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.
Living in a Free Society in Louisiana: When Are You Resisting an Officer by Failing to Provide Your Name?
Blog post written by Attorney Philip B. Adams.
When are you required to give your name under Louisiana law to a law enforcement officer? La. 14:108 (A) & (B)(1)(c) contain statutory language criminalizing a failure to provide one’s name to a law enforcement officer under certain conditions. To be found guilty of Resisting an Officer for Failure to Provide a Name under La. 14:108 (A) & (B)(1)(c), the government must prove the essential elements of the crime beyond a reasonable doubt. Proof beyond a reasonable doubt requires the highest level of proof in our legal system, and close scrutiny must be paid to any case involving an alleged failure to give one’s name to a law enforcement officer. Cases falling under 14:108 (A) & (B)(1)(c) involve wide-ranging implications for the First and Fourth Amendment rights of citizens of a free state.
La. R.S. 14:108 states the following in pertinent part:
“A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B.(1) The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer.
Analysis of the law applied to the evidence is guided by a fundamental precept of criminal law:
A cardinal rule basic in our law provides that one cannot be held accountable, or subjected to criminal prosecution, for any act of commission unless and until that act has first been denounced as a crime in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct falls within the purview of the act intended to be prohibited by, and will be subject to the punishment fixed in, the statute. And the courts have not only consistently refused to usurp the prerogatives of the legislature by supplying either the definition or essential elements thereof that have been omitted in the drafting of the statute, but, under rules calling for construction of all criminal and penal statutes as Stricti juris, resolved ambiguities in favor of the accused. State v. Christine, 239 La. 259, 289, 118 So.2d 403, 413-14 (1959). A court may neither supply a definition nor may it disregard a clear definition supplied by the legislature.
Under the wording of La. R.S. 14:108, law enforcement action in the form of a “lawful” action, such as an arrest, detention, seizure of property, or service of any lawful process or court order, must occur before any possibility may arise of there being an intentional interference, opposition or resistance to, or obstruction of an individual acting in his official capacity. Detentions and arrests constitute the overwhelming majority of situations that implicate La. R.S. 14:108(A) & (B)(1)(c). If a detention or arrest is made, the question arises whether law enforcement officers were making a “lawful” detention or arrest at the time that the prosecuting authority in a case claims a defendant intentionally interfered, opposed, resisted, or obstructed the law enforcement officers by not initially providing a name. Any additional details learned by law enforcement officers after the time of detention and arrest are legally irrelevant in determining whether reasonable suspicion or probable cause existed at the time of the detention or arrest. One cannot manufacture reasonable suspicion or probable cause in an ex post facto manner. To determine whether any detention or arrest of a defendant is “lawful”, a careful examination of statutory law and Constitutional case precedent is necessary.
For an arrest to be “lawful” under La. 14:108, probable cause must exist. An arrest is interpreted as any situation in which a person is deprived of his liberty in significant ways or is not otherwise free to go as he pleases. A person need not be actually handcuffed to be “arrested” within the meaning of the law. State v. Menne, 380 So.2d 14 (La.1980), State v. Roach, 322 So.2d 222 (La.1975). For example, if an individual is surrounded by law enforcement officers and told that he is not free to leave, he has been “arrested” within the meaning of the law even if no handcuffs have been placed on him.
The determination of whether a person is “in custody” is made from the objective standpoint of a “reasonable interrogee” under the totality of the circumstances. State v. Liner, 397 So.2d 506 (La. 1981). Factors to consider in determining if a person is in custody are whether there was probable cause to arrest, whether the investigation had focused on the suspect, whether under the circumstances a reasonable person would have believed he was in custody, whether the statements and actions of the suspect indicated he reasonably believed he was in custody, and whether the statements and actions of the officers indicated an intent to restrain the suspect. State v. Redic, 392 So.2d 451 (La. 1980); State v. Thompson, 399 So.2d 1161 (La. 1981); State v. Saltzman, 871 So.2d 1087 (La. 2004).
Alternatively, if the claimed “lawful” basis for a law enforcement officer requesting one’s name is that a person is being “detained”, there must be reasonable articulable suspicion that a suspect has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1 (1968). The determination of reasonable grounds for an investigatory stop or detention does not rest on the officer's subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Lane, 09–179 at 5, 24 So.3d at 924. In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific and reasonable inferences that he is entitled to draw from the facts in light of his experience. For the suspicion to be objectively reasonable, it must be guided by logic and actual observations.
