I just had a car accident, what should I do now?

  1. Remain at the Scene: You should remain at the scene until it is appropriate to do so. If you leave, you may face criminal charges for “hit-and-run” or other penalties, especially if someone sustained injuries or was killed.
  2. Check Everyone Involved: Make sure everyone involved in the accident is okay. If you are someone else has been injured call 911 or a local emergency medical service (EMS). If someone is unconscious or is in pain, do not move them unless an imminent emergency or hazard requires doing so.
  3. Assess Property Damage: Assess and take pictures of all property damage to all vehicles involved in the crash.
  4. Speak to Witnesses: Ask all witnesses what he/she saw, then get their names and contact information.
  5. Call the Police: Call the local or state police if physical or property damage has been sustained. Upon arrival, obtain the name and badge number of the responding officer. Also, request an incident number and ask that a police report be filed.
  6. Exchange Information: Get the names, phone numbers, email address, physical and mailing addresses, drivers’ license numbers, license plate numbers, insurance information, and make and model of the vehicles from all drivers and passengers involved in the automobile crash. In talking to the other drivers, try to be cordial and cooperative.
  7. Consult an Attorney: Once you have been allowed to leave the scene and/or have sought medical attention, it is best to consult with an experience attorney. The attorney will inform you of your rights and will relieve you of dealing with insurance companies. The attorney will also help you maximize your recovery if you have suffered damages.

My car is wrecked, should I take pictures?

Yes, the following pictures should be taken:

  1. Damage to All Vehicles Involved
  2. Your Bodily Injuries
  3. Other Vehicle’s License Plate
  4. Entire scene
  5. Your Vehicle’s Odometer
  6. Damaged Personal Belongings

What should I avoid doing after an accident?

  1. Leave the scene of the accident.
  2. Fail to call the police.
  3. Talk to the other driver, other than merely obtaining his/her contact and insurance information.
  4. Give a recorded statement to an insurance company or any adverse party.
  5. Delay seeking medical treatment.
  6. Wait too long to obtain a recovery since there are time limits for filing lawsuits to obtain such a recovery.

What if I don’t know who caused my accident?

Immediately contact an attorney. He or she will be able to conduct an investigation related to causation. If the attorney cannot make that determination, he or she may retain certain experts to assist with doing so.

What is an independent medical examination?

It’s an examination that the other party (e.g. Other driver’s insurance company) requests that you undergo with a medical provider who has not previously rendered care to you.

The person that hit me does “not have” insurance, what can I do?

If you have uninsured motorist (“UM”) coverage to cover the damages you sustain, under your automobile insurance policy, you can file a claim against that policy for recovery of those damages.

The person that hit me “has insurance” but does “not have enough” insurance to pay for all of my damages, what can I do?

If you have underinsured motorist (“UM”) coverage to cover the damages you sustain, according to your automobile insurance policy, you can file a claim against that policy for recovery of those damages.

How much time do I have after my accident to decide whether or not to sue?

Louisiana law provides one (1) year from the date the damage was sustained to file a lawsuit. The date the damage was sustained is usually the date the automobile accident occurred.

I recently suffered physical injuries in an accident. Do I really need an attorney?

It depends on your circumstances. For example, if you are nearing the deadline to file a lawsuit and have been unable to obtain a recovery for your medical bills, pain and suffering, and/or loss wages, you should hire an attorney so that a lawsuit is filed and you don’t forever lose your rights to pursue that recovery. Additionally, if there is a dispute about liability or who is at fault for causing the accident, you may want to hire an attorney to handle those legal issues for you.

Many legal issues can arise after being involved in a motor vehicle accident, so it is strongly suggested that you immediately contact an attorney experienced in handling automobile accident claims so that your legal interests are protected.

Can I still get my medical bills paid if I was partially at fault for the accident?

You may but your recovery for payment of the medical bills may be reduced by your percentage share of fault.

Do I need to see a medical professional within the first 14 days after my accident?

Yes. The sooner you are examined by a medical professional, the sooner you’ll find out if you suffered any injuries and if so, the sooner you’ll be be able to begin the appropriate course of treatment for those injuries.

Further, if you are filing a claim for personal injuries, any delays in undergoing treatment can adversely affect your recovery. Insurance adjusters usually refer to such delays as “gaps in treatment,” and often refuse to pay claims that have “gaps” or will pay them at a reduction. From an adjuster’s standpoint, if you’re not treating, you must not be in pain.

