False Proof of Insurance Documents

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Insurance Need to Knows

Every driver in Georgia is required to have the minimum liability coverage of $25,000 per person and $50,000 per accident before they can drive their vehicle on the road. An insurance policy covers a specific vehicle or set of vehicles and is acquired by paying a premium to a Georgia auto insurer. Insurance in Georgia is proven through a proof of insurance document issued on behalf of the insurer to a policyholder in order to prove the minimum liability coverage. 

False Proof of Insurance

It is a felony in Georgia to manufacture, sell or distribute a false proof of insurance document in Georgia and is punishable by a fine of up to $10,000 and/or two to ten years in custody. Just possessing a false proof of insurance document in Georgia is just a misdemeanor with a fine of up to $1,000 and/or a year in custody. 

What Does the Law Say?

The statute reads that “A proof of insurance document shall be deemed counterfeit or false if the proof of insurance document has been altered, modified, or originally issued in any manner which contains false information concerning the insurer, the owner, the motor vehicle, or the insurance thereon.”

If you’ve been arrested for a proof of insurance violation or any other fraud charge our office of experienced Georgia criminal defense attorneys can help. Call us today at 404-581-0999 for a free consultation. 

Financial Transaction Card Forgery

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In Georgia it is against the law to make a fake financial transaction card in the name of another person or to alter any credit or debit card’s encoded information.

What is Financial Transaction Card Forgery?

A person commits the offense of financial transaction card forgery when:

(1)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely makes or falsely embosses a purported financial transaction card;

(2)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely encodes, duplicates, or alters existing encoded information on a financial transaction card or utters such a financial transaction card; or

(3)  He, not being the cardholder or a person authorized by him, with intent to defraud the issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, signs a financial transaction card.

Examples

Falsely making a financial transaction card in Georgia occurs when someone makes or draws a card that is in someone else’s name but is not their actual card because they did not authorize the making or drawing of the card which was issued by the credit or debit card company.

Falsely embossing a financial transaction card in Georgia occurs when someone adds a name, card number, expiration date or security code to a card that already exists.

Falsely encoding a financial transaction card in Georgia occurs when someone erases or alters, electronically, magnetically, or electromagnetically information on the card that will permit acceptance of that card by an ATM.

If you are found in Georgia with two falsely made, embossed, or encoded financial transaction cards it is evidence under the statute that a crime has been committed.

Sentencing

If you are found guilty of violating this statute, you will be convicted of a felony and sentenced one to three years in custody.

Please call us today for a free consultation regarding financial transaction card forgery in Georgia at 404-581-0999.

Violation of Georgia Gang Act

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Are you or is someone you love facing gang related charges in the State of Georgia?  If so, it’s important to know the law and how you will be prosecuted. A good starting place is simply to read what the State must prove in order to charge you with these crimes.

What is the Law?

To prove you violated the Georgia Street Gang Act the State is required to show four things:

  1. The State must prove the existence of a criminal gang.  Georgia defines “criminal street gang” as “any organization, association, or group of three or more persons that engages in criminal gang activity.” “Criminal gang activity” includes the commission or attempted commission of certain offenses, including any crime“that involves violence, possession of a weapon, or use of a weapon;”
  2. you were, in fact, a member of the“criminal gang;”
  3. you committed a predicate act of“criminal gang activity,” examples of a predicate act include Murder, armed robbery, robbery, aggravated assault, aggravated battery, battery, and simple battery, Georgia law makes it unlawful to participate in criminal gang activity through the commission of any of the following offenses: racketeering,stalking, rape, aggravated sodomy, possessing or distributing dangerous instrumentalities such as knives and guns, posting gang-related graffiti, or committing any criminal offense involving violence or the possession or use of a weapon, among other things;
  4. the commission of the predicate act was intended to further the interests of the “criminal gang.” Simply being a gang member and committing the offense is not enough.

Assuming you are guilty beyond a reasonable doubt of the predicate act, the battle lines are twofold.  One, that you are a member of the gang that engages in criminal activity. Two, that the act was to further the interests of the criminal gang. 

What’s My Defense?

In my experience, the second battle line is where we generally focus the majority of our efforts. Most of the evidence presented by the state that your conduct is furthering the interests of the gang comes from expert testimony – law enforcement mainly regurgitate what they are told from their training and unreliable statements of former arrestees.

