What Is Arraignment?

WHAT IS ARRAIGNMENT?

“What is arraignment?”

That’s the first question every client asks us when they receive their first court date, and it’s a great one.   Most of our clients have either received a court date prior to meeting with us or they were told when they leave the jail that they will receive an arraignment date in the near future.  So, what is arraignment?

In Georgia, every person is entitled to due process of law under the Georgia Constitution and the United States Constitution.  A citizen’s due process rights include the right to be placed on notice of any charges the State intends to seek.   The State files charges through either a formal indictment or accusation. These documents are ultimately the framework of how the case will proceed.  As such, arraignment is the first opportunity for the court to inform the accused of the charges against them.  Under Georgia law, every person accused of a crime has the right to be arraigned.  Formal arraignment is when the court reads the charges in open court and an accused has an opportunity to enter a plea of either guilty or not guilty. courtroomdoorfrombench1 (1)

So what actually happens in court at the arraignment hearing?  From a practical stand-point three things happen at arraignment.   First, one of our lawyers will likely inform the court that we are waiving formal arraignment (reading of the charges in open court) because we have received the actual charging document and we would prefer, for the sake of privacy, for our clients charges not to be read in front of hundreds of people.  Second, we enter a plea of not guilty.  At this juncture the State has not provided the evidence they intend to use at trial and we would essentially be accepting guilt without evaluating the case.  Thus, it makes sense to plead not guilty, collect evidence, and then proceed accordingly.  Finally, we inform the court that we will be filing legal motions and ask the court for ten-days to file.  Legal motions cover many issues including asking the Judge to force the State to provide evidence, suppress evidence, hold a hearing on legal issues, and many other topics.

If you have been charged with a crime then your case will eventually be set for an arraignment hearing.  Please contact our office today at 404-581-0999 for a free consultation at either our downtown location or our Marietta location to discuss arraignment and how we can help with your case.

Labor Day: Traffic Stop Tips

LABOR DAY WEEKEND EDITION: What Do You Need To Know During A Police Traffic Stop?

trafficstoppic

Most people share a general sense of anxiety when they see blue lights flashing in their rear-view mirror.  If you’re like me, when the blue lights come on your heart starts beating 100 mph, you start sweating, and your mind is racing.   Here are some helpful pointers on how to interact with a police officer during a traffic stop.

WHEN YOU SEE THE “BLUE LIGHTS”

1)   Slow down and pull over as quickly as possible.  You never want to give the officer the impression that you’re attempting to get away.  Also, you don’t want to slam on the brakes immediately.  Find a safe location (parking lot, driveway, open area on the side of the road, etc..) and pull over.

2)  Roll down your window, turn off your car, place the keys on the dashboard, and have your driver’s license ready to hand to the Officer.   Obviously, if a police officer pulls you over he/she is going to want to speak with you.  It’s always a good idea to go ahead and roll your window down as soon as possible.  You wouldn’t want the officer to think that you’re having difficulty with the simple task of rolling your window down.  So go ahead and do that first.

Placing your keys on the dashboard will put the officer at ease that you’re not going to take off.  A calm Officer can sometimes be the difference in going to jail and going home.

In addition, the Officers are trained to see if you have difficulty locating your driver’s license.  To many officers, the fact that you are nervous and may not be able to find your license right away is not normal and instead is an indication you’re drunk.  So go ahead and eliminate that assumption immediately.

3)   Let the Officer speak first.   The Officer is trained to get you to admit to the crime he/she thinks you’ve committed.  So a common question an Officer will ask is: “do you know why I pulled you over?”   A lot of people will say: “Yes, I was (insert traffic offense).”   If the Officer is recording your conversation, then there is a strong possibility that statement will be used against in court.  So go ahead and answer the question with an affirmative “no.”   It’s the Officers burden to prove you guilty of the alleged offense and not your burden to proof yourself innocent.

4)  BE POLITE!  This is the key to any interaction with a police officer.  If you are a jerk to the Officer the chances of you getting a ticket and/or getting arrested go up significantly.   Sometimes a police officer can say things that are rude or inconsiderate.   Take the high road.   Remember, on the road he feels like he is in charge and has the ability to really mess up your day.  You’ll have the final say if the case goes to court.  So don’t make it easier for the Officer.  Just be polite and your behavior won’t be used against you at a later date.

