Georgia Criminal Law – Party to a Crime

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This blog serves to explore this fundamental question: Who can be charged with a criminal offense?

The Offense

O.C.G.A. § 16-2-20(a) provides, every person “concerned in the commission of a crime” is a party thereto and may be charged with and convicted of commission of the crime.

What does it mean to be “concerned in the commission of a crime”?

O.C.G.A. § 16-2-20(b) states a person is concerned in the commission of a crime only if he:

(1) Directly commits the crime;

(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;

(3) Intentionally aids or abets in the commission of the crime; or

(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

Therefore, under Georgia law, a person may be convicted of a crime even if he or she does not directly commit the crime, but is instead a party to the crime. Demps v. State, 337 Ga.App. 657 (2016). To be convicted as a party to a crime, there must be proof, beyond a reasonable doubt, that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. Lonon v. State, 348 Ga.App. 527 (2019).

Importantly, all of the participants in a plan to commit a crime are criminally responsible for the acts of each other, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan. Cisneros v. State, 299 Ga. 841, (2016). For example, if Bob, Joe, and Rob all agree to rob a bank, and during the robbery Rob spontaneously kills a bank teller, both Bob and Joe could be convicted of murder because they are a party to the crime.

Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime. Harper v. State, 298 Ga. 158 (2015). Other examples include:

  • Serving as the getaway driver in an armed robbery.
  • Turning off the alarm system of a store in where you work, knowing that it will be robbed later that day.
  • Providing a firearm to someone who you know is planning to commit a crime.
  • Directing a vehicle to a location where you know an armed carjacker is waiting.

But, mere presence at the scene of a crime and mere approval of the criminal act are not sufficient evidence to establish that the defendant was a party to the crime.  Garcia v. State, 290 Ga.App. 164 (2008).

Contact Us

If you or someone you know is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

Armed Robbery in DeKalb County, Georgia

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            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in DeKalb County.

            The first thing that happens after someone is arrested for Armed Robbery in DeKalb County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant. The First Appearance occurs at the DeKalb County Jail at 4424 Memorial Drive in Decatur. At the First Appearance hearing, a DeKalb County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in DeKalb County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the DeKalb County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the DeKalb County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in DeKalb County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in DeKalb County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in DeKalb County and throughout the State. 404-581-0999

Armed Robbery in Atlanta/Fulton County, Georgia

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By: Mary Agramonte

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in Fulton County.

            The first thing that happens after someone is arrested for Armed Robbery in Fulton County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant., and it occurs at the Fulton County Jail at 901 Rice Street in Atlanta. At the First Appearance hearing, a Fulton County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in Fulton County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the Fulton County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed on. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the Fulton County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in Fulton County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in Fulton County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in Fulton County and throughout the State. 404-581-0999

Georgia Criminal Law Blog – Top 5 Mistakes People Make in Municipal Court

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Regardless of the severity, answering to criminal charges in court can be a intimidating. Imagine yourself in the courtroom. The judge calls your name, reads your charge(s) aloud to the entire room, and asks you how you plead. “Guilty, not guilty, or nolo?” the judge says. You might think to yourself, ‘I have no idea; are those my only options? What should I do?’

Far too often, I see people make snap judgements on their case without any idea of the true nature or consequences or their decision to the above question. This blog article will discuss the top five mistakes people make in the courtroom regarding their case and hopefully provide some insight on how to appropriately and intelligently handle your case.

Mistake #1 – Not Showing Up for Court

This may seem obvious to many, but you would be surprised at the number of individuals who fail to appear at their court date. While some people may think not appearing for their ticket in municipal court is no big deal, a “failure to appear” has serious consequences. First, in most jurisdictions, failing to appear at your court date will cause a “bench warrant” to be issued for the person’s arrest. This means you will be arrested, brought to jail, and kept there until the bench warrant is recalled or you resolve your case. Another consequence of failing to appear to court is a “bond forfeiture.” A bond is money or property used as collateral to guarantee your presence in court. If you don’t show up, your bond money is gone.