 The defense is at a disadvantage to combat the state’s expert.  First, the defense needs to hire their own expert to combat what is said, but defense experts on gang activity are often scarce and expensive. Secondly, it is near impossible to get a current or former gang member to come to court to testify as to what the interest of the gang may be.  I cannot imagine a situation where a current gang member is going to testify in open court as to his experience. 

Call Us Today

This being said, we have a team of attorneys that are fully prepared to handle your case, and have done so Atlanta and surrounding counties. If you find that you are being prosecuted for gang activity, please call our office at 404-581-0999 for your free consultation.

by Scott Smith 

Violation of Weapons Carry Permit

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     Georgia law allows people to possess handguns inside their home, car, or place of business, without a weapons carry license (sometimes known as a“concealed carry permit”). Likewise, you are also lawfully allowed to carry a loaded gun on your body, but it has to be carried in an open and fully exposed way. The issue of carrying a weapon becomes illegal when you want to carry it in a concealed way.

Concealed Carry Permits 

           If you want to carry your loaded gun in your purse, brief case, book bag, or under your clothing, you will need to apply for a weapons carry license. If you are found to be in possession of a firearm in your purse, but you do not have a weapons license, you can be arrested for the offense of Carrying a Weapon without a Valid Weapons Carry license.

           Under O.C.G.A. § 16-11-126, Georgia treats a first offense of this as a misdemeanor charge, meaning the maximum penalty is $1,000 fine and 12 months in jail if convicted. Once convicted, you lose your right to lawfully carry your concealed weapon forever, so it is important to hire a defense team prevent the snowball effect of a conviction under this statute. If you are convicted for a second time for this crime within the past five years, Georgia treats it as a felony. Georgia law requires a prison sentence of two to five years on a second conviction.

Concealed Carry Limitations

           There are several places you cannot bring a concealed weapon despite having a valid weapons carry license. These places include courthouses, jail or prisons, and within 150 feet of polling places when elections are being conducted. Having a gun in these locations can also result in a misdemeanor charge despite having a valid weapons carry permit.  

           Concealed carry permits can be obtained through your local probate court. You must be 21 years or older to apply, and have lawful presence in the United States as well as be a resident in the County you apply.  You may be able to obtain a firearms license if you are between 18 and 21 if you are in active service with the military or have been honorably discharged. The probate court will run a criminal background check, which in some situations could result in you being ineligible for a carry permit.

Many States share reciprocity with Georgia as far as allowing you to carry in Georgia, with your out of state license. Those States are Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia,Wisconsin and Wyoming. Your Georgia firearms license will also be looked as valid in the states mentioned with reciprocity.

           If you have been arrested for Carrying a Weapon without a Valid Weapons Carry License, and have questions about your rights, then call the Law Office of W.Scott Smith. We will provide a free case evaluation.

by Mary Agramonte

Police Roadblocks

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Even the most seasoned motorists may never encounter a police sobriety roadblock or checkpoint during their entire driving history. Nonetheless, you should be armed with information regarding their validity and how to best approach them if you happen to drive towards one.

What is a Roadblock?

            In addition to the above factors,those arrested should urge their attorneys to be aware of local requirements regarding roadblocks, and subpoena all relevant records; although the road block may satisfy federal and state guidelines, it may fail the local arresting agency’s own policies.

            In determining the validity of a police roadblock, our courts analyze the following factors[1]:

  1. The roadblock was implemented pursuant to a checkpoint program that has, when viewed at the programmatic level, an appropriate primary purpose other than general crime control;
  2. The decision to implement the specific roadblock in question was made by a supervisor in advance, and not by an officer in the field;
  3. All vehicles that passed through the roadblock were stopped, rather than random vehicle stops;
  4. The delay to motorists was minimal;
  5. The roadblock was well-identified as a possible police checkpoint;
  6. The screening officers staffing the roadblock possessed sufficient training and experience to qualify them to make an initial determination as to which motorists should be subjected to field sobriety testing; and
  7. Under the totality of the circumstances, the stop of the defendant was reasonable under the Fourth Amendment.

What Should I Do?

