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Louisiana criminal cases, especially serious felonies such as homicides, rapes, armed robberies, and burglaries, often involve the use of DNA science. We’ve all heard the term “DNA”, but what does it mean? DNA is an acronym that stands for “Deoxyribonucleic Acid.” DNA is a biological polymer that can be transferred in heredity from one organism to another. Almost every cell in the human body has DNA present. One can think of DNA as being an instruction book for telling cells how to function, grow, replicate, etc. Although DNA science is incredibly complex and rapidly evolving as a subject matter, for purposes of this blog article, it is enough for the reader to understand that DNA is a hereditary material that is contained within almost every cell of an individual.
Because of its hereditary properties, DNA is remarkably useful in assisting forensic scientists in criminal investigations. DNA can be collected from blood, hair, skin, semen, etc. The power of DNA lies in its ability to show physical contact between a given person’s DNA and an object or scene. Although DNA is an incredibly useful investigative tool, it has serious limitations that are often not well understood or known by laypersons unfamiliar with DNA science. A simple example will suffice to demonstrate just one limitation of DNA. Many other limitations exist, but for now, one limitation–DNA transfer–will be discussed. Consider the simplified hypothetical that follows. You are Person A. Your hands contain skin cells, and each of those skin cells contain DNA within their nuclei. You are sweating after a long workout. While you were working out, the skin on your hands got abraded somewhat from tight gripping of the metal bar of the weights you were deadlifting. These abraded skin cells are barely hanging on to your hand and are ready to slough off at any moment, given the right circumstances. Right after your workout, your hands are a rich repository of your DNA, particularly within your sweat and skin cells. You finish your workout and shake hands with Person B. In the process of shaking hands, you transfer your sweat and skin cells to Person B. This action is referred to as primary or direct transfer. Person A’s DNA is directly transferred to Person B during the handshake. Person B now has Person A’s DNA on his hand. Person B does not wipe his hands, wash his hands, or take any other action to rid himself of Person A’s DNA. Person B leaves the presence of Person A. Within a half hour, Person B is somewhere else. Person B takes the same hand that was used to shake Person A’s hand and grabs a pistol out of the glovebox of his car. In grabbing the pistol, Person B has now transferred some of Person A’s sweat and skin cells to the grip and trigger of the pistol. This type of transfer is known as secondary transfer of DNA. Person B takes this same gun and then shoots and kills someone in a drive-by shooting. No one else sees Person B shoot. Person B tosses the gun to the ground. Law enforcement later arrive at the scene, recover the gun, swab it for DNA, and retrieve DNA from the gun. Shell casings recovered from the crime scene are also correlated with the barrel of the pistol. It turns out that Person A has a prior felony conviction for burglary, and Person A previously had to give a DNA sample when he was booked into jail years ago for the felony offense. Getting back to the hypothetical case, when law enforcement enter the unknown DNA from the gun into CODIS (Combined DNA Index System), the unknown DNA from the gun matches the DNA from Person A’s felony burglary conviction case. Law enforcement now believe that they know who the killer is. They believe Person A is the killer. No other DNA was recovered from the gun in a quantifiable amount, not even Person B’s DNA. Assume Person B’s DNA was on the gun since he was the actual killer, but the amount of DNA deposited by Person B is not quantifiable. In forensic science, if an insufficient amount of DNA is not deposited, when an analyst later arrives at a crime scene and swabs for possible DNA evidence, the amount picked up on the swab may not later be enough to biochemically amplify at a laboratory during the Polymerase Chain Reaction (afterwards, PCR) process. The PCR process is one stage of several stages that is necessary to “match” an unknown DNA profile to a known DNA profile. In this hypothetical, we know who the real killer is. The real killer is Person B. However, secondary transfer of DNA in this hypothetical makes it seem as if Person A is the killer when he is not only because Person A’s DNA was left behind in a quantifiable amount and Person B’s DNA was not. Why did Person B’s DNA not also transfer to the gun in a quantifiable amount? Shouldn’t there have been at least direct transfer of a sufficient amount of Person B’s DNA to the gun? An infinite number of variables can influence whether, and how much, DNA is transferred. Heat, light, grip pressure, angles, genetics, etc. can all influence whether, and how much, DNA is transferred. Some people even regularly shed more skin cells than others or sweat more than others, thereby leaving behind more potential DNA. For the purposes of this hypothetical, let’s assume that, for whatever reason, Person B’s DNA did not transfer to the gun in a quantifiable amount even though Person B pulled the trigger and actually touched the gun. We now have a situation in which Person A, an innocent person, can be brought into the criminal justice system because of an inherent limitation in DNA science that arises during secondary transfer. This risk is heightened if the law enforcement agency investigating the case misunderstands or misapplies the DNA results in this hypothetical. Innocent Person A could be charged with murder because it looks as if he is the killer when he is