Clayton County Pre-Trial Intervention and Diversion Program

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The Clayton County Pre-Trial Intervention and Diversion Program (also known as PIDP) is a program offered in Clayton County to offer an alternative to the traditional prosecution process. The Clayton County PIDP purpose is to deter future criminal behavior, monitor offenders from arrest through final case disposition, minimize loss to victims through payment of restitution by offenders, and to reduce the number of non-violent cases so that county resources can be used to prosecute more severe crimes.

The best part about Clayton County PIDP is that defendants who successfully complete the program will have their case dismissed. Your criminal record will also be restricted so that any criminal charges will not show up on background checks.

Certain types of defendants are eligible for participation in the Clayton County PIDP. At a minimum, defendants must have minimal felony nonviolent charges and minimal prior misdemeanor convictions. Additionally, participants must have never participated in a diversion program before and be able to pay any restitution.

Cases like drug possession, theft, or shoplifting are often offered participation in PIDP if it is a defendant’s first offense. If you have been charged with a non-violent offense in Clayton County, it is important that you hire a lawyer that is familiar with PIDP and would be able to negotiate that resolution to your case. Please call our office at 404-581-0999 for a free consultation and to see if PIDP might be a great option for you.

Fulton Marijuana DUI

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In Fulton County, driving under the influence (DUI) of marijuana is illegal and is treated similarly to a DUI involving alcohol. Marijuana DUI laws are outlined in O.C.G.A. § 40-6-391, which makes it unlawful to drive or be in actual physical control of a vehicle while under the influence of any drug, including marijuana, that impairs one’s ability to drive safely.

Unlike alcohol, where a specific blood alcohol concentration (BAC) limit is set, marijuana impairment is evaluated based on the ability to drive safely. If a law enforcement officer suspects impairment, they may arrest the driver.

  1. Standard Field Sobriety Evaluations (SFSEs):

In the event of a marijuana-related DUI investigation, law enforcement officers may administer field sobriety tests to determine if a driver is impaired. However, SFSEs (such as the Walk-and-Turn or One-Leg Stand tests) are primarily designed to assess impairment from alcohol or other substances that affect motor coordination and balance. These tests are less reliable for marijuana impairment because marijuana’s effects can vary widely depending on the individual and are different than the effects of alcohol.

  1. Drug Testing:

A key aspect of marijuana DUI cases in Georgia is drug testing, which typically involves a blood test to detect THC, the psychoactive component of marijuana. An officer can collect your blood if you 1) agree to a blood draw or 2) a search warrant for your blood is issued. THC can remain in the bloodstream for days, weeks, or even months after marijuana use, long after any impairment. This creates a challenge for prosecution- just because you test “positive” for THC does not mean you are impaired at the time of the drug test or blood draw, nor does it mean you were impaired while driving. However, the presence of THC in the blood can be used as evidence of marijuana use, but it does not definitively prove impairment at the time of driving.

  1. Possible Defenses in a Marijuana DUI Case:

No Impairment at Time of Driving: The most straightforward defense is arguing that the driver was not impaired while driving, even if marijuana was detected in their system. If the defendant was not showing signs of impairment (e.g., not swerving, not exhibiting erratic driving behavior), this could be a strong defense.

Challenge to Field Sobriety Test Results: As mentioned, FSEs are not be a reliable indicator of marijuana impairment. Standard field sobriety evaluations were designed for alcohol impairment. To date, there are no scientifically backed evaluations to detect marijuana impairment.

While the laws surrounding marijuana DUI in Georgia are the same throughout the state, Fulton County is more likely to see DUI cases involving marijuana due to its larger population and the prevalence of law enforcement agencies in the area, especially with Atlanta Police Department. DUI cases in Fulton County are generally handled by whatever municipality you are initially arrested in (Sandy Springs, Atlanta, etc.) as well as the State Court of Fulton County. If you are arrested for marijuana DUI in Fulton County, it is critical to hire a skilled DUI defense attorney who is familiar with local court procedures and the nuances of marijuana-related DUI cases.

