Self Defense: Are you immune from criminal prosecution?

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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

Obstruction of Officers under Georgia Law

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Obstruction of Law Enforcement and legal officers in discharge of their official duties is generally a misdemeanor under Georgia law. It is governed by code section 16-10-24 and makes it a crime to obstruct any law enforcement officer, prison guard, jailer, correctional officer, community supervision officer, department of juvenile justice officer, probation officer or game warden.

Misdemeanor Obstruction

There are a few types of ways one can “obstruct” an officer under Georgia law. First, you can prevent an officer from discharging their official duties by running, arguing, lying or doing something that makes it more difficult or completely prevents them from doing their job. This would be classified as misdemeanor obstruction in Georgia and is punishable by up to twelve months in jail and/or a fine of up to $1,000. You don’t have to make any physical contact with the officer to be charged with misdemeanor obstruction.

Felony Obstruction

A second type of obstruction is considered more serious. If you make violent contact with an officer in the process of discharging their legal duties or you threaten violence on an officer, you may be charged with felony obstruction of justice which carries a one-to-five year sentence for a first offense. If you’ve already been convicted of obstruction in the past, the sentence may be enhanced based on past convictions.

There is one final type of obstruction under Georgia law that involves throwing or expelling bodily fluids or other substances from within the human body at an officer. This version of obstruction carries with it the same one-to-five-year sentence, but also a minimum fine of $300.

Obstruction of justice is a fact-based offense under Georgia law. Whether you may be found guilty is going to depend on the specific set of facts and circumstances in your case. If you have been charged with obstruction, call us today at 404-581-0999 so we can get you into the office for a free consultation.

DeKalb County’s Domestic Violence Pre-Trial Intervention Program (DVPTI)

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              If you are facing a domestic violence charge in DeKalb County, the Domestic Violence Pre-Trial Intervention Program (DVPTI) may be an option for you. The DeKalb County Office of the Solicitor General has enacted a program that allows certain defendants arrested for family violence battery the option to enroll in a program that will result in the case being dismissed. The terms of the DVPTI program can differ, and they typically range from a few anger management courses to a full 24-week program. This program gives first-time domestic batterers the opportunity to receive classes and counseling versus jail and conviction. The purpose is to reduce the risk of re-offending while giving first-time offenders a second chance.

Why Pick DVPTI?

              DVPTI is completely voluntary. It is essentially a diversion from the typical criminal justice process. If you decline the enrollment in the program, the case will be sent to a trial court to be formally prosecuted. What this means is you will be asked to enter either a Guilty or a Not Guilty plea to the charges. A guilty plea will result in a criminal conviction that will remain on your record forever as well as a sentence which tends to be more harsh than that which is offered in the DVPTI. Alternatively, a Not Guilty plea will result either in a jury trial or a trial in front of a judge. DVPTI, on the other hand, does not require a plea at all since it is a diversion option. It gives you the opportunity to be in charge of the dismissal.

End Results

              If you successfully complete the terms of the DVPTI program in DeKalb County, the case will be fully dismissed against you, and the arrest will be sealed off of your record. This means potential employers will not be able to see that you have been arrested for family violence battery and you can honestly say you have not been convicted of the crime.

              If you have been arrested for Family Violence Battery in DeKalb County (or any county in the State of Georgia), call us now for a FREE CONSULTATION at 404-581-0999.

Fulton County Rice Street Jail Bond – What You Need to Know

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If you have been arrested in Fulton County by one of the county’s municipalities you may be transported to the Fulton County jail for a bond hearing.  These municipalities include the following: Alpharetta, Atlanta, Chattahoochee Hills, College Park, East point, Fairburn, Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell, Sandy Springs, South Fulton, and Union City. This is a brief informational to explain what to expect.

First Thing to Know

To be on the calendar for bond consideration the day after your arrest you must finished being booked into the Fulton County Jail no later than 2 a.m.  So, for clients turning themselves in we recommend you turn yourself in directly to the jail no later than 6 pm in order to make the calendar the following day.  The court runs six days a week; no court on Sunday.

If you are charged with a misdemeanor you will have court at 9:00 a.m.

If you are charged with a felony you will have court at 11:00 a.m.

Visitor Rules

The Court does allow for visitors.  However, there are certain rules to abide by.  You are not allowed to bring electronics into the jail, including cell phones.  No smart watches are allowed either.  The Fulton County jail does not permit you to wear open toed shoes or bring in a purse or handbag, so leave it in your car.  You must bring with you a valid Georgia ID, and note that the jail will sometimes run your criminal record for warrants while going to first appearance.  If you are a victim in the criminal case the judge will acknowledge your presence.

Will I get a bond?

Factors the judge will consider in whether to grant a bond include:  

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

The trial court must explain its reasons for denying bond to assist appellate review. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion.