If you end up with blue lights in your rear view mirror, try some of the tips listed above.       We hope that no one ends up getting ticketed or, even worse, arrested.

Labor Day weekend is a great chance to relax and enjoy time with friends and family.  With so many people on the road, you can almost guarantee that the police will be out in force.  So be careful and have a great weekend.

GEORGIA LEGISLATURE CHANGES MUGSHOT LAWS

A few months ago  we talked about the legality of having your mugshot posted all over the internet (see: Georgia Mugshot Websites). Recently, the Georgia General Assembly took another hard stance against companies who prey on those who are booked through Georgia jails.  Our legislature made some drastic changes to the Georgia mugshot laws.

Georgia law now requires that law enforcement agencies refrain from posting booking photographs on their jail inmate website.  The General Assembly went on to limit access to any booking photographs by restricting access to those who are (1) not using the photo for purposes for written publication or website publication; and (2) the person trying to obtain the photograph is not asking for removal or deletion of the booking photograph in exchange for money.  Law Enforcement agencies now can only release photographs to individuals who sign a statement affirming that the use of the photograph will NOT be for purposes of mugshot websites.

The General Assembly obviously recognized there was a serious problem with websites extorting those who have been booked through the criminal process.  Already, the Cobb County Sheriff’s Department has taken steps to remove all photographs from their jail website in accordance with the new law. Hopefully, these steps will put an end to for profit mugshot websites.

Please contact our office today at 404-581-0999 if you have been arrested in Georgia and you need help getting your mugshot removed.

Police Roadblocks in Georgia

WHAT YOU NEED TO KNOW ABOUT ROADBLOCKS IN GEORGIA

by W. Scott Smith Esq. 

Roadblocks have become more and more popular among Georgia law enforcement agencies.  In North Georgia, we are seeing Georgia State Patrol roadblocks and Georgia Public Safety roadblocks for DUI more than ever before.

Here is what you need to know: The Fourth Amendment to the United States Constitution imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by Georgia police officials with the privacy and personal security of individuals. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. As its text indicates, the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ When a driver brings his vehicle to a stop as a result of a request or show of authority by a law enforcement officer, the officer effectively seizes the vehicle and everyone in the vehicle, the driver and all passengers. Such a seizure ordinarily is unreasonable, and hence unconstitutional – absent individualized suspicion. The United States Supreme Court has recognized, however, a narrow exception to the individualized suspicion requirement for vehicle stops made pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Under this checkpoint exception, the reasonableness of the initial stop depends not on individualized suspicion that the driver has committed a traffic violation or other wrongdoing, but instead on the balance between the public interest served by the checkpoint program and the right of individuals to personal security free from arbitrary and oppressive interference by Georgia officials.

Aside from general reasonableness, the Fourth Amendment applied to roadblocks also requires that the government follow with two other main requirements:

The first is that a roadblock is only satisfactory where [1] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [2] all vehicles are stopped as opposed to random vehicle stops; [3] the delay to motorists is minimal; [4] the roadblock operation is well identified as a police checkpoint; and [5] the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

The second requirement is that a roadblock program must a have a principle purpose other than the general interest in crime control. The Georgia Supreme Court stated late last year in its landmark roadblock decision Brown v. State that this requirement poses the question as to why an agency utilizes a roadblock.  If the primary purpose of the checkpoint program is crime-fighting in general then the checkpoints implemented under that program are unconstitutional, even if the decision to implement them was made well in advance by the official with the most policymaking authority in the agency.  The Court stated it is at the “programmatic level” that the “primary purpose” inquiry must focus, with the goal of ensuring that the agency has not authorized roadblocks primarily for the general crime control but rather for an “appropriate limited purpose” like traffic safety. Thus, the question is whether the police checkpoint at issue implement pursuant to a checkpoint program that had when viewed at the programmatic level, an appropriate primary purpose other than general crime control.