Mistake #2 – Blindly Pleading Guilty or Nolo Contendere

Mistakes happen, and sometimes pleading guilty or nolo contendere is the best way to resolve a case. But, all too frequently, I see people pleading guilty or nolo without really understanding the nature of the offense, the terms of their sentence, or the collateral consequences of entering a plea; all in order to just get the case over with.

Consider the following situation. A 20 year old person is charged with unlawfully passing a school bus. If convicted of this misdemeanor offense, punishment can include up to 12 months in jail or probation, $1000 in fines, community service, defensive driving school, and any other condition a sentencing judge finds necessary. This is also a six point offense on your license. The 20 year old enters a nolo plea on the first court date to get it over with.

What the 20 year old doesn’t know is that for a person under 21 years of age, there will be an automatic 6-month license suspension. Furthermore, a nolo plea (available once every five years) is useless in this situation as it will not prevent the offense from being reported to DDS.

Mistake #3 – Not Having a “Pre-Trial Conference”

Not having a “pre-trial conference” is one of the biggest and most common mistakes people make while in municipal court. By telling the judge you want a “pre-trial conference” you are signaling to the judge that you want to have a conversation with the prosecutor to negotiate the case in order to reach a resolution. You should always have a pre-trial conference.

Here is how to conduct a pre-trial conference:

  • Politely introduce yourself
  • Politely ask the prosecutor what their recommendation / offer is
  • If the offer is acceptable, thank the prosecutor for their discretion
  • If the offer is unacceptable, see if you can get a better offer
    • Without admitting guilt, try to get certain charges or conditions reduced or dismissed
    • Without admitting guilt, explain the situation or reason for the violation or present mitigating evidence if you feel you are losing the negotiation

It is important to understand: anything you say to the prosecutor about your case can be used against you later on.

Mistake #4 – Not Requesting a Jury Trial

Let’s use another example. A 30 year old male is wrongly arrested for DUI – Less Safe. After appearing in court and having a pretrial conference, the prosecutor will not dismiss or reduce the case. The judge then asks the man, “guilty or not guilty?” The man pleads “not guilty.” The judge then asks whether the man wants a bench trial or jury trial. What should the man do?

The answer is jury trial. A bench trial will be held in the municipal court where the judge, not a jury, will decide guilty or not guilty. A jury trial will remove the case from municipal court, and “bind the case over” to the State court in the county where the municipal court sits. A jury trial is preferred over a bench trial because: (1) the state needs to prove the case to six people rather than one; (2) there are opportunities to suppress evidence and otherwise litigate the case in State court where there may not be in municipal court; (3) jurors can better relate to DUI offenses than most judges; (4) the State court prosecutors may not “accuse” the case or may be willing to dismiss or reduce; and (5) the delay created by the bind over may benefit the case (witness memory or unavailability).

Mistake #5 – Not Having a Lawyer

All four of the above mistakes can be avoided if the person accused obtains legal counsel. An experienced lawyer will ensure you appear to court when necessary, can effectively negotiate the case, will properly advise clients of all of their options and consequences in accepting or rejecting a plea, understand the strategical considerations of when to bind over a case, and can provide peace of mind to the arrested individual. The United States  and State of Georgia Constitution guarantee a person facing criminal charges the right to counsel, private or public. While certainly some cases can be effectively handled without an attorney, there is an enormous benefit in being represented for a criminal case, no matter how big or small.

Contact Us

If you or someone you know is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

Yes, Criminal Cases are Still Moving Forward in Georgia during COVID-19

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You may have received a traffic citation, or a citation for misdemeanor possession of marijuana or theft by shoplifting. The officer may have released you on citation instead of taking you to a local detention facility for arrest. This doesn’t mean your case should be ignored, or is not a big deal, now. Cases are being heard in most municipal courts in the State. In fact, many municipalities and counties may ask you to come in and provide fingerprints at a later date when conditions are more safe.

In the past week, our firm has been present for shoplifting, DUI, and marijuana cases in Roswell, Marietta, Acworth, Kennesaw, Douglasville, Sandy Springs, Jonesboro, Forest Park, and many other municipal courts across the state.

