A Quick Guide to Probation Revocations

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Probation revocations in Georgia can be daunting for even your most seasoned criminal defense attorneys.  As I tell many of our clients when you are on probation it is like having one foot in the street and one foot in the jail.  Any little misstep can cause an over eager probation officer to file a petition to revoke your probation and place you in jail or prison. 

Two important aspects.

Two important aspects to mention when it comes to a probation revocation: first, the burden of proof on the state is much lower than in a criminal trial.  In a criminal trial the burden of proof is beyond a reasonable doubt – meaning any doubt that is reasonable requires a jury to acquit.  In probation revocation hearings the standard is preponderance of evidence.  Preponderance is a much lower standard.  Nonetheless, the government must prove you violated your probation.  Secondly, unlike a trial, the judge and not a jury sits as trier of fact.  This is important because instead of getting 12 reasonable minds to decide your case the judge himself or herself decides. 

Your options.

If your probation is being revoked because you were arrested for a new crime you actually have some options to avoid being revoked.  First, the State is obligated to prove you committed a new crime.  This means under Georgia law the probation officer must bring in competent evidence you actually committed a new crime.  Thus, if you have not been yet found guilty, the State must bring in actual live witnesses to the courtroom on the day your revocation is scheduled to testify to the new crime. 

If you have already been found guilty, the State is obligated to bring in certified copies of disposition showing you were found guilty.  In my experience, the best strategy is to put the new offense off as along as possible and to have the probation revocation after you go to trial on the new offense.  As discussed above, the standard of proof is different, but there is something to be said if you are exonerated on the new charges and those new charges are the basis of the Georgia probation revocation.

Call us today for your free consultation at 404-581-0999. We will hear the details of your case and provide you with expert legal advice. Don’t gamble on your freedom.

Has Georgia’s New Hemp Bill, House Bill 213, Caused Issues for Marijuana Prosecutions?

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The bill worrying Georgia police.

In 2018 President Trump signed the “Farm Bill” into law. The Farm Bill has a provision that allows states like Georgia to create their own rules, standards, and safeguards regarding the growth, production, processing, and handling of hemp based products. On May 10, 2019 Georgia Governor Brian Kemp signed House Bill 213 into law. House Bill 213 creates a standard for Georgians to grow and handle hemp. House Bill 213 also removes hemp from the list of schedule I controlled substances in Georgia.

Okay, hemp’s now legal. So what?

Hemp and marijuana are very similar plants. While they do have distinguishing characteristics, hemp contains a small amount of Tetrahydrocannabinol or THC. House Bill 213 provides that the hemp plant can have a concentration of up to .3% THC without violating the law. Most marijuana plants have somewhere between 3-5% THC.

The issue with taking hemp off the controlled substances list in Georgia is that even the most well-trained law enforcement officers can’t tell the difference between hemp and marijuana. Their test for determining whether a substance is marijuana is a simple reagent test where if there is any THC present in the substance, the test will return a positive. This causes issues in the enforcement of marijuana arrests because, as stated above, hemp contains some THC. So even if an officer stopped you and you had hemp in the vehicle, it would return a positive for marijuana.

If stopped with weed… be smart. Use your rights.

Georgia is currently looking for a solution that will test the percentage of THC in a substance, but until that test exists, we want to remind all readers that it is the law enforcement officers responsibility to find probable cause to arrest you. Don’t just give them your weed. Make them find it. Make them establish that is it actually marijuana and not another substance. Make them prove that the odor of marijuana and not the odor of hemp is what cause them to search your vehicle. It is not your responsibility to do an officers job for them. Make them prove it. While this new change in law may not guarantee your marijuana case is getting dismissed, it could have an impact in its resolution.

Our office is on the forefront of all the changes in drug laws in Georgia. We are here to help you. If you have any questions regarding your rights when it comes to drug offenses in Georgia, call us today for a free consultation at 404-581-0999. We are available 24 hours a day, 7 days a week.

Stalking in Georgia

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If you have been arrested for stalking in Georgia, it is imperative that you fight your case. It is a serious crime in Georgia.

What is stalking?

Stalking is when you follow, place under surveillance, or contact another person at or about a place without the consent of the other person for the purpose of harassing and intimidating the other person; OR if you are in violation of a bond, order of the court, or condition of pretrial release, probation, or parole that prohibits the harassment or intimidation of another person, broadcasts or publishes without the person’s consent in such a manner that causes other persons to harass or intimidate that person and the person making the broadcast or publication knew or had reason to know that such act would cause the person to be harassed or intimidated by others. O.C.G.A. 16-5-90(a).