Milton DUI – Top Rated Milton DUI Attorney

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Milton, Georgia is home to the Milton Municipal Court where the city prosecutes DUI, traffic, marijuana, and City Ordinance cases made by the Milton Police Department. Milton Municipal Court is located at 13690 GA-9, Milton, Georgia.

One of the most common cases we see in Milton are DUIs (O.C.G.A. § 40-6-391). In Georgia, DUI can be charged in either two ways. Driving under the Influence Per Se means the State is charging the individual with being over the .08 legal limit for drivers over 21 years old. (It is a .02 legal limit for DUI cases involving drivers under 21).

The second way a DUI can be charged is DUI Less Safe. Under Georgia law, DUI Less Safe means the person is accused of driving under the influence to the extent they were a less safe driver. We see DUI Less Safe cases where there is no chemical test, or where there is a chemical test but it is below the legal limit.

There are numerous defenses to DUI to be explored and raised. A skilled DUI defense attorney must fiercely evaluate and raise issues starting at the purpose of the stop and ultimately the probable cause in making the arrest. Factors to be assessed are the performance of field sobriety tests if any were conducted, the lack of odor or admissions, and the driving that was observed. Additionally, the Implied Consent portion of the DUI case is highly relevant in DUI defense because in order for the chemical test to be admissible in Court, the proper Implied Consent must be read after arrest, and there must be true knowing and voluntary consent to submit to the chemical test. Under Georgia law, mere acquiescence to authority is not voluntary consent. It should be noted that any refusal to submit to breath testing following an arrest is deemed inadmissible evidence given the Georgia Constitution gives the right to decline incriminatory acts. This law was clarified and confirmed in Elliott v. State, 305 Ga. 179 (2019).

In all first DUI cases, the mandatory minimum sentence is 24 hours in jail, 12 months on probation, a $300.00 fine plus court costs (nearly doubles it), 40 hours of community service, a Risk Reduction course, and an alcohol and drug evaluation and treatment if deemed necessary, and a Victim Impact Panel. The maximum sentence is 12 months in jail. On a second, or third DUI in 10 years, the jail time is increased, as well as the fines and the community service.

Remember that DUI is a misdemeanor crime that goes onto your criminal history. In Georgia, DUI can never be expunged or restricted, and thus a DUI conviction will remain on your history forever.

A DUI charge also has intense license repercussions.  If there is a refusal on the chemical test, the Officer can suspend your license for at least a year. This must be challenged within 30 days of your arrest, so time is of the essence in DUI cases. Depending on what else the individual is charged with, and how many prior DUIs he or she has, it is possible a DUI conviction could lead to a 5-year habitual violator suspension. There are ways to avoid the license suspensions associated with DUIs but there are only 30 days to file the appeal or to elect for an ignition interlock permit.

The options in Milton Municipal Court are to enter into pretrial negotiations with the goal of avoiding the harsh consequences of a DUI, or to enter a Not Guilty plea and send the case to the Fulton County State Court where motions and a trial can occur. As experienced DUI lawyers practicing in Milton and Fulton County regularly, we have the skill and knowledge to accomplish your goals. We are trial lawyers constantly staying on top of DUI law. If you or a loved one has been charged with DUI in Milton or Fulton County, call us now for a FREE CONSULTATION at 404-581-0999.

 

Aggravated Child Molestation in Douglas County

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Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation in Douglas County. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself. All it takes is the word of the child, if believed, to convict you.

If you are arrested, do not talk to the police. You will be taken to the Douglas County jail and you will be on the first appearance calendar the following day.

O.C.G.A. § 16-6-4 defines aggravated child molestation as follows:

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

If you are convicted of aggravated child molestation in Douglas County, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

If someone is making an allegation of aggravated child molestation against you, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of aggravated child molestation and call us. Time is of the essence to properly investigate the allegations.

