Prior False Allegations & Your Case

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You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

State v. Burns Example

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute & Allegations

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

Your Rights for a Defense

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

Call us Today!

If you are charged with child molestation, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court. If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999 or mike@peachstatelawyer.com for a free consultation

DUI: Blood Alcohol Concentration

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This blog article serves to discuss how Georgia law handles varying Blood Alcohol Concentration (BAC) levels, from 0.00% to 0.08% and beyond.

BAC of 0.05% or Less

If a chemical test of your blood or breath falls within this range, then the law[1]provides the defense with a presumption of non-impairment. This means the trier of fact (judge or jury) is entitled to infer that the defendant is not impaired based on this low alcohol concentration. This presumption of non-impairment, may however, be rebutted by the prosecution. Typically, this is done through presenting evidence of “bad driving” (accident, traffic violation, etc.), or through other manifestations associated with alcohol impairment. If your blood alcohol comes back in an amount this low, a skilled DUI lawyer should be able to get the charge dismissed or reduced.

BAC Greater than 0.05%  but Less than 0.08%

In this situation, the law provides no inference the person was or was not under the influence of alcohol. This BAC range is treated as neutral territory, it doesn’t hurt, but it doesn’t help either. Again, this evidence is to be taken into consideration with other competent evidence determining impairment.

BAC Greater 0.08% or More

A BAC of 0.08 grams or greater amounts to a per se violation of the DUI statute. This means the law automatically deems you impaired, regardless of alcohol tolerance. For this reason, it is imperative defense counsel do anything possible to eliminate this BAC number from being introduced at trial. And if the BAC is admitted at trial, the defense lawyer is tasked with casting doubt on the validity of the BAC result. This can be accomplished through effective cross-examination, employment of an expert witness, and a thorough investigation of the case.

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] O.C.G.A. § 40-6-392(b)(1)

CDL & Georgia DUI Law

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Truck drivers possessing a Commercial Driver’s License (CDL) are treated differently than other motorists facing a DUI charge in Georgia. This blog article aims to discuss those differences.

CDL Holders Are Held to a Higher Standard

For the majority of drivers in Georgia,[1] a person may be convicted of DUI if their blood alcohol concentration (BAC) is at 0.08% or more while driving. If a CDL driver, however, is stopped for DUI while operating a commercial vehicle, the legal BAC limit is 0.04%.

Consequences of a Refusal of Chemical Test or DUI Conviction

While you may refuse the State administered test of blood, breath, or urine, CDL drivers face severe consequences for refusing and for being convicted. The driver of a commercial vehicle who is convicted of DUI while operating a commercial vehicle, or who refuses to submit to a chemical test, is disqualified from driving a commercial vehicle for a period of not less than one year. This disqualification is in addition to any license suspension imposed for a DUI conviction.   Because of these harsher punishments, it is critically important you hire a skilled attorney to defend the case.

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] Except for drivers less than 21 years of age and CDL drivers.

Do I Need an Attorney for Traffic Court?

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The answer to that question is, it depends. In Georgia, all traffic citations, whether you were arrested or not, are misdemeanors and carry a punishment of up to one year in jail and a fine of up to $1,000. That being said, most traffic offenses will not involve jail time or show up on a background check or criminal history.

How Can an Attorney Help?

In my experience, attorneys can help you in traffic court in Atlanta in a few ways. One, attorney cases are often handled at the beginning of the calendar, allowing you to get in and out of court quickly, and on your way to the rest of your day. Two, attorneys have relationships with the prosecutors in court and can often negotiate a better resolution than you might be able to on your own. Three, some citations in Georgia, such as No Insurance, or Driving with a Suspended License or Registration carry with them additional license suspensions or mandatory jail time. If you enter a plea of guilty to those offenses without understanding the potential punishments, you may impact your freedom or your ability to drive. Finally, an attorney may offer defenses to the charge that can get your traffic citation dismissed completely.

This advice is especially true for Smyrna Municipal Court, Cobb County State Court, the Municipal Court of Atlanta, Gwinnett County Recorders Court, and DeKalb County State Court – Traffic Division.

These are just a few of the reasons it is beneficial to talk to an attorney before going to traffic court. Our free consultation will give you valuable information to  help you decide whether you need an attorney in traffic court. Call us today at 404-581-0999.

by Ryan Walsh

Georgia Underage DUI

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O.C.G.A. § 40-6-391(k) prohibits a person under the age of 21 to have a BAC of, “0.02 grams or more at any time within three hours after” driving a vehicle, from alcohol consumed prior to driving. This 0.02 BAC limit is substantially lower than the 0.08 limit provided for those aged 21 and over. Underage persons convicted under this code section are subject to the same penalties as adults, except in regards to periods of imprisonment and license suspensions.

Underage DUI Sentencing

Under O.C.G.A. § 17-10-3.1, if a judge orders an underage person to serve a prison sentence in conjunction with a first DUI conviction, the sentencing judge has the authority and discretion to “allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant.” In addition, if this is the underage defendant’s first DUI, the defendant “shall be kept segregated from all other offenders” other than similar underage DUI offenders.