Aggravated Stalking

Aggravated Stalking is when in violation of a bond, order of the court, condition of pretrial release, probation, or parole in effect prohibiting the behavior described herein, follows, places under surveillance, or contacts another person at or about a place without the consent of the person for the purpose of harassing and intimidating the other person.

What are the elements of Aggravated Stalking:

  1. The defendant violated an order.
  2. This order prohibited contact with the victim.
  3. It was done without the victim’s consent
  4. The purpose was to harass or intimidate.

If # 4 is not met, then it is criminal contempt under O.C.G.A. 15-6-8(5).

Keep in mind, that proof of a written no contact order is not required. But there needs to be proof that the instruction was given and received by the defendant.

How do you define “contact” with the victim?

Contact is any communication, whether in person, by phone, by text, email , social media etc….

Where does the Stalking take place?

It includes any public or private property occupied by the victim, excluding the defendant’s residence, where the communication is received.

What is meant by Harassing and Intimidating Contact?

  • A knowing and willful course of conduct directed specifically at the victim.
  • The victim suffers emotional distress by placing such person in reasonable fear of their safety
  • Establish a pattern of harassing and intimidating behavior. (There has to be more than 1 contact)
  • There is no legitimate purpose to this contact.

What does the Court look for in determining whether the contact is harassing and intimidating?

  1. The prior history between the defendant and victim.
  2. Whether the contact is overly confrontational
  3. Any attempts by the defendant to contact, communicate, or control the victim through another party.

The behavior of the defendant does not have to include threats of death or bodily harm. The defendant does not even have to make overt threats to the victim in a Stalking case.

What is NOT Stalking?

Georgia law does not prohibit a person from contacting or communicating with another person without consent, if the contact is not done with a harassing or intimidating purpose.

What am I facing if I am convicted of Stalking or Aggravated Stalking?

  1. Stalking:
    1. The first conviction for stalking is a Misdemeanor and is punishable by up to 1 year in prison and a $1,000 fine
    1. A second conviction for Stalking is a felony and carries up to 1 to 10 years in prison.
  2. Aggravated Stalking
    1. Aggravated Stalking carries up to 10 years in prison and a $10,000 fine.

If you are charged with Stalking or Aggravated Stalking, it is important to get a lawyer as there are defenses to your case. A Stalking conviction on your record can carry many collateral consequences in addition to the punishment imposed by the court.

Call us at 404-581-0999 or visit us at www.peachstatelawyer.com for a free consultation.

Possession of Edibles in Georgia

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In the past ten years, thanks to the decriminalization and legalization in other states, the possession and consumption of marijuana has changed drastically. Beyond just your typical green leafy marijuana, there are chocolates, gummy bears, hard candies, drinks, waxes, resins, oils, creams, and other substances used to intake THC into your body. 

Misdemeanor or Felony?

In Georgia, possession of green leafy marijuana  is a misdemeanor if you possess under an ounce. Possession of over an ounce of green, leafy marijuana is a felony. But what most people do not know is that possession of any other product that has THC in it that is not green, leafy marijuana is a felony. It doesn’t matter that the edible, weed cartridge, wax or other substance was under an ounce. It doesn’t matter if it was only one brownie, or gummy bear, or cartridge. It’s a felony in violation of the Georgia Controlled Substances Act (VGCSA). On top of that, if the THC is baked into a brownie, or in a beverage, officers use the entire weight of the substance to determine weight, and not just the part of it that has THC in it. These substances are heavy and can hit Possession with Intent and Trafficking levels quickly.

It’s important that you know the laws in Georgia.

Officers are now trained to look for substances beyond green, leafy marijuana. They are looking for cartridges. They are looking for edibles. They are looking for distinct smells given off by concentrated marijuana products. Five years ago we saw very few if any arrests for these weed products. But over the past year, we are seeing more and more clients come in and tell us, “He found my cartridges.” Or “They went looking straight for my wax.”

Our office has been on the forefront of this shift in marijuana products in Georgia. Our team of educated and knowledgeable attorneys can help you find defenses to your felony weed charges. Call us today for a free consultation at 404-581-0999.

DUI: Drugs

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DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

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.

[1] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

Elder Abuse in Georgia

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As Georgia’s senior citizen population has increased, and as more and more of them are victims of crimes, Georgia legislature has enacted tough penalties for criminal defendants charged with Elder Abuse.