Imagination and fear do not equate to objectively reasonable suspicion of a crime. Imagining that someone might commit a crime without sufficient corroborating facts makes the suspicion unreasonable and subjective. You cannot imagine, for instance, that someone might commit a shooting when you see no evidence of any weapons, no gun, no scope, no body armor, no ammunition, hear no threats to commit a shooting, etc. and then call your suspicion objectively “reasonable.” To avoid being well on our way towards a police state, the law demands a more solid barrier than mere imagination and fear between officers and citizens. Remember that “suspicion” alone does not equate to objectively reasonable articulable suspicion of a crime.
In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop-and-identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. Id. at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible. Id. at 52.
Likewise, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a statute requiring suspects to disclose their names during a valid Terry stop does not violate the Fourth Amendment if the statute first requires reasonable suspicion of criminal involvement, and does not violate the Fifth Amendment if there is no allegation that their names could have caused an incrimination. Thus, Hiibel reaffirmed its holding in Brown.
In summary, if a law enforcement officer requests that you provide your name and identify yourself, you do not have to do so unless that law enforcement officer has a lawful basis for making this request of you. When an officer is not engaging in a lawful detention, lawful arrest, lawful seizure of property, or lawful service of process or court order, you are safe in refusing to provide your name and identity. As long as you continue to live in a free society, you are under no obligation to satisfy the curiosity of a probing officer who has no lawful basis for requesting your name and identity.
Although there are many types of batteries under Louisiana criminal law, Simple Battery is probably the most common criminal accusation that I see teachers face. Louisiana Revised Statutes 14:35(A) defines Simple Battery as the following: "A. Simple battery is a battery committed without the consent of the victim." Thus, Simple Battery is a non-consensual battery. To fully understand the definition of Simple Battery, however, one must look further to find the definition of "battery" itself. Louisiana Revised Statutes 14:33 defines a Battery as the following: "Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another."
As an example, if a teacher intentionally hits a student without that student's consent, a Simple Battery has been committed. Anger, frustration, and anxiety can cause a teacher to "lose his or her cool" and hurt a student. Likewise, as another example, if a teacher intentionally throws a cup of water onto a student without consent, that teacher has committed the crime of Simple Battery. The water would constitute a "noxious liquid or substance" administered to another. However, if a teacher accidentally bumped into or hit a student, then the teacher would have a viable defense that the physical contact was not "intentional", in which case the full definition of Simple Battery would not be satisfied. The same concept would apply if a teacher, for instance, accidentally knocked over a glass of water or other liquid onto another student.
Every element of the definition for Simple Battery must be proved beyond a reasonable doubt for a teacher to be convicted of such a crime. This means that the judge hearing the case must be firmly convinced of the truth of each element of the definition. Maybe, probably, perhaps, and almost will not rise to the level of proof beyond a reasonable doubt. Since Simple Battery is a misdemeanor offense that is not jury-trial eligible, any teacher facing an accusation of Simple Battery will have his or her guilt or innocence decided by a judge alone. If the trial judge has even a single reasonable doubt as to your guilt, he or she is legally required to find you not guilty.
For a variety of reasons, a student can bring an accusation accusing a teacher of Simple Battery. The student's accusation may be legitimate; the student may be mistaken; or the student may be lying. The accusation must be fully investigated to determine its strengths and weaknesses so that sound legal advice can be given and the most appropriate defense developed.
To determine if an accusation is legitimate, a competent attorney will look to see if internal and external consistency exists. An accusation must be internally coherent and free of major inconsistencies to be believable. If a student's accusation changes in major ways with multiple tellings to different people, that is a red flag of either a mistaken or false accusation. Likewise, an accusation must be externally consistent. For example, if another student says that she was in a classroom when the accusing student claims a teacher hit the accusing student, but the other student denies that that happened, an external inconsistency exists that may exonerate the teacher. Likewise, if an accusing student's story is contradicted by surveillance footage in the school, an external inconsistency exists. On the other hand, at the end of an investigation, if the student's story is corroborated by other witnesses and/or surveillance footage, then the accusation may be deemed legitimate absent any compelling reason(s) to believe otherwise. Even a student's accusation alone without any corroborating evidence, if believed by the trial judge, can constitute sufficient evidence to convict. If a teacher's defense is inconsistent or implausible, a teacher's credibility will be diminished, and the trial judge may give credence to the accusing student.