Lastly, once you have filed a personal injury claim, you will have to prove that you actually suffered injuries and pain, as a result of the car wreck. You can prove that by way of documentary evidence in the form of medical records. By seeking treatment, it will allow your doctor to provide diagnosis and detail the pain that you reported. He/she can then relate those injuries to the car wreck that you were involved in.

Can I go to jail for DUI?

Yes. Louisiana law provides possible jail time for each offense (e.g. first, second, & etc.)

Will my license be suspended if I refuse the chemical breathalyzer exam?

Your license can be suspended for refusing the chemical breathalyzer test. The term of suspension is dependent on whether or not who have refused to take the breathalyzer before.

  • First Refusal – suspension of 1 year
  • Second Refusal – suspension of 2 years
  • Third Refusal – penalties are the same as a first offense DWI, if the person has refused the test after already refusing on two previous/separate occasions of DWI or was involved a crash resulting in a fatality or serious bodily injury.

The periods may also vary from those mentioned above if the driver is under the age of 21, serious bodily injury occurred while the suspect was driving, or the driver is later convicted of DWI/DUI.

What if I refused to take a breath, blood or other alcohol test when I was pulled over?

Pursuant to Louisiana law, a person may refuse to submit to the test if he or she has not refused on two previous/separate occasions of DWI or was not involved in a crash resulting in a fatality or serious bodily injury. However, refusal results in the license suspensions mentioned above and will also likely result in you being charged with DWI.

Why should I hire a DWI lawyer if the state already has test results showing I was over the limit?

Even though the test results show you were over the legal limit, that does not mean that those results were accurate. An experienced DWI lawyer would be able to attack those finds by investigating whether the proper procedures were used when administering the tests, if the proper personnel administered the test, if the proper machine and equipment were used, whether the machine was properly calibrated, and other information related to the accuracy of the readings.

Further, an attorney would also be able to look into whether there the proper procedures were used when stopping and arresting you; and he/she would also review the evidence to see if there is a basis to keep certain damaging evidence out of court.

Lastly, aside from the what’s mentioned above and many other reasons, an attorney would be able to advice you on the penalties you are facing and what potential plea deal options would be best for you.

When do DUI charges come off my record?

DUI charges come off your record by expungement. How soon you can file for an expungement depends on whether or not your charges are classified as a misdemeanor or a felony. Most misdemeanors may be expunged after five (5) years from the end of your sentence/probation. Most felonies may be expunged ten (10) years from the end of your sentence/probation.

Should I have refused to take the breathalyzer test?

Yes. Louisiana law provides for stricter penalties and suspension of your drivers license if the results show that your blood alcohol concentration or above certain limits. If you refuse to blow, The state will not have evidence of your blood alcohol concentration. Further, if it was your first refusal, then you will not be suffer the penalties that one would usually suffer for a first offense had they blown.

It is important to note that you may still be arrested for driving while intoxicated and they may request that you undergo a urine test.

Can I get my DUI conviction expunged?

Yes you can. However, Louisiana law provides for certain delays before you can do so. The Russell Law From would be happy to discuss what delays may apply to you.

How much information should I provide the police before and after I am arrested for DUI?

Other than providing personal identifying information, insurance information, and registration; you should only request your right to a lawyer.

What is the "worst case" scenario if I have been charged with DUI?

Maximum penalties for DUI in Louisiana vary depending on whether the DUI is a first, second, third, fourth or more. Additionally, other aggravating factors such as blowing over certain blood alcohol content thresholds and causing injury to someone else while driving under the influence may impact what type of penalties you face under the law. Consult with an attorney about your particular circumstances.

How much money will a DUI cost me?

The overall cost of a DUI/DWI varies dependent upon whether it was a First Offense, Second Offense, Third Offense, Fourth Offense or greater. Fines generally range between $500 to $5000. Additional costs could include: legal fees, court costs, substance abuse programs, driver’s license administrative fines, interlocking device for your vehicle, and even increased auto insurance premiums. Time away from work to attend court hearings and trial, participate in court-approved substance abuse programs, serve community service hours, and even serving imposed jail-time may have an economic impact, as well.

What exactly is an “expungement” in Louisiana?

“Expungement” means removal of a record of arrest or conviction, photographs, fingerprints, disposition, or any other information of any kind from public access. “Expunge a record” does not mean destruction of the record. An expunged record remains available for use by law enforcement agencies, criminal justice agencies, and other state agencies as stated under Louisiana law.

Is an expungement the same as an “Article 893/894” or deferred sentence?

No. Louisiana Code of Civil Procedure Articles 893 (felony pleas) and 894 (misdemeanor pleas), can be plead as vehicle for a deferred sentence and/or expungement. However, after pleading under article 893 or 894, the arrest and conviction will still appear on the individual’s criminal record.