License Suspension

Regarding license suspension, upon a first conviction, drivers under 21 will have their license suspended for either six months or twelve months, depending on the BAC measurement. If the BAC is less than 0.08 grams, the period of suspension is for six months. Otherwise, the period of suspension is for twelve months. Importantly, the driver is ineligible for a driving permit and no early reinstatement is available. A new driver’s license will not be issued without proof of completion of the risk reduction program and payment equivalent to the driver’s license restoration fee for a suspended license ($200 or $210).  Finally, the driver shall, as an additional prerequisite for license reinstatement, be required to successfully complete the examination requirements of O.C.G.A. § 40-5-27 (driver’s license exam).

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.

by Casey Cleaver

Domestic Violence: Victims & Dismissal

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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.

by Ryan Walsh

Theft by Receiving Stolen Firearm

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  Under § OCGA 16-8-7, a person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” If the item in question is less than $1,500, it is a misdemeanor, meaning the maximum punishment that someone can receive is a year in jail and/or a $1,000 fine. If the item reportedly stolen and possessed is worth more than $1,500, then that person will be charged with a felony. The punishment in that situation can be anywhere from 1 to 10 years in prison.

What’s my defense for stolen firearm?

    If you or a loved one has been charged with this offense, know that there are defenses in Georgia law. Possession of stolen property, alone, will not warrant a criminal conviction that will be carried forever. The State must prove knowledge that the item was stolen.  This knowledge, however, can be inferred from the circumstances, specifically if the circumstances would create suspicion it was stolen in the mind of an ordinarily prudent person.

If the item in question is a firearm, the crime will automatically be charged as a felony carrying 1 to 5 years in prison if convicted. The good news is courts have ruled in defendants’ favor in various situations. For example, it is insufficient to prove the person knew the gun was stolen just because it was bought on the street at a reduced price. Additionally, even if the gun is labeled for Law Enforcement use, this too is also insufficient for a criminal conviction for this charge.        

We can help!

     The attorneys of W. Scott Smith have handled numerous Theft by Receiving charges all over the state of Georgia, many of which involved stolen firearms. Because this is a felony charge, it is imperative to have attorneys on your side familiar with the law and defenses.  Call us today with your questions on Theft by Receiving Stolen Firearm. We offer FREE CONSULTATIONS at 404-581-0999.

by Mary Agramonte

Georgia DUI: The Art of Plea Bargaining

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A successful criminal defense attorney is one who explores and exhausts every possible avenue of defense to the benefit of their clients. If the best course of action is taking the case to trial, the successful attorney will be prepared to try the case. However, statistical evidence shows an overwhelming majority (90%-95%) of all criminal cases in the United States are resolved through a plea bargain.[1] The primary reason for defense counsel to negotiate a plea bargain is to obtain a better resolution for your client than that which may be obtained at trial. 

Clearly, plea bargaining, is a major facet of our criminal justice system. Therefore it is important to understand not only the practical aspects of plea bargaining a DUI case, but also the law that guides those practices. If plea bargaining is the best resolution of a defendant’s DUI case and plea bargaining should occur, this article serves as a guide to the plea bargaining process.  

A Plea Agreement is a Contract

It must be remembered that a plea agreement is a contract under Georgia law, which binds both prosecutor and defendant.[2] In addition, a defendant surrenders valuable constitutional rights when entering a guilty plea under a plea bargain.[3] Further, it must be known that a plea agreement may be approved or denied by the judge.

Generally, no binding contract exists and either party may withdraw their bid until each party has assented or agreed to all the terms of a proposed agreement. This remains true even when the offer states it will remain open for a specific time.[4] Remembering these plea agreements as contacts is vital to the plea bargaining process.

Pre-Trial Conferences

Typically, negotiations regarding a plea occur during a “pre-trial conference.” This process is also known as, “pre-trying” a case. These pre-trial conferences can occur anywhere from before arraignment and up to (and perhaps even during) trial. During these conferences defense counsel and the prosecutor discuss the evidence in the case, viability of defenses, and possible alternative resolutions to the case. As a practical matter, a judge will not schedule a formal pre-trial conference in a misdemeanor DUI case. To the extent a judge does become involved in a pre-trial conference, U.R.S.C. 7.3 governs the process.

Reasons to Negotiate

Although it seems unfair given a defendant’s constitutional right to a trial, most judges will impose a harsher sentence if a defendant opts for a jury trial and loses than if a defendant pleads guilty. The Uniform Court Rules allow for the judge to engage in this type of decision making. Rule 33.6 of the Uniform Rules provides:

  1. It is proper for the judge to grant charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are:
  2. that the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures;
  3. that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct;
  4. that the leniency will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
  5. that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
  6. that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
  7. that the defendant by entering a plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional
  8. The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant’s guilt at trial rather than to enter a plea of guilty or nolo contendere.

