I am frequently asked this question, and the answer is not as simple as you might think. In fact, there are several different answers depending on the crime committed. These time limitations for the institution of prosecution apply to the time period between the date of the offense and the date when the prosecutor files charges with the clerk of court. For this time limitation, the date of arrest is irrelevant.

For most crimes, the time limitation upon institution of prosecution depends upon the type of punishment provided for that crime. For instance, for a felony which is necessarily punishable by imprisonment at hard labor, the time limitation upon institution of prosecution is six years from the date of offense. Thus, if an offense is committed on January 1, 2001, and that particular offense is punishable by imprisonment at hard labor, the state has until January 1, 2010 to file charges with the clerk of court.

For offenses where the court may or may not punish the defendant with imprisonment at hard labor, the time limitation for the institution of prosecution is four years. And for misdemeanors which are punishable by imprisonment without hard labor, the time limitation is two years. For misdemeanors punishable only by a fine or forfeiture, the time limitation is six months.

There are exceptions to this for certain crimes of particular seriousness. For instance, there is no time limitation upon the institution of prosecution for any crime for which the punishment may be death or life imprisonment, or for the crime of forcible rape. So for crimes such as murder, aggravated rape, and forcible rape, there is no time limitation, and prosecution can be instituted for these crimes decades after the date they occurred.

There are also exceptions for certain sex offenses involving particularly vulnerable victims. For instance, with regard to certain sex offenses like sexual battery, molestation of a juvenile, incest, crime against nature, and several others, where the victim is under the age of 17 at the time of the offense, the time limitation within which to institute prosecution is 30 years. Further, the 30-year period does not begin to run until the victim attains the age of 18.

There is also an exception for cold cases solved by DNA profiling many years later. Specifically, prosecutions for any sex offense may be commenced at any time beyond the time limitations set forth in the code if the identity of the offender is established after the expiration of such time limitation using a DNA profile. This exception usually applies to cold cases where the date of offense was in the late 80’s or early 90’s, before DNA profiling was commonly used. Even as you read this, items of evidence in cold cases all around the country are being subjected to DNA testing decades after that evidence was collected and put in storage.

This is indeed a frequently asked question. And it deals with the third period of time limitations, and the period of time limitation most frequently violated by the state. The relevant time period being discussed here is the time between the date of arrest and the date the prosecutor files charges with the clerk of court, also known as the institution of prosecution.

The time limitation for institution of prosecution varies depending on the seriousness of the offense and whether the defendant is incarcerated.

• When a defendant is in jail for a misdemeanor, the state must file charges with the clerk (institute prosecution) within 45 days.
• If the defendant is in jail for a felony, the state must institute prosecution within 60 days.
• If the defendant is in jail for a felony for which the punishment may be death or life imprisonment, the state must institute prosecution within 120 days.
• If the state fails to institute prosecution within the above time limitations, the defendant must be released from jail and released from his bond obligation.

This law seems fairly straightforward. Prosecutors frequently fail to institute prosecution within the time limits required above for defendant who are in jail. So why are more defendants not being released from jail under this rule? The answer is that, like most other areas of the law, there is an exception. In this case, the exception was carved out by the Louisiana Supreme Court. And it deals with procedure.

The procedure in this case involves the writ of habeas corpus. If the state has violated the time limitations provided above, the defendant’s remedy is to file a writ of habeas corpus with the court. Once the writ has been filed, it is set for hearing several weeks later. At this hearing, the defendant would show the court that the state failed to institute prosecution within the time limitations required subsequent to the date of arrest. At that point, according to the rules set forth above, the court would be required to release the defendant from jail.

But the Louisiana Supreme Court has stated that if the prosecutor institutes prosecution prior to the hearing date on the writ of habeas corpus, then all is forgiven, and the defendant is not released from jail even though the prosecutor violated the time limitation set forth in the code. This makes it very easy for prosecutors to cure their mistakes, as soon as they see that a defendant has filed a writ of habeas corpus for violation of his speedy trial rights, all the prosecutor has to do is to make sure that he files the charges before the hearing date on the writ, and the defendant will remain in jail.

This exception carved out by the Supreme Court is probably one of the best examples of what people frequently call “judicial activism,” or “legislating from the bench.” Nothing in Louisiana statutes or laws says anything about giving the prosecutor until the hearing date on the writ of habeas corpus to file the charges. In fact, state law indicates clearly and plainly that if the prosecutor fails to file charges within the time limitations specified, the defendant shall be released from custody without having to post bond. The statute contains no exception whatsoever. The exception created by the Supreme Court is purely and simply “legislating from the bench.”

I am usually asked this question particularly by defendants who are in jail. A person sitting in jail is usually anxious to move things along and get his day in court as soon as possible. The time limitation which applies to this is called the limitation upon trial. This time limitation begins not with the date of offense, or even with the date of arrest, but begins with the date the prosecutor files charges with the clerk of court. In other words, the date of institution of prosecution. From that date, the prosecution has a certain time limit to bring the defendant to trial, depending on the charge.