Based on this recent case law, when we challenge your initial stop at a roadblock by way of a motion to suppress, the State bears the burden of proving that the seizure was constitutional. This requires the State to prove that the stop was reasonable under the totality of the circumstances. At a minimum, the State must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control-a purpose examined at the programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who coordinated the particular roadblock at issue. Further, the State bears the burden of proving that the five (5) requirements in step one were met.  The written policy in Brown stated that the primary purpose of a roadblock was namely “to monitor and check driver’s licenses, driver condition, vehicle registrations, vehicle equipment, and various other requirements of the Georgia State Motor Vehicle and Traffic Code.” Further, the policy also expressly forbids the use of roadblocks as a pretext for general crime detection.  The Court upheld the policy as satisfying the second requirement.

It is our opinion at our criminal defense law firm that every roadblock needs to be closely scrutinized for illegal seizure.  Proper scrutiny requires an examination of a policy purpose of the checkpoint at the programmatic level. The Georgia law enforcement policy must sufficiently limit the agency performing the roadblock, whether it be Georgia State Patrol or others, so that the primary purpose of a roadblock could not be for general crime detection.

How do I get a bond?

If you or a loved one has recently been arrested, the first thing on your mind is getting out of jail.  Unfortunately, the process of bonding out is more complicated than expected.  So, what do you need to know to get out of jail as quickly as possible?

1)      Will I get a bond?  If so, when?

In Georgia, the rules are organized according to whether the arrest offense is a felony or a misdemeanor.  If it is a misdemeanor, then you are entitled to a bond by law.  If the charge is a felony, then it is in the judge’s discretion whether to grant bail.  There are certain serious offenses for which only a superior court judge can grant bail.  In that case, the superior court will be notified of your arrest within 48 hours.  The superior court is then required to set a bond hearing within 30 days after receiving the notice.  However, if you file a petition for a bond, then the hearing must be held within 10 days after receiving the petition.

2)      What does the court consider when determining whether to grant bond and when determining high the bond should be? 

Judges consider four factors when determining whether to grant bond, and when determining how much the bond should be: (1) Are you a risk to run away and not come back to court?; (2) Do you pose a threat or danger to people or property in the local community?; (3) Is it likely that you will commit a felony before your case is resolved?; and (4) Are you likely to intimidate witnesses against you?

3)      Once I get a bond, what are my options for covering the amount? 

Cash bond – This requires you to put up the entire bond amount in cash or by money order.  Most people cannot afford the entire amount, and that is where bondsmen come in.  As long as you are able to pay 13-15% of the bond, then a bondsman will put up the money for you and require that you pay a fee.

*The money that you pay to bond out will be refunded at the close of the case as long as it is not forfeited by your failure to appear in court.  The fee to the bonding company will not be refunded. 

Property bond – You may be able to put up real property (house or land) as a way to guarantee your appearance in court.  Generally, you must have enough equity in the home or property to cover the amount of the bond.  In some places, you have to have twice the amount of the bond in equity.  Most bondsmen will still help you bond out of jail, and they may accept more than just real property.  For example, some will allow you to put up the title to your car as a guarantee that you will return to court.  Remember, if you use property to bond out and you fail to appear in court, then you are at risk of losing that property!

If you or a loved one have recently been arrested and want help bonding out, do not hesitate to contact us at 404-581-0999. You can trust that our firm will do everything possible to get you or your loved one out of jail and to make the process as simple and painless as possible.

I Got Arrested for DUI, But They Never Read Me My Rights

One of the most common DUI questions we get at W. Scott Smith, P.C. is: “Why didn’t the Officer have to read me my Miranda rights?”  What a great question!  Let me see if I can explain.

The Miranda warning stems from a famous United Supreme Court case, Miranda vs. the State of Arizona.   In that case, the Supreme Court of the United States said that IF you are placed into custody and then the Officer attempts to interrogate you, he/she has to warn you of a few rights.  We know these rights as the Miranda Rights and they go like this:

You have the right to remain silent.

Anything you say or do may be used against you in a court of law.

You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.

If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?

