If a person is charged in the State of Georgia with Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.
This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.
In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:
If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.
The advantage to filing this type of motion is that it can protect a person who is charged with domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with domestic violence.
If you or someone you know has been arrested for a domestic violence charge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.
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Georgia law prohibits people
convicted of felonies from possessing firearms. Similarly, people currently on
first offender probation are also not allowed to carry guns. You must be
discharged from probation as a first offender without an adjudication of guilt
in order to lawfully possess a firearm. Felons cannot have guns unless and
until their rights are restored in the State of Georgia.
But what if you are a convicted
felon and someone else near you owns a gun? Or what if you are in the same
vehicle as someone who has a gun? Likewise, one of the questions we are asked
most often is “can my spouse or partner have a gun in the same home as me if I
am a felon?”
The short answer is: it depends.
The question that is going to be asked by law enforcement and the Courts is
whether or not the State can prove YOU possessed the gun. You do not have to
actually have it in your hand or your pocket in order to be charged and
convicted with Possession of a Firearm by a Convicted Felon. In some instances,
it simply has to be near you, or in a place where the circumstances point to
the weapon being yours. This is because Georgia law recognizes two different
kinds of ‘possession.’ The first is Actual Possession and the other kind is
Constructive Possession.
Actual Possession is where you
truly possess the gun: it is in your pocket or in your car, for example. With
Constructive Possession, the line can be a little more blurry on whether or not
you will be arrested or convicted of possession the firearm by a convicted
felon. When dealing with Constructive Possession, you can be arrested for
possessing a firearm even if you never possessed it. The State can prove
it through circumstantial evidence. For example, constructive possession occurs
where a gun is in a shared hotel room with you and a friend, and you know the
gun is there, and you tell police where it is. In that situation, the State
will allege you had possession of the firearm- even if you never touched it.
Another example of constructive possession would be if the gun was found in the
drawer of a shared bedroom, near clothes that match your gender. Additionally,
you can be charged with possession of a firearm by convicted felony if your
co-defendant carried a gun in an armed robbery that you were a part of even if
you never touched the gun.
So the answer to the age-old
question is yes, your spouse can own a gun as long as you don’t possess it-
actually or constructively, but to be wary as the distinction is not always
clear. If you or a loved one has been arrested for Possession of a Firearm by a
Convicted Felon, call us today for a free consultation on the case at 404-581-0999.
https://www.peachstatelawyer.com/wp-content/uploads/2020/08/w-scott-smith-logo.png00Ryan Walshhttps://www.peachstatelawyer.com/wp-content/uploads/2020/08/w-scott-smith-logo.pngRyan Walsh2020-01-27 17:23:492020-01-27 17:23:49Can a Spouse of a Convicted Felon Own a Gun in Georgia?
The police put you handcuffs for shooting another person. You are on your way to the county jail. You know you acted in self-defense and want a jury trial. But before your jury trial, you are entitled to a hearing to see if you are immune from criminal prosecution.
O.C.G.A. 16-3-24.2 authorizes a pre-trial hearing to decide if a defendant is immune from criminal prosecution. You must first file an immunity motion requesting a hearing. To avoid trial, a defendant has the burden of proof that he is entitled to immunity. The standard of proof is by a preponderance of evidence.
If the trial judge finds that you have met the burden of proof regarding self-defense, then your indictment is dismissed, and the State cannot continue to prosecute you.
Two Chances
If the defendant cannot meet its burden regarding self-defense at an immunity hearing, he can still argue self-defense at trial. You get two shots at winning your case. First, argue self-defense at an immunity hearing. If you lose, argue self-defense to a jury at trial.
At the immunity hearing, the defendant would call witnesses, present evidence and persuade the judge that he was acting in self-defense. The judge must employ O.C.G.A. 16-3-21(a) to make the finding. This section requires the judge to make a finding of justification based on evidence of the defendant’s reasonable belief that the use of deadly force against the other person was necessary to prevent the defendant from dying or being seriously injured.
If the judge makes such a finding, then the case is over.
If you are being charged with a crime but believe that you had to act in self-defense to avoid death or serious injury, then call our office and let’s discuss whether an immunity motion is proper in your case.
We can meet you at any time at either our Atlanta or Marietta office. Please call us at 404-581-0999 or email me at mike@peachstatelawyer.com
00Ryan Walshhttps://www.peachstatelawyer.com/wp-content/uploads/2020/08/w-scott-smith-logo.pngRyan Walsh2019-10-30 17:22:592019-10-30 17:22:59Self Defense: Are you immune from criminal prosecution?