Most District Attorney’s office in Georgia have designated Elder Abuse prosecutors. If you are charged with Elder Abuse, it is vital that you take the charges seriously and prepare yourself to defend them.

What is Elder Abuse?

Elder Abuse can be charged when the victim is 65 years or older. O.C.G.A. 16-5-100(4).

There are 4 specific types of Elder Abuse in Georgia.

  • Neglect – When a guardian or other person supervising the welfare of or having immediate charge, control, or custody willfully deprives a disabled adult, elder person, or resident of health care, shelter or necessary sustenance to the extent that the health or well-being of such person is jeopardized. O.C.G.A. 16-5-101(a)

With neglect, the conduct of the defendant has to be willful and not just negligent. If you are charged with Neglect in an Elder Abuse case, it is imperative that you do not make any statements and hire an attorney as soon as possible. The potential punishment for Neglect in an Elder Abuse case is 20 years in prison and a $ 50,000 fine. We have seen an increase each year in the number of prosecutions of Neglect in Elder Abuse cases.

  • Exploit – Any person who knowingly and willfully exploits, willfully inflicts physical pain or injury, sexual abuse, mental anguish or unreasonable confinement; or willfully deprives of essential services a disabled adult, elderly person or resident.

Exploitation cases involving elderly citizens compose the majority of the cases. The statute broadly describes ways in which you can be charged with Elder abuse. The potential punishment for Exploiting an Elder is 20 years in prison and a $ 50,000 fine.

  • Intimidate – Any person who threatens, intimidates, or attempts to intimidate a disabled person, elder person or resident can be charged with Elder Abuse.

In cases of intimidation, words matter. Prosecutors take these cases very seriously. The potential punishment for a case of intimidation of an elder is 1 year in prison and a $ 5,000 fine.

  • Obstruct – Any person who willfully or knowingly obstructs or in any way impedes an investigation conducted pursuant to 5 of Title 30 or Article 4 of Chapter 8 of Title 31.

In cases where you are alleged to have obstructed an investigation, the potential punishment is 1 year in prison and a $ 5,000 fine.

One area that is frequently asked of us is if a person who works at a long-term care facility is subject to prosecution in Elder Abuse cases due to the actions of someone else who works there. The answer is no unless you were a knowing and willful participant to or a conspirator in the abuse, neglect, or exploitation.

Call us today!

If you are charged with Elder Abuse, you need to take it seriously. The prosecutor you are up against likely only handles Elder Abuse cases and the prosecutor will be well prepared.

Please call us at 404-581-0999 or email me at mike@peachstatelawyer.com anytime for a free consultation.

Is DUI a Felony?

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In most instances, the crime of DUI is considered a misdemeanor in Georgia. A misdemeanor is defined as a crime that has a maximum punishment of 12 months in jail. If this is your first time being charged with a DUI and no one was hurt, you will be facing a misdemeanor DUI.  Additionally, even if this is your second or third DUI in a short period of time, your DUI will still be charged as a misdemeanor.

Misdemeanor Punishments

Even if you are facing a misdemeanor-level DUI, the State can stack punishment, and request a longer sentence by adding additional jail time to an underlying charge. For example, if you are charged with DUI and Failure to Maintain Lane, the Judge can sentence you up to 12 months on each charge, for a total of 24 months in custody. Additionally, misdemeanor DUIs do still appear on criminal histories and can require jail, probation, and a license suspension if you are convicted. The goal after a DUI arrest is to avoid a criminal conviction so you can avoid the harsh punishments associated with a conviction for DUI. 

When DUI is a Felony

There are situations where you will be facing a felony after a DUI arrest. A felony is defined as a crime that is punishable more than a year in jail. The first instance is when you are being charged with a fourth DUI within a 10 year period, measured from the dates of previous arrests. A fourth DUI within 10 years is a felony in Georgia, with considerable mandatory minimum jail time if convicted.

Another situation where a DUI is considered a felony in Georgia is if you were arrested for the crime of Serious Injury by Vehicle. This occurs when someone causes an accident resulting in bodily harm while Driving under the Influence. This felony is punished by imprisonment between 1 and 15 years. Bodily harm under Georgia law is defined as an injury to another person which deprives them of a member of their body, or renders part of the body useless, or seriously disfigures, or causes brain damage. There are certainly defenses to this serious crime including the causal connection as well as what constitutes a serious injury.

