DUI Court in Cobb County

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If you have been charged with a DUI in Cobb County, it is important to be aware of your options. One option you may not have considered if you are facing significant jail time is DUI Court. DUI Court is available to those who are charged with their 2nd DUI in 10 years, 3rd DUI or more in their lifetime, or 1st DUI with a history of Reckless Driving convictions. To be eligible for DUI Court in Cobb County, you must also be facing charges sufficient to support a 24-month sentence. This means that you must have at least two charges, such as “DUI” and “Failure to Maintain Lane” or some other offense. There are several other conditions to be met to enroll in DUI Court:

  • Participants may not have any prior convictions for violent felonies or current felony charges involving the use of force against another;
  • Participants may not have any out-of-state warrants;
  • Participants must have a valid immigration status with no immigration holds; and
  • Participants must be 17 years of age or older.

It is important to note that DUI Court is an option even if you do not reside in Cobb County. Non-residents of DUI Court who are accepted into Cobb’s DUI Court program may be able to transfer to the DUI Court in their county of residence.

Cobb County is an intensive program; it is not for the feint of heart. It requires multiple weekly meetings and court appearances, and can sanction you if you violate the program rules. So, why would you consider DUI Court? There are several reasons why DUI Court might be right for you:

  • DUI Court generally offers less jail time than traditional Court-adjudicated DUIs.
  • Court-ordered fines are typically reduced by those who complete DUI Court.
  • Folks struggling with alcohol and substance abuse can find support, counseling, accountability, and treatment in DUI Court.
  • Cobb County DUI Court can help participants in meeting requirements for license reinstatement.

Cobb County DUI Court can make a big difference in the lives of folks who are struggling with alcohol abuse or who are facing a difficult odds in their case. The decision to enter DUI Court is a big one and you shouldn’t have to make it alone. Call our office for a free consultation, and let us know if you are considering DUI Court so that we can help you make an informed decision. 404-581-0999. Written by Attorney Katherine Edmonds.

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 Georgia 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, 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 Magistrate judge the following day at 11am. 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.

Should I Pay My Speeding Ticket?

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It happens. You’re running late for work and you don’t realize you’re pressing down on the gas as the numbers on your speedometer tick up. Blue lights come out of nowhere, and you’re faced with a speeding ticket. Some luck. While you might be inclined to just pay the ticket and get it over with, take a moment to consider the implications. Paying a speeding ticket has the same effect as entering a guilty plea, so it is important to be mindful of the possible consequences.

If you were speeding 14 miles per hour or fewer over the speed limit, this ticket will not result in any points on your license and will not be reported to the Department of Driver Services. If you were speeding over 14 mph above the speed limit, but less than 19 mph over, your ticket is considered a “super speeder” ticket, and entering a plea to that will result in 2 points on your license, the ticket is reported to DDS, and DDS assesses an additional $200 fine. Speeding 19-23 mph over the speed limit results in 3 points, the ticket is reported to DDS, and you are hit with the $200 fine from DDS. 24-33 mph over is 4 points, along with the other penalties outlined above, and speeding 34 mph or more over the speed limit results in 6 points, the ticket is reported, and you get the additional $200 fine.

Points on your license can have an adverse impact on the cost of your insurance, and getting 15 or more points within a 24 month period can result in a license suspension. If you are under 21, there may be additional penalties to paying speeding tickets. Before you pay that ticket and move on, make sure you understand the risks involved in doing so. We can help you negotiate reductions with the solicitor to help you get the best possible outcome when you are stuck with a speeding ticket.

If you have been charged with speeding, it is important to understand your options. We want to make sure you are educated and empowered throughout the criminal justice process. Give us a call for a free consultation at 404-581-0999. Written by Attorney Katherine A. Edmonds.

Cobb County State Court – Pre Trial Diversion

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If you are arrested for the following offenses, you may be eligible to participate in a diversion program.

The eligible offenses are:

  1. Minor in Possession of Alcohol
  2. Possession of a Fake ID
  3. Possession of Marijuana (VGCSA)
  4. Theft by Shoplifting
  5. Theft by Taking

So if you are arrested on any of these charges, do not walk in to court and plead guilty. You definitely will want to consider the diversion program. If you are accepted and complete the diversion program, then the case will be dismissed and your record will be sealed.

In Cobb County, the prosecutor, otherwise known as the Cobb County Solicitor General, will require you to have an attorney. They will not let anyone enter into the diversion program if they are not represented by an attorney. We will work with you on a payment plan that fits your budget.

There is a $ 350 fee for any person that would like to participate in the diversion program.

There are several requirements that must be completed within 12 weeks once you enter the program. You can complete the requirements earlier than 12 weeks.

