Domestic Violence: Victims & Dismissal

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Will my domestic violence case get dismissed if the victim does not testify?

Our Fulton and Cobb County offices in the Atlanta area get victims of domestic violence who appear with or for their partners every day asking us if the Defendant’s case will get dismissed if they tell the prosecutor they do not want to move forward with the case. The answer is, it depends.

If there were no other witnesses to the event and neither party makes any statements to the police, then without a victim’s cooperation, there generally is not enough evidence to move forward with your case. But if there are other witnesses, or the incident continues once police arrives, then even without the victim’s testimony, there may be enough evidence to move forward with prosecution. If you make a statement, they can use that statement against you and they will move forward with prosecution.

It’s not the victim’s choice.

It is not the choice of the victim as to whether a prosecutor moves forward with a case. It is the sole discretion of the prosecutor to make the determination of whether they have enough evidence to move forward with trial.

As in all cases, we believe that if you are being investigated for any crime in the state of Georgia, it is best to politely decline to answer any questions, decline to make any statements, and assert your right to an attorney immediately. Our office of attorneys are all well-trained in handling domestic violence cases. We can get you into our office for a free consultation immediately to discuss your options. Call us today at 404-581-0999.

by Ryan Walsh

Theft by Receiving Stolen Firearm

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  Under § OCGA 16-8-7, a person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” If the item in question is less than $1,500, it is a misdemeanor, meaning the maximum punishment that someone can receive is a year in jail and/or a $1,000 fine. If the item reportedly stolen and possessed is worth more than $1,500, then that person will be charged with a felony. The punishment in that situation can be anywhere from 1 to 10 years in prison.

What’s my defense for stolen firearm?

    If you or a loved one has been charged with this offense, know that there are defenses in Georgia law. Possession of stolen property, alone, will not warrant a criminal conviction that will be carried forever. The State must prove knowledge that the item was stolen.  This knowledge, however, can be inferred from the circumstances, specifically if the circumstances would create suspicion it was stolen in the mind of an ordinarily prudent person.

If the item in question is a firearm, the crime will automatically be charged as a felony carrying 1 to 5 years in prison if convicted. The good news is courts have ruled in defendants’ favor in various situations. For example, it is insufficient to prove the person knew the gun was stolen just because it was bought on the street at a reduced price. Additionally, even if the gun is labeled for Law Enforcement use, this too is also insufficient for a criminal conviction for this charge.        

We can help!

     The attorneys of W. Scott Smith have handled numerous Theft by Receiving charges all over the state of Georgia, many of which involved stolen firearms. Because this is a felony charge, it is imperative to have attorneys on your side familiar with the law and defenses.  Call us today with your questions on Theft by Receiving Stolen Firearm. We offer FREE CONSULTATIONS at 404-581-0999.

by Mary Agramonte

Sex Offender GPS Monitoring is Unconstitutional

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O.C.G.A. 42-1-14 required a person who is classified as a Level 3 sexually dangerous predator to wear and pay for a GPS Monitoring device even if no longer on probation or parole. This Statute allowed the State to monitor the person’s movements for the remainder of his or her life.

Joseph Park & Sex Offender GPS Monitoring

In 2003, Joseph Park was convicted of child molestation and sexual exploitation of a minor. Upon his release from custody in 2011, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator under O.C.G.A. 42-1-14(a)(1). This Statute required Park to wear a GPS monitoring system the rest of his life.

Joseph Park challenged this statute on Constitutional grounds. The Georgia Supreme Court concluded that O.C.G.A. 42-1-14 was an unreasonable search and violated the Fourth Amendment to the United States Constitution.

The Court held that the wearing a GPS monitoring device to track the person’s whereabouts 24/7 for the rest of their life, even after the person has served their entire criminal sentence, constituted a significant intrusion upon the privacy of the individual. This would be an unreasonable warrantless search of an individual who is no longer serving their sentence.

The Georgia Legislature is likely already working to draft a new statute to allow for GPS monitoring for life.

Call us today!

If you are arrested for child molestation or any other sex offense in Georgia, it is imperative that you fight the case and win the case at the trial level. If you plead guilty to child molestation or any sex offense and are on the Georgia Sex Offender Registry, you will likely be restricted and monitored by the State even when your criminal sentence is over. It is vital to put the time, effort and money into fighting your child molestation case on the front end.