Sometimes, students are mistaken when they accuse a teacher of Simple Battery. For instance, a student may have had his or her back turned, been hit by another student while a teacher is nearby, and then mistakenly blame the teacher for the battery. A thorough investigation can go a long way towards uncovering whether a student is mistaken.
Students may also lie for a myriad of reasons. A student may have received a bad grade and want to retaliate against the teacher. A student may have a mental illness that impacts his or her credibility. A student may seek attention that comes with being labelled a "victim." A student may be jealous of a teacher. The motives and possibilities for lying are endless. We have all been lied to by others at some point in our lives, and just as adults routinely lie, children do as well.
If a teacher is initially accused of Simple Battery, the teacher should immediately seek legal counsel for representation regardless of whether the teacher believes he or she is innocent or guilty. Even a misdemeanor offense, if you are convicted, can ruin your teaching career and make it virtually impossible for you to find employment again in education. Additionally, the law is complex and nuanced, and what may seem like a simple matter to address can quickly morph into a more serious case, potentially even a felony offense as more details come to light. It's ideal to not speak to law enforcement or school investigators and personnel until you have first had an opportunity to fully consult with an attorney. If you find yourself facing an accusation of Simple Battery or any crime for that matter, immediately inform your teacher's union first and then consult with legal counsel so that you can begin the process of defending yourself.
Blog post written by Attorney Philip B. Adams
People often lie. We have all been lied to by someone at some point or another. Throughout my time in defending people charged with crimes in Louisiana, I have encountered many false accusation cases. Disappointingly, these false accusations are not uncovered by investigators in the beginning of the cases due to a failure to adequately investigate each case. Investigators in criminal cases have a duty to investigate whether a crime occurred and determine whether an accuser is telling the truth. Investigators must faithfully adhere to the presumption of innocence and seek to determine if guilt can be proven beyond a reasonable doubt. An investigator should never just take someone’s word at face value. After all, the job of competent investigation does not end once an allegation is made but rather is just beginning. To ensure that only the guilty are apprehended, an investigator has a moral and professional duty to remain impartial and unbiased. Considering the possibility that an accuser may not be telling the truth is one way to ensure that an investigator conducts a competent investigation in the search for truth in every criminal case. Unfortunately, not every accuser in a criminal case is truthful, and investigators must always look for red flags that indicate that an accuser is lying or distorting the truth. The following are some red flags to look for when investigating a criminal case and indicate the possibility of untruthfulness:
Blog post written by Attorney Philip Adams
Bam! You’ve just been in a vehicle accident. Perhaps you were hit from behind or hit from the side. You are full of adrenaline. Your heart is racing; your breathing is heavy; and your eyes are big with fright. After a few tense moments of trying to figure out what just happened, if you are lucky, you are able to muster some strength to open your driver door and exit your vehicle. You stumble out of your vehicle and look around. You see your damaged car, and you see the other driver and his car. Through no fault of your own, you now find yourself in a serious situation wondering what to do next.
If you ever find yourself unfortunate enough to be involved in a vehicle accident, and you still have the physical capacity right after the accident to follow some crucial steps, you can help yourself have a potentially stronger legal case in the future. First, it may help if you contact law enforcement and/or emergency medical services as soon as possible. When you are full of adrenaline, you are in a physical state in which you may not yet fully realize the degree of any bodily damage that you may have sustained because of an accident. Trained and qualified personnel can help assess your physical damages, document the scene of the accident, question witnesses, and look for evidence. These personnel often have extensive experience in responding to vehicle accident scenes and will likely be more knowledgeable than you about how to properly assess the scene and deal with the situation.
Second, it may help if you also document as much of the accident scene as possible. Unfortunately, not all law enforcement officers and/or emergency medical personnel who respond to the scene of your accident will be as thorough as needed. These personnel are often overworked, and some of them may cut corners in what is documented and/or forget to record crucial information in connection with your case. They may forget to turn on body cameras, forget to turn on dash cameras, forget to take witness statements, forget to obtain insurance paperwork, forget to take photographs, etc. Fortunately, however, in an age of smart phones, if you have one, you can help mitigate the effects of any shortsightedness, laziness, or forgetfulness on the part of any responding personnel by taking action into your own hands. You may benefit your legal case down the road by taking photographs and/or video footage of the accident scene, including street signs, vehicles involved, license plates, insurance papers, driver licenses, and people involved. If you are lucky, you may even be able to get the other driver to give a witness statement that you can record with your cell phone and/or a voice recorder. Importantly, a few minutes of your time upfront right after the accident will help to objectively document what the scene of the accident is immediately like. This immediate documentation may prove significant because a tow truck and/or police may later get involved and change the scene. You should document as much information as possible and not solely rely on other people. Your case may later benefit from the evidence that you obtain.