Is an expungement the same as a “first offender’s pardon”?

No. An expungement removes a record mentioned above, from public access whereas, a first offender pardon does not.

What if I pleaded “no contest”?

It has the same criminal legal effects as a guilty plea, with respect to penalties, fines, and the arrest and conviction being appearing on your criminal record.

What if I was arrested for a crime, but the charge was dismissed? Is that on my record, even though it was dismissed?

Yes. Your record will reflect an arrest but no conviction of the crime.

How long does my arrest or conviction stay on my Louisiana criminal record?

Until it is expunged. However, some convictions will remain on your record forever because they are generally not expungable, such as certain sex crimes, crimes of violence, misdemeanor domestic abuse battery and misdemeanor stalking.

Why would I want an expungement?

It depends on each person’s circumstances but reasons many people seek expungements tend to involve:

  1.    Employment opportunities;
  2.    Family matters affected by a criminal conviction, such as custody;
  3.    Admission into a college and/or higher education program;
  4.    Obtaining professional licensing; and
  5.    Obtaining credit from a bank.

Can all Louisiana criminal convictions be expunged?

No.  Some convictions are generally prohibited from expungements under Louisiana law, such as certain sex crimes, crimes of violence, misdemeanor domestic abuse battery and misdemeanor stalking.

The record of arrest for any crime for which someone is not ultimately convicted can be expunged.

This is a complicated area of the law so someone at the Russell Law Firm would happy to further discuss this matter with you.

How long does the whole expungement process take?

It varies. Louisiana law allows sixty (60) days from the date of filing for all the agencies to respond to your request for an expungement. Thereafter, it may take an additional thirty (30) days to obtain a hearing date, if necessary.  After the court rules on the hearing or grants the motion for expungement, it may take more than a month for the Louisiana State Police to mail you a Certificate of Compliance.

It is reasonable to expect six (6) months for uncomplicated expungements and longer for complicated expungements.

How long does it take to get a divorce in Louisiana?

Under Louisiana law, you may obtain a judgment of divorce as follows:

  •  365 days (1 year) – Children
    • If you are seeking a “no-fault” divorce and have children, you and your spouse must live “separate and apart” continuously for 365 days or more before obtaining a judgment of divorce.
      • If the requisite timeframe is met when you file the petition for divorce, you may request that a hearing be set to obtain a judgment of divorce at the court’s next available hearing date.
      • If the requisite timeframe is not met when you file for divorce, you must wait 365 days from the date your spouse is served with your divorce filing or the date he or she waives service of that filing, before you can obtain a divorce.
  • 180 days (6 months) – No Children
    • If you are seeking a “no-fault” divorce and do not have children, you must live “separate and apart” continuously for 180 days before you may obtain a judgment of divorce, in the following ways:
      • If the requisite timeframe is met when you file the petition for divorce, you may request that a hearing be set to obtain a judgment of divorce at the court’s next available hearing date.
      • If the requisite timeframe is not met when you file for divorce, you must wait 180 days from the date your spouse is served with your divorce filing or the date he or she waives service of that filing, before you can obtain a divorce.
  • Immediately – Once you file for divorce, you may be able to obtain a divorce at the court’s next available hearing date, without having to wait the 180 or 365 days mentioned above, if you are able to prove:
    • Adultery –  The other spouse has committed adultery.
    • Felony –  The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
    • Physical or Sexual Abuse – During the marriage, the other spouse physically or sexually abused you and/or a child of the marriage.
    • Protective Order Issued – A protective order or an injunction was issued during the marriage, against the other spouse to protect you and/or a child of the marriage from abuse.

Should I wait until I have been separated for six or twelve months to file for my divorce?

Yes, if you are nearing 180 or 365 days and obtaining a divorce at the earliest possible date is what is most important to you.

However, if termination of community property is most important to you, filing as soon as possible would be best since community property is terminated retroactive to the date you filed for divorce. Similarly, if obtaining other incidental relief as soon as possible is most important to you, such as obtaining spousal or child support, you may want to file for divorce before the legal delays have run. You can include those incidental matters in your petition for divorce.

Who gets custody of the child?

Louisiana awards custody according to what is the “best interest of the child.” If the parents can agree on a custodial arrangement, custody will be awarded according to said arrangement. In the absence of such an agreement or if their agreement is not in the best interest of the child, joint custody will likely be awarded as there is a preference under Louisiana law towards joint custody. However, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court will award sole custody to that parent alone.

How is child support determined?