Additional reasons to plea bargain include: avoiding a habitual violator status, to save a client’s driver’s license from administrative suspension, and if a DUI defendant is under 21 years of age.

What to Do Prior to a Plea

If a plea is inevitable, defense counsel should have client consider pursuing one or more of the following prior to entering a plea:

  1. Risk Reduction Program (Defensive Driving Class Offered Through DDS)
  2. Community Service
  3. Alcohol and Drug Evaluation
  4. Victim Impact Panel

The Plea Itself

A negotiated plea is where both the defense and prosecution reach an agreement as to the crimes to be admitted to by the defendant and the punishment the defendant is to be subjected to as a result of committing those crimes.  Not only is defense counsel prohibited from accepting a plea offer without authority from client, but defense counsel is also obligated to communicate every negotiated offer to client before rejecting it on client’s behalf.

If a judge refuses to honor the negotiated plea, the defendant may withdraw their plea. All plea bargains are subject to the court’s approval and can never act as more than recommendations to the court. If a judge does reject the plea, the court must inform the defendant: (1)The court is not bound by the plea agreement, (2) the court intends to reject the plea agreement, (3) the sentence or disposition may be less favorable to the defendant than the plea agreement, and (4) the defendant may then withdraw his guilty plea as a matter of right.

A defendant also has the option of entering a non-negotiated plea. This may be a useful tool if defendant wishes to enter a plea and avoid trial but does not agree with the State’s recommended sentence. In a non-negotiated plea, however, the right to withdraw a plea is not absolute and is a matter within the judge’s discretion.

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.

Footnotes

[1] https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf

[2] Also referred to as a, “negotiated plea.”

[3] These include rights guaranteed under the Fifth and Sixth Amendment to the United States Constitution

[4] Usually this is because there is no “consideration” to keep the offer open.

Sex Offender GPS Monitoring is Unconstitutional

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O.C.G.A. 42-1-14 required a person who is classified as a Level 3 sexually dangerous predator to wear and pay for a GPS Monitoring device even if no longer on probation or parole. This Statute allowed the State to monitor the person’s movements for the remainder of his or her life.

Joseph Park & Sex Offender GPS Monitoring

In 2003, Joseph Park was convicted of child molestation and sexual exploitation of a minor. Upon his release from custody in 2011, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator under O.C.G.A. 42-1-14(a)(1). This Statute required Park to wear a GPS monitoring system the rest of his life.

Joseph Park challenged this statute on Constitutional grounds. The Georgia Supreme Court concluded that O.C.G.A. 42-1-14 was an unreasonable search and violated the Fourth Amendment to the United States Constitution.

The Court held that the wearing a GPS monitoring device to track the person’s whereabouts 24/7 for the rest of their life, even after the person has served their entire criminal sentence, constituted a significant intrusion upon the privacy of the individual. This would be an unreasonable warrantless search of an individual who is no longer serving their sentence.

The Georgia Legislature is likely already working to draft a new statute to allow for GPS monitoring for life.

Call us today!

If you are arrested for child molestation or any other sex offense in Georgia, it is imperative that you fight the case and win the case at the trial level. If you plead guilty to child molestation or any sex offense and are on the Georgia Sex Offender Registry, you will likely be restricted and monitored by the State even when your criminal sentence is over. It is vital to put the time, effort and money into fighting your child molestation case on the front end.

If you or a loved one are in need of a lawyer who handles child molestation cases and other sex offenses in Georgia, please email me at mike@peachstatelawyer.com or call 404-581-0999 for a free consultation.

Your Case in Municipal Court of Atlanta

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There’s no better firm out there for assistance with your upcoming case in the Municipal Court of Atlanta. Our team of highly trained attorneys has been practicing in the Municipal Court of Atlanta building relationships with the prosecutors and judges for as long as they’ve been at 150 Garnett Street.

What does MCOA handle?

The City Court of Atlanta handles almost every traffic citation occurring inside the city limits of Atlanta along with marijuana, shoplifting, and disorderly conduct charges. They also handle all city ordinance charges which involve business license issues, property issues, and some personal citations like disorderly conduct under the influence. There are eleven active courtrooms in the courthouse and most courtrooms have court twice a day.

A case in the Municipal Court of Atlanta has multiple ways it can be resolved. Unlike other municipal courts where your options are guilty or not guilty, the Municipal Court of Atlanta offers pre-trial diversion on a number of traffic and criminal charges, along with other alternative disposition methods if you qualify.

Did you miss court? There might be a warrant out for your arrest? Hiring an attorney may allow you to lift the warrant without appearing in court and risking potential arrest.

Do I need an attorney?

Skilled attorneys can appear in court on your behalf, speed up the process of resolving your charge(s), and negotiate resolutions that a non-attorney may not be able to obtain. It is important that before you resolve your case in the City of Atlanta you give our office a call to discuss potential outcomes and ways we can assist you. The consolation is free, and we are available 24 hours a day, 7 days a week to help. Call us today at 404-581-0999.

by Ryan Walsh