Third, after you have contacted police and emergency medical personnel and documented as much of the accident scene as possible, you may benefit by contacting your automobile insurance carrier. In fact, most carriers require their insureds to notify them of an accident or risk possibly forfeiting coverage for a lack of notice. By contacting your insurance carrier, you help it to immediately start working on your behalf to assist in accident documentation, property damage appraisal of your vehicle, obtaining of a rental vehicle if your policy provides for one, assisting with medical payments, etc. However, it bears mentioning that because insurance companies have a strong incentive to minimize claim payouts to maximize their profits, even after you have fully cooperated with your insurer, you may benefit from the next recommendation.
Fourth, after notifying your insurance carrier of the accident, it may be a good idea to immediately contact a personal injury attorney to assist you in evaluating the legal merits of your case and in working on your behalf to secure compensation for your damages. A personal injury attorney can work to recover money on your behalf for multiple damages stemming from your accident, including past and future pain and suffering, past and future lost income, past and future medical bills, etc. An experienced attorney can help you maximize compensation and ensure that you walk away from your case with deserved and full compensation, as opposed to a lower amount that an insurance carrier may offer you to pacify you.
Fifth, after following all of the above steps, you may need to obtain medical treatment on a regular basis to assist you in recovering from your injuries. It is important to be diligent in following the advice of your healthcare providers, not only for your personal health and long-term recovery but also for your case settlement down the road. If you avoid healthcare meetings and/or ignore the advice of your healthcare providers, you may open up defenses that the other side can use against you to minimize the value of your claim. Even more importantly, if you shortchange yourself in medical treatment, no amount of money may make up for the diminished quality of life that you may find yourself in because of an exacerbated or unhealed injury.
In summary, you may help your car accident case by contacting law enforcement and medical personnel, by documenting as much of the accident scene as possible, by notifying your insurance carrier of the accident, by contacting a personal injury attorney, and by obtaining the medical treatment that you need. Diligence on your part may improve any eventual outcome in your case.
Blog post written by Attorney Philip Adams:
While an expungement does not destroy a record of arrest and/or conviction in a criminal case, an expungement does conceal such a record from public view by most people and entities. The concealing of a record benefits the person with the record in multiple ways, including by giving the person with the record peace of mind in knowing that fewer eyes will be able to see details about that person’s past, by opening potential job opportunities for the record holder who may have previously been unable to obtain a job due to having an easily accessible record, etc.
Some people who have committed certain serious offenses in their past may not be aware of recent legislative changes that may afford them the opportunity to obtain an expungement with respect to those offenses. One recent change in Louisiana’s expungement laws occurred under Louisiana Code of Criminal Procedure Article 978(E) and allows individuals with convictions for aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities to obtain an expungement if certain conditions are met. This type of expungement can only be obtained if a contradictory hearing occurs between the person seeking the expungement and the state’s attorney. At such a contradictory hearing, the person seeking an expungement, through his or her attorney, must prove the following conditions:
(a) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction.
(b) The person has not been convicted of any other criminal offense during the ten-year period.
(c) The person has no criminal charge pending against him.
(d) The person has been employed for a period of ten consecutive years.
Additionally, when filing the motion for an expungement for any of the previously mentioned offenses, the person must include a certification from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment. Finally, it bears mentioning that because all expungements are discretionary, trial court judges can deny a motion for expungement even if the above conditions are met, so there is never any guarantee that an expungement in such cases can ultimately be obtained. Despite such an uncertainty in outcome, expungements are still worth seeking for reasons previously mentioned.
The requirements above might seem onerous because they basically require ten years of good conduct by the person seeking to have the record cleared. However, these requirements serve to protect the general public and make sure that before society allows such a person to move past a serious offense and conceal such serious offenses from access by the public, the petitioner has to first demonstrate that he or she is worthy of being given a second chance. Article 978(E) clearly strikes a balance between giving some serious offenders an opportunity to move on with their lives and in protecting the public’s right to continue accessing records relating to such offenses if those serious offenders don’t demonstrate good conduct over an extended period of time.
