The Due Process Protections Act under Federal Law

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The “Due Process Protections Act” (“DPPA”) became law in October 2020. It received rare bi-partisan support in both houses of Congress and was signed by Trump. The bipartisan support may be attributed to the fact that the law was inspired by the prosecution of U.S. Senator Ted Stevens. The charges against Sen. Stevens were dismissed, after a jury convicted the Alaskan Senator, when it was revealed that the U.S. Attorney withheld exculpatory materials (commonly referred to as “Brady” – more below). Commenting on the law, current Senator Sullivan of Alaska mentioned the “reckless” prosecution of Senator Stevens. Senator Sullivan stated that the purpose of the DPPA is to “ensure all Americans’ due process rights are protected, and to hold prosecutors accountable when they violate a defendant’s constitutional rights.”

The law requires federal courts at the initiation of every case to remind the government of its constitutional discovery obligations and the possible consequences for ignoring those obligations.

The Fifth and Fourteenth Amendments to the U.S. Constitution grant accused persons due process of law. The government is required to disclose exculpatory and impeachment evidence to ensure the accused’s constitutional guarantee to a fair trial. In Brady v. Maryland, the United States Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Under Brady, prosecutors have a duty to disclose exculpatory information when such information is “material” to guilt or punishment. See also United States v. Bagley, 473 U.S. 667, 682 (1985) (clarifying that evidence is material to a finding of guilt where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”).

Limitations of the DPPA is that it fails to:

  • Set a timetable to reveal materials. For instance, prosecutors may choose not reveal Brady materials prior to plea negotiations. However, they do this at their own risk as they are required to reveal it for sentencing issues which may result in an embarrassing motion to withdraw a plea.
  • Require the prosecution to certify that they have complied with the DPPA.

The DPPA urges prosecutors to never forget that central tenet of Brady: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 87.

In a recent case in which counsel represented a person in the Northern District of Georgia, the court advised the Government:

Pursuant to the Due Process Protections Act, see Fed. R. Crim. P. 5(f), the government is ordered to adhere to the disclosure obligations set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and to provide all materials and information that are arguably favorable to the defendant in compliance with its obligations under Brady; Giglio v. United States, 405 U.S. 150 (1972); and their progeny. Exculpatory material as defined in Brady and Kyles v. Whitley, 514 U.S. 419, 434 (1995), shall be provided sufficiently in advance of trial to allow a defendant to use it effectively, and exculpatory information is not limited to information that would constitute admissible evidence. The failure of the government to comply with its Brady obligations in a timely manner may result in serious consequences, including, but not limited to, the suppression or exclusion of evidence, the dismissal of some or all counts, adverse jury instructions, contempt proceedings, or other remedies that are just under the circumstances.

 

Don’t mess with United States Senators! There have been countless Brady violations, but it was such a violation involving a U.S. Senator that prompted the DPPA.

Aggravated Assault Charges in Georgia

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In Georgia, there are two types of assault offenses that an accused person may be convicted of: simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in one of the above-mentioned manners, the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the incident:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits such an assault against the elderly may be sentenced to at least 3 years, but no more than 20 years in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If such an assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years in prison; AND
  • Lastly, any person who commits such an assault with the intent to rape a child under the age of 14 years old, may be punished by a prison sentence of anywhere between 25-50 years.

CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated assault, please call our office today at 404-581-0999 for a free consultation.

Vehicular Homicide Charges in Georgia

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Vehicular Homicide in Georgia is a tragic crime that carries harsh consequences.  When someone dies as the result of a traffic infraction, the result is a vehicular homicide criminal case.

Vehicular homicide can either be a misdemeanor or a felony. Vehicular Homicide in the 1st degree is when someone who, without malice aforethought, causes the death of an individual while at the same time committing other certain offenses. These offenses, below, coupled with the death of an individual, will upgrade the charge to a felony:

  • Passing a school bus
  • DUI
  • Reckless Driving
  • Fleeing or attempting to elude
  • Hit and Run
  • While license is suspended due to Habitual Violator Status

Misdemeanor Vehicular Homicide, known as Vehicle Homicide in the 2nd degree, is defined by causing the death of another, without an intention to do so, while violating any other traffic offense in Title 40. (See O.C.G.A. § 40-6-393). These traffic violations may include, for example, failure to maintain lane, running a red light, improper turn, or speeding. Any traffic offense (other than the ones in the bullet points above), which causes the death of another, will result in a Vehicular Homicide charge in the 2nd degree.