We see it happening more and more often: Battery-Family Violence charges being upgraded to Aggravated Assault-Strangulation. This means that the person originally arrested for a misdemeanor, can now be facing not only the misdemeanor of Battery-Family Violence, but also the serious offense of Aggravated Assault by Strangulation.
Why was my Battery Family Violence case transferred to the District Attorney’s Office?
Officers initially make the arrest decision, but prosecutors have the ability to draft up indictments to present to a grand jury based on the facts within the officer’s original report. If there is any mention that the person placed their hands on the victim’s neck, it is possible and probable that the case will be upgraded to a felony offense of Aggravated Assault-Strangulation. Given the fact that it is a felony, the case will be sent to be prosecuted in felony court also known as Superior Court, by attorneys who prosecute more serious cases.
What is Aggravated Assault Strangulation?
Georgia law states that a person commits the offense of Aggravated Assault by Strangulation when he or she assaults with any object, device, or instrument, which when used offensively against a person, is likely to or actually does result in strangulation. There are defenses in these cases as Georgia no longer defines what Strangulation means. The Georgia statute used to say that “Strangulation” is defined as impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person. Without that definition on the books anymore, it is very fact specific on whether or not the State can actually prove strangulation. In most cases, where there has been no loss of conscious, it will be difficult for the State to prove actual strangulation. Therefore, when the facts state that someone’s hands were placed on another’s neck, then arguably the person has committed a misdemeanor battery instead of the serious felony offense of Aggravated Assault by Strangulation.
What does it mean for the case if I am now facing Aggravated Assault by Strangulation?
Having the case upgraded to Aggravated Assault-Strangulation can lead to much harsher sentence if you are found guilty. The crime itself carries 1-20 years in prison, which can be stacked with the other crimes originally charged and can result in a lengthy prison sentence. If you are charged with Aggravated Assault by Strangulation, you will be prosecuted by the District Attorney’s office in Superior Court and the stakes are certainly higher.
Given the harsher penalties associated with violent felonies, it is imperative to seek a Georgia criminal defense attorney early on who can evaluate the case and immediately begin building the defense. Being proactive by speaking to a lawyer immediately after an arrest is the best way to ensure a strong defense when your case goes to court. Call us today for a FREE CONSULTATION about your Aggravated Assault by Strangulation case at 404-581-0999.
Will my domestic violence case get dismissed if the victim does not testify?
Our Fulton and Cobb County offices in the Atlanta area get victims of domestic violence who appear with or for their partners every day asking us if the Defendant’s case will get dismissed if they tell the prosecutor they do not want to move forward with the case. The answer is, it depends.
If there were no other witnesses to the event and neither party makes any statements to the police, then without a victim’s cooperation, there generally is not enough evidence to move forward with your case. But if there are other witnesses, or the incident continues once police arrives, then even without the victim’s testimony, there may be enough evidence to move forward with prosecution. If you make a statement, they can use that statement against you and they will move forward with prosecution.
It’s not the victim’s choice.
It is not the choice of the victim as to whether a prosecutor moves forward with a case. It is the sole discretion of the prosecutor to make the determination of whether they have enough evidence to move forward with trial.
As in all cases, we believe that if you are being investigated for any crime in the state of Georgia, it is best to politely decline to answer any questions, decline to make any statements, and assert your right to an attorney immediately. Our office of attorneys are all well-trained in handling domestic violence cases. We can get you into our office for a free consultation immediately to discuss your options. Call us today at 404-581-0999.
First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.
If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.
While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.
Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.
If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.
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Many people are surprised to learn that you can actually be arrested for threatening to kick someone’s a**. There tends to be an assumption that such a statement would be covered by our country’s First Amendment on free speech. However, this is not the case. Threatening to commit any crime of violence can result with you facing serious criminal charges in Georgia, as it can land you with an arrest for Terroristic Threats.
Under O.C.G.A. §16-11-37(b), a person commits the criminal charge of Terroristic Threats in Georgia when he or she threatens to commit any crime of violence against another. Depending on the nature of the threat, the crime can be charged as either a misdemeanor or a felony. For example, if you tell someone you are going to hit them, it is a misdemeanor; if you suggest you are going to cause the death of someone, then it is a felony. It does not matter if the threat is by phone or in person.
In Georgia, a misdemeanor Terroristic Threat charge carries with it probation, fines, classes, community service, and a criminal history that cannot be undone. If you have been charged with felony Terroristic Threat in Georgia, you can be punished with even higher fines. Additionally, you can spend one to five years in prison, and be considered a convicted felon for the rest of your life.