Author: Attorney Philip Adams
I have often been asked by prospective clients what they should expect from legal representation. Anyone seeking the advice of an attorney needs to ask this question to better understand how to select an attorney who can attempt to maximize the likelihood of obtaining a good result on behalf of the client. Commercials abound with attorneys who advertise services among their peers. Some of these attorneys may indeed offer good services. Some may not. Some lawyers also characterize themselves as being “aggressive” or “experienced.” However, being “aggressive” or “experienced” is just a small part of what it takes to attempt to be a successful attorney. In short, a highly skilled, humble, and disciplined fighter in a ring will almost always defeat a mindless, loud, and over-confident opponent. Beyond the fluff of television commercials and billboard ads, potential clients need to scrutinize a potential lawyer before making a monumental decision to hire someone who will often be tasked with making life-changing decisions on behalf of the client. I think a client has the right to expect an advocate to have all of the following skills:
• Legal Knowledge. Knowing the law in detail is an opportunity to gain an advantage in litigation and exploit issues to help a client. If you don’t know the rules (i.e., "the law"), you cannot possibly hope to have a chance of winning.
• Exceptional writing skills. Motions and briefs matter to judges. A well-written motion can mean the difference between a favorable or unfavorable ruling—a ruling that may destroy the opposition’s case. Words are the cardinal tools of persuasion that lawyers must use in persuading a judge to see things the lawyer’s way.
• Patience. An effective trial lawyer has to have patience—the patience to listen to a client, to find the relevant cases in support of a motion or brief, to re-read and analyze reports and evidence, and to deal with, at times, rude judges and opposing attorneys.
• Focus. Trying a case in a courtroom takes extreme focus. A lawyer must pay attention to his surroundings, including witness demeanor, inconsistencies in testimony, body language of jurors, the mindset of the judge, etc. A missed detail can often mean the difference between a successful outcome and an unsuccessful one.
• Integrity and honesty. These qualities cannot be faked for long. Developing trust with the client, with opposing counsel, with the judge, and with the jury is crucial. No lawyer, regardless of his or her skill level, can succeed for long without having integrity and honesty. Parties in the legal system instinctively know when a lawyer is being truthful. Distrusted lawyers have clients who may go to prison cells in criminal cases or who may walk home empty-handed after a negotiation in a civil case.
• Effective questioning skills. Good oratory, eloquence, and passion are the dessert. Cross-examination of witnesses is the main meal. Effective cross-examination can make or break a case. If the lawyer fails to discredit a witness or build a proper record, a motion hearing or trial can be lost. On the other hand, if the lawyer properly questions the testifying witness, he can weaken or outright destroy the opposition’s case.
• Tempered passion. Aggression and passion that are tempered by reason and perception form the foundation of attempted courtroom success.
• Charm and respect. Courtroom proceedings, and especially trials, can be tedious affairs. Jurors are often not allowed to talk, walk around, or hurry things. They’re trapped in a jury box. Many jurors may feel as if they’re being held hostage by the judge and the lawyers. Some jurors may even come to despise one or more lawyers. Additionally, the judge or opposing counsel may become irritated with a lawyer. The attorney who has a little charm, respect for those in the courtroom, and a sense of humor can ease tension and frustrations that may arise, better ensuring success on behalf of a client.
• Persistence and Resilience. A trial attorney deals with a lot of adversity in a courtroom. To be successful, an attorney needs to be able to deal with pressure and setbacks along the way. He must also possess a fighting and unbreakable spirit. If he doesn’t have these qualities, judges and opposing counsel will notice, possibly to the lawyer's detriment.
• Communication ability. To convince a judge or jury to see one’s perspective requires argument and words that bring a case alive. The client’s story must be told as part of a larger picture, and the lawyer who can convey his client’s story more effectively has a higher chance of obtaining a successful outcome.