not. As the previous hypothetical just demonstrated, when encountering a Louisiana criminal case involving DNA science, it’s important to hire a competent legal professional who can meticulously examine all of the evidence to ensure that you are not wrongfully convicted of a crime. DNA evidence is much more limited in its usefulness than many people realize, and a skilled legal practitioner can expose its limitations to a judge and jury. Not all attorneys understand the science of DNA. If you are factually innocent and facing charges based on a misunderstanding or misapplication of DNA science by law enforcement, reach out to a skilled advocate who can fight to demonstrate your innocence so that you don’t become a statistic in the legal system. Louisiana law contains many legal “presumptions.” Several legal presumptions apply in the context of automobile cases. Preliminarily, what is a legal presumption? A legal presumption essentially relieves a litigant of the duty of proving negligence of the adverse party in a case. Basically, the other party is presumed to be at fault and must prove that he or she is not at fault to escape liability for someone else’s injury and rebut the legal presumption.
In a case involving a motorist who changes lanes and gets into an accident in Louisiana, a legal presumption applies that the driver who was changing lanes and got into an accident is presumed to be at fault in the accident. To avoid liability, the driver changing lanes must show that he or she acted reasonably and safely in changing lanes. For example, if a driver changes lanes and winds up side-swiping another vehicle in the adjacent lane while changing lanes, the driver changing lanes is most likely going to be presumed to be at fault. A reasonably prudent driver would not change lanes and wind up side-swiping another vehicle in the adjacent lane of travel. Had the driver in this hypothetical acted with sufficient caution, he or she would have seen the other vehicle in the adjacent lane and waited until the appropriate time to change lanes, avoiding a side-swipe collision. Whether fault will be assessed against you in a lane-change case is a fact-dependent inquiry. All facts in your case must be examined to determine who may be at fault in any given rear-end collision. If you are unsure as to whether you might be at fault, consult with a competent attorney for advice. For any automobile collision, prevention is best. No one wins when people get seriously hurt or, even worse, killed in an accident. How can you avoid causing a potentially nightmarish scenario? To minimize your chances of getting into a lane-change collision, exercise caution and pay attention to the movement patterns of nearby vehicles. Additionally, use your blinker everytime you change lanes to signal to other potentially unsuspecting motorists that you intend to change lanes. Sometimes, you may think you are clear to change lanes and not see another vehicle because of a blind spot, so it is best to maximize caution and use your blinker no matter what you think you know about the roadway conditions. You have nothing to lose but a second or two of your time in putting on your blinker. Not doing so could cost you thousands of dollars and high stress, however, if you get in an automobile accident, and you are at fault under the lane-change presumption. To facilitate your ability to pay attention when changing lanes, it is important to proactively avoid being distracted. Put away your cell phone before you even begin driving. Do not text message while driving. Text messaging can be as dangerous as drunk driving. If you must call, do so through the speakers in your vehicle to enable hands-free talking on the phone if you have that functionality. A collision can occur in a second or two of you looking down at a cell phone screen to send a text message. That “Lol” text may not be so funny later when an ambulance shows up to take you to a hospital. Even worse, the cost of that text may very well be your life and/or the lives of others. No text is so important that it cannot wait until you are off the road. Additionally, avoid consuming alcohol and/or drugs before and during driving. A night out at a bar may lead to some fun, but it will also lead to a ruined night if you later get in an accident while intoxicated. Drink responsibly and get an Uber ride if available, or have a friend take you home. Don’t ever drink and drive. In all of your conduct while driving, act with prudence. If you are the victim of a lane-change collision in Louisiana, hire a competent attorney to help you obtain compensation for your damages. Detailed, strategic, and compassionate advocacy can go a long way towards helping you when you need it most. If a business is responsible for your injury, you can take legal action. In Louisiana law, cases involving parties who are injured while on the premises of a business are referred to as “premises liability cases.” Fortunately, Louisiana law provides potential avenues for legal relief in such circumstances. Premises liability cases fall under personal injury law and are distinct from employment law issues. To illustrate the difference, take, for example, the issue of wrongful termination of an employee. This issue falls under employment law. On the other hand, some examples of situations that might fall under premises liability law are the following: slip and falls, glass or foreign objects in food that a customer eats at a restaurant, negligent hiring of an employee that leads to physical harm on a business’s premises (e.g., sex offender who later hurts, rapes, or molests someone in connection with the business), and sexual assault and battery by an employer on an employee on a business’s premises. If you are unsure what area of law your injury may fall under, a competent attorney can help clarify any uncertainty.