The final situation where a DUI is prosecuted as a felony offense is Homicide by Vehicle in the first degree, meaning you are arrested for DUI and someone actually dies in the accident. You can be charged with Homicide by Vehicle if it is your passenger who dies.  If convicted, the crime is punishable from 3-15 years. The law requires the State to prove a causal connection between the violation of the DUI statute and the victim’s death. However, under Georgia law, the person does not actually have to commit an unsafe act before facing this type of charge.

Call us today!

DUIs in Georgia require knowledgeable and skillful representation as the stakes are high. If you are facing a felony DUI, it is imperative to find a law firm with a track record of success, who are well-informed on the ever-changing aspects of DUI law in Georgia. If you or a loved one is facing a DUI, whether it be a misdemeanor or felony DUI, call us today for a free consultation at 404-581-0999. 

Driver’s License & New DUI Law

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In May of 2019 the Georgia legislature approved a new implied consent warning for persons who have been arrested for DUI in Georgia. The implied consent warning informs drivers that Georgia law requires them to submit to a blood, breath, or urine test after they have been arrested for DUI; and submitting a sample that’s over the legal limit of .08 or refusing to submit to the requested test after arrest can result in a suspension of your drivers license.

What’s New?

This new implied consent notice removes a part of the old language that states “Your refusal to submit to breath testing can be used against you at trial.” This occurred after a Georgia Supreme Court opinion which stated that your refusal to submit to breath test evidence cannot be used against you at trial. However, this ruling is only related to the breath test option. Refusing to submit to blood and urine testing can still be introduced against you at trial.

What we have found after evaluating this new implied consent warning is that most well-trained officers are now just asking for a blood test instead of a breath test. Your refusal to submit to a blood test can be used to suspend your license as well as it can be used against you at trial.

Call us TODAY!

The law in relation to DUI cases in Georgia is constantly evolving. Having a well-trained lawyer on your side is the best way to maintain your ability to drive and keep a DUI conviction off your record. Our staff of attorneys is trained by the sane trainers who are teaching law enforcement officers to investigate DUI cases. Call our office today for a free consultation at 404-581-0999.

Airport Marijuana Trafficking

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The Hartsfield-Jackson International Airport in Atlanta is one of the busiest airports in the world. Thousands of travelers pass through every day for business and pleasure alike. It is a hub for nearly every major airline, flying passengers to the four corners of the world.

On High Alert for Drugs

Due to the high volume of flights and passengers, airport security, TSA agents, FBI Agents, Clayton County Police Department, Atlanta Police Department and the US Drug Enforcement Agency are trained to spot and act quickly on any suspected criminal behavior. We often get calls regarding drugs or weapons found in passengers’ luggage. Marijuana charges and in particular trafficking in marijuana are incredibly common at Atlanta’s Hartsfield-Jackson International Airport, especially from flights out of Arizona, California and Colorado.

What Happens To My Bag?

Your bag that contains marijuana is brought from underneath the plane and directed to baggage claim at Hartsfield-Jackson International Airport. While you exit and make your way to the next terminal or to pick up your bags, the luggage is subjected to a K-9 Unit search. Courts have continually determined that using canines at the airport is lawful, and their actions are not considered searches under the 14th Amendment (United States v. Place) as long as the bag is not opened or searched before the dog alerts on the luggage. Law enforcement have probable cause to search your bag if a dog alerts the agent that marijuana is present. Once they find the drugs, they will detain you and likely charge you with trafficking marijuana.

Where Will My Case Be?

If you are charged, you will be sent to the Clayton County Jail, and the Clayton County District Attorney’s Office will handle your prosecution in Superior Court. At this point, it is imperative that you seek out representation to move forward and get out of jail quickly. We have years of experience in Clayton County handling various charges, including those involving incidents at the Hartsfield-Jackson airport.  Recently we have been very successful in arranging a bond on Trafficking at Atlanta’s Hartsfield-Jackson International Airport.

Call us today for your free consultation at 404-581-0999. We will hear the details of your case and provide you with legal advice that could save your freedom.

Child Molestation Charges: What To Do

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If you or a loved one is arrested for child molestation in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Georgia and prosecutors and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle these cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

The Steps

Here is what you should do if arrested for child molestation:

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    • Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    • Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    • Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

What NOT To Do when Charged with Child Molestation

Here is what you should never do if arrested for child molestation:

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

Call us TODAY

If you are arrested for child molestation or any sex offense in Georgia, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.