Having an attorney represent you at this time can prevent you from having to appear and potentially risk your health. An attorney can also work with the prosecutor to try and get you the best possible outcomes during this time, working on lowering fines, reducing community service, and preventing other activities that may put you at risk for coronavirus exposure.

Our office is available right now to discuss your case with you. Call us at 404-581-0999 for a free consultation. We understand you may be feeling nervous or scared during these uncertain times, and we are here to help.  

Recidivist Statute and Three Strikes Rule in Georgia Criminal Law

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A felony conviction has serious consequences. Punishment for a felony offense typically includes prison time, probation, fines, loss of constitutional rights and privileges, and a lifelong blemish on the person’s criminal record. Not only does a felony conviction impact the person’s ability to obtain employment and housing, but, under O.C.G.A. § 17-10-7, a prior felony conviction can be used to enhance a sentence on a new felony conviction. This article serves to explore the “Repeat Offenders” statute dealing with recidivist sentencing and Georgia’s ‘three strikes’ rule.  

O.C.G.A. § 17-10-7 (a) – Recidivist Provision

If someone has one prior felony conviction and they are convicted of a felony a second time, the judge must to sentence the offender to the maximum term of imprisonment as set out in the statute they’ve been convicted of. However, the judge does have the discretion to probate or suspend that maximum sentence. Furthermore, in order to obtain a recidivist sentence under 17-10-7, the State must give the defendant clear notice before trial of its intention to seek such a sentence; the State must also prove that the prior conviction was for a crime which, if committed within Georgia, would be a felony.  Wheeler v. State, 270 Ga.App. 363 (2004).

O.C.G.A. § 17-10-7 (c) – Three Strikes Rule  

Any person who has been convicted of three felonies and commits a felony within Georgia shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided for the sentence. The judge will not be able to reduce the sentence, the offender will not be eligible for parole until the maximum sentence has been served, and early release is unavailable. A person sentenced under the Three Strikes Rule will have to serve every day of the imposed sentence.

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If you or a loved one is facing criminal prosecution, as a recidivist or not, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

How is Marijuana Tested in Georgia in the Age of Legalized Hemp?

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In 2018, President Trump enacted a Farm bill which allowed for farmers to begin manufacturing hemp from the cannabis plant for certain products in the United States. Hemp is indistinguishable from marijuana based on appearance, smell, and traditional police field testing measures. Legal hemp is any part of the cannabis plant that has less than .3% THC by concentration. Therefore, to be able to distinguish whether what your possessing is legal hemp or illegal marijuana, law enforcement must be able to determine whether the substance you possess has more than .3% THC in it.

This is a big change from prior law. Before, police officers could often perform a test on the side of the road which would tell you immediately whether a product was cannabis or not. It didn’t matter what the THC concentration was as all cannabis was illegal. Last year, Georgia Governor Brian Kemp enacted a localized version of the Farm Bill, which legalized the manufacture (with appropriate license) and possession of hemp in Georgia.

In order to be found guilty of a marijuana possession charge in Georgia in 2020 the State must be able to prove that the weed you possessed was not hemp. They must establish by scientific measure that there is over .3% THC by weight in the product you have. This is relatively easy for traditional plant based weed, but if the product you possess has been extracted into a concentrate, infused into an edible, or transformed in a way that no longer looks like green, leafy material that can be smoked, the laws and testing measure get very complicated very quickly.

Hiring an experienced Georgia drug attorney like the lawyers at W Scott Smith Pc is the first step in a successful defense to your criminal case. We are available 24 hours a day, 7 days a week to address your Georgia marijuana charge and any applicable defense. Call us today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Criminal Damage to Property

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There are several laws in Georgia intended to protect property in the interest of human life and safety. This blog article serves to explore the nature of these offenses and discuss the possible punishment if convicted.  