If you or a loved one are in need of a lawyer who handles child molestation cases and other sex offenses in Georgia, please email me at mike@peachstatelawyer.com or call 404-581-0999 for a free consultation.

Your Case in Municipal Court of Atlanta

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There’s no better firm out there for assistance with your upcoming case in the Municipal Court of Atlanta. Our team of highly trained attorneys has been practicing in the Municipal Court of Atlanta building relationships with the prosecutors and judges for as long as they’ve been at 150 Garnett Street.

What does MCOA handle?

The City Court of Atlanta handles almost every traffic citation occurring inside the city limits of Atlanta along with marijuana, shoplifting, and disorderly conduct charges. They also handle all city ordinance charges which involve business license issues, property issues, and some personal citations like disorderly conduct under the influence. There are eleven active courtrooms in the courthouse and most courtrooms have court twice a day.

A case in the Municipal Court of Atlanta has multiple ways it can be resolved. Unlike other municipal courts where your options are guilty or not guilty, the Municipal Court of Atlanta offers pre-trial diversion on a number of traffic and criminal charges, along with other alternative disposition methods if you qualify.

Did you miss court? There might be a warrant out for your arrest? Hiring an attorney may allow you to lift the warrant without appearing in court and risking potential arrest.

Do I need an attorney?

Skilled attorneys can appear in court on your behalf, speed up the process of resolving your charge(s), and negotiate resolutions that a non-attorney may not be able to obtain. It is important that before you resolve your case in the City of Atlanta you give our office a call to discuss potential outcomes and ways we can assist you. The consolation is free, and we are available 24 hours a day, 7 days a week to help. Call us today at 404-581-0999.

by Ryan Walsh

Robbery v. Theft by Shoplifting

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My last two robbery blogs discussed robbery by force and robbery by sudden snatching. Both contemplate the taking of someone’s property from their person or immediate presence. Moreover, both require that the victim be aware of the theft before it’s completed. The main difference, of course, is one does not require force, aka snatching.

But what about robbery by force or sudden snatching in a retail business?

I once represented someone accused of robbery by force for taking a case of beer from the refrigerator of a gas station without paying for it. The gas station employees attempted to stop my client from taking the beer. They blocked the exit and tried to pry the beer from his hand. With the case of beer tucked under one arm, he used the other to hit and push both employees to the ground. He then walked out of the store with the beer and drove away.

Robbery or Shoplifting?

I recall initially thinking this is shoplifting, not robbery. But I could not have been more wrong. First, let’s think about immediate presence. Like I mentioned in my last blog, immediate presence is not limited to “within arm’s length” or “facing the victim”. There is case law stating property is within the immediate presence of a shop keeper if it’s within the retail space (see Sweet v. State, 304 Ga.App. 474, 697 S.E.2d 246 (2010)).

As I’ve discussed before, the shopkeepers must be aware of the taking before it is complete. In my beer case, the beer was taken from the shopkeeper’s immediate presence (because it was in their retail space) AND they were aware of the taking before it was complete. Finally, my client used force to fend off the shopkeepers and complete the taking of the beer. The elements of robbery by force were all checked off.

A Different Order of Events

Now, let’s pretend the shopkeeper did not realize he was stealing the beer until the very moment he walked out the store exit? Theft by taking or shoplifting? I think a prosecutor in this scenario could make an argument for theft by sudden snatching because the shopkeeper is aware of the theft before it’s complete and property was removed from the shopkeeper’s immediate presence.

If you or someone you know has been charged with robbery contact our office today for a free consultation.

Homicide in Georgia: Blood

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Does it matter in Georgia criminal defense that the victim in a murder case was impaired on drugs or alcohol at the time he was killed?

Yes and no. 

In all homicide cases, pursuant to the Georgia Death Investigation Act, a Georgia medical examiner will perform an autopsy for potential prosecution.  Six of Georgia’s 189 counties have their own medical examiner’s offices including Gwinnett, Cobb, DeKalb and Fulton.  In all other counties in Georgia the individual counties contract with the Georgia Bureau of Investigation to perform their examinations.

What’s the procedure?