At the Law Offices of Philip B. Adams, LLC, Mr. Adams and his staff pride themselves on daily working to hone their skills in each of the previously mentioned areas to try to deliver the best representation possible on behalf of clients. Our firm understands that success is never guaranteed in the legal system but believes that if we strive to improve ourselves in each of the previously mentioned areas, we may have a better chance of obtaining a successful outcome. Our firm does not seek to compete with other firms and attorneys but instead daily focuses on all of the previously mentioned qualities so that we can attempt to be a better law firm. Clients deserve nothing less. It is a privilege, not a right, to represent people who have legal issues. The law can best serve the ideal of maximizing justice within society when a lawyer and his support staff strive to live each of the previously mentioned values and skills. Our firm is committed to giving full effort on behalf of clients.
Louisiana Criminal Defense Topics: I’m Drunk, and I Appear in Public in an Intoxicated Condition. Have I Committed a Crime?
some Author: Attorney Philip B. Adams
Consider the hypothetical fact pattern that follows. You and a few friends have gone to the local bar to have a few drinks. A few hours later after “getting hammered” to unwind from a long day at work, you and your friends leave the bar and proceed to walk along the sidewalk outside the bar. You are undoubtedly drunk at this point but not creating a scene or disturbing anyone. Many people have probably been in this type of situation. However, most people probably have not experienced what happens next. Unexpectedly, after walking about fifty feet, you find yourself stopped by an overly eager police officer. Upon making contact with you, he immediately observes that you appear to be in an intoxicated condition. He proceeds to ask you questions. You slur your words. Your eyes are red and glassy. You display some symptoms of intoxication. Within about a minute, the overly eager police officer slaps handcuffs on you and tells you that you are under arrest for disturbing the peace for appearing in an intoxicated condition. Befuddled, you cooperate with the police officer, and he escorts you to his police unit to transport you to the local jail. Was your arrest by the police officer lawful? Did you actually commit a crime that warranted an arrest?
To answer the preceding questions, one must first look at the language of the law under which you were arrested. Any crime must be defined in legal language and contains what are referred to as “elements.” Each of these elements must be proved beyond a reasonable doubt by the prosecuting authority for you to be found guilty of the crime alleged. For example, if a crime contains elements A, B, C, and D, but the prosecuting authority fails to prove element D, you are found not guilty because the prosecuting authority failed to prove the necessary element D. It does not matter if the prosecuting authority proved elements A, B, and C beyond a reasonable doubt. ALL elements of the enumerated crime must be satisfied.
In the hypothetical fact pattern presented at the beginning of this post, the police officer arrested you for disturbing the peace by public intoxication. This crime is contained in Louisiana Revised Statutes 14:103A(3), which reads as follows
“§103. Disturbing the peace
A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
… (3) Appearing in an intoxicated condition;
As the language of the crime states, for you to be convicted of the crime of disturbing the peace by public intoxication, the prosecuting authority must prove beyond a reasonable doubt three elements: (1) You in particular (2) appeared in an intoxicated condition (3) in a manner as would foreseeably disturb or alarm the public. Based on hypothetical fact pattern we discussed, elements “(1)” and “(2)” above can likely be proved beyond a reasonable doubt. However, can the prosecuting authority prove element “(3)” beyond a reasonable doubt as well? And as required to obtain a conviction? Based on the facts presented in the hypothetical fact pattern, no facts exist to indicate that you acted “in a manner as would foreseeably disturb or alarm the public” when you “appeared in an intoxicated condition.” For instance, you were not screaming and yelling while walking along the sidewalk in the presence of members of the public; you did not curse other members of the public while walking; you did not stumble onto any members of the public while walking; etc. Without facts to indicate that you acted “in a manner as would foreseeably disturb or alarm the public,” you cannot be convicted of disturbing the peace by public intoxication. Additionally, because the police officer arrested you without having any factual basis that rose to the level of probable cause to believe that you appeared not only in an intoxicated condition but also acted “in a manner as would foreseeably disturb or alarm the public,” your arrest for disturbing the peace by public intoxication was unlawful. In short, by just appearing in an intoxicated condition, you did not commit any crime justifying an arrest.
Existing case law supports the above analysis. Consider the following case: State v. Smiley, 99-0065 (La. App. 4 Cir. 3/3/99), 729 So. 2d 743, writ denied, 99-0914 (La. 5/14/99), 743 So. 2d 651. Smiley contains more egregious criminal action than occurred in the preceding hypothetical fact pattern; however, Smiley is still relevant because of the parallels between that case and the hypothetical case, as I will highlight in the discussion that follows.
