What is Arraignment?

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If you are charged with committing a crime, there are many different hearings that you might have to attend. One of those is an Arraignment. What is an Arraignment? An arraignment is the first court appearance or first court date someone receives after they get out of jail on bond or after they receive a traffic ticket. Some counties don’t give you a court date immediately. Other counties will mail you a court date. Sometimes it can be a while before you have your first court date.

What is the purpose of Arraignment? Arraignment is to notify you what your charges are and give you an opportunity to plead guilty or not guilty. In Georgia, every defendant has the right to an arraignment in a felony and misdemeanor case.

Sometimes the charge you were originally given or arrested for is not the same charge that the prosecutor is going forward on. This means that they can charge you with something more serious or charge you with something less serious.

Arraignment is not the time where you can present evidence or argue your case to the judge.  It is simply the time to enter guilty or not guilty and hear the formal charges the prosecutor is moving forward against you on. In all, not much happens at Arraignment. Ideally, you should have an attorney to represent you at arraignment. A lawyer can appear in court on your behalf and waive arraignment to excuse you from court.

If you or someone you know has been arrested or charged with a crime or is under investigation, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

 

Rape Shield in Georgia

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If you are charged with Rape anywhere in the State of Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for 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 Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

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.

Theft by Shoplifting in Dunwoody Municipal

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In Georgia, a theft by shoplifting charge can be prosecuted in municipal court, state court, or even superior court. The State of Georgia may allege that the accused violated a city municipal ordinance, a state law in which the offense is charged as a misdemeanor, or in more serious cases, a felony. Here, we will discuss when a shoplifting case lands in the Municipal Court of Dunwoody.

According to O.C.G.A. § 16-8-14, theft by shoplifting occurs when a person, working alone or with others, takes merchandise without paying for it and with the intent to either deprive the owner of any part of the value of the item or to appropriate the item for their own use.

When committing the offense of theft by shoplifting, it can occur in many different forms:

  • Concealing the goods;
  • Altering the price tag;
  • Transferring the item from one container to another;
  • Switching the price tag from another item to the item in question; or
  • Wrongfully causing the price to be less than the original price stated.

Value of Goods/ Property

In determining whether the theft by shoplifting charge will be characterized as a misdemeanor or a felony depends on the value of the stolen goods. If an accused has been alleged to have shoplifted property or goods valued at less than $500, this will be characterized as a misdemeanor offense. However, if the accused has prior shoplifting convictions, it may impact his/her sentencing or punishment.

Penalties

In misdemeanor theft by shoplifting cases, a conviction may result in no more than a year in jail and a $1,000 fine. As stated above, past criminal history plays a role in penalties following a conviction for theft by shoplifting.

Due to the severity of the punishment, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. An experienced criminal defense attorney can defend these charges by either getting them dismissed, or reduced to another offense, by negotiating with the Dunwoody Municipal prosecutor, or by bringing forth affirmative defenses to such allegations, either during a bench trial in the municipal court, or during a jury trial in Dekalb County State Court.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by shoplifting, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by shoplifting in Dunwoody, Georgia, please call our office today at 404-581-0999 for a free consultation.

Theft by Shoplifting in Marietta Municipal

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In Georgia, a theft by shoplifting charge can be prosecuted in municipal court, state court, or even superior court. The State of Georgia may allege that the accused violated a city municipal ordinance, a state law in which the offense is charged as a misdemeanor, or in more serious cases, a felony. Here, we will discuss when a shoplifting case lands in the Municipal Court of Marietta.

According to O.C.G.A. § 16-8-14, theft by shoplifting occurs when a person, working alone or with others, takes merchandise without paying for it and with the intent to either deprive the owner of any part of the value of the item or to appropriate the item for their own use.

When committing the offense of theft by shoplifting, it can occur in many different forms:

  • Concealing the goods;
  • Altering the price tag;
  • Transferring the item from one container to another;
  • Switching the price tag from another item to the item in question; or
  • Wrongfully causing the price to be less than the original price stated.

Value of Goods/ Property

In determining whether the theft by shoplifting charge will be characterized as a misdemeanor or a felony depends on the value of the stolen goods. If an accused has been alleged to have shoplifted property or goods valued at less than $500, this will be characterized as a misdemeanor offense. However, if the accused has prior shoplifting convictions, it may impact his/her sentencing or punishment.

Penalties

In misdemeanor theft by shoplifting cases, a conviction may result in no more than a year in jail and a $1,000 fine. As stated above, past criminal history plays a role in penalties following a conviction for theft by shoplifting.

Due to the severity of the punishment, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. An experienced criminal defense attorney can defend these charges by either getting them dismissed, or reduced to another offense, by negotiating with the Marietta Municipal prosecutor, or by bringing forth affirmative defenses to such allegations, either during a bench trial in the municipal court, or during a jury trial in Cobb County State Court.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by shoplifting, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by shoplifting in Marietta, Georgia, please call our office today at 404-581-0999 for a free consultation.