Given the harsh consequences associated with an arrest for a Terroristic Threats in Georgia, it is important you have a criminal defense firm on your side who is not afraid to fight for you. There are defenses to Terroristic Threats and ways to avoid criminal conviction for it. Call 404-581-0999 to schedule your FREE CONSULTATION with a Georgia Terroristic Threat attorney today.
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A number of cases have been overturned in recent years due to newly discovered DNA evidence. Many of those convictions were based on false eyewitness identifications. Most of the eyewitnesses did not lie, they just “misremembered.” That is the danger of this sort of testimony because the witness may be genuinely unaware of the inaccuracies in their testimony.
One underlying issue with eyewitness testimony is a misunderstanding of how memory works. The act of remembering is more akin to putting puzzle pieces together rather than retrieving a video recording. A memory can be distorted over time or from misinformation provided by third parties. For these reasons, it is critical to document one’s memory as close in time to the actual event as possible. If you have eyewitnesses that you believe can be beneficial to your case, then you should always get them to write down as many details as possible while the memory is fresh before time and outside influences can distort that memory. For police purposes, the identification process should be videotaped if possible, and the witness should be told that the suspect may or may not be in the lineup.
There are a multitude of issues that could result in a false identification. Recognizing those issues in your criminal case is something that may require a second set of eyes. Feel free to call our office for a free consultation at 404-581-0999.
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Mary Agramonte is an attorney with W. Scott Smith P.C.
A felony conviction on your record comes with many consequences. You served the time, but now you are finding more and more ways that your record is stopping you from getting to where you want to be. For example, convicted felons lose various civil and political rights. Felons cannot vote while they are still incarcerated or on parole or probation. A convicted felon is unable to run for and hold public office or serve on a jury.
In Georgia, felons can apply to restore these civil rights that were lost at the time of their conviction. The right to vote is automatically restored upon completion of the sentence. However, if you are looking to restore your civil and political rights, a special application must be submitted asking the State of Georgia to allow you to serve on a jury and hold a public office. To be eligible to have your civil and political rights restored, you must have completed your sentence within two (2) years prior to applying, and you must demonstrate that you have been living a law-abiding life. There is no fee to apply to have your civil and political rights restored through the State Board of Pardons and Paroles.
If you are finding that your criminal history is following you, but that you are not eligible for Record Restriction, which is Georgia’s version of expungement, Georgia Record Restriction Blog there may be a way for you to advance in your employment and education, despite the felony conviction on your record. In limited circumstances, the State of Georgia can pardon your offense, which is an official forgiveness granted to you. The pardon does not expunge or erase the crime from your record. However, a pardon will serve as an Official Statement attached to your criminal record that states the State of Georgia has pardoned, or forgiven, your crime. The State will make this decision based on the fact that you have maintained a good reputation after completing your sentence, and have truly changed your life after the conviction. Pardons have a better chance of being granted if there is clear proof that the felony is disallowing your qualification for employment in your chosen field. An official pardon will also automatically restore your civil and political rights. In order to apply for a pardon, you must have completed your sentence at least five years ago, and have not gotten into trouble at all in the last five years. All restitution must be paid in full by the time you apply. Letters of recommendation, school documents, resumes, and awards and certificates, are all helpful to show the State how important a pardon would be in your life.
There is no fee and the State uses the same application for restoring civil and political rights, and for pardons. The application can be found here: Restoration of Rights Application
Our law firm consists of seven criminal defense attorneys who represent individuals facing felony and misdemeanor charges in Georgia. We hope this information helps you restore your civil or political rights in Georgia. If you are currently facing criminal charges, our knowledgeable and experienced criminal defense lawyers have what it takes to defend against the most serious offenses. Call us today for a free consultation at 404-581-0999.
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What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
Who asked the questions?
How many officers were present?
Were any non-law enforcement officials or government agents present?
Did the officer tell the suspect the interview was voluntary?
Where did the questioning take place?
Did the officer use any physical restraints, like handcuffs?
How long was the conversation?
Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.
https://www.peachstatelawyer.com/wp-content/uploads/2020/08/w-scott-smith-logo.png00Ryan Walshhttps://www.peachstatelawyer.com/wp-content/uploads/2020/08/w-scott-smith-logo.pngRyan Walsh2016-07-13 09:36:212016-07-13 09:36:21VIDEO – Your Right to Remain Silent!