Do not wait until the  Douglas County District Attorney actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

YOUR RIGHTS DURING TRAFFIC STOPS AND POLICE SEARCHES WITHOUT WARRANTS: WHAT YOU NEED TO KNOW

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Interacting with police officers can be a stressful and unsettling experience, especially when you’re unsure of your rights. Many individuals, both in Fulton County and across the country, often feel confused when questioned by police officers or when the police attempt to search their property or belongings. This uncertainty arises from a lack of knowledge about personal rights during encounters with law enforcement.

Citizens are protected by the Fourth Amendment against unlawful searches and seizures. This blog explains your rights if stopped by police in your vehicle or if an officer attempts to search your body, car, or home without a warrant.

Your Freedom to Refuse a Search Without a Warrant

When a police officer attempts to search you or your property, the first question you should ask is: “Do you have a warrant?” In most cases, police officers are required to have a valid search warrant to conduct a search of your person or property. Without this, any search or seizure could be deemed unlawful, and any items found could potentially be suppressed in court through a motion to suppress filed by the defense.

When Can Police Search You Without a Warrant?

Here are a few circumstances when police officers can conduct a search without a warrant:

Search Incident to Arrest

The most common scenario where a search can occur without a warrant is when a person is arrested. This is known as a search incident to arrest. When an individual is arrested, the officer is allowed to search the person to remove any weapons or contraband that may be used to resist arrest or escape. This applies even if a significant amount of time has passed since the arrest or processing, as highlighted in in Barrera-Palamin v. State, 250 Ga. App. 580 (2001).

However, a search cannot happen before an arrest and be used as justification for the arrest itself, as seen in Smith v. Ohio, 494 U.S. 541 (1990).

Vehicle Searches

Under both the Georgia Constitution and the Fourth Amendment of the U.S. Constitution, police may search a vehicle without a warrant if the driver has been arrested. This is based on the idea that law enforcement has a legitimate need to secure any weapons or evidence that may be in the vehicle. However, if the officer only issues a citation without making an arrest, they cannot search the vehicle. This is made clear in Knowles v. Iowa, 525 U.S. 113 (1998).

Abandonment of Property

If you relinquish control or ownership of an item, such as a vehicle, police can search it because you no longer have an expectation of privacy. In Gresham v. State, 204 Ga. App. 540  (1992), it was ruled that if you abandon your property, you lose the right to object to a search.

Denial of Ownership

If you deny ownership of an item, such as when you refuse responsibility for an item in your possession, you lose the expectation of privacy over it. Police may search the item without violating your rights. This was affirmed in Deych v. State, 188 Ga. App. 901 (1988).

Plain View Doctrine

If police are lawfully present in an area and see evidence of a crime in plain view, they can seize it without a warrant.

Exigent Circumstances

In urgent situations, such as when there’s a risk of evidence being destroyed or a suspect fleeing, police can conduct a search without a warrant.

Stop and Frisk

If a police officer has reasonable suspicion that a person is armed and dangerous, they can stop and frisk the individual for weapons.

Border and Airport Searches

Searches that take place at the airport or at the borders may not require a warrant

Consent

If you give an officer permission to search your property, they will. They do not need a warrant after you give them permission to search your property.

Special Considerations for Cell Phones

If you are arrested and have a cell phone in your possession, it’s important to know that police cannot search the contents of your phone without a warrant. The U.S. Supreme Court’s decision in Riley v. California, 573 U.S. 373 (2014) ruled that police must obtain a warrant before accessing the contents of a cell phone, as it contains personal and private information.

Consequences of a Conviction

It is important to understand the potential consequences of being convicted of a crime. Your rights during a police stop or search are crucial to ensuring that your case is handled fairly. If you believe your rights have been violated during a police interaction, it’s important to seek legal advice immediately and contact us.