If the officer chooses not to read you the warning while you are in custody and still proceeds with questioning, then any statements you make may be suppressed by the court at a later date and ultimately result in your case being much stronger.

 

So Why Didn’t the Officer Read Those to Me When He Placed Me Under Arrest for DUI?

In most DUI cases, not all, the Officer is NOT required to read you the Miranda Warning.  Most Officers will wait to place a driver they suspect to be under the influence of alcohol or drugs under arrest (or in custody) to avoid having to read the Miranda Warning.  Which makes sense, right?  The Officer is trying to get you to answer questions about your consumption of alcohol and have you submit to testing that he/she plans to use against you at trial.  If he starts telling you that you have the right to have a “pesky” lawyer like me present, you’re probably not going to do anything.   In Georgia, our appellate courts have determined that when you are asked to exit the vehicle and perform field sobriety testing or answer questions about where you were or where you are going, you are NOT deemed to be in custody, and thus, not entitled to have the Miranda Warning read to you.

BUT, the question of whether or not you are in custody CAN be a sticky issue.  We encourage anyone who has been arrested for DUI in the State of Georgia to contact our office immediately for a FREE consultation (404-581-0999).   Our lawyers can use their knowledge and experience to determine whether or not the Miranda Warning should have been read in your case, which sometimes can mean the difference between your case being dismissed and a conviction for DUI.

Misdemeanor Drug Possession – I can go to jail? Really?

I smoke two joints in the morning.  I smoke two joints at night.  I smoke two joints in the afternoon, it makes me fell alright.  I smoke two joints in time of peace, and two in time of war.  I smoke two joints before I smoke two joints, and then I smoke two more.

“Smoke Two Joints” –The Toyes

 

I was gonna go to court before I got high.

“Because I Got High” -Afroman

 

If you’ve been charged with misdemeanor marijuana possession here is some important information you should know.

First, what is misdemeanor marijuana possession?  Pursuant to O.C.G.A. §16-13-2(b), possession of less than one ounce of marijuana is a misdemeanor punishable by up to 12 months imprisonment and/or a fine of up to $1,000.00.

Second, other than up to a year in jail and a $1,000 fine, what else can happen?  Pursuant to O.C.G.A. §40-5-75, the driver’s license of anyone convicted of possession of marijuana shall by operation of law be suspended.  Upon a first conviction within 5 years (as measured by arrest dates), there is a 180 day suspension.  A second conviction within five years, the period of suspension is three years.

I know.  You are saying to yourself, “I got caught with a joint and I’m looking at possible jail time, a fine, and a license suspension? I should move to Colorado!”

Before you pack your bags for the West Coast, there are a few things to remember about a misdemeanor marijuana charge.  In many counties, such as Fulton County, there are programs called Pre-Trial Intervention (PTI).  The PTI program is normally done on a case by case basis but could include: a program fee, class participation (such as a drug awareness class), or community service.  Upon successful completion of the PTI program, the case will be dismissed and you will be able to apply for record restriction pursuant to O.C.G.A. §35-5-37.  It’s like it never happened.  Also, by going through the PTI program, the license suspension never comes into play.

What happens if you weren’t offered PTI?  Conditional Discharge: Pursuant O.C.G.A. §16-13-2, if you have not previously been convicted of a drug possession charge, the court may withhold adjudication (refrain from making a decision) and place you on probation.  While on probation, you will likely have to complete a drug/alcohol evaluation and perform community service (note: this list is not exclusive and the probation can include “such reasonable terms and conditions as the court may require”).  Upon successful completion of the terms and conditions, “the court shall discharge the person and dismiss the proceedings.  Conditional Discharge may be used once.  As with PTI, by using Conditional Discharge, the license suspension never comes into play.

The important thing to remember with any pending criminal charge is to first contact an attorney.  The attorneys at W. Scott Smith, P.C. have handled thousands of misdemeanor drug cases and are able to help you get the best result possible.

If you’ve been charged with any kind of drug charge, call W. Scott Smith, P.C. today at 404-581-0999.

Video: Options After First Lifetime Marijuana Arrest in State of Georgia

PeachState’s own W. Scott Smith discusses options for those arrested for the first time and charged with possession of marijuana in the state of Georgia.