Louisiana uses an income share model for such a determination by first considering a combined adjusted income of both parents to arrive at a basic child support obligation for the child(ren), according to certain  child support guidelines. For a review of the guidelines, visit this link.

From the basic obligation, the court may add costs of health insurance, child care costs, extraordinary medical expenses, and other extraordinary expenses to arrive at a total child support obligation. From the total obligation, the parents will be responsible for their share based on his or her share of combine adjusted income.

Will I be eligible to receive (or will I have to pay) spousal support?

For interim spousal support, the claimant spouse must prove that he or she is in need and the other spouse has the ability to pay.

For final spousal support, in addition to the above, the claimant spouse must show that he or she is free from pre-petition fault causing the breakup of your marriage. For example, the breakup of your marriage must not have been caused by your pre-petition adultery or abandonment of the marriage. There are certain exceptions and/or defenses to this requirement that may apply, depending on the facts of the case

What can I expect in court? Are divorce proceedings (which include all incidental matters such as child custody, child support, spousal support, and community property partition) handled the same in all parishes?

Sometimes but not always. There are local rules for each parish district court that affect how incidental matters are handled and many differ from parish to parish. For example, the local rules for one parish district court may require that an incidental matter be heard by a hearing officer before being heard by the trial judge and another parish’s district court local rules may require those matters to go directly before the trial judge.

However, Louisiana law governs the merits and certain procedural issues of causes of actions for divorce and incidental matters. Therefore, the district court’s in all parishes must implement Louisiana law when making decisions that effect the merits of the case and other major procedural issues.

How much are court costs?

Court costs can vary from parish to parish, according to the type of pleading filed and the number of pages being filed for each pleading. Most Clerk of Courts provide a breakdown of filing fees on their websites and via telephone.

Filing fees for most Petitions for Divorce normally usually range from $250-$500. There are separate fees for serving the defendant with your pleading. You can usually obtain those fees from the clerk of court or the sheriff’s office.

What are grounds for divorce and residency requirements for divorce in Louisiana?

Grounds:

  1. No Fault – 180 or 365 days living separate and apart continuously prior to the petition of divorce being filed or after service of petition the petition of divorce upon the spouse or a written waiver of service of the petition of divorce by the spouse is executed, depending on your circumstances.
  2. Adultery – The other spouse has committed adultery.
  3. Commission of a Felony – The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
  4. Physical or Sexual Abuse – During the marriage, the other spouse physically or sexually abused the spouse seeking divorce and/or a child of the marriage.
  5. Protective Order or Injunction Issued – After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce and/or a child of the marriage from abuse.


Residency Requirements:

An action for a divorce in Louisiana must be brought in the parish where either spouse physically resides and intends to remain permanently, or in the parish where both spouses last physically resided as a married couple, with the intent to reside in that parish permanently.

How may a couple divide their property after filing for divorce?

In Louisiana, the division of community property is referred to as “partitioning community property.” The couple can either partition community property voluntarily by agreement between themselves at anytime or if they cannot agree, they can have the court partition it judicially. However, the community property cannot be judicially partitioned until after a judgment of divorce is rendered.

What are the different types of spousal support?

Interim and Final Periodic Spousal Support.

What factors does the court consider in granting spousal support?

For interim spousal support, the court will generally consider the claimant spouse’s need, the ability of the other spouse to pay, and the standard of living of the parties during the marriage.

For final spousal support, the court will generally consider the claimant spouse’s need, the ability of the other spouse to pay, and whether the claimant spouse is free from the pre-petition fault that caused the breakup of the marriage.

Note: Other factors apply when considering the amount and duration of final spousal support.

What common factors are used to determine custody?

When initially fixing custody and modifying custodial arrangements, courts consider factors related to the “best interest of the child.” Louisiana Civil Code Article 134 sets forth the following illustrative list of common factors:

  1. The love, affection, and other emotional ties between each party and the child;
  2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
  3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  4. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes;
  6. The moral fitness of each party, insofar as it affects the welfare of the child;
  7. The mental and physical health of each party;
  8. The home, school, and community history of the child;
  9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  11. The distance between the respective residences of the parties; and
  12. The responsibility for the care and rearing of the child previously exercised by each party.

Courts have discretion as to the weight afforded to each factor. However, those factors are not exclusive. The court may also consider factors outside of that list, depending on the case.

Does adultery affect the outcome of a divorce hearing?

It affects how quickly one may obtain the divorce. If it is proven that a spouse committed adultery and the spouses have not reconciled since, the requesting spouse may obtain a divorce more immediate than the usual 180 or 365 day waiting period.

CAR ACCIDENTS

I just had a car accident, what should I do now?