While premises liability cases are less common than the stereotypical automobile accident prevalent in personal injury law, premises liability cases are no less harmful. Take the stereotypical slip-and-fall case. Imagine an elderly grandmother walking into a grocery store. She is walking down an aisle with merchandise on both sides stacked all the way up to her eye level. As she is getting ready to round the corner on an aisle, unknown to her, clear laundry detergent has leaked to the floor. No warning sign is conspicuous. The laundry detergent has been on the floor for hours. The clear detergent is not easily recognizable to someone turning a corner down the aisle since it can’t be easily seen due to its opaque nature and because it is along the edge of the corner. This elderly grandmother slips and falls, cracking a hip bone. She later needs extensive surgery because her fracture is severe. As one can probably imagine from this example, slipping and falling on clear laundry detergent at a grocery store and cracking a hip bone can be dreadfully painful and debilitating. When you experience a premises liability injury, it is imperative that you seek immediate medical attention if necessary. The last thing you want is for your injury to become exacerbated because of inattention to the healing process. Once you receive initial medical attention, it’s important to continue to comply with all medically reasonable recommendations from your healthcare provider(s). Following this simple step can go a long way toward expediting your healing. If you are harmed by the negligent conduct of a business, know that you don’t have to face that business alone. It can be daunting to try to get compensation for your injury from a business with well-heeled lawyers and insurance companies. However, a fierce advocate can help level the playing field on your behalf. The law exists to hold everyone, even mighty corporations, accountable. The purpose of justice is not to show favoritism to the rich and powerful but to do the right thing regardless of who the parties may be. Since a significant portion of the Louisiana public has a record of an arrest or conviction, even if only a misdemeanor, expungements are widely applicable to the general population. An expungement is basically a legal mechanism under Louisiana criminal law for concealing a person's criminal record. Obviously, if you plead guilty to a crime, or you are found guilty in a court of law, you have a record of conviction. However, if you are merely arrested and not even later found guilty or plead guilty, you still have a record of arrest. Even if you are later found not guilty at trial, or the charge gets dismissed by the District Attorney, you will still have a record of arrest that can be easily accessed and possibly misconstrued by people who don't know the full details of your case. Saying all of this brings me to why you should get an expungement. In Louisiana, some benefits of an expungement are the following:
An injured person in Louisiana may ask himself or herself, “What can a personal injury lawyer do for me?” This is a normal, expected question. Any thinking person should ask it. Broadly speaking, a personal injury attorney’s priority to a client is to help that client recover compensation for an injury caused by the negligence of another person and/or entity. How that help manifests will depend on the complexity of the case, scope of injuries, quality of representation, etc. Regardless of the type of case, however, some basic types of assistance can, and should, be provided.