            Now that we have seen what constitutes a valid police sobriety roadblock in theory, it is time to put the roadblock scenario into practice. If I see a roadblock coming what do I do? Am I allowed to evade it? The answer is . . . it depends. Drivers who violate a traffic law in order to avoid a police roadblock may be pulled over,arrested for said violation, and may be subject to further investigation by the police. However, drivers are entitled to take legal actions to avoid a roadblock, and police may not stop a driver from doing so, as long as the driver does not commit any traffic violations or other offenses while doing so.

An Example of a Roadblock

            For example, you are driving down a one lane road and you see a valid police roadblock ahead. However, the entrance to your apartment building happens to be 200 feet before the roadblock commences. You execute a legal turn into your apartment complex. A police officer at the roadblock sees you turn into the complex, follows your vehicle,and stops your vehicle. The officer’s hunch that you were avoiding the roadblock because you were intoxicated is, by itself, an insufficient basis to stop your vehicle.[2] As a result, most roadblocks are conducted on remote single lane roads so that an individual would necessarily have to break a traffic law in order to avoid them.

Call Us Today

             If you have 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.

by Casey Cleaver

[1] Brown v. State, 293 Ga. 787 (2013); Williams v. State, 293 Ga. 883 (2013); Baker v. State, 252 Ga. App. 695 (2001); LaFontaine v. State, 269 Ga. 251 (1998); Indianapolis v. Edmond, 531 U.S. 32 (2000).

[2] Jorgensen v. State, 207 Ga. App. 545 (1993).

Theft by Receiving

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Everyone knows you can be arrested, and subsequently prosecuted, for taking something that doesn’t belong to you. But what about receivingsomething that doesn’t belong to you?

What Does This Mean?

Yep, you can be arrested for that, too. Welcome to the world of theft by receiving. Under Georgia law, you can be arrested for “receiving, disposing of, or retaining stolen property”. Sounds straight forward, right? But here’s the catch: the State has to prove that you (the accused) knewor should have known the property was stolen and that you did not intend to give the property back to its rightful owner.

Confusing? Let me explain using two hypothetical scenarios.

iPhone Gift

Your significant other gives you a present for your 3 month anniversary. Inside the wrapped package is the iPhone you’ve dropped not-so-subtle hints about wanting for your anniversary. Although grateful for the gesture, you’re a bit confused about why the iPhone isn’t in Apple factory packaging. Your significant other assures you they took it out of the box so it would fit in the gift box they wrapped for you.

A few weeks later your significant other is taken into custody on multiple theft by taking warrants. Turns out they’ve been involved in an iPhone theft ring the entire time you’ve been dating. The State then executes a theft by receiving warrant for your arrest because you have one of the stolen iPhones.

At trial,the prosecutor seeks to present evidence that you knew or should have known the iPhone was stolen. Pursuant to case law, they point to “circumstance[(s) that]would excite suspicion in the mind of an ordinary person.”[1]They’ll point out to the jury that the iPhone was not in factory packaging when you received it and, after all, how could you not have known your significant other was involved in a theft ring?

What’s My Defense?

As your attorney my primary defense on your behalf would be that you simply did not know the iPhone was stolen.Moreover, the circumstances do not indicate that you should have known the iPhone was stolen. You assumed they purchased the phone with their own money because your significant other is gainfully employed. They also explained away the iPhone not being in factory packaging as a consequence of fitting in the gift box. Most importantly, you have only been dating for three months, so you ultimately did not know them well enough to discover their criminal activity.

Used Car Purchase

After being found not guilty of theft by receiving the iPhone you decide to treat yourself by purchasing a car. You’re on a budget, so you’re looking for a well-maintained used car. After browsing listings on Autotrader, you decide to check one out in person. The car is perfect: low mileage, clean, even has that new car smell. The only weird thing is that the car is missing a VIN. But you found the car on Autotrader and it’s at a dealership, so you conclude it must be legitimate. Besides, you reallywant this car.

Shoving your suspicions aside, you decide to buy the car. Soon after rolling it off the lot you spy a police car in your rear-view mirror. Its blue lights activate within seconds. You pull off to the shoulder, totally confused as to why you’re being stopped.The police officer approaches your rolled-down window and asks if you’re aware the vehicle you’re driving has been reported stolen. You tell him you had no idea, but he takes you in to custody anyway on a theft by receiving warrant.