Criminal Damage to Property in the First Degree

O.C.G.A. § 16-7-22 defines the offense as when a person:

(1) Knowingly and without authority interferes with any property in a manner so as to endanger human life; or

(2) Knowingly and without authority and by force or violence interferes with the operation of any system of public communication, public transportation, sewerage, drainage, water supply, gas, power, or other public utility service or with any constituent property thereof.

Criminal damage to property in the first degree is a crime against the State involving the unauthorized interference with property in a manner that endangers human life. The phrase requiring defendant’s interference with the property be done “in a manner so as to endanger human life” means reckless endangerment rather than actual endangerment. As a result, successful prosecution of this offense does not require proof that the person actually injured the owner of the property. Furthermore, the State does not have to prove value or legal title of the property. It is enough the prosecution prove the person had a legal right to possess or occupy the property that was damaged. Some examples of this offense includes: firing gunshots into an apartment, dwelling, or vehicle, setting fire to a building, and throwing a rock at vehicle from overpass. It is important to note that this offense may serve as the basis for felony murder.

Any person convicted of this offense is guilty of a felony and may be imprisoned between 1 and 10 years.

Criminal Damage to Property in the Second Degree

O.C.G.A. § 16-7-23 provides, [a] person commits the offense of criminal damage to property in the second degree when he:

(1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00; or

(2) Recklessly or intentionally, by means of fire or explosive, damages property of another person.

Criminal damage to property in second degree is a general intent crime, which requires only a general intent to do the act, i.e., damaging another person’s property. Under section (1), the value of property is required to be proven and the value has to be greater than $500. In assessing value, the focus is on the value of the tangible item itself, not the total expenses of the owner in connection with property damage. Value does not have to be proven, however, if charged under section (2).

A person convicted of criminal damage to property in the second degree is guilty of a felony and may be imprisoned for 1 to 5 years.

Contact Us

If you or a loved one are facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling Criminal Damage to Property cases in multiple jurisdictions across Georgia.

Harassing Communications in Georgia

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by Mary Agramonte        

The State of Georgia has criminalized the offense of making harassing communications to another. There are several different acts that fall under this statute, codified at O.C.G.A. § 16-11-39.1. From phone contact to text messages to a multitude of other social media apps, it is unlawful to make harassing communications to another person. But what is considered harassing? And how much communication is too much before it becomes a criminal matter?

Under Georgia law, it is illegal to contact another person repeatedly via phone, e-mail, text message, or any other form of electronic communication for the purpose of harassing, threatening, or intimidating a person or family of such. This means that the State has to prove, beyond a reasonable doubt, that the purpose of the communication was to harass, threaten, or intimidate. This also means that more than one call or text has to occur under this subsection of the statute. In many cases, both lack of intent and lack of repetition is where the defense of the case will lie.

            On the other hand, you can also be arrested and charged for making Harassing Communication if in that call or text, you threaten bodily harm. This means you can also be charged under this statute if you made only one phone call, or sent one text, or one email if that one message was a threat of harm. Threatening communication or threatening harm to another is not typically protected by the First Amendment, and thus is not protected by our right to free speech. At times, however, the State gets this wrong and the communication is protected if there was no threat of harm.

            Harassing communications is a misdemeanor offense in Georgia, which means the maximum punishment is 12 months in jail and a $1,000 fine for each offense. The offense will be prosecuted in the county where either the person made the phone call or sent the text, or where the phone call or text was received.

            The offense of harassing communications does not merge with other offenses, which affects sentencing in criminal cases. For example, you can commit both a Terroristic Threat and a Harassing Communication simultaneously, but be charged and sentenced for both crimes, which can increase the overall sentence. You can learn more about Terroristic Threats here: https://www.peachstatelawyer.com/terroristic-threats-georgia/.

            There are several options and defenses in Harassing Communications cases in Georgia. Many counties in metro Atlanta and throughout Georgia offer Diversion programs for this charge. This means that in some situations, the criminal case can be dismissed after successfully completing a program that may involve classes and community service. In all criminal cases, jury and bench trials can be a great option to accomplish the goals of someone who has been wrongfully accused. If you or a loved one has been charged with Harassing Communications or Terroristic Threats in Georgia, call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Auto Theft Offenses

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Georgia has several laws dealing with the theft of motor vehicles. This article serves to explain the nature of the offenses, possible punishment if convicted, and defenses to such charges.