Remember, if you ever feel unsure about your rights or how to handle a situation with law enforcement, don’t hesitate to reach out for assistance. We are here to help you navigate these challenging moments 24/7.

Statutory Rape in Cobb County

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Statutory rape is defined in § 16-6-3 of the Georgia criminal code. The statute says that “a person commits statutory rape when he or she engages in sexual intercourse with any person who is under the age of 16 years and not his or her spouse”.

Many people wrongly believe that there is a defense to statutory rape if the victim is untruthful about their age and the accused believes that the victim older than 16. However, statutory rape is a strict liability offense, meaning that the belief of the accused does not matter. The only real defense is that sexual intercourse did not actually occur.

It is important to note that unsupported testimony of the victim is not enough to support a conviction for statutory rape. This means that a victim simply saying that they had sexual intercourse with the accused is not enough. There must be some other evidence proving that sexual intercourse actually occurred. This is where the defense may be found!

The punishments you could face if you are convicted of statutory rape range depending on the age of the accused and the victim. If the accused is over 21, they face 10-20 years in prison. If the victim is between 14 and 16 years old, and the accused is not yet 18 (and not more than 4 years older than the victim), a conviction would only result in a misdemeanor.

If you have been accused of statutory rape in Cobb County, it is important that you hire an attorney with experience in fighting these cases. Call the Law Office of Scott Smith today for a free consultation.

Common Sentencing Conditions for Family Violence Battery Cases- Henry County:

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Below are common conditions that may be imposed as part of a sentence: 

  1. Jail or Prison Time: In cases of misdemeanor battery, the defendant may face up to one year in jail, but this is uncommon. We usually do not see additional custody time in a sentencing, unless there are aggravating factors, such as prior convictions, a use of a weapon, or severe injuries to the victim. 
  2. Probation: In some cases, the defendant may be sentenced to probation instead of, or in addition to, jail time. Probation typically lasts for a set period , usually for 1 year, and include regular meetings  with a probation officer. 
  3. Domestic Violence Education or Counseling: Georgia requires defendants convicted of family violence to attend mandatory counseling or a domestic violence intervention program. This is called “FVIP” or Family Violence Intervention program and usually lasts for 24 weeks. 
  4. Anger Management Classes: Anger management may be a condition of probation or sentencing to address emotional regulation issues. 
  5. Restraining Orders/Protective Orders: A restraining or protective order may be issued, prohibiting the defendant from contacting or going near the victim. Violating such orders can result in additional criminal charges. There are usually two different orders: no contact and no violent contact. No contact means you cannot contact the victim either physically, online, over the phone, through the mail, from across the street, etc.  
  6. Community Service: You may be required to perform community service. 
  7. Fine or Restitution: You may be ordered to pay a fine as part of the sentence, and may also be required to pay restitution to the victim for medical bills, lost wages, or property damage. 
  8. Alcohol/Drug Testing and Treatment: If alcohol or substance abuse is found to be a factor in the offense, the court may require the defendant to undergo alcohol or drug testing and possibly attend rehabilitation after undergoing a substance abuse evaluation. 
  9. Firearm Restrictions: You may lose the right to possess firearms, either permanently or for a set period of time. 

 

It is important to understand potential consequences if you’re convicted of a crime. We’re here to help 24/7. Call us today. 

Georgia Court of Appeals Recent Decisions

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Several noteworthy cases were recently decided by the Georgia Court of Appeals in the first half of January. Here’s a summary of each:

 

The State v. Eastman, Smith, Trump, Giuliani, Cheeley, and Meadows (A25A0395-A25A0400)  This case involved an alleged conspiracy to change the 2020 presidential election outcome. The state appealed the trial court’s decision to dismiss six counts of the indictment related to solicitation of public officers to violate their oaths. The Court of Appeals affirmed the dismissal, agreeing that the indictment didn’t provide enough specifics about which parts of the oath were allegedly violated to allow the defendants to prepare a proper defense.  The legal term for challenging the indictment’s language being insufficient to put the defense on notice is called a special demurrer.

 

 

 

 

 

 

 

 

Owens v. The State (A24A1485) Owens was convicted of several charges related to a bar fight involving a motorcycle club. The Court of Appeals mostly affirmed the convictions but sent the case back to the trial court to correct a merger error in the sentencing and to further analyze whether other charges should have been merged. The court acknowledged the Aggravated Assault charge should have merged into the Aggravated Battery charge as they alleged the same act by the defendant and injury by the victim.  Owens also argued ineffective assistance of counsel, but the Court disagreed.

 

Henry v. The State (A24A1260) Henry was convicted of furnishing prohibited items to a prison inmate and possessing tools for a crime.  He appealed, claiming insufficient evidence and ineffective assistance of counsel. The Court of Appeals affirmed the convictions, finding enough evidence to support them and rejecting the ineffective assistance claim.

 

Edge v. The State (A24A1628)  Edge was convicted of sexual battery and sexual contact with a minor. He appealed. The Court of Appeals remanded the case back to the trial court because key evidence (DVDs of interviews and bus footage) was missing from the record, making it impossible to review the appeal properly.

 

Flores-Avila v. The State (A24A1811) Flores-Avila was convicted of aggravated sexual battery and child molestation. The Court of Appeals reversed the conviction because the victim’s mother improperly testified that the victim “doesn’t lie,” and Flores-Avila’s lawyer didn’t object. The Court found this to be ineffective assistance of counsel that prejudiced the case. The Court noted that Flores-Avila could be retried.  This is a good case to have available as witness bolstering is common in trials and the law says it should not happen.

 

 

 

 

 

 

 

 

 

 

 

Forrest v. The State (A24A1802) Forrest pled guilty to arson and was sentenced to prison.  He appealed because the trial court didn’t give him credit for time served in jail in another county before his plea. The Court of Appeals agreed with Forrest, vacated the sentence related to credit for time served, and sent the case back to the trial court to fix the error. This is a good case to have on hand should a trial court not give you credit for time spent in jail in other jurisdictions including out of state and different counties.

 

 

 

 

 

 

 

 

 

 

 

 

 

Harris v. The State (A24A1312) Harris was convicted of aggravated assault-family violence.  He appealed, arguing errors regarding admission of evidence of prior acts and ineffective assistance of counsel. The Court of Appeals affirmed the conviction, finding the evidence was properly admitted and that Harris didn’t prove his counsel was ineffective.

Prostitution, Pimping and Pandering in Fulton County

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Prostitution is when a person performs or offers or consents to perform a sexual act for money or other items of value. O.C.G.A. §16-6-9.

The statute is not about sexual activity per se but is solely concerned with commercial transactions involving sexual activity. The harm is done to society and not to the individual. Therefore, the State is not required to name the person solicited for prostitution.

Both males and females are prohibited from selling sexual acts. Prostitution is only concerned with the seller. The buyer’s activities are not prostitution.

Prostitution is a misdemeanor and is punished up to 1 year imprisonment. In addition, a person may be fined up to $ 2,500 for prostitution if the offense was committed within 1,000 feet of any school building, school grounds, public place of worship, or playground or recreation center which is primarily used of people under the age of 17.

Pimping is when a person performs any of the following acts:

  1. Offers or agrees to procure a prostitute for another;
  2. Offers or agrees to arrange a meeting of persons for the purposes of prostitution
  3. Directs or transports another person to a place when he or she knows or should know that the direction or transportation is for the purpose of prostitution;
  4. Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or
  5. Aids or abets, counsels, or commands another in the commission of prostitution or aids of assists in prostitutions where the proceeds or profits derived therefrom are to be divided on a pro rata basis.

An indictment for pimping does not need to name the prostitute or the person solicited because the focus is on the harm done to society.

Pimping in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pimping involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

Pandering in Fulton County is when a person solicits another person to perform an act of prostitution in his or her own behalf of on behalf of a third person or when he or she knowingly assembles persons at a fixed place for the purpose of being solicited by others to perform an act of prostitution.

Pandering in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pandering involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

The Fulton County clerk of court must cause to be published a notice of conviction for that person in the legal organ of the county in which the person resides or, if a nonresident, in the legal organ of the county in which the person was convicted of pandering.

It is imperative that you do not talk to the police if you are accused of prostitution, pimping or pandering in Fulton County. Only speak to a qualified attorney so that you can properly defend yourself.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

What Can I Expect if I Have a Case Pending in Gwinnett County State Court?

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When a prospective client calls our office, they are usually understandably overwhelmed by the judicial system. The judicial system is complicated, and it is often taken for granted that many individuals do not have any experience navigating the complex system. In this article, I will break down each step in the process when you are facing criminal charges in Gwinnett State Court.

Arrest

A criminal case begins when you are arrested. Sometimes this is immediately after allegedly committing a crime and sometime this is after a law enforcement agency does some investigating and decides that an arrest is appropriate. At this point, you will be booked into the Gwinnett County Jail.

First Appearance and Bond Hearing

This is the first time you will go before a judge. In Gwinnett County, misdemeanor first appearance hearings occur every day. Defendants appear from the jail and the magistrate judge and private lawyers appear remotely. You are legally entitled to a bond for misdemeanors. The judge will consider, among other factors, your criminal history and your ties to the community when determining the amount of your bond.

Preliminary Hearing

In Gwinnett County, you will not receive a preliminary hearing if you bond out. If you do not bond out, you are entitled to this hearing in which the judge decides if there is enough evidence to support the charges. If the judge decides there is not enough evidence to support the charges, your charges will be dismissed. Remember that you won’t have this hearing if you bond out.

Transfer of Incident Report and Evidence and Investigation

Next, the arresting agency sends the incident report and any evidence to the office that will be responsible for prosecuting your case. For misdemeanors in Gwinnett County, this is the Solicitor General’s Office. The Solicitor General’s Office will then investigate your case and prepare the paperwork needed to formally accuse your case.

 

 

 

 

Charging of Your Case

For misdemeanors, the charging document is called an accusation. The accusation details what crimes you have been charged with and provides details about how each crime was allegedly committed. Once this accusation is drafted, your case will be assigned to a Gwinnett County State Court judge and will be assigned a unique case number that will track the case.

Arraignment

In Gwinnett County State Court, an arraignment is your first court appearance after your case is officially accused. Three things happen at arraignment: you receive a copy of the charges, you enter a plea of not guilty, and you request a jury trial. We can often waive this hearing and enter a plea of not guilty on your behalf so that you will not have to attend this court date.

Filing Motions

After your arraignment, we will file written motions in your case. We will file preliminary motions which include asking the State for a copy of the evidence in your case. After reviewing the evidence, we will file any additional necessary motions. These might include motions to suppress any evidence that we believe was obtained in a way that violated your constitutional rights.

Motions Date

After filing our written motions, your case will be placed on a motions calendar to allow us to argue the motion in front of your assigned judge. Sometimes a judge will issue a ruling right away and sometimes a judge will issue a written ruling in a few weeks. This motions hearing may include testimony from the officer that arrested you or may simply be legal argument.

Trial

If we do not receive an offer to resolve your case that is favorable, we will place your case on a trial calendar. This is our signal to the State that we want to take your case to trial in front of a jury of six of your peers. Depending on your charges and the amount of evidence involved in your case, trial could be as short as one day or could last multiple days.

 

This is an overwhelming process and is not designed to be navigated easily on your own. We would be honored to represent you through every step of the process. If you are facing any type of misdemeanor charge in the State Court of Gwinnett County, call our office today at 404-581-0999 for a free consultation.