, the court shall order such restrictions, conditions, and safeguard needed to minimize any risk of injury to the child. Moreover, all costs related to complying with this rule are charged to the abusive parent. A parent whose visitation rights have been subsequently authorized as restricted visitation by the court shall not remove the child from the court’s jurisdiction except if they can show good cause and have obtained prior approval from the court. The presumption is a parent who has a history of committing family violence shall not be awarded sole or joint custody of a child. This presumption shall be overcome by a preponderance of the evidence if the abusive parent: Has completed a treatment program; and Not abusing alcohol or any drug; and If it is in the child’s best interest that the parent actively participates as a custodial parent if the other parent is absent, suffers from mental illness, substance abuse, or other similar circumstances. If both parents have a history of committing family violence, the court shall grant custody solely to the parent who is less likely to continue committing family violence. More so, the court will require the custodial parent to complete a treatment program before granting custody of the child. If necessary for the child’s best interest, the court may award custody to a suitable third person who would not allow access to a violent parent unless ordered by the court. The court shall only allow supervised child visitation with a parent that has a history of committing family violence provided that the said parent has completed a mandated treatment program. The said parent could only be allowed an unsupervised visit by the court if they can show by a preponderance of the evidence that the abusive parent has: Completed a treatment program; and Not abusing alcohol or drugs; and Poses no danger to the welfare of the child; and Unsupervised visitation is in the child’s best interest. The court shall not allow any visitation or contact between a parent that has sexually abused their child until the court finds by a preponderance of the evidence in a contradictory hearing that the abusive parent has: Completed a treatment program specifically designed for sexual abusers; and Supervised visitation is in the child’s best interest. Note that the family court may only find a “history of family violence or domestic abuse” in a case if a reported incident resulted in serious bodily injury or if they find a recurring incident of such violence in the family. Child custody matters are handled in a highly-personalized

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