  1. Remain at the Scene: You should remain at the scene until it is appropriate to do so. If you leave, you may face criminal charges for “hit-and-run” or other penalties, especially if someone sustained injuries or was killed.
  2. Check Everyone Involved: Make sure everyone involved in the accident is okay. If you are someone else has been injured call 911 or a local emergency medical service (EMS). If someone is unconscious or is in pain, do not move them unless an imminent emergency or hazard requires doing so.
  3. Assess Property Damage: Assess and take pictures of all property damage to all vehicles involved in the crash.
  4. Speak to Witnesses: Ask all witnesses what he/she saw, then get their names and contact information.
  5. Call the Police: Call the local or state police if physical or property damage has been sustained. Upon arrival, obtain the name and badge number of the responding officer. Also, request an incident number and ask that a police report be filed.
  6. Exchange Information: Get the names, phone numbers, email address, physical and mailing addresses, drivers’ license numbers, license plate numbers, insurance information, and make and model of the vehicles from all drivers and passengers involved in the automobile crash. In talking to the other drivers, try to be cordial and cooperative.
  7. Consult an Attorney: Once you have been allowed to leave the scene and/or have sought medical attention, it is best to consult with an experience attorney. The attorney will inform you of your rights and will relieve you of dealing with insurance companies. The attorney will also help you maximize your recovery if you have suffered damages.

My car is wrecked, should I take pictures?

Yes, the following pictures should be taken:

  1. Damage to All Vehicles Involved
  2. Your Bodily Injuries
  3. Other Vehicle’s License Plate
  4. Entire scene
  5. Your Vehicle’s Odometer
  6. Damaged Personal Belongings

What should I avoid doing after an accident?

  1. Leave the scene of the accident.
  2. Fail to call the police.
  3. Talk to the other driver, other than merely obtaining his/her contact and insurance information.
  4. Give a recorded statement to an insurance company or any adverse party.
  5. Delay seeking medical treatment.
  6. Wait too long to obtain a recovery since there are time limits for filing lawsuits to obtain such a recovery.

What if I don’t know who caused my accident?

Immediately contact an attorney. He or she will be able to conduct an investigation related to causation. If the attorney cannot make that determination, he or she may retain certain experts to assist with doing so.

What is an independent medical examination?

It’s an examination that the other party (e.g. Other driver’s insurance company) requests that you undergo with a medical provider who has not previously rendered care to you.

The person that hit me does “not have” insurance, what can I do?

If you have uninsured motorist (“UM”) coverage to cover the damages you sustain, under your automobile insurance policy, you can file a claim against that policy for recovery of those damages.

The person that hit me “has insurance” but does “not have enough” insurance to pay for all of my damages, what can I do?

If you have underinsured motorist (“UM”) coverage to cover the damages you sustain, according to your automobile insurance policy, you can file a claim against that policy for recovery of those damages.

How much time do I have after my accident to decide whether or not to sue?

Louisiana law provides one (1) year from the date the damage was sustained to file a lawsuit. The date the damage was sustained is usually the date the automobile accident occurred.

I recently suffered physical injuries in an accident. Do I really need an attorney?

It depends on your circumstances. For example, if you are nearing the deadline to file a lawsuit and have been unable to obtain a recovery for your medical bills, pain and suffering, and/or loss wages, you should hire an attorney so that a lawsuit is filed and you don’t forever lose your rights to pursue that recovery. Additionally, if there is a dispute about liability or who is at fault for causing the accident, you may want to hire an attorney to handle those legal issues for you.

Many legal issues can arise after being involved in a motor vehicle accident, so it is strongly suggested that you immediately contact an attorney experienced in handling automobile accident claims so that your legal interests are protected.

Can I still get my medical bills paid if I was partially at fault for the accident?

You may but your recovery for payment of the medical bills may be reduced by your percentage share of fault.

Do I need to see a medical professional within the first 14 days after my accident?

Yes. The sooner you are examined by a medical professional, the sooner you’ll find out if you suffered any injuries and if so, the sooner you’ll be be able to begin the appropriate course of treatment for those injuries.

Further, if you are filing a claim for personal injuries, any delays in undergoing treatment can adversely affect your recovery. Insurance adjusters usually refer to such delays as “gaps in treatment,” and often refuse to pay claims that have “gaps” or will pay them at a reduction. From an adjuster’s standpoint, if you’re not treating, you must not be in pain.