How Much Will It Cost?

When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused’s ability to pay, the seriousness of the offense, and the accused’s character and reputation.

If a lawyer is at your bond hearing, your chances of getting a bond are significantly increased. That’s why, when you or a loved one is in custody at Fulton county jail, contact a lawyer as soon as possible. Don’t miss your chance at bonding out.

Call us at (404) 581-0999 to speak with our experienced defense lawyers and get a lawyer at a bond hearing as early as today.

Georgia DUI law and Breathalyzers

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If you are being investigated for DUI in Georgia, you will likely be asked to submit to two different breathalyzers. This article serves to explain the differences between these machines, and your rights and obligations concerning these machines.

Preliminary Breath Test (PBT)

PBT device. These are small, handheld devices carried by police officers in the field.

The PBT is likely the first breathalyzer you will encounter. This test is offered road-side during the DUI investigation but prior to an arrest. This device is designed to estimate a driver’s blood alcohol content from air stored in the deep recesses of your lungs.

Because the PBT is not reliable, the numerical results cannot be used against you at trial. However, an officer is permitted to testify as to whether the PBT results tested positive or negative for alcohol. As a result, officers will use a positive PBT result to demonstrate whatever impairment they are claiming to observe is the result of alcohol consumption. In addition, the police will use it to justify an arrest decision.

DO NOT BLOW INTO A PBT DEVICE. THE PBT IS OPTIONAL. Politely decline to take the PBT if you have consumed any amount of alcohol, even if it was hours prior. “Officer, I respectfully decline to take the PBT along with any other road-side evaluations.”

Intoxilyzer 9000 under the Implied Consent Warning

Intoxilyzer 9000. This device is kept at police stations. It is very distinctive, and much larger than handheld devices.

This second type of breathalyzer is administered after arrest and is usually performed at the police station or jail. This is the “required” test under the Implied Consent Law.  

The manufacturer of Georgia’s breath machine is CMI, located in Owensboro, Kentucky. CMI sells their machines to law enforcement only. The company will not sell a machine to a defense lawyer. This prevents any experimentation or meaningful research regarding the reliability or accuracy of the machine.

As opposed to the PBT, the results of the Intoxilyzer 9000 can be used against you at trial. If you blow a 0.08% or higher, you will likely be facing not only a DUI – Less Safe charge, but also a DUI – Per Se charge. A skilled defense attorney will not only attack the machine (maintenance history), but also the operator of the machine to ensure no issues are overlooked.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Traffic Tickets and Young Drivers

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Under 21 and Received a Ticket?

Traffic tickets happen to the best of us. There are very few people who have not been stopped by a police officer, whether it be for Speeding, Failure to Yield, or even Following too Closely.  The consequences of receiving a traffic ticket in Georgia vary depending on the severity of the traffic offense, as well as on the motor vehicle history of the driver. Georgia law may assess points on your license that can cause insurance increases, and will even suspend your driver’s license depending on the offense. However, there is nobody who is affected more harshly with a traffic ticket than a young driver. Drivers under the age of 21 are treated differently than adult drivers, and drivers under the age of 18 are treated even more severely than that.  

Mandatory Suspensions

There are certain mandatory suspensions for drivers under 21 years of age:

  • Hit and run or Leaving the scene of an accident
  • Racing on highways or streets
  • Speeding
  • Fleeing or Attempting to Elude
  • Reckless driving
  • Improper passing
  • Unlawful passing of a school bus
  • Aggressive driving
  • Driving Under the Influence

It can get worse

The suspensions for an under 21 driver are a minimum period of 6 months. In these scenarios, there is no limited permit for work or school available. If you get two or more of the more serious traffic tickets when you are under 21 years old, your license is suspended for a full 12 months. Thus, if you are a young driver charged with a traffic offense, it is imperative to have an attorney represent your interests in negotiating your case to a reduced charge that will not have the same affect on your driving privileges.

If you are a driver between the age of 15 and 17, Georgia law can be even more harsh. In addition to the above offenses that can suspend your license, even minor tickets can suspend your license when you are under 18 years old and still in high school. This is based on Georgia law that suspends young drivers’ licenses after only 4 points in a 12 month period. This can mean just 1 speeding ticket can suspend your license.

What’s next?

There are several options if you are a young driver in Georgia facing traffic offenses. Diversion programs allow young drivers to complete a driving course or community service in exchange for a dismissal of the ticket. Defense attorneys can negotiate with the prosecuting attorney to reduce the charge to fit within another charge that does not suspend your license or raise your insurance. If you or a young driver you know has been charged with a traffic ticket in Georgia, call us today for a free consultation. We have represented young drivers all over Metro Atlanta and Georgia with insurmountable success. 404-581-0999.