 

http://www.youtube.com/watch?v=YDZCD90dfVg&feature=youtu.be

Drug Convictions May Impact Your Ability to Receive Financial Aid

In 1998, the United States Congress passed a law that disqualified students from receiving financial aid who were convicted of the possession or sale of drugs if they were arrested while receiving aid. In Georgia, misdemeanor Marijuana possession of less than one ounce falls under this law. Beginning in the 2000-2001 academic year, the U.S. government’s Free Application for Federal Student Aid (FAFSA) added question 23, which reads:

Have you been convicted for the possession or sale of illegal drugs for an offense that occurred while you were receiving federal student aid (such as grants, loans or work-study)?

Answering Yes to question 23 on the FAFSA form triggers the government to send you an additional worksheet after you submit your applications titled Student Aid Eligibility Worksheet for Question 23. https://studentaid.ed.gov/sites/default/files/2012-13-student-aid-eligibility-drug-worksheet.pdf  The worksheet runs through a series of scenarios that determine whether you are currently eligible for financial aid:

  1. If you’ve never previously received financial aid, the drug conviction does not impact your ability to receive aid.
  2. If the arrest for which you’ve been convicted didn’t occur while you were receiving financial aid, the drug conviction does not impact your ability to receive aid.
  3. If you’ve completed an acceptable drug rehabilitation program (including two unannounced random tests) since your conviction, the drug conviction does not impact your ability to receive aid.
  4. If you were receiving aid at the time of arrest and you haven’t completed an acceptable drug rehabilitation program, your ability to receive aid will be suspended for a minimum period of one (1) year from the date of conviction. The period of suspension depends on the severity of the conviction.
Possession of Illegal Drugs Sale of Illegal Drugs
First Offense One (1) Year Two (2) Years
Second Offense Two (2) Years Indefinite Period (Must Complete Drug Rehabilitation)
Three or More Offenses Indefinite Period (Must Complete Drug Rehabilitation)

Therefore, it is imperative that you contact an attorney to protect your rights if you’ve been charged with the possession or sale of drugs while you were receiving federal aid. Don’t let a drug arrest impact your ability to get a college degree.

Can Your Atlanta Drug Crime Defense Attorney Get You Off These Charges?

You’re stopped by the police and upon a search, they discover 28 grams of cocaine, $20,000 in cash,
and small baggies of crack-cocaine. This isn’t just possession, which is serious enough, this points to
distribution. You’re charged with trafficking in cocaine, a crime which comes with a mandatory 10-year
prison sentence in the state of Georgia. Can your Atlanta drug crime defense attorney get you off these
charges?

Well, at the end of 2012, Daniel Farnsworth, an experienced Atlanta drug crime defense attorney with
W. Scott Smith, the Peachstate Lawyer, was able to do just that. A thorough examination of all of the
details of the case, and previous legal precedents, led to a successful appeal and an overturn of the
original decision.

It was made possible only thanks to the combination of firsthand case experience, topic expertise and
courtroom skill, and the complete and thorough attention to detail and evaluation of each facet of the
case, which the team of attorneys at W. Scott Smith provides for their clients.

If this client in particular had settled for a free public offender, the cost would have been 10 years of
their life, instead of legal fees. Instead, Mr. Farnsworth was able to pinpoint a timeline and portrait of
the scene which showed that the officer in question overstepped his bounds and extended the scope of
a routine traffic scope without reasonable evidence or suspicion of criminal activity.

This was not immediately recognizable, and it’s something that not every Atlanta drug crime defense
attorney would have succeeded in arguing and proving. It required careful analysis in conjunction with
finding the appropriate legal precedents which further illustrated the points in question.

Nobody wants to find themselves in the above situation, but if that’s where you are, you need to protect
yourself as completely as possible. When you’re life is literally on the line, there’s no margin for error,
and there’s no time to waste.

Contact W. Scott Smith today for a free case evaluation, and we’ll show you how we can help as your
new Atlanta drug crime defense attorney. Call us at 404.581.0999 or fill out our contact form and we’ll
respond as swiftly as possible.