Lastly, once you have filed a personal injury claim, you will have to prove that you actually suffered injuries and pain, as a result of the car wreck. You can prove that by way of documentary evidence in the form of medical records. By seeking treatment, it will allow your doctor to provide diagnosis and detail the pain that you reported. He/she can then relate those injuries to the car wreck that you were involved in.

DWI

Can I go to jail for DUI?

Yes. Louisiana law provides possible jail time for each offense (e.g. first, second, & etc.)

Will my license be suspended if I refuse the chemical breathalyzer exam?

Your license can be suspended for refusing the chemical breathalyzer test. The term of suspension is dependent on whether or not who have refused to take the breathalyzer before.

  • First Refusal – suspension of 1 year
  • Second Refusal – suspension of 2 years
  • Third Refusal – penalties are the same as a first offense DWI, if the person has refused the test after already refusing on two previous/separate occasions of DWI or was involved a crash resulting in a fatality or serious bodily injury.

The periods may also vary from those mentioned above if the driver is under the age of 21, serious bodily injury occurred while the suspect was driving, or the driver is later convicted of DWI/DUI.

What if I refused to take a breath, blood or other alcohol test when I was pulled over?

Pursuant to Louisiana law, a person may refuse to submit to the test if he or she has not refused on two previous/separate occasions of DWI or was not involved in a crash resulting in a fatality or serious bodily injury. However, refusal results in the license suspensions mentioned above and will also likely result in you being charged with DWI.

Why should I hire a DWI lawyer if the state already has test results showing I was over the limit?

Even though the test results show you were over the legal limit, that does not mean that those results were accurate. An experienced DWI lawyer would be able to attack those finds by investigating whether the proper procedures were used when administering the tests, if the proper personnel administered the test, if the proper machine and equipment were used, whether the machine was properly calibrated, and other information related to the accuracy of the readings.

Further, an attorney would also be able to look into whether there the proper procedures were used when stopping and arresting you; and he/she would also review the evidence to see if there is a basis to keep certain damaging evidence out of court.

Lastly, aside from the what’s mentioned above and many other reasons, an attorney would be able to advice you on the penalties you are facing and what potential plea deal options would be best for you.

When do DUI charges come off my record?

DUI charges come off your record by expungement. How soon you can file for an expungement depends on whether or not your charges are classified as a misdemeanor or a felony. Most misdemeanors may be expunged after five (5) years from the end of your sentence/probation. Most felonies may be expunged ten (10) years from the end of your sentence/probation.

Should I have refused to take the breathalyzer test?

Yes. Louisiana law provides for stricter penalties and suspension of your drivers license if the results show that your blood alcohol concentration or above certain limits. If you refuse to blow, The state will not have evidence of your blood alcohol concentration. Further, if it was your first refusal, then you will not be suffer the penalties that one would usually suffer for a first offense had they blown.

It is important to note that you may still be arrested for driving while intoxicated and they may request that you undergo a urine test.

Can I get my DUI conviction expunged?

Yes you can. However, Louisiana law provides for certain delays before you can do so. The Russell Law From would be happy to discuss what delays may apply to you.

How much information should I provide the police before and after I am arrested for DUI?

Other than providing personal identifying information, insurance information, and registration; you should only request your right to a lawyer.

What is the "worst case" scenario if I have been charged with DUI?

Maximum penalties for DUI in Louisiana vary depending on whether the DUI is a first, second, third, fourth or more. Additionally, other aggravating factors such as blowing over certain blood alcohol content thresholds and causing injury to someone else while driving under the influence may impact what type of penalties you face under the law. Consult with an attorney about your particular circumstances.

How much money will a DUI cost me?

The overall cost of a DUI/DWI varies dependent upon whether it was a First Offense, Second Offense, Third Offense, Fourth Offense or greater. Fines generally range between $500 to $5000. Additional costs could include: legal fees, court costs, substance abuse programs, driver’s license administrative fines, interlocking device for your vehicle, and even increased auto insurance premiums. Time away from work to attend court hearings and trial, participate in court-approved substance abuse programs, serve community service hours, and even serving imposed jail-time may have an economic impact, as well.

Expungements

What exactly is an “expungement” in Louisiana?

“Expungement” means removal of a record of arrest or conviction, photographs, fingerprints, disposition, or any other information of any kind from public access. “Expunge a record” does not mean destruction of the record. An expunged record remains available for use by law enforcement agencies, criminal justice agencies, and other state agencies as stated under Louisiana law.

Is an expungement the same as an “Article 893/894” or deferred sentence?

No. Louisiana Code of Civil Procedure Articles 893 (felony pleas) and 894 (misdemeanor pleas), can be plead as vehicle for a deferred sentence and/or expungement. However, after pleading under article 893 or 894, the arrest and conviction will still appear on the individual’s criminal record.