In Smiley, the Fourth Circuit held that police officers had reasonable suspicion to stop a defendant in a traffic stop but lacked probable cause to arrest the defendant for Disturbing the Peace by Public Intoxication, resulting in a seizure of cocaine from the defendant following a pat-down search incident to arrest being suppressed and excluded from use as evidence due to the unlawful arrest. Id. The following is a synopsis of the facts of the case:
“The defendant was arrested on 18 September 1998. He was charged with the violation of LSA–R.S. 40:966(C), relative to possession of cocaine. On 11 January 1999 a motion to suppress the evidence was granted. The following facts were adduced at the motion:
In the early morning hours of 9 September 1998, two police officers were standing at the corner of St. Ann and Bourbon Streets when an unknown man approached them and reported that a man in a nearby truck had just tried to sell him drugs. As the officers were looking at the truck, they noticed the defendant and two other people leave the truck and stagger into a nearby bar. The unknown man identified Smiley as the man who tried to sell him drugs. The officers called for backup, and within five minutes four officers entered the bar and eventually located Smiley. Smiley agreed to accompany the officers outside. The officers noticed Smiley was having difficulty making his way out of the bar, staggering and weaving. One officer also got close to Smiley as he exited the bar and smelled alcohol on Smiley's breath. When they reached the sidewalk, the officer placed Smiley under arrest for public intoxication, purportedly to keep him from driving away in the truck. Smiley's companions must have also exited the bar because the officers conducted a patdown search of all three for the officers' safety. The officer testified that as one officer was pulling items out of Smiley's pants pocket, a bag of what was later found to be cocaine came out of his pocket.
The officer testified that when he approached Smiley in the bar, he asked Smiley to accompany him outside to talk because the bar was so noisy, and Smiley agreed to do so. He also testified that the bag seized from Smiley contained two-tenths of a gram of cocaine. He admitted neither he nor his fellow officers conducted a field sobriety test on Smiley.”
Id. at 744.
The State argued on appeal that the officers had probable cause to arrest the defendant for public intoxication, evidenced by his inability to walk and the smell of alcohol when he left the bar in compliance with the request of law enforcement to do so. Id. The Fourth Circuit analyzed the facts as follows:
"Here, the officers requested that the defendant leave the bar with them to talk to them in a less noisy atmosphere. The officer testified he merely requested that they relocate outside, and the defendant willingly agreed to do so. There was no evidence presented to dispute the voluntariness of the defendant's agreement to accompany the officers outside, other than perhaps the specter of four officers converging on the defendant and his companions and asking them to step outside. Nor is there any indication that the trial court did not believe the officers' testimony. The defendant was not under arrest at the time he agreed to accompany them outside.
While they were exiting the bar, the officers noticed the defendant was again staggering. In addition, the officer testified he could smell alcohol on the defendant's breath. The officer testified that at that point, they decided to arrest him for “public intoxication” to keep him from reentering his truck and driving away while under the influence. The officer admitted, however, that he and his companions did not administer any field sobriety tests prior to arresting the defendant.
It is unclear under exactly what provision the defendant was arrested at that point. The only statute which could possibly apply would be LSA–R.S. 14:103, the disturbing the peace statute. Subpart A provides in part: “Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: ... (3) Appearing in an intoxicated condition.” Here, there was nothing in the officer's testimony which should have led him to believe that the defendant's staggering would disturb or alarm the public. A more analogous provision could be §54–405 of the New Orleans Municipal Code, which provides: “It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.” However, again there was nothing in the officer's testimony which indicated the defendant's actions at the time he was leaving the bar would endanger the public. The officer testified he arrested the defendant to keep him from entering his truck and driving while intoxicated. However, the officers did not know that the defendant would be leaving anytime soon or that if he were leaving that he would be driving his truck, given the fact that he had two companions with him who could possibly drive, and the officer gave no indication of their condition. Therefore, at the time the officers placed the defendant under arrest, there was no probable cause to arrest him. Thus, the subsequent search which produced the cocaine could not be validated as a search incident to his arrest.”
Id. at 746.