  1. Community Service:
    1. For Marijuana possession, theft by shoplifting and theft by taking, you must complete 40 hours of community service.
    2. For possession of a fake ID, you must complete 60 hours of community service.
    3. For minor in possession of alcohol, the community service varies:
      • 40 hours – if you blow below a .08 or are not offered an opportunity to blow into a portable breath device
      • 60 hours – if you possess a fake ID and blow below a .08
      • 80 hours – if you blow between a .08 and .15
      • 120 hours – if you blow above a .15 or refuse.4.

All Cobb County Police Officers are trained to request a breath test if you are caught with an alcohol and are not 21 years of age.

  1. Admissions
    1. For possession of a Fake ID and Minor in Possession of Alcohol, the defendant must admit, in writing, from whom and where they obtained the alcohol and fake ID
  2. Clean Screens
    1. You must pass 3 drug/alcohol screens during the 12 weeks. These drugs screens must be done through the Cobb County Superior Court Drug Lab unless previous permission is granted to do it elsewhere.
    2. These drug screens are for Minor in Possession of Alcohol, Fake ID and Marijuana Possession cases only.
  3. Alcohol and Drug Evaluation
    1. If you are charged with Minor in Possession of Alcohol, Fake ID or Marijuana Possession then you must complete an evaluation from a state certified evaluator. If this evaluation requires treatment, then you must complete the treatment within the allotted time.
  4. Theft Seminar
    1. If charged with theft by shoplifting or theft by taking, you must complete an approved theft seminar.
  5. Essay
    1. If you are under 21 years old, then you must handwrite a 2 page essay about why you should be admitted into the diversion program.
  6. Additional Classes
    1. For Minor in Possession of Alcohol, Possession of a Fake ID and Possession of Marijuana (VGCSA) you must complete one of the following:
      • MADD Victim Impact Panel
      • Teen Drug and Alcohol Impact Program (only if under 25 years old)
      • S.M.A.R.T. Program

So if you are arrested for any of the above, do not panic. Please call us so we can discuss your case, your defenses to your case and see if you are eligible to participate in the diversion program. It is a great way to make sure you do not have a criminal record.

Give us a call 24/7 at 404-581-0999

Can I get a Misdemeanor conviction off my record?

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By: Erin Dohnalek

A misdemeanor conviction can lead to many adverse consequences, including barriers to employment, education, and sometimes even housing. However, in the State of Georgia, there are potentially three avenues available to restrict and seal (expunge) misdemeanors off your criminal record to help avoid these collateral consequences that are associated with misdemeanor convictions. They are as follows:

  1. Retroactive First Offender (O.C.G.A. § 42-8-66)
  2. Restrict and Seal Two Misdemeanor Convictions (O.C.G.A. § 35-3-37)
  3. Vacate, Restrict, & Seal under the Survivors First Act (O.C.G.A. § 17-10-21, 35-3-37)

In this blog, we will focus on the 2021 change in the law here in Georgia that allows two misdemeanor convictions to be restricted and sealed under O.C.G.A. § 35-3-37.

Process of Record Restriction

In Georgia, there are certain charges that cannot be restricted, even under the new law that allows for two misdemeanor convictions to be sealed from a client’s criminal history. These include sex crimes against children, pimping and pandering, crimes against minors, sexual battery, peeping tom crimes, family violence battery (unless the accused is under the age of 21 years old), child molestation, public indecency, hindering persons from making an emergency telephone call, certain theft cases, driving under the influence, and certain serious traffic offenses.

In order to be eligible to restrict misdemeanor convictions under O.C.G.A. § 35-3-37, you must not have any criminal convictions in the four years prior to requesting record restriction. You also must not have any pending charges and must have completed all terms and conditions of your sentence. Furthermore, Georgia only allows expungement for two lifetime misdemeanor convictions.

The first step in restricting and sealing a misdemeanor conviction is to petition the court to expunge your conviction if you meet all the eligibility requirements. It is up to the Judge’s discretion whether the conviction will be sealed. However, an experienced criminal defense attorney will meet with the client, learn their background, and understand why it is important to have their criminal record expunged. They will use this information to persuade the Court to grant their petition. If you are interested in having a misdemeanor conviction expunged, please go to your local police department or sheriff’s office and request your criminal history (GCIC) under the “E” code. This will assist an attorney in giving you the best possible options for record restriction.

Contact Us

Here at the Law Offices of W. Scott Smith, our attorneys are well-versed in all possible avenues for record restriction in the State of Georgia. Therefore, if you or a loved one are interested in expunging a misdemeanor conviction from your criminal history, please call our office at 404-581-0999 for a free consultation.

Why Am I Pleading Guilty If I Am Going Into Diversion?