Is an expungement the same as a “first offender’s pardon”?

No. An expungement removes a record mentioned above, from public access whereas, a first offender pardon does not.

What if I pleaded “no contest”?

It has the same criminal legal effects as a guilty plea, with respect to penalties, fines, and the arrest and conviction being appearing on your criminal record.

What if I was arrested for a crime, but the charge was dismissed? Is that on my record, even though it was dismissed?

Yes. Your record will reflect an arrest but no conviction of the crime.

How long does my arrest or conviction stay on my Louisiana criminal record?

Until it is expunged. However, some convictions will remain on your record forever because they are generally not expungable, such as certain sex crimes, crimes of violence, misdemeanor domestic abuse battery and misdemeanor stalking.

Why would I want an expungement?

It depends on each person’s circumstances but reasons many people seek expungements tend to involve:

  1.    Employment opportunities;
  2.    Family matters affected by a criminal conviction, such as custody;
  3.    Admission into a college and/or higher education program;
  4.    Obtaining professional licensing; and
  5.    Obtaining credit from a bank.

Can all Louisiana criminal convictions be expunged?

No.  Some convictions are generally prohibited from expungements under Louisiana law, such as certain sex crimes, crimes of violence, misdemeanor domestic abuse battery and misdemeanor stalking.

The record of arrest for any crime for which someone is not ultimately convicted can be expunged.

This is a complicated area of the law so someone at the Russell Law Firm would happy to further discuss this matter with you.

How long does the whole expungement process take?

It varies. Louisiana law allows sixty (60) days from the date of filing for all the agencies to respond to your request for an expungement. Thereafter, it may take an additional thirty (30) days to obtain a hearing date, if necessary.  After the court rules on the hearing or grants the motion for expungement, it may take more than a month for the Louisiana State Police to mail you a Certificate of Compliance.

It is reasonable to expect six (6) months for uncomplicated expungements and longer for complicated expungements.

FAMILY LAW

How long does it take to get a divorce in Louisiana?

Under Louisiana law, you may obtain a judgment of divorce as follows:

  •  365 days (1 year) – Children
    • If you are seeking a “no-fault” divorce and have children, you and your spouse must live “separate and apart” continuously for 365 days or more before obtaining a judgment of divorce.
      • If the requisite timeframe is met when you file the petition for divorce, you may request that a hearing be set to obtain a judgment of divorce at the court’s next available hearing date.
      • If the requisite timeframe is not met when you file for divorce, you must wait 365 days from the date your spouse is served with your divorce filing or the date he or she waives service of that filing, before you can obtain a divorce.
  • 180 days (6 months) – No Children
    • If you are seeking a “no-fault” divorce and do not have children, you must live “separate and apart” continuously for 180 days before you may obtain a judgment of divorce, in the following ways:
      • If the requisite timeframe is met when you file the petition for divorce, you may request that a hearing be set to obtain a judgment of divorce at the court’s next available hearing date.
      • If the requisite timeframe is not met when you file for divorce, you must wait 180 days from the date your spouse is served with your divorce filing or the date he or she waives service of that filing, before you can obtain a divorce.
  • Immediately – Once you file for divorce, you may be able to obtain a divorce at the court’s next available hearing date, without having to wait the 180 or 365 days mentioned above, if you are able to prove:
    • Adultery –  The other spouse has committed adultery.
    • Felony –  The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
    • Physical or Sexual Abuse – During the marriage, the other spouse physically or sexually abused you and/or a child of the marriage.
    • Protective Order Issued – A protective order or an injunction was issued during the marriage, against the other spouse to protect you and/or a child of the marriage from abuse.

Should I wait until I have been separated for six or twelve months to file for my divorce?

Yes, if you are nearing 180 or 365 days and obtaining a divorce at the earliest possible date is what is most important to you.

However, if termination of community property is most important to you, filing as soon as possible would be best since community property is terminated retroactive to the date you filed for divorce. Similarly, if obtaining other incidental relief as soon as possible is most important to you, such as obtaining spousal or child support, you may want to file for divorce before the legal delays have run. You can include those incidental matters in your petition for divorce.

Who gets custody of the child?

Louisiana awards custody according to what is the “best interest of the child.” If the parents can agree on a custodial arrangement, custody will be awarded according to said arrangement. In the absence of such an agreement or if their agreement is not in the best interest of the child, joint custody will likely be awarded as there is a preference under Louisiana law towards joint custody. However, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court will award sole custody to that parent alone.

How is child support determined?