In both felony and misdemeanor Vehicular Homicide cases, Georgia law requires that the State prove that the driver’s conduct was a substantial factor in the “proximate cause” of the death.  This means that under Georgia law, sometimes the victim’s own negligence will not be relevant. This is where the defense can lie. Vehicular homicide cases involve intensive investigation phases for the Defense.  The defense may need accident reconstruction experts to quickly determine how and why an accident occurred.

What is the sentence if convicted of Vehicular Homicide?

On a felony Vehicular Homicide, the sentence carried 3 to 15 years in prison on this one charge. If, for example, there were also convictions for misdemeanor offenses, like speeding, from the same accident, the Judge could sentence those consecutively making the prison time much longer.

If convicted of a Vehicular Homicide in the 2nd degree, it is a misdemeanor offense, and the maximum penalty is 12 months in jail and/or a base fine of $1,000.

The Georgia Department of Driver Services will also act to suspend your license on a conviction for Vehicular Homicide. If convicted of a misdemeanor homicide by vehicle, Georgia will suspend your license for a minimum period of 120 days. On a misdemeanor, a limited permit may be available. On a felony homicide by vehicle conviction, Georgia will suspend your license for a period of three years.

If you or a loved one has been charged with Vehicular Homicide anywhere in the State of Georgia, call us today for a FREE CONSULTATION at 404-581-0999. The team of attorneys at W. Scott Smith PC are ready to aggressively defend you in your utmost time of need.

 

Fines and Fees after Georgia Criminal Charges

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A person who pleads guilty to a criminal offense or is convicted after a trial will be sentenced to punishment by the judge who handled the proceedings. Judges have broad discretion in imposing sentences. These sentencing decisions are based on sentencing statutes and crime specific statutes, and plea bargains.

In imposing a sentence a judge may order the defendant to pay a fine within a set range of fines allowed by law for each offense the defendant is convicted of.

Unless otherwise stated by law, a sentencing judge can impose a maximum fine of:

  • Misdemeanors: $1,000
  • High and Aggravated Misdemeanors: $5,000
  • Felonies: $100,000

Along with these base fines comes a surcharge imposed by statute, designed to benefit employees in the criminal justice system and victims of crime.

  • Felony Supervision Fee ($50)
  • County Drug Abuse Treatment and Education Fund (50%, no cap – drug and DUI cases only)
  • Jail Construction and Staffing Act (10%, no cap)
  • Peace Office, Prosecutor, Indigent Defense Funding Act (0%, $50 cap)
  • Victim Assistance Fund (5%, no cap)
  • DUI Victims Fund (11%, $26 cap – DUI cases only)
  • Brain and Spinal Injuries (10%, no cap)

In this author’s experience, a defendant can estimate their expected total fines plus surcharges by taking their base fine and increasing it by 50%. For example, a $500 base fine may result in roughly $750 total costs.

Defendants may be permitted to satisfy the payments of fines by completing community service (typically at a rate of $10 per hour) or convert fines and fees to community service. Defendants are not permitted to simply pay off community service.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Drug Trafficking Arrests in Gilmer County Georgia

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Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Gilmer County, Georgia. Why Gilmer County? Gilmer County is a highly populated county adjacent to Fulton that sees a high number of drug trafficking cases on an annual basis. Therefore, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, delivers, or brings into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams[1] of cocaine. If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

[1] With a minimum purity of 10% or more of cocaine as described in Schedule II

High and Aggravated Misdemeanor Criminal Charges in Georgia

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A person who pleads guilty to a criminal offense or is convicted after a trial will be sentenced to punishment by the judge who handled the proceedings. Judges have broad discretion in imposing sentences. These sentencing decisions are based on sentencing statutes and crime specific statutes, and plea bargains.

 

Under O.C.G.A. § 17-10-3(a)(1), misdemeanors are generally punishable up to 12 months in jail and a $1,000 fine or both.

 

But, the law recognizes certain offenses and offenders ought to receive a more serious misdemeanor punishment. These crimes are punishable as “High and Aggravated” misdemeanors.

 

If a person is convicted of a high and aggravated misdemeanor the judge may sentence the person to a maximum of 12 months in jail and up to a $5,000 fine or both. O.C.G.A. § 17-10-4(b).

 

We can see the big difference between the two is the increase in fine amount. But what most people don’t know is that if you are convicted of a high and aggravated misdemeanor are only entitled to 4 days of good time credit per month instead of receiving 2-for-1 credit.

 

For example, a person convicted of criminal trespass who is sentenced to 30 days in jail may be released on good behavior after serving only 15 days. But for a high and aggravated misdemeanor (perhaps a 3rd DUI in ten years), the person would have to serve 26 days of the 30 day sentence before being released on good behavior.