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When you are preparing to enter a plea, you may feel unsure about what your options are. If you have ever been to Court to pay a traffic ticket, you have likely heard of the three main pleas: guilty, not guilty, or nolo (or nolo contendre). But, depending on the status of your case, you may have another option of which you were not aware. In cases which are diversion-eligible, you may have the option to enter a Stinson plea. A Stinson plea is a guilty plea which is entered by the defendant, but may be withdrawn once certain special conditions are satisfied. This kind of plea came from the Georgia Supreme Court case, The State v. Stinson. In this case, the Court held that Georgia law allows a person to withdraw a guilty plea and plead not guilty “at any time before judgment is pronounced.”

This kind of plea can look very different from one case to another. For example, if you were charged with family violence battery, you may be able to enter your Stinson guilty plea, complete a Family Violence Intervention Program, complete an Anger Management Evaluation and any recommended treatment, and avoid drugs and/or alcohol for a period of time. If you were accused of misdemeanor marijuana possession, you may have to complete a drug and alcohol evaluation and participate in random drug screens. In both cases, Once you completed the terms of your “probation,” you would be able to withdraw your plea and the State will dismiss the charges. Once you complete the conditions and the charges are dismissed, your record will show that you were not prosecuted for the charges.

If you have been charged with a crime, it is important to understand your options. We want to make sure you are educated and empowered throughout the criminal justice process. Give us a call at 404-581-0999. Written by Attorney Katherine A. Edmonds.

DeKalb County Obstruction

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DeKalb County Obstruction Attorney

Obstruction of a law enforcement officer can be either a misdemeanor or a felony depending on the facts of the case. If the case is prosecuted as a misdemeanor in DeKalb County, the Solicitor’s Office will prosecute the case, whereby if it is a felony charge, it will be sent to the District Attorney’s Office. The biggest difference between a misdemeanor obstruction case and the felony obstruction case is the maximum punishment if convicted.

DeKalb Misdemeanor Obstruction

Misdemeanor obstruction is when one knowingly and willingly obstructs or hinders a law enforcement officer in the discharge of his or her lawful duties. This includes police officers, but also probation officers,  jailers, or game wardens.

There are a few ways one can “obstruct” an officer under Georgia law. First, you can prevent an officer from discharging their official duties by running away, arguing, lying, or doing something that makes it more difficult or completely prevents them from doing their job. This would be classified as misdemeanor obstruction in Georgia and is punishable by up to twelve months in jail and/or a fine of up to $1,000. You don’t have to make any physical contact with the officer to be charged with misdemeanor obstruction. Felony obstruction, on the other hand, typically does involve physical contact with an officer, or a threat of violence.

DeKalb Felony Obstruction

Felony Obstruction is more serious under Georgia law.  If you make violent contact with an officer in the process of he or she discharging their legal duties, or you threaten violence on an officer, you may be charged with felony obstruction of justice. Felony obstruction, both in DeKalb and across the State, carries a mandatory one-to-five year sentence for a first offense. It is a mandatory 2 to 10 years on a second offense, and 3 to 15 years on a third.

Both felony and misdemeanor Obstruction cases are taken seriously in the DeKalb County justice system and throughout the State. There are, however, defenses. For example, it is not against the law to obstruct a police officer during an unlawful arrest. Obstruction of justice is a fact-based inquiry under Georgia law. If you have been charged with obstruction, call us today at 404-581-0999 so we can get you into the office for a free consultation.

Rape in Cobb County

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Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Cobb County, for rape, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of rape. The Cobb County District Attorney’s has a division of prosecutors who prosecute sex crimes zealously and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, your case will be put down for a first appearance hearing in Cobb Magistrate Court before Judge Brendan Murphy.  At this hearing, the Cobb County Magistrate Judge will read the warrants to you. You will then be given a bond hearing date and a probable cause hearing date. It is crucial that you move forward with the probable cause hearing. The purpose of the probable cause hearing in Cobb Magistrate Court is to put the lead Detective under oath and lock in his testimony and understand all of the evidence that exists in your case.

O.C.G.A. § 16-6-1 defines rape as follows:

When someone has carnal knowledge of (1) a female forcibly and against her will, or (2) a female who is less than 10 years of age. Carnal knowledge is any penetration of the female sex organ by the male sex organ. Against her ill means without consent. Forcibly means acts of physical force, threats of death or bodily harm, or mental coercion such as intimidation.

The elements that Cobb County District Attorney must prove to convict you are 1) penetration, 2) force, and 3) against her will. Physical injury is not an element.

The Cobb County Superior Court has 11 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Judge Robert Leonard, Judge Mary Staley Clark, Judge Robert Flournoy, Judge LaTain Kell, Judge Gregory Poole, Judge Ann Harris, Judge Kimberly Childs, Judge Kellie Hill, Judge Angela Brown, Judge Jason Marbutt and Judge Henry Thompson.