In capital cases, the trial must be commenced within three years from the date of institution of prosecution.

In all other felony cases, the case must be tried within two years from the date of institution of prosecution.

In misdemeanor cases, the case must be tried within one year from the date of institution of prosecution.

Of course, like most areas of the law, there are exceptions. This time limitation period can be interrupted by certain circumstances. If the time period is interrupted, it shall commence to run anew from the date the cause of interruption no longer exists. In other words, the period of limitation of one, two, or three years starts over when the cause of interruption no longer exists.

What can be a cause of interruption of the time limitation? Specifically, there are four causes for interruption:

• When the defendant, for the purpose of avoiding detection, flees from the state
• When the defendant cannot be tried because of insanity
• When the defendant cannot be tried because he is a fugitive from justice (in other words, he is hiding and cannot be served with a subpoena for court)
• The defendant has been served with a subpoena to appear in court, but fails to appear and a bench warrant is issued

There is another exception which does not interrupt the period of the time limitation, but does suspend the running of the time limitation. When the time limitation is suspended, the period of suspension is simply not counted toward the time limitation. When the cause of the suspension ends, the counting of the time limitation picks up where it left off when the cause of the suspension began.

The Code of Criminal Procedure provides that when a defendant files a Motion to Quash or some other preliminary motion, the running of the period of limitation for trial is suspended until the court rules on the motion. When the court rules on the motion, the suspension ends. But in no case shall the state have less than one year after the court’s ruling on a defense motion to commence the trial.

For example, in a normal felony case, the state has two years from the institution of prosecution to bring the case to trial. Let’s say there is a trial date set one year and nine months after the institution of prosecution. On that trial date, the defense moves to continue the case and the judge grants the motion. Since the judge ruled upon the motion immediately after it was made, the time limitation for bringing the defendant to trial is not suspended for any significant period of time. So initially, you might think that the state would have to bring the case to trial within three months of that date, since there’s only three months left in the two-year period of limitation.

But since the court ruled on a defense motion, the exception kicks in which provides that the state shall have no less than one year after the court’s ruling on a defense motion to commence the trial. In the example given above, that exception effectively extends the time limitation for bringing the defendant to trial, in that particular case, to two years and nine months from the date of institution of prosecution.

Client: “The police are at my door and want to search my house. do I have to give consent? They say if I do not give consent, they will just go get a warrant anyway and search the house without my consent. What should I do?”

Lawyer: “No! Don’t do it! You have a right to tell the police that you do not consent to a search.”

People have a common misconception that they are obligated to give the police the right to search their home, car, or persons. But in fact, no one is obligated to give the police consent to search anything. The police will go to great lengths to convince suspects that they should consent to a search. One of the most common is to tell the driver of a car or the owner of a house that if they do not give consent for the police to search, the police will simply go get a warrant from a judge. And their refusal to grant consent will only delay the inevitable.

What the police fail to tell suspects is that judges do not always give police search warrants upon request. If the police do not have probable cause to believe that a crime has been committed, the judge will not grant the search warrant.

The United States Constitution states that all persons shall be secure in their property and effects and shall be free from unreasonable searches and seizures by the police. The Louisiana Constitution goes even further, and includes a right to privacy which is not included in the federal constitution.

“The Louisiana Constitution states that every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy… Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court.”

Make note of the last sentence quoted above. If the police conduct a search without probable cause, this search is in violation of the Constitution. In that case, the suspect can challenge the search in court, and it is possible that the court may throw out any evidence which was seized in violation of the Constitution.

Normally, for a traffic offense or some similar minor misdemeanor, the police issue a summons or a ticket, requiring the person to either pay a fine or appear in court. For more serious misdemeanors like OWI or possession of marijuana, the police usually make a full arrest. But in some cases, police have been known to issue a ticket for possession of marijuana or make a full arrest for a traffic offense like driving under suspension.

So how does one know what the police will do in a particular situation? Well, the answer is found in the Louisiana Code of Criminal Procedure, Article 211. It provides that it is lawful for a police officer to arrest a person without a warrant for a misdemeanor. This includes any misdemeanor, such as a traffic violation. However, the law gives the officer the option to issue a written summons or a ticket instead of making an arrest if—

• The officer has reasonable grounds to believe that the person will appear in court for the summons
• The officer has no reasonable grounds to believe that the person will cause injury to himself or another if he is not immediately arrested

So it all depends on the circumstances. For instance, if a person is being loud or obnoxious or drunk in a public place, an officer can issue a ticket for disturbing the peace. But if that same person is being loud and obnoxious and belligerent toward other people, the officer can arrest him for disturbing the peace if the officer thinks that by leaving him there, a fight or further disturbance may ensue.