Carjacking

Under O.C.G.A. § 16-5-44.1, a person commits the offense of vehicle hijacking when they take a car from another person by force and violence or intimidation, while in the possession of a firearm or weapon.

A person convicted of motor vehicle hijacking faces a 10 to 20 years imprisonment, and a fine ranging from $10,000 to $100,000. For a second conviction for carjacking, the new conviction results in a life in prison sentence plus a fine ranging from $100,000 to $500,000. It is not necessary that the defendant committed the prior carjacking in Georgia in order to receive a life sentence.

Motor Vehicle Theft

Unlike the above carjacking statute, there is no specific offense related to the nonviolent theft of an automobile. Rather, an individual who commits a nonviolent auto theft may be charged with “theft by taking” which O.C.G.A. 16-8-2, which makes it a crime for a person to “unlawfully take or, being in lawful possession thereof, unlawfully appropriate any property of another with the intention of depriving the owner of the property, regardless of the manner in which the property is taken or appropriated.”

As we can see, a person may be charged with theft by taking regardless of whether they took the property with or without permission of the owner, so long as the person takes the property with the intent to deprive the owner of the property. A common example of the former is when a person takes a vehicle with the permission of the owner, but then fails to return the vehicle to the owner.

This situation is also similar to the offense of “theft by conversion” which occurs when, being in legal possession of another’s property pursuant to an agreement (such as a lease or other rental agreement), converts the property to the person’s own use, in violation of the agreement. This is not a breach of contract issue but rather the punishment of depriving the owner of their property.

Punishment for Motor Vehicle Theft

O.C.G.A. § 16-8-12 provides sentencing guidelines for a defendant convicted of nonviolent motor vehicle theft, regardless of whether the defendant has been convicted of theft by taking or theft by conversion. The law creates different levels of punishment based upon the type of vehicle stolen.

Vehicles Used in Commercial Transportation of Cargo

O.C.G.A. § 16-8-12 (a)(8) provides, a person convicted of stealing a vehicle engaged in commercial transportation of cargo faces a minimum of 3 years imprisonment and a maximum of 10 years in addition to a fine of $5,000 to $50,000. A sentencing judge has the authority to place the defendant on probation or suspend the sentence in lieu of prison time. Furthermore, if the defendant has a commercial driver’s license (CDL), a conviction for commercial vehicle theft will cause a loss of their CDL.

Non-commercial Vehicles

If the vehicle at issue was not engaged in commercial transportation of cargo, the offense is punished based on the value of the vehicle. Pursuant to O.C.G.A. § 16-8-12 (a)(1), if the vehicle is valued at:

$1,500.01 to $5,000: 1-5 years in prison

$5,000 to $25,000: 1-10 years in prison, and

$25,000 or more: 2-20 years in prison

Interestingly, a sentencing judge has the ability to punish the offense as a misdemeanor, regardless of the value of the property. The maximum penalty for a misdemeanor conviction is one (1) year in jail and $1,000 fine, or both.  

Joy Riding

Georgia law prohibits joy riding under the criminal trespass statute rather then a specialized joy riding statute. Joyriding is commonly defined as the taking or driving someone else’s vehicle without their permission. Examples can include children taking their parent’s car or valets or mechanics driving the owners car without their permission. The key difference between joyriding and theft is the degree of intent. Joyriding does not require proof the person intended to deprive the owner of the vehicle permanently. Under O.C.G.A. § 16-7-21, a person commits criminal trespass by entering another person’s vehicle for an unlawful purpose or enters the vehicle of another after having been previously forbidden from doing so by the owner. Typically, joyriding is punished as a misdemeanor. It may, however, be punished as a felony if the defendant fails to return the vehicle after a significant period of time, the defendant intends to use the vehicle to commit a crime, or if the defendant damages the vehicle while joyriding.

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.