As you can see from Smiley, the parallels of that case are similar in some ways to the hypothetical fact pattern. In fact, Smiley involved worse facts than the hypothetical case, and yet the Fourth Circuit still held that there was no probable cause to make an arrest for the crime of Disturbing the Peace by Public Intoxication since there was no proof produced at the motion to suppress hearing that indicated that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” Simply “appearing in an intoxicated condition” only satisfies one element of the crime of Disturbing the Peace by Public Intoxication; the prosecuting authority is also required to show that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” If the Fourth Circuit felt that in Smiley “staggering” and “weaving” by a man walking out of a bar and smelling of alcohol did not constitute sufficient proof of a man acting in a manner that “would foreseeably disturb or alarm the public,” it is even less likely that in the hypothetical case enough facts existed for you to even be arrested for the crime of Disturbing the Peace by Public Intoxication.
Unfortunately, some law enforcement officers may ignore the element of “foreseeably disturb or alarm the public” and throw handcuffs on people simply because they “appear in an intoxicated condition.” Being arrested under such a circumstance might be unlawful. If you or someone you know gets arrested for disturbing the peace by public intoxication, you may have a valid defense to the charged crime under such circumstanes. Don’t let a night meant to be relaxing turn into a charge that potentially results in a conviction because you don’t know that you may have a competent defense. Know your rights.
Louisiana Criminal Defense Topics: A Thorough Investigation is the Foundation to a Successful Defense
Author: Attorney Philip B. Adams
I have often been asked by clients and non-clients what I think the most important aspect of a criminal defense case is. Most people I’ve encountered who have asked me about this question think that the trial is the most significant stage of any criminal case. Nothing could be further from the truth.
If one even occurs, a trial is simply the culmination of months of hard work, preparation, multiple court hearings, client meetings, witness interviews, etc. A trial is tantamount to a play being performed after all of the work that came before the play by all involved parties. A jury will never know how much work went into a given case. Many jurors may naively think that lawyers just spontaneously question witnesses and present evidence with little to no preparation.
In my opinion, which is based on experience in successfully defending clients in criminal cases against seemingly overwhelming odds, the most important aspect of any criminal case is the investigation stage. However, not just any investigation will suffice in a criminal case. To be successful, an investigation in a criminal case must be thorough and meticulous. No stone must be left unturned.
In working each criminal case that I take on, I spend the majority of my time in the investigation stage of the case. Why do I allocate a majority of my time in the investigation stage? A meticulous investigation can be the decisive factor in determining whether a defense succeeds or fails. A single piece of evidence can destroy the prosecution’s case.
When I do arrive in court for the first time, I am confident that I am well-prepared because I know that I spent a significant amount of time in the investigation stage in proactively building the foundation for the house that I will call my client’s defense. I don’t just take the words of police officers at face value as written in police reports. I listen to my clients and grill them with questions to learn everything that I can about what happened that eventually led to handcuffs being slapped on them. I make it a point to investigate each witness involved and learn about personal and criminal backgrounds. When appropriate, I issue subpoena duces tecums for documents, audio recordings, surveillance footage, body camera recordings, dashcam recordings, police reports, etc. before even the first court date arrives. I hire investigators to search for additional evidence if I have a lead that suggests potentially useful evidence may be uncovered through searching. I have these same investigators interview and record witnesses as appropriate. I have learned all too often, for instance, that what is written down and claimed by police officers as being reality conflicts with what my investigators are told by the same witnesses that were previously interviewed by police.
Spending a lot of time in the investigation stage has paid big dividends on behalf of many of my clients. I’ve had many cases, including serious felonies, dismissed outright due to the work I did at the investigation stage. Most of these former clients would agree that a dismissal obtained by proactive work was much more preferred than the stress of an unnecessary trial. In many cases that weren’t dismissed, I’ve uncovered new evidence unknown to the prosecutor that substantially undermined the strength of the state’s evidence. This new evidence later allowed me to work out highly desirable resolutions because my clients had greater leverage. Regardless of any specific outcome, focusing on the investigation stage of the case led to a better result on behalf of the client.
No one’s liberty should be handled lightly. Unfortunately, I’ve had many clients come to me for representation after having been ignored by previous lawyers or after having been told that a plea deal was “a good offer” even though no defense investigation had taken place. Defending those accused of a crime is a privilege and not an entitlement, and accused individuals should feel confident that those who represent them strive to give real meaning to the Bill of Rights embodied in our state and federal constitutions.
If you or someone you know needs an attorney who will “get to the bottom of things” and vigorously investigate your case with care and diligence, hire the right advocate. Visit our “Contact Us” link and contact attorney Philip B. Adams with the Law Offices of Philip B. Adams, LLC to schedule an initial consultation.