It is imperative that you do not walk into court on a rape charge in Cobb County Superior Court either without a lawyer or with a lawyer who does not handle sex crimes. Rape cases are very difficult to defend and require someone with the knowledge and experience to defend them.

The punishment for rape is a mandatory 25 years to life in prison. You need to put everything you have into the trial to win. Do not rely on an appeal to be successful. You must win your rape trial to avoid spending the rest of your life in prison.

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. Our office is in downtown Atlanta.

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 to do if arrested for Possession of Drugs or Possession with Intent in Gwinnett County

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If you are arrested for any drug offense in Gwinnett County, do not make any statements to the police. You will be taken to the Gwinnett County Jail at 2900 University Parkway, Lawrenceville, Georgia. You will be on the first appearance calendar the following day. It is important to have an attorney for this court appearance. The courtroom for the first appearance and bond hearing is in the Gwinnett County on the 2nd floor.

At your first appearance hearing, the Gwinnett County Magistrate Court judge will review the facts in the warrant and your criminal history and will decide whether to issue you a bond or not. The Chief Magistrate Judge is Kristina Blum. Either Judge Blum or one of the other Magistrate Judges will preside over your initial hearing. There are a few options regarding bond. The first is they may give you an unsecured judicial release. This allows you to get out of jail without paying any money. The next option is to give you a regular bond where you would have to go through a bonding company to be released. The final option is that they deny your bond. In Gwinnett County, in most drug cases, bond is set at first appearance.

Once you are released from the Gwinnett County jail, please ask any person who was with you that night to write out a statement of what they remember happening the night of the arrest. This could be helpful in preparing for the motions hearing and trial in Gwinnett County Superior Court. It is also important for you to write out a statement of anything you remember regarding the incident. Only give this statement to your attorney.

It is important that you hire an attorney quickly as there are tight deadlines on filing a Motion to Suppress which is a constitutional challenge to the drug evidence. Most drug cases are either won or lost at the Motions hearing. If you wait too long, you will be unable to file a Motion to Suppress.

Being convicted of a felony drug offense in Gwinnett County carries many consequences, including, but not limited to, a felony drug conviction on your record, loss of gun rights, loss of voting rights and has a detrimental impact on your securing a loan from a bank or employment.

You are welcome to call us 24/7 at 404-581-0999 and we will be there with you for your First Appearance hearing at the Gwinnett County jail.

HIT AND RUN

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In Georgia, leaving the scene of an accident will most frequently be classified as a misdemeanor offense, and is defined as a “hit and run.” It can have serious consequences in the laws of our state, including collateral consequences, such as a suspension of the accused person’s driver’s license. According to O.C.G.A. § 40-6-270, the driver of any vehicle involved in an accident, which results in an injury/ death of a person, or damage to another vehicle, has the duty to immediately stop after the accident. A driver also has the duty to return to the scene of the accident if he/she did not immediately stop their vehicle. When the driver has returned to the scene, he/she also has the following duties:

  1. The driver must give their name, address, and registration number of their vehicle;
  2. Upon request, show proof of their driver’s license;
  3. If any person is injured in the accident, the driver has the duty to assist the injured person; and
  4. If any person is unconscious or appears deceased, the driver must call 911.

A hit and run in Georgia usually will be classified as a misdemeanor, however, if the accident is the cause of a person’s death or serious injury, the accused could be charged with a felony offense, which includes a prison sentence of 1-5 years in custody. In all other cases, a hit and run will be classified as a misdemeanor with a penalty of up to 12 months in jail and a $1000 fine.

REDUCED CHARGES

An experienced criminal defense attorney will negotiate with the prosecution to reduce a hit and run to a lesser offense. A hit and run charge will suspend an accused person’s driver’s license for a period of four months. Therefore, it is of vital importance to either be found “not guilty” of hit and run, or to reduce the hit and run to a non-suspendable offense.

The most common alternatives to a hit and run are (1) striking an unattended vehicle, or (2) duty to report. Striking an unattended vehicle, pursuant to O.C.G.A. § 40-6-271, means that a driver collides with an unattended vehicle and did not immediately stop to locate the owner of the vehicle. Duty to report, pursuant to O.C.G.A. § 40-6-273, describes a circumstance where the driver is obligated to report an accident to the local police department when there are injuries to another party.

Both alternative charges are non-suspendable offenses. This means that there will not be a license suspension attached, if convicted. Therefore, because the accused will avoid a license suspension, reduced charges tend to be more favorable, and an experienced criminal defense attorney will attempt to negotiate for that resolution in order to save their client’s license.

Due to the complexity of a hit and run charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for their client, trained at defending such allegations, and zealously advocates for their client’s constitutional rights. At the Law Offices of W. Scott Smith, we do just that. Therefore, if you or a loved one has been cited or arrested for a hit and run, please call our office today at 404-581-0999 for a free consultation.