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

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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?

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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

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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

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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?

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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.

Court of Appeals Victory-Trafficking of Cocaine

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On November 26, 2012, attorney Daniel Farnsworth received a final decision on a pending appeal.

The case originated in Henry County.  Client was stopped for allegedly following too closely behind the vehicle in front of her.  After a brief encounter, the officer stated he was going to issue a warning citation and finished writing the citation approximately 5 minutes into the encounter.  The officer then impermissibly extended the scope of the traffic stop by fishing for other alleged criminal activity.  The officer based his “hunch” of other criminal activity based upon nervousness of the client.  The officer was repeatedly denied permission to search the client’s vehicle (SMART MOVE! NEVER GIVE PERMISSION TO SEARCH).  More than 12 minutes into the traffic stop, the officer walked his K9 unit around the vehicle.  The K9 unit “indicated” on the vehicle which was then search.  During the search the officer uncovered over 28 grams of cocaine in the vehicle.

The trial court denied client’s motion to suppress but gave the client a certificate of immediate review.  Client next asked the Georgia Court of Appeals to grant an application for interlocutory review since the case was still pending in Superior Court.  The Court of Appeals granted the application and agreed to look at the case while the case was still on-going.  Normally, the Court of Appeals reviews a case when the case is completed.  Seizing on this rare opportunity, the client’s appeal was filed on March 27, 2012.

Mr. Farnsworth received the final decision from the court and immediately went to the end of the opinion…”Accordingly, because the officer illegally detained [client], the order of the trial court is reversed and the case is remanded with direction to grant [client’s] motion to suppress.”

VICTORY!!!  Case dismissed.

Weems v. State

A12A1353, Georgia Court of Appeals

During jury selection, the prosecutor cannot make remarks which would prejudice the panel. Doing so, requires the panel to be excused under a challenge to the poll.

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NEW CASE just published

Bell v. State, A11A0118 (July 5, 2011).

Following his 2005 conviction for rape, defendant appealed from the denial of his motion for new trial.

During voir dire, the panel member stated that he had heard of a person named James Bell who was accused of a previous sexual assault in another county, and asked if it was the same person because the victim in that assault was his grandmother.

The State responded: “Your grandmother is [name omitted]?” To which the juror responded: “My grandmother is Ardella [name omitted].”

When questioned if he knew James Bell, the juror responded that he did not, but wondered if it was the same person.

The State then responded: “I can’t go into the past. That’s what the judge was getting at and that’s what I’m getting at. We can’t talk about what happened in the past, just talking about today.

The juror was then asked whether his relationship with his grandmother would affect his ability to be fair and impartial, he responded that “I would hope so. I guess I could because I don’t know James Bell. I can’t say that I know him.”

Defense counsel requested to approach and moved for a mistrial.

Although the motion for mistrial was premature – the proper procedural tool for the defense to have used was either a “challenge to the poll” or a motion for a postponement to impanel other jurors who had not heard the remark. However, regardless of the label which defense counsel placed on his motion, his import was clear, i.e., that the prospective jurors had been prejudiced by the remarks and that the appellant was entitled to a new panel from which to choose a jury to hear his case.

The law in Georgia provides “[w]hen a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.”

Due process requires “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”

Here, although the prospective juror at issue said he was not sure if the defendant was the same James Bell accused of raping of his grandmother, rather than leave the questioned unanswered, and move on to another juror, the State elicited more information from the juror. Specifically, the State asked if the juror’s grandmother was ” [name omitted]” thereby providing the other prospective jurors with the name of another alleged rape victim in a crime for which Bell was not on trial.

This comment by the state was inherently prejudicial and deprived Bell of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.

Because the trial was tainted from the beginning, Bell’s conviction was reversed.