Telling the jury you didn’t know the car was stolen is not a convincing defense this time around. The jury finds you guilty on the basis you should have known the car was stolen because the car didn’t have a VIN when you purchased it. Here, knowledge of stolen property is inferred by circumstances that “excite suspicion in the mind of an ordinary person”.[2]

Don’t Take It!

Moral of the story: do not buy or keep anything you think could have been stolen because,even if you did not steal it yourself, you could be arrested for merely possessing stolen property.

If you or someone you know has been charged with theft by receiving contact our office today for a free consultation. We can help you fight your charges.

by Sarah Armstrong 

[1] Thomas v. State, 270 Ga.App. 181, 606 S.E.2d 275 (2004).

[2] Id.

DUI- Vehicles

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Can I get a DUI on a bike?

It may be surprising to hear that the answer is yes, and that we have had these before, but it is true. Under Georgia law, you can get a DUI behind the wheel of many vehicles.

What’s the Law?

Georgia law makes it a crime to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive; or the person’s alcohol concentration is 0.08 grams or more.[1]OCGA § 40-6-391 (a).

What constitutes a vehicle?

            A “vehicle” is defined in OCGA §40-1-1 (75) to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” This is a very broad definition as opposed to the more restrictive definition of, “motor vehicle,” found elsewhere in the Georgia statute.

            “Motor Vehicle” is defined as, “every vehicle which is self-propelled other than an electric personal assistive mobility device.” Therefore, both “vehicle” and “motor vehicle” cover the following devices: 

  • Lawn Mowers
  • Golf Carts
  • Motorized Scooters (electric or gas)
  • ATV/ Four Wheeler
  • Tractors

            But, as we saw earlier, the Georgia DUI statute applies to any moving vehicle and does not restrict itself to motor vehicle. As a result, we are left with a very broad definition which coulden compass a wide variety of devices one would not ordinarily associate with the offense of DUI. Take for example the following devices:

  • Bicycles and Rollerblades
  • Hoverboards
  • Skateboards
  • Horse-drawn Carriage
  • Construction Equipment

            In summary, if you decide to have a drink or two, please consider the wide variety of devices that fall under the term, “vehicle,” so as to avoid an arrest for DUI. If you do find yourself arrested for DUI, call our office at 404-581-0999 and let experienced attorneys guide you through this process. 

by Casey Cleaver

[1] See Georgia Statute for full description

Financial Transaction Card Theft

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Financial Transaction Card Theft is the forgery crime we do the second most consults for in our office. It generally involves someone who takes the debit or credit card or the information on the debit/credit card of another with the plan to use that information later for their own benefit or to give or sell that information to another. Financial Transaction Card Theft is defined in O.C.G.A.16-9-31.

What is Financial Card Theft?

Financial Transaction Card Theft in Georgia occurs when:

A person takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder’s consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder;

  • A person receives a financial transaction card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and he retains possession with intent to use it or sell it or to transfer it to a person other than the issuer or the cardholder;
  • A person, not being the issuer,sells a financial transaction card or buys a financial transaction card from aperson other than the issuer; or
  • A person not being the issuer,during any 12 month period receives two or more financial transaction cards inthe names of persons which he has reason to know were taken or retained undercircumstances which constitute a violation of theft by taking or financial cardtransaction theft.

What’s the Punishment? 

Financial Transaction Card Theft in Georgia is a felony punishable by at least one year imprisonment with a maximum punishment of three years imprisonment and a $5,000 fine.

Call us today

If you’ve been charged with financial card transaction theft in Georgia it is important that you contact an attorney immediately to go over potential defenses in your case. Our team of six attorneys is experienced in defending these cases and are available today for a free consultation. Please call us at 404-581-0999 to schedule a consultation today.

by Ryan Walsh 

Georgia Court Dates

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Months ago, you had one of your worst days ever: you were arrested. The time it took to bond out seemed like an eternity. But you’re finally out of jail, and you swear you’ll never be back. Weeks pass, and it all seems like a bad dream. Until one day you check your mail and find a letter from a superior, state or municipal court. The letter is about your arrest. It says you have to be in court on specific days for arraignment, motions, and calendar call. The letter also says if you don’t appear as instructed, you may be issued a bench warrant. But what do these terms mean?

Arraignments

Then and Now

Let’s start with arraignment. Arraignment is a word from British common law adapted into the U.S. Criminal Justice System. Literacy was at an all-time low during the olden days of England. Arraignment was created by their judicial system to tell illiterate defendants their pending charges. Prosecutors would do this by reading defendants’ charges to them in open court, since they couldn’t read the law themselves. Defendants would then be given the opportunity to enter a plea of guilty or not guilty.

Similarly, modern arraignment is the court date at which defendants enter a plea of guilty or not guilty. Should you choose Peachstate Lawyer as your legal representation, we will file the appropriate paperwork to ensure you do not have to be in court for arraignment. That paperwork is called a “waiver” of formal arraignment. The waiver we file enables you to enter a plea of not guilty without having to go in front of a judge. The waiver also preserves your attorney’s right to file motions in your case and receive discovery (i.e. evidence) from the state about your case.

Motions

That brings us to the next most important court date in your case: motions. Depending on the county, you may or may not have to be in court for motions. But rest assured that Peachstate Lawyer will file appropriate motions in your case. Motions are important pre-trial steps to contest the state’s evidence against you. Sometimes motions can get a case thrown out all-together. So, it is very important that you have legal defense, like us, who know which motions to file, and ultimately argue, on your behalf.

Calendar Call

Finally, the last court date referenced in the judicial notice you received is for calendar call. My rule of thumb is to instruct all of my clients to be present at calendar call. Most counties in Georgia issue bench warrants for those who do not appear as instructed. And while that is something our firm can take care of, it is in your best interest to avoid having a bench warrant issued for you. (After all, you swore you’d never go back to jail after bonding out months ago.)

Calendar Call is the date at which your attorney tells the Judge how you plan to resolve your case. Even though you initially entered a plea of not guilty, you may decide to resolve you case by guilty plea if don’t want to have a jury trial & your attorney secured a plea offer that you want to accept. Alternatively, your attorney may also announce ready for trial and your case will be added to the Judge’s next trial calendar.

If you’ve received judicial notice in the mail and do not know what to do next, contact our office today for a free consultation.

by Sarah Armstrong

Probation Revocation in Georgia

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Understanding Probation and Revocation

Most sentences in criminal cases involve a period on probation. Probation, while timely and expensive, allows you to serve your sentence in the outside world and not behind bars. The downside of this is if your probation officer alleges you violated a term of probation, he or she can petition for a probation revocation, which can land you in jail for a period of time, even up to the full amount left on your sentence.

A Word on Probation 

             Probation can come with a myriad of requirements that you must adhere to in order to steer clear from trouble in the courts. For example, the judge may order you to complete classes, fines, or pay restitution while on probation. The judge will also likely require you to stay away from alcohol and drugs.Another important term of probation is that you not commit any new crimes while on probation. 

What happens when probation is revoked?

             If the probation officer believes you have violated a term of your probation, they will draft a petition for probation revocation and issue a warrant for your arrest. A hearing is later held where the person accused will have the opportunity to essentially admit to the allegation for the purpose of the hearing, or to deny what the probation officer is alleging and have a hearing.In a hearing with this much on the line, it is imperative to have an attorney represent your interests.

Am I going back to jail?

             A probation revocation does not necessarily mean you are going back to jail, although it certainly can end that way. An experienced criminal defense attorney can potentially negotiate other options that do not involve jail. An attorney can also have a contested hearing when the allegations within the petition are denied. The standard of proof is lower in probation revocation hearings than in criminal trials. In a trial, the judge or jury has to find beyond a reasonable doubt that you are guilty. In a probation revocation, it is a preponderance of the evidence, which essentially means the judge has to find you ‘more likely than not’ violated your probation in the ways the officer is saying.

Find the right Attorney

             Having an attorney who is familiar with the playing field is key in these cases as it is imperative to be familiar with the judge, prosecutor, and probation officers involved. Having a pending probation revocation can be a frightening experience to go through, because of the time in jail that may be over your head going into it. A failed drug screen can land you in jail for months. Committing a new crime can land you back in jail for years. There is a lot on the line, but not all hope is lost. If you or a loved one is facing a probation revocation in Georgia, give us a call today at 404-581-0999 for a free consultation.

by Mary Agramonte