Louisiana uses an income share model for such a determination by first considering a combined adjusted income of both parents to arrive at a basic child support obligation for the child(ren), according to certain  child support guidelines. For a review of the guidelines, visit this link.

From the basic obligation, the court may add costs of health insurance, child care costs, extraordinary medical expenses, and other extraordinary expenses to arrive at a total child support obligation. From the total obligation, the parents will be responsible for their share based on his or her share of combine adjusted income.

Will I be eligible to receive (or will I have to pay) spousal support?

For interim spousal support, the claimant spouse must prove that he or she is in need and the other spouse has the ability to pay.

For final spousal support, in addition to the above, the claimant spouse must show that he or she is free from pre-petition fault causing the breakup of your marriage. For example, the breakup of your marriage must not have been caused by your pre-petition adultery or abandonment of the marriage. There are certain exceptions and/or defenses to this requirement that may apply, depending on the facts of the case

What can I expect in court? Are divorce proceedings (which include all incidental matters such as child custody, child support, spousal support, and community property partition) handled the same in all parishes?

Sometimes but not always. There are local rules for each parish district court that affect how incidental matters are handled and many differ from parish to parish. For example, the local rules for one parish district court may require that an incidental matter be heard by a hearing officer before being heard by the trial judge and another parish’s district court local rules may require those matters to go directly before the trial judge.

However, Louisiana law governs the merits and certain procedural issues of causes of actions for divorce and incidental matters. Therefore, the district court’s in all parishes must implement Louisiana law when making decisions that effect the merits of the case and other major procedural issues.

How much are court costs?

Court costs can vary from parish to parish, according to the type of pleading filed and the number of pages being filed for each pleading. Most Clerk of Courts provide a breakdown of filing fees on their websites and via telephone.

Filing fees for most Petitions for Divorce normally usually range from $250-$500. There are separate fees for serving the defendant with your pleading. You can usually obtain those fees from the clerk of court or the sheriff’s office.

What are grounds for divorce and residency requirements for divorce in Louisiana?

Grounds:

  1. No Fault – 180 or 365 days living separate and apart continuously prior to the petition of divorce being filed or after service of petition the petition of divorce upon the spouse or a written waiver of service of the petition of divorce by the spouse is executed, depending on your circumstances.
  2. Adultery – The other spouse has committed adultery.
  3. Commission of a Felony – The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
  4. Physical or Sexual Abuse – During the marriage, the other spouse physically or sexually abused the spouse seeking divorce and/or a child of the marriage.
  5. Protective Order or Injunction Issued – After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce and/or a child of the marriage from abuse.


Residency Requirements:

An action for a divorce in Louisiana must be brought in the parish where either spouse physically resides and intends to remain permanently, or in the parish where both spouses last physically resided as a married couple, with the intent to reside in that parish permanently.

How may a couple divide their property after filing for divorce?

In Louisiana, the division of community property is referred to as “partitioning community property.” The couple can either partition community property voluntarily by agreement between themselves at anytime or if they cannot agree, they can have the court partition it judicially. However, the community property cannot be judicially partitioned until after a judgment of divorce is rendered.

What are the different types of spousal support?

Interim and Final Periodic Spousal Support.

What factors does the court consider in granting spousal support?

For interim spousal support, the court will generally consider the claimant spouse’s need, the ability of the other spouse to pay, and the standard of living of the parties during the marriage.

For final spousal support, the court will generally consider the claimant spouse’s need, the ability of the other spouse to pay, and whether the claimant spouse is free from the pre-petition fault that caused the breakup of the marriage.

Note: Other factors apply when considering the amount and duration of final spousal support.

What common factors are used to determine custody?

When initially fixing custody and modifying custodial arrangements, courts consider factors related to the “best interest of the child.” Louisiana Civil Code Article 134 sets forth the following illustrative list of common factors:

  1. The love, affection, and other emotional ties between each party and the child;
  2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
  3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  4. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes;
  6. The moral fitness of each party, insofar as it affects the welfare of the child;
  7. The mental and physical health of each party;
  8. The home, school, and community history of the child;
  9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  11. The distance between the respective residences of the parties; and
  12. The responsibility for the care and rearing of the child previously exercised by each party.

Courts have discretion as to the weight afforded to each factor. However, those factors are not exclusive. The court may also consider factors outside of that list, depending on the case.

Does adultery affect the outcome of a divorce hearing?

It affects how quickly one may obtain the divorce. If it is proven that a spouse committed adultery and the spouses have not reconciled since, the requesting spouse may obtain a divorce more immediate than the usual 180 or 365 day waiting period.

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