A personal injury lawyer can help you track down the responsible, negligent parties. A layperson may not know what party(ies) can be sued in connection with an accident. If an employee is on the job, for instance, and gets in a car accident with Person A, Person A can potentially sue the employee, the employee’s employer, and the employer’s insurer. Those are three parties who can potentially be sued in this example involving vicarious liability. Every case is unique, and who can be sued is determined by applying the law to the facts of any given case. A personal injury lawyer can help an injured person ensure that all responsible parties are held accountable and that no negligent parties are overlooked. A personal injury lawyer can help you communicate with insurance companies. As your representative, your lawyer should do almost all of the communication with any and all insurance companies involved in your case. Ordinary people who don’t understand the complexities of insurance and personal injury law may find that trying to communicate with insurance companies can be confusing and frustrating. Fortunately, having an injury lawyer can allow an injured party to delegate this burdensome task of communication to an experienced, informed person. If you are left wondering why the opposing insurer is so frustrating to deal with, remember that the insurer for the adverse party is tasked with protecting its insured, not you. When someone has been badly injured, having one fewer frustrating task to contend with facilitates the healing process and minimizes stress. A personal injury lawyer can help you analyze the scene of an accident as well as the scope of your injuries. A personal injury attorney can help you sort out what happened in your accident by interviewing witnesses, obtaining police reports, obtaining body camera footage of investigating officers, obtaining dash camera footage from on-scene police units, and obtaining surveillance footage, to name a few possibilities. Your lawyer can also help you better understand the physical implications of your medical injuries in consultation with your healthcare providers. An experienced and knowledgeable attorney can help you assess the value of your injuries in an effort to maximize compensation on your behalf. A personal injury lawyer can help you understand the law relating to your case. A layperson often does not have the time, knowledge, or desire to competently represent himself or herself even though the law may allow it. Lawyers spend years and decades educating themselves and honing their skills. Skilled lawyers know that graduating from law school is just the beginning of the road to acquiring legal mastery. Having a trained, educated, and intelligent lawyer as an advocate can go a long way to helping you explore what the law is in relation to your case and how to use that law to best assist you. A personal injury lawyer can fight for you in court. Usually, it takes more than just legal knowledge to deliver good results for clients. A fighting spirit is paramount in an adversarial system in which the opposing side has goals that are often antithetical to yours. The lawyer representing the adverse driver and insurance company is tasked with representing them, not you. It’s important to remember that reality if you care about the outcome of your case. It’s reassuring to have someone in your corner who will engage in legal combat on your behalf. Regardless of how your case is handled, your personal injury attorney should provide you with a high quality of representation and fulfill these basic expectations of competency. When you or someone you know and care about is injured, a helping and caring hand may make a big difference in the outcome of your case. You are in Louisiana. Imagine driving down the highway and suddenly being hit from behind. You are not expecting what has just happened. Another vehicle plows into the back of your vehicle, causing your head and neck to lurch forward like a reed blowing in the wind. Acting instinctively, you grasp the wheel as hard as you can to slow down your body’s forward momentum. You can only mitigate your movement so much. Your face slams into the steering wheel while the airbags go off. Your vehicle is knocked off course and eventually comes to a stop. You temporarily lose consciousness when you hit the steering wheel, but you slowly regain it after coming to a stop. Your eyes weakly open. You are wondering what is going on? What is happening? You are bleeding, bruised, and dazed. Shattered glass is everywhere and smoke is rising from your vehicle’s hood. You’ve just been a victim of a rear-end collision.
Who is legally at fault in a rear-end collision in Louisiana? The general rule is that the person who hits the other vehicle from behind is at fault in a personal injury action. What is the legal authority for this rule? La. R.S. 32:81 states the following in pertinent part: “A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” When you hit another vehicle from behind, it can be presumed that you were following that vehicle more closely than is reasonable and prudent. Had you maintained proper distance, you should not have hit that vehicle in the rear. In short, if you hit another vehicle in the back, you will likely be presumed at fault. Unless you can rebut this legal presumption with evidence to show that the other driver acted unreasonably or that an intervening cause led to the collision, you will likely lose on the issue of fault. For example, if you maintained a reasonable distance from behind, but the other driver in front of you suddenly slammed on his or her brakes for no good reason, you may be able to avoid a finding of fault. Additionally, for example, if you are driving and are hit from behind by another vehicle, propelling your vehicle into the back of the vehicle in front of you, you will likely be able to avoid fault since you were not responsible for the chain collision. The driver behind you set in motion a chain collision that led to you rear-ending