Be Ready for the Unthinkable – Child Molestation in Georgia

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by Ryan Walsh

Charges of child molestation or the sexual abuse of a child are the most serious cases we face as attorneys in Georgia. They usually begin with a call from someone who says they’ve been contacted by a detective regarding allegations of improper contact with a child and need to know if they should make a statement. We urge anyone who has been contacted by a law enforcement officer to call our office immediately before making any sort of statement. It is okay to tell them I need to contact my attorney. Get the detectives name and telephone number and bring that information to our office immediately.

To understand how to defend charges of child molestation and sexual abuse, you need to understand what child molestation is. Child molestation is define in the Official Code of Georgia Section 16-6-4 and states a person commits the act of child molestation when someone commits an immoral or indecent act to or in the presence of or with any child under the age of sixteen years old with the intent to satisfy the sexual desires of either the child or the person. You can also be charged with child molestation if you send a sexually explicit image to a child under 16 with the intent to arouse or satisfy the sexual desires of either the child or the sender.

The sentencing range for someone convicted of Child Molestation carries a minimum sentence of five years, and can be up to life imprisonment depending on the facts and circumstances surrounding the accusation.

Defending those accused of child molestation is difficult. The allegation often arises from the statement of a child to a person of authority, usually a parent or teacher. That statement then gets communicated to a law enforcement official and their investigation begins. At some point the child should be interviewed by a forensic psychologist, and that interview is often the most significant piece of evidence presented in the case. But just because there is an outcry from a child, doesn’t mean the case cