I Have a Limited Driving Permit and Received a New Citation. What Should I Do?

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If you are currently driving on a limited permit for any reason and you receive a new traffic ticket, it is very important that you don’t plead guilty or pay the fine for any moving violation without first speaking with a lawyer.

If you are convicted of a new moving violation while you are driving on a limited permit, your limited permit will be revoked, and you will not be eligible to apply to have your full license reinstated for 6 months. This means that you will be completely without a driver’s license. The DDS may also choose to extend the suspension that left you driving on a limited permit to begin with!

So, how can a lawyer help?  First, a lawyer could evaluate your situation and determine if your license could be reinstated prior to handling the new traffic ticket. Second, a lawyer could negotiate with prosecutors to try to reduce your charge to a non-moving violation or even have the new traffic ticket dismissed.

If you are driving on a limited permit and have a new traffic ticket, it is important that you speak with a lawyer prior to pleading guilty or simply paying the fine. Call our office at 404-581-0999 and we would be happy to evaluate your situation and determine the best course of action for you.

Henry County Restitution Order Overturned on Appeal in December 2024

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A criminal defendant pled guilty to one count of stalking and NOLO to one count of aggressive driving and one count of improper passing, as a result of a road rage incident in Henry County. As alleged by the State at the sentencing hearing, the defendant, an acquaintance of the victim, was waiting in the parking lot when she got off work. When she began to drive home, the defendant followed her, until he passed her in a no-passing zone, sped in front of her, and then slammed on brakes causing her to rear-end him. The defendant fled the scene of the accident.

 

After the defendant entered his guilty plea, the State scheduled a restitution hearing. Restitution hearings are required when the victim of a crime claims monetary loss as a direct result of the crime. The goal of restitution is to make the victim whole. This is the amount of money that would likely be awarded to them through a civil lawsuit for the same damage. Restitution, in a criminal matter, is enforceable through the criminal sentence as a condition of probation. A violation of probation, including failing to pay, could result in incarceration. Proof of monetary damages from criminal action must be provided by the State by a preponderance of the evidence. OCGA § 17-14-7 (b). The amount of restitution should never exceed the amount of actual damages.

 

In cases where a vehicle is damaged, there must be evidence of the vehicles fair market value prior to the collision or resulting damage. The estimated or actual repair cost is insufficient. The State is required to show that the repair cost does not exceed the fair market value of the vehicle prior to the damage. In a situation where a vehicle with a $5,000 fair market value is struck and requires $10,000 of repair costs, a criminal defendant would only be responsible for reimbursing the fair market value of $5,000. The maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action.

 

At a restitution hearing, the State must provide evidence of the damage by a preponderance of the evidence. Testimony of the victim alone is rarely sufficient. An expert with knowledge and experience as to the fair market value of the item is required. A victim may not testify as to what anyone else has told them, including the fair market value or estimated or actual repair cost. All of that information would be hearsay, unless calculated by a victim with expertise and experience to do so.

 

In the case in Henry County, the State only called the victim to testify as to the estimate she received for repair costs. The criminal defense attorney did not object to the hearsay, so it was not an issue on review by the Court of Appeals. However, the State failed to provide any evidence of the fair market value of the vehicle prior to the damage. Even without that information, the judge ordered for the defendant to pay the full estimate of the repair costs provided by the victim. On appeal, the Court of Appeals found this to be in error and, in December of 2024, sent the case back to Henry County with instructions that the judge must assess the fair market value of the vehicle prior to the damage, to ensure that the repair costs as ordered do not exceed the value of the vehicle before the damage occurred.

 

The entire opinion can be read with the following citation: A24A1851. TRUSS v. THE STATE.

Your Rights Against Illegal Search and Seizures

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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 Dekalb 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 Fulton County

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Statutory Rape in Fulton County is a serious crime in Georgia.

O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Fulton County can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape in Fulton County, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

If you are arrested in Fulton County for Statutory Rape, you will see a Fulton Magistrate judge the following day. At this initial court date, the Fulton Magistrate Judge will read the warrant to you and may consider bond. If bond is not given at first appearance, you will be reset to a preliminary hearing and bond hearing date in front of another Fulton County Magistrate judge.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Fulton County for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

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.

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.