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Frequently Asked Questions

Criminal Defense

Can I Refuse a Breath Test in Louisiana?

DWI (driving while intoxicated) and DUI (driving under the influence) are similar—while DWI usually refers to alcohol, DUI can include other substances.

If you have been stopped for DWI / DUI in Louisiana, there are important things to know. Per Louisiana Revised Statute 32:661, you consent to blood, breath, or urine testing if requested by a police officer by operating a motor vehicle upon Louisiana public highways. Upon your refusal to take the test, it becomes admissible in court and carries an additional punishment.

If you have been charged with DWI / DUI, it is important to hire a DWI / DUI attorney as quickly as possible. Time is of the essence since, in Louisiana, you have only 15 days to request a hearing from the Department of Public Safety and Corrections. Failure to request a hearing will result in the suspension of your driver’s license. The hearing is separate from criminal charges, which will be handled in a court of law. Your attorney can request a hearing and can represent you to try to keep your license from being suspended.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding a DWI / DUI or a breathalyzer test, call us at 318.255.9299 or send us a message using the form below.

What are the DWI / DUI Penalties in Louisiana?

If convicted as a first-time DWI / DUI offender, you may face time in jail, the payment of fines, and a suspension of your license. However, if you have been convicted of prior DWI / DUI offenses, your punishment could be more severe (i.e. more time in jail, higher fines, longer license suspension, or permanent revocation of driving privileges). The best thing you can do to increase your chances of success when fighting your DUI/DWI charges is to contact an experienced DUI lawyer soon after your arrest to discuss your options.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding DWI / DUI, call us at 318.255.9299 or send us a message using the form below.

Will my license be taken away for DWI or DUI in Louisiana?

In Louisiana there are two separate procedures that result from an arrest for DWI:

The administrative procedure of the Louisiana Department of Motor Vehicles, where the State will attempt to take away your driver’s license for a minimum of one year on your first offense; and

The criminal proceeding brought by the District Attorney whereby the State will attempt to put you in jail for up to six months on your first offense.

Each of these proceedings results from a refusal to blow or a BAC above .08 percent.

Louisiana laws offer a safe harbor for people who have certain blood alcohol levels. If your blood alcohol level is below .05, you will be presumed to NOT be driving under the influence of alcohol. When the blood alcohol level is between .05 and .08, there is no presumption about impairment. If the blood alcohol level is .08 or above, it is presumed that the person is impaired.

These laws apply to drivers over the age of 21. The blood alcohol limit for those under the age of 21 is .02 percent.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding DWI / DUI and how it pertains to your license, call us at 318.255.9299 or send us a message using the form below.

 

Why do I have so many court dates?

The 1st court date in a typical criminal case will be in arraignment, at which time one will plead guilty, not guilty, or no contest. If one pleads guilty or no contest, a date for sentencing will be set. however, if one pleads not guilty, the judge will set what is referred to as a pretrial conference date, also known as a status conference date.

Status conference dates are used so the judge may monitor the progress of the defense attorney and the district attorney's office in disposing of criminal matters in a timely fashion. An experienced criminal defense attorney will advise their client if it is in their best interest to proceed to trial quickly or to attempt to take time to negotiate with the district attorney's office. For information on how the passing of time will positively or negatively affect the facts in your case contact us below for a consultation.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding your criminal defense matter, call us at 318.255.9299 or send us a message using the form below.

What is pretrial diversion?

Pre-Trial diversion is a program which may be instituted by the District Attorney of the judicial district which operates in a rehabilitative nature for offenders who meet certain requirements. Program participation is voluntary and requires approval based on preliminary screening performed by the district attorney's office. Programs may include but are not limited to restitution, random drug screens, vocational and educational requirements, community service, monthly face-to-face meetings, and or activities to include drug counseling or treatment if applicable, programs are typically 6 to 12 months in length.

In return for the above and upon successful completion the charges will often be dropped or greatly reduced. Becoming enrolled in a pretrial diversion program can be confusing or even treacherous based on the official one is communicating with. An experienced criminal defense attorney can help you navigate negotiations to enter this program as well as to complete it successfully.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding programs available to protect your record, call us at 318.255.9299 or send us a message using the form below.

Can I get a Bond Reduction?

First, it is important to understand how bail/bond is supposed to be set. The Louisiana Code of Criminal Procedure Article 316 states:

“The amount of bail shall be fixed in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community, having regard to: (1) The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance. (2) The weight of the evidence against the defendant. (3) The previous criminal record of the defendant. (4) The ability of the defendant to give bail. (5) The nature and seriousness of the danger to any other person or the community that would be posed by the defendant's release. (6) The defendant's voluntary participation in a pretrial drug testing program. (7) The absence or presence in the defendant of any controlled dangerous substance. (8) Whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing. (9) Any other circumstances affecting the probability of the defendant's appearance. (10) The type or form of bail.”

As such, once a judge has set bond/bail, it will be incumbent on the defendant, through counsel, to show cause why one (or more) of these factors were not properly weighed or have changed significantly enough to justify reducing the amount originally set.

Furthermore, a motion to modify bond will open the door for a district attorney to request an increase in bond. For this reason, many defendants end up worse off than had they not requested a modification of bond in the first place.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding bond modification, call us at 318.255.9299 or send us a message using the form below.

Why am I being prosecuted if the victim wants to drop the charges?

All criminal matters are prosecuted by the government. Some are charged and prosecuted at the federal level, some at the state level. The majority of the charges in Louisiana are prosecuted at the District and City level. As such, District Attorneys and City Attorneys are responsible for bringing charges against those who they have reason to believe have broken the law.