another vehicle through no fault of your own. Whether fault will be assessed against you is a fact-dependent inquiry. All facts in your case must be examined to determine who may be at fault in any given rear-end collision. How can you avoid causing such a nightmarish scenario? To minimize your chances of getting into a rear-end collision, maintain a safe and proper distance from all vehicles in front of you and pay attention to the movement patterns of those vehicles. To facilitate your ability to pay attention, it is important to proactively avoid being distracted. Put away your cell phone before you even begin driving. Do not text message while driving. Text messaging can be as dangerous as drunk driving. If you must call, do so through the speakers in your vehicle to enable hands-free talking on the phone if you have that functionality. A collision can occur in a second or two of you looking down at a cell phone screen to send a text message. That “Lol” text may not be so funny later when an ambulance shows up to take you to a hospital. The cost of that text may very well be your life and/or the lives of others. No text is so important that it cannot wait until you are off the road. Additionally, avoid consuming alcohol and/or drugs before and during driving. A night out at a bar may lead to some fun, but it will also lead to a ruined night if you later get in an accident while intoxicated. Drink responsibly and get an Uber ride if available, or have a friend take you home. Don’t ever drink and drive. In all of your conduct while driving, act with prudence. If you are the victim of a rear-end collision in Louisiana, hire a competent attorney to help you obtain compensation for your damages. Detailed, strategic, and compassionate advocacy can go a long way towards helping you when you need it most. In Louisiana, if you get convicted of Driving While Intoxicated, your conviction could carry great weight in a pending civil suit. Consider the fact pattern that follows for a common scenario in drunk-driving cases. Drunk Driver A gets into a car accident with Driver B. While being drunk does not necessarily mean that a driver is at fault in a car accident case, assume in this hypothetical that Driver A is not only drunk but is also at fault in this car accident with the accident having been caused by intoxication. Driver A is prosecuted in criminal court for DWI. Driver A is convicted of Driving While Intoxicated First Offense under La. R.S. 14:98, a misdemeanor in Louisiana. Driver B was hurt from the accident and brings a civil lawsuit against Driver A for property damage and personal injury damage. What impact will Driver A’s conviction have on the lawsuit? Multiple consequences could flow from a conviction against Driver A. Perhaps the most obvious consequence is that a conviction against Driver A could be used against him or her in civil court in the pending lawsuit. Now, in criminal court, a prosecutor does not need to show that a car accident occurred to obtain a conviction for Driving While Intoxicated. A prosecutor need only show that the driver was operating a vehicle while under the influence of alcohol (and/or drugs). Louisiana courts have interpreted the language “under the influence” to mean having one’s ability to operate a vehicle be impaired by the alcohol (and/or drugs) in one’s system at the time of operation. In criminal court, the burden of legal proof is proof beyond a reasonable doubt. This burden is the highest burden existing within our legal system and necessarily so. Before the government can strip a person of liberty, our society demands that the evidence brought to bear against an individual be overwhelming and enough to firmly convince a judge or jury of guilt. In our civil system, by contrast, the burden of proof is much lower: proof by a preponderance of the evidence. This legal standard means that if there is more evidence proving fault than there is evidence not proving fault for an accident, the burden of proof is satisfied. The evidence need not be overwhelming nor firmly convince the trier of fact. As long as even a slim majority (i.e., more than 50%) of the evidence weighs in favor of fault, the civil burden can be met even if the trier of fact may have some doubts about the case. Thus, a conviction in criminal court for which the evidence had to be overwhelming leads to the inference that there is plenty of evidence to prove intoxication of Driver A in our hypothetical. Will this evidence of intoxication be enough to show fault for an accident in a secondary civil case? If the intoxication caused Driver A to get into an accident, by using the evidence brought in the criminal trial against Driver A, a civil lawyer should be able to easily prove fault on the part of Driver A in the secondary civil case. Many other consequences flow from a criminal conviction against Driver A in this hypothetical. For example, Driver A could have punitive damages awarded in favor of Driver B since intoxication led to the accident. Punitive damages could substantially increase the monetary award of Driver B beyond what Driver B would otherwise ordinarily receive. Additionally, for example, a criminal conviction against Driver A could leave Driver A’s civil lawyer no choice but to recommend a settlement of the pending personal injury case rather than go to trial in civil court. Thus, Driver A’s strategic options in fighting the civil suit could be severely curtailed by a criminal conviction. Given these possible consequences as well as many other consequences that could arise, it’s very helpful to seek legal counsel If you or someone you know needs criminal law help in fighting a pending criminal charge of Driving While Intoxicated, help in fighting a pending civil suit flowing from a drunk-driving case, or help in prosecuting a civil lawsuit against a drunk driver who caused an injury to you. Our firm is able to help in these situations and provide detailed, strategic, and compassionate advice. |
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