 

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

Probation Violations in Georgia

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In Georgia, a common consequence after a conviction of either a misdemeanor or a felony is a term of probation. A separate proceeding may occur if the accused, after conviction of a crime, violates his/her probationary conditions. This separate proceeding is called a probation revocation.

When an accused is sentenced to probation, he/she is usually required to comply with certain conditions in order to successfully complete probation. If these conditions are not strictly complied with, it may result in his/her probation being revoked. Common probationary terms include, but are not limited to:

  • Regular reporting to a probation officer
  • Maintaining a job while on probation
  • No contact orders
  • Loss of gun rights
  • Drug counseling and treatment
  • Community service hours
  • Restitution to the victim
  • Random alcohol and drug screens
  • No new arrests

In Georgia, there are essentially three ways to violate probation:

  1. Technical Violations: This occurs when the probationer fails to meet a technical condition of his/her probation such as failing to pay restitution to the victim, failing to report to his/her probation officer, or failing to pay fines associated with probation.
  2. Special Condition Violation: This means that the probationer failed to comply with special conditions, which were imposed by the judge on the probationer, such as failing to comply with random drug screens or drug counseling.
  3. Substantive Violations: This occurs when the probationer was arrested for committing another criminal offense while on probation. In Georgia, this is usually the most serious violation of probation and could potentially revoke the probationary term and require the probationer to serve the rest of his/her remaining sentence in jail or prison.

When one of these probation violations occurs, the probation officer may file a petition to revoke the term of probation and notify the probationer of his/her intentions to do so. If this occurs, there will be a hearing called a “probation revocation” hearing to determine whether the probation will be revoked and the consequences of that revocation.

Due to the possibility of jail time if a person’s probation is revoked, it is of vital importance to hire an experienced criminal defense attorney who understands all possible options when dealing with probation violations. Here, at the Law Offices of W. Scott Smith, our attorneys are skilled and knowledgeable about these proceedings and we advocate tirelessly for our clients and their constitutional rights. Therefore, if you have an active probation warrant or are at risk of your probation being revoked, please call our office today at 404-581-0999 for a free consultation.

Driving while License Suspended or Revoked in Georgia

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In Georgia, if a person is driving on a suspended license, he/she may face jail time, probation, as well as monetary fines. If the accused is found guilty of driving while his/her license is suspended, the accused will be charged with a misdemeanor, as long as it is his/her first offense within the last 5 years.

According to O.C.G.A. § 40-5-121, any person who drives a motor vehicle on any public highway of this state without being licensed or while his/her privilege to drive in the State of Georgia is suspended, disqualified, or revoked may be found guilty of the offense of driving while license is suspended. Under Georgia law, there are numerous violations that can lead to a driver’s license being suspended or revoked. Some include, but certainly are not limited to:

  • Conviction of driving under the influence of drugs or alcohol (DUI);
  • After a DUI arrest, failure to consent to a blood, breath, or urine test following the reading of Georgia’s implied consent law;
  • Conviction of driving without insurance;
  • Conviction of vehicular homicide;
  • Failure to pay Georgia’s Super Speeder fine within its required deadline; OR
  • For accumulating 15 traffic points within a 24-month period.

Penalties

As stated above, the offense of driving while license is suspended/ revoked will be characterized as a misdemeanor if it is the driver’s first offense within the previous 5-year period. If the accused is convicted of a misdemeanor, he/she may be sentenced anywhere between 2 days and 12 months in jail and/or a fine of $500-$1,000. However, if the accused has had a prior conviction or two prior convictions, within the last 5 years, for driving while license is suspended, he/she may be charged with a “high and aggravated misdemeanor.” This means that the sentence may involve anywhere between 10 days and 12 months in jail and/or a fine of $1,000-$2,500. Finally, if the accused has had four or more convictions of driving while license is suspended within the last 5 years, the charge will be classified as a felony. A person convicted of a felony may be sentenced to 1-5 years in prison with a fine of $2,500-$5,000.

Upon receiving the accused person’s record of conviction for driving while license is suspended, the Georgia Department of Driver’s Services will impose an additional suspension or disqualification of 6 months. Once the additional 6 months has expired, the driver is eligible to reinstate his/her driver’s license.

Contact Us

Due to the severity of the penalties for driving on a suspended license, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, we are skilled at defending such charges. Therefore, if you or a loved one has been arrested for driving while license is suspended, please call our office today at 404-581-0999 for a free consultation.