In almost all cases the medical examiner will draw central blood, urine and vitreous fluid from the body of the decedent.  However, the medical examiner will not order the bodily fluids to be tested by the forensic toxicology division for impairment.  Further, you must be aware, in a homicide case the GBI will hold the specimens for only 24 months before destroying them.  IN order to preserve and test the samples, the GBI will need a copy of a court order or written authorization from the prosecuting agency to test the samples.

Will this be used in court?

Assuming the results come back as showing impairment in the “victim’s” blood the argument over whether they come in depends on relevance.  Generally, a murder victim’s character is not admissible unless there is some connection as to the reason it is coming in.  Generally speaking, an expert’s testimony as to the effects of the impairing substance will be necessary.

Call us today if you or someone you love has been charged with Murder in the state of Georgia. We would love to meet with you for free. Our number is 404-581-0999.

Robbery by Force

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Our last robbery blog discussed robbery by sudden snatching, and it is slightly different than robbery by force. Sudden snatching is when an offender is alleged to have stolen something from someone’s person or immediate presence without use of force or threat or intimidation. A key element of this crime is that the victim is aware of the theft before it’s complete.

What is Robbery by Force?

Robbery by force is the same except, of course, the offender uses force to steal something from another’s person or immediate presence. Force doesn’t have to be a violent act causing injury, per se. Think about it as any amount of force beyond snatching, usually resulting when the victim attempts to stop the offender from stealing their property and the offender responds with physical force.

What is Immediate Presence?

Let’s talk about “immediate presence”. How far does it extend? In Georgia, immediate presence is not limited to within arm’s length or facing the victim. Georgia case law seems to set the standard that so long as property is within the victim’s sight at the time of the robbery, it’s within their immediate presence. (See Perkins v. State, 256 Ga.App. 449, 568 S.E. 2d (2002) and Short v. State, 276 Ga. App 340, 623 S.E. 2d 195 (2005).

If you or someone you know has been charged with robbery contact our office today for a free consultation.

Marijuana at Atlanta Airport

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We are one of the top criminal defense law firms in Atlanta.  Our firm defends individuals arrested at Hartsfield-Jackson Atlanta International Airport (Atlanta Airport) charged with Trafficking Marijuana, Possession of Marijuana and Possession of Marijuana with intent to distribute. 

Who arrests me at the airport?

The majority of the time someone is arrested in Atlanta after landing the flights are from California to Atlanta, but we have seen flights into Atlanta from all fifty states and other countries.  The law enforcement agencies involved include the Federal Bureau of investigation, the U.S. Drug Enforcement Agency and Atlanta Police Department.  The cases usually do not get referred to Federal Court for prosecution but rather get sent to Clayton County Superior Court. 

What will happen after my arrest?

Once arrested for Marijuana Trafficking in Atlanta’s airport the traveler gets taken to the Clayton County Jail located at 9157 Tara Blvd, Jonesboro, Georgia 30236.  The person traveling with large amounts of marijuana through the airport will have bond initially denied.  It takes our law firm approximately two weeks to get an individual on a calendar for bond.  The bond amount depends on the criminal history and the amount of the marijuana.  We have never had a client with just marijuana, no matter the amount of marijuana, denied bond.  Recently we have been able to get clients’ bonds in the amounts ranging from $45,000 – $60,000 for marijuana trafficking through the airport. 

What should I do if approached?

As a reminder, if you are approached by law enforcement in the Atlanta airport be prepared to follow some simple directions. 

  1. Remain calm and always be polite. Assume you are being recorded. Start your own telephone’s audio recording function.
  2. Prepare to hand the officer your driver’s license and your luggage receipt.
  3. You are never required to answer questions. You should respectfully decline and ask for an attorney.
  4. You should decline a consensual search of your luggage. You never know what someone has put in your luggage.
  5. You are free to leave unless you have been detained or placed under arrest.  You are allowed to politely ask the officer if you can leave the airport.
  6. Call us immediately upon being arrested, no matter the time, night or day. 404-581-0999

Removal from Sex Offender Registry

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Can I get off the Sex Offender Registry in Georgia?

If you are currently on the sex offender registry in Georgia, you can petition a superior court for release pursuant to O.C.G.A. 42-1-19.