Because of this, a prosecutor does not need the victim’s permission to prosecute a defendant. Moreover, with the court’s power to subpoena (in some cases) a prosecutor may not even need a victim’s cooperation, only the threat of perjury under oath to compel the victim to tell the truth.

 At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions about reconciling the story a victim or witness gave in a police report with the facts they now recall and are able to testify to, call us at 318.255.9299 or send us a message using the form below.

Who is the best Criminal Defense Lawyer?

This is a very general question, which requires a very specific answer. First, each state defines crimes differently. One well known example: some states no longer consider the possession or consumption of marijuana illegal, while others may still sentence jail time for such. So the location of a criminal act or accusation is important. Your attorney must be familiar with local laws and defenses.

Once you determine, your attorney is licensed and experienced in the necessary jurisdiction the most important thing becomes your preference for your attorney’s communication style. Being accused of a crime will likely be one of the scariest and most confusing times in your life. You will want to feel calm and confident in your situation and your attorney’s ability to assist you through navigating the criminal justice system.

Ultimately, the best criminal defense lawyer is the one who is licensed in the proper jurisdiction, whom you feel the most comfortable communicating with, and who makes you feel confident about them representing you to the prosecutor and the court.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions about how we use consistent communication to encourage confidence and keep our client as calm as possible, call us at 318.255.9299 or send us a message using the form below.

Can Police Officers use force to arrest me?

Yes. A police officer may use as much force as necessary for a criminal arrest, as long as it is reasonable and lawful. After an arrest is made, a police officer may, and usually does, apply handcuffs to a suspect.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions about reasonable force used to make an arrest, call us at 318.255.9299 or send us a message using the form below.

What should I do if Law Enforcement wants to question me?

When you are asked questions by law enforcement, tell them you wish to speak to a lawyer first and prepare yourself not to let them change your mind. This sounds like simple advice, but many times, it can be exceedingly difficult to follow. All citizens, as well as non-citizens, have an absolute right not to answer questions asked by a law enforcement agent without a lawyer present. All communication should proceed through an attorney’s office. It is our job to protect you and insulate you as much as possible from the investigatory process.

In addition, you should never consent to a search of your home or vehicle or anything else. Once you have consulted with a lawyer you will be able to make an informed decision about whether to answer any questions posed to you by law enforcement officials.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding answering law enforcement authorities questions, call us at 318.255.9299 or send us a message using the form below.

What happens after I am arrested?

If you are arrested for breaking a criminal law, you will be brought before a magistrate, judge, or a commissioner who will advise you of the charges against you, set a bond for appearance in court. If you are unable to post the bond, you will remain incarcerated until the case is over. If a bond is posted, you will remain free pending appearance at an arraignment.

The arraignment is held before a judge, magistrate, or commissioner, who formally informs you of the offense(s) for which you are being charged, and informs you of your right to a court-appointed lawyer if you are unable to afford a lawyer. At the arraignment, you will enter a plea of guilty or not guilty.

It is our advice to anyone accused of a crime to speak with an attorney as soon as possible after your arrest. Facing even your first court appearance alone can be scary and there is always a possibility of confusion.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions about the arraignment process and how we can work to dispose of your case in the most favorable manner possible, call us at 318.255.9299 or send us a message using the form below.

Can I plead not guilty even if I am guilty?

Yes, You are innocent until you are proven guilty. It is possible that the evidence against you is not enough to prove that you are guilty. To determine whether you have, in fact, committed any criminal offense, we will investigate the facts and research the law, which can be complex. You might have made a mistake, and feel guilty about it, but your actions might not meet the legal definition of a crime.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions about the consequences of entering a plea, call us at 318.255.9299 or send us a message using the form below.

What grounds do I have to file a Motion to Quash?

Particularly in cases where an innocent client is anxious to have the charges against him dismissed as quickly as possible, we are oftentimes asked to file a Motion to Quash. Many people have the common misconception that a motion to quash a criminal charge can be filed on the grounds that the defendant is innocent. In other words, we are often asked to file a Motion to Quash on the grounds that the state does not have enough evidence to prove the defendant’s guilt. However, that is not a proper foundation for a Motion to Quash.

The proper forum for determining whether the state has sufficient evidence to convict is a trial itself. The motion to quash a criminal charge prior to trial is only allowed in certain circumstances and based on certain grounds enumerated in Louisiana Code of Criminal Procedure Article 532. The most commonly used of those allowable grounds for filing a Motion to Quash are the following: Trying the defendant for the offense would constitute double jeopardy OR the time limitation for the institution of prosecution or for the commencement of trial subsequent to the institution of prosecution has expired.

At the Law Office of James M. Wilkerson, we discuss, in-depth the particular facts, factors, and strategies needed to achieve our client’s goals. If you have questions regarding the motions required to get the most favorable result in your case, call us at 318.255.9299 or send us a message using the form below.

I have been accused of a crime and do not speak English, what do I do?

If a non-English speaking person is a defendant or an interested party before the court and has requested an interpreter, the courts are required to appoint a competent interpreter to translate the proceedings for him. This is provided for by law in the Louisiana Code of Criminal Procedure and is not discretionary with the courts.

At the Law Office of James M. Wilkerson, many of our attorneys and staff are fluent in Spanish. If you have questions regarding your case but need to discuss them in spanish, call us at 318.255.9299 or send us a message using the form below.

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