Rape in Butts County

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Rape is a serious crime in Butts  County. O.C.G.A. § 16-6-1 defines rape as follows:

  • A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

If you are charged with rape in Butts County, do not speak to the police. Do not make statements to a Butts County Detective. You will be taken to the Butts County jail. You cannot get a bond at first appearance from a Butts County Magistrate judge. Rape is only bondable by a Butts County Superior Court judge. You will need to apply for this bond hearing. You will go in front of either Judge Fears or Judge Wilson to get a bond.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Butts  County for 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 Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

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

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

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

I was arrested without a warrant, and they did not bring me to court in Clayton County, what do I do?

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If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody. 

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991). 

If you or someone you know has been arrested in Clayton County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Vehicular Homicide

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If you have been charged with vehicular homicide in Georgia and you were under the influence of prescription medication when you were driving you do have a unique defense available to you that many lawyers in Georgia will sometimes overlook.  For starters, Georgia law does not punish you for mistake or an accident.  Meaning, if you are prescribed prescription medicine and drive after you took prescription medication you may be excused in your conduct through excusable ignorance.  There are several factors the jury will consider, but in my experience, you have to meet several criteria to have a more robust defense.  First, you have to be taking the drugs pursuant to a lawful prescription.  Second, you will need to be within therapeutic limits – meaning taking the drug as prescribed.  It doesn’t do good if you are prescribed 5 mg of a drug and you are taking three times the amount.  Third, your doctor or pharmacist told you not to drive after taking the medication.  Similarly, if your prescription bottle displays a warning of ‘do not drive under this prescription’ then you should not drive and your defense of accident or mistake is seriously weakened.  Fourth, it should be a newer prescription.  Why is this important?  It means you are unfamiliar with the reaction your body and/or mind has when taking the prescription medicine.

As mentioned, once you have been charged with Vehicular Homicide in Georgia and you are taking a medication as prescribed and the jury believes you did so through not knowing any better you can be excused from the criminal act.  Yes, nobody likes excuses – especially a jury – but if you truly did not have the intent to become impaired or did not know the effects of consuming a prescription medicine, Georgia law protects you.  It is important to understand the difference between justification and excuse.  Justification means you intended the act and consequences that stem from the act but you were justified.  An example may be self-defense where you shot and killed someone trying to kill you.  Excuse is where it is not justified, but excusable because of what is transpiring in your mind.  A top highly experienced Georgia criminal defense lawyer can explain this to a jury.

Disorderly Conduct in Fulton County, Georgia

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If you have been charged with Disorderly Conduct in Fulton County, you are facing a misdemeanor charge for which the maximum penalty is a year in jail and a fine of $1000. Disorderly conduct should not be taken lightly, as a conviction can have consequences on your employment, immigration status, probation, and future cases.

Georgia law defines disorderly conduct as “acting in a violent or tumultuous manner toward another person whereby he/she is placed in reasonable fear of the safety of his/her life, limb or health, or whereby his/her property is placed of being damaged or destroyed.” It is also defined as “without provocation, using opprobrious or abusive words which by their very utterance tend to incite an immediate breach of the peace (i.e. fighting words – which will naturally tend to provoke violent resentment); or, without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under 14 which threatens an immediate breach of the peace.” OCGA 16-11-39(a).

If you have been charged with committing disorderly conduct in any of those four ways, –acting in a violent manner towards a person or a person’s property, using fighting words, or using obscene language towards a child 14 and under– you need quality legal representation to help resolve your case. Oftentimes, an attorney can help you to find a legal defense in your case. Perhaps the State cannot prove every element charged beyond a reasonable doubt. Perhaps the alleged victim has some serious credibility issues. Whatever it is, an experienced attorney can help to find weaknesses in the State’s case which would benefit you at trial. Sometimes, trial is not a good option for you if you have some criminal history, if the alleged victim is credible or a special class (children, the elderly, pregnant women, etc.) or because the case against you is very strong. In situations like these, a plea deal may be in your best interest. In this case, our attorneys have had success in negotiating reductions with Fulton County prosecutors to less serious crimes like reckless conduct, or can arrange for you to enter into a diversion program which would result in your case being dismissed.

These are strategies which an experienced attorney can utilize to get a good outcome in your case. If you have been charged with disorderly conduct in Fulton County, our firm offers free consultations. Feel free to give us a call to speak with one of our experienced attorneys about your case. 404-581-0999.

Child Molestation in Cobb County

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Cobb County  for child molestation, 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 child molestation. The Cobb County District Attorney’s Office has a unit called the Crimes Against Women and Children Unit and they zealously prosecute these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on a calendar the next day for First Appearance. At this hearing, the Cobb County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Cobb County Magistrate Court on the Marietta Square.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Cobb County Magistrate Court.

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

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

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

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations. Our office is in downtown Atlanta. We also have a second office near the Cobb County courthouse.

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

I was arrested without a warrant, and they did not bring me to court in Cobb County, what do I do?

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If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested in Cobb County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.