You are eligible for removal if you meet one of the following criteria

  1. You have completed all prison, parole, supervised release, and probation for the offense which put you on the Sex Offender Registry AND
    • You are confined to a hospice facility, nursing home, residential care facility or nursing home
    • Are totally and permanently disabled OR
    • Otherwise seriously incapacitated due to illness or injury.
  2. You were sentenced for a crime that subsequently because a misdemeanor offense in Georgia.
  3. You were required to register solely because you were convicted of kidnapping or false imprisonment and the offense did not involve a sexual offense.
  4. You have completed all prison, parole, supervised release, and probation for the offense which put you on the Sex Offender Registry AND
    • Ten years has passed since you completed all prison, parole, supervised release, and probation for the sexual offense OR
    • You are classified as a Level 1 risk assessment classification. If you have not done a risk assessment classification, the court shall order such classification to be completed prior to considering the petition for release.

What does the court considering when considering whether to remove you from the Registry?

The Court can consider:

  1. Any evidence that is presented on your behalf;
  2. Any evidence that is presented by the District Attorney or Sheriff
  3. Any other relevant evidence.

Where do you file your petition for removal from the Sex Offender Registry?

A petition for removal shall be filed in the Superior Court where you were convicted. If you were convicted in another State, then you can file it in the Superior Court where you currently reside.

If your petition is denied, you have to wait 2 years from the date of the final order on your previous petition.

We would be happy to meet with you and discuss whether to file a petition to remove you from the Sex Offender Registry in Georgia. Please call us at 404-581-0999 or email to mike@peachstatelawyer.com

DUI: One Leg Stand Test

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Both the Walk and Turn (W&T) and One Leg Stand (OLS) tests are considered, “divided attention” tests. The officer is determining how well a subject can multitask (mentally focus on multiple tasks or ideas at once). We will see there are two stages: an instruction stage and a performance stage. For the purposes of today’s article, we will just discuss the OLS test.

One Leg Stand (OLS)

Test Conditions

The OLS Test requires a reasonably dry, hard, level, and non slippery surface in relatively safe conditions. Standardizing this test for every type of road condition is unrealistic. Therefore, if road conditions are not ideal, officers are trained to:

  1.  Ask subject to perform the test elsewhere; or
  2.  Only administer HGN

The original research studies of this test suggest that individuals over 65 years of age; people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing this test. In addition, the original studies suggest that individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.

Test Procedures

The test is initiated by the officer giving the following instructions, accompanied by demonstrations:

  1. “Please stand with your feet together and arms down at the sides, like this.” Officer demonstrates placement of feet and arms.
  2. “Do not start to perform the test until I tell you to do so.”
  3. “Do you understand the instructions so far?” Officer trained to receive some affirmative response before continuing.
  4. “When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground.” Officer demonstrates the position.
  5. “Keep both legs straight and your arms at your side.”
  6. “While holding that position, count out loud in the following manner: ‘one thousand one, one thousand two, one thousand three,’ and so on until told to stop.” Officer demonstrates counting while maintaining position.
  7. “Keep your arms at your sides at all times and keep watching your raised foot, do you understand?” Officer trained to ensure subject indicates understanding and answer any of subject’s questions regarding the test.
  8. “Go ahead and perform the test.”

The officer is trained to always time the thirty seconds in which they evaluate the test. The test should be discontinued after 30 seconds. If the subject places his or her foot down, the officer is trained to instruct the subject to pick foot up again and continue counting from where the subject’s foot touched the ground.

Test Interpretation

There are a maximum number of four clues on this test. Officers are trained that if the subject shows two or more clues or fails to complete the test, there is a probability of impairment.

Subject sways while balancing. This clue refers to side to side or back and forth motion while the subject maintains the One Leg Stand position. Swaying means a distinct, noticeable side to side or front to back movement of the elevated foot or of the subject’s body. Slight tremors of the foot or body should not be interpreted as swaying.

Uses arms to balance. This clue is recorded if the subject moves his/her arms 6 or more inches from the side of the body in order to keep balance.

Hopping. This clue is recorded if the subject is able to keep foot off the ground, but resorts to hopping to maintain balance.

Puts foot down. This clue refers to when the subject is unable to maintain the OLS position by placing the raised foot down one or more times during the thirty second count.

It is possible for the officer to observe two clues simultaneously. If a subject is unable to perform the test, the officer is trained to record observed clues and document the reason for not completing the test.  

Call Us Today

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