Speeding Laws in Georgia

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In Georgia, a speeding citation can result in a number of possible consequences. Not only will there be a monetary fine associated with driving over the maximum speed limit, but also the citation can add points to the driver’s record, which in turn could suspend his/her license, and possibly even increase costs of insurance.

The amount of the fine for speeding depends on multiple factors such as where the violation occurred, the driver’s previous record, and the posted speed limit. However, the maximum fines for a first time speeding violation are as follows:

  • $25 for driving > 5 mph over < 10 mph over the speed limit
  • $100 for driving > 10 mph over < 14 mph over the speed limit
  • $125 for driving > 14 mph over < 19 mph over the speed limit
  • $150 for driving > 19 mph over < 24 mph over the speed limit
  • $500 for driving > 24 mph over < 34 mph over the speed limit

Additionally, according to O.C.G.A. § 40-6-189, drivers in Georgia must pay an additional penalty on top of the fine collected from the speeding citation when drivers have been considered a “Super Speeder” under Georgia law. This fine is an additional $200. In Georgia, a “Super Speeder” is characterized as a driver convicted of speeding in one of the following ways:

  • The driver is convicted of speeding at 75 mph or more on a two-lane road; OR
  • The driver is convicted of speeding at 85 mph or more on any other road or highway in the State of Georgia.

The Georgia Super Speeder penalty must be paid prior to the deadline stated in the statute or the driver’s license will be at risk of suspension.

Point System

In Georgia, one of the consequences of certain speeding citations is that points are added to a driver’s record upon conviction. The Georgia Point System ranges from 2-6 points per offense. A driver with 15 points in a 24-month period will have his/her driver’s license suspended. The following speeding citations have the below-mentioned stated consequences to a driver’s record:

  • 15- 18 mph over the speed limit = 2 points
  • 19-23 mph over the speed limit = 3 points
  • 24-33 mph over the speed limit = 4 points
  • 34 + mph over the speed limit = 6 points

Due to the possibility of having your driver’s license suspended if either you are at risk of accumulating too many points or failure to pay your Georgia Super Speeder penalty, it is of vital importance to a hire an experienced traffic/ criminal defense attorney to advise you of all of your possible options, as well as your constitutional rights. At the Law Offices of W. Scott Smith, we do just that. Therefore, if you have been charged with speeding over the maximum limit, please call our office today at 404-581-0999 for a free consultation.

Aggravated Battery Charges in Georgia

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In Georgia, there are multiple types of battery offenses such as simple battery, battery, family violence battery, and aggravated battery. This blog will solely focus on aggravated battery.

According to O.C.G.A. § 16-5-24, a person commits the offense of aggravated battery when he/she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by seriously disfiguring his/her body or a member thereof. The crime of aggravated battery does not require that the victim’s disfigurement be permanent, however, the injury must be more severe than a superficial wound. Some examples of aggravated battery include, but are not limited to:

  • Striking a person with a weapon or dangerous object;
  • Inflicting an injury upon a person in which causes them to have blurred vision, broken bones, severe bruising, memory lapse, or permanent nerve damage;
  • Shooting a person with a firearm;
  • Inflicting an injury upon a person in which causes them to suffer temporary or permanent disfigurement;
  • A battery against a particular group of people that are protected such as police officers, healthcare providers, social services workers, the elderly, and the developmentally disabled.

A conviction of aggravated battery requires the jury to find that an accused person acted with intent. Thus, an experienced criminal defense attorney may defend these allegations by arguing that the accused did not have the requisite state of mind to commit an aggravated battery. Another example of an affirmative defense that may be raised in a case like this is self-defense.

Penalties

An aggravated battery charge is a serious offense and is characterized as a felony. A person convicted of this offense can be punished anywhere between 1-20 years in prison. However, the punishment is enhanced when the victim of an aggravated battery is part of a particular class of persons. If the victim is a police officer engaged in his/her official duties then the accused, if convicted, may be sentenced to a prison term of at least 10 years, but no more than 20 years. Furthermore, if the victim is a person over the age of 65 years old, the accused may be punished anywhere between 5-20 years in prison. Additionally, if the victim is a teacher or other school personnel, and the offense occurred within a school safety zone, the penalty upon conviction is at least 5 years, but no more than 20 years in prison. Finally, if the aggravated battery is considered to have been committed against a person who has a familial relationship with the accused, he/she could be sentenced anywhere between 3-20 years in prison.

Due to the severity of the penalties for an aggravated battery charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated battery, please call our office today at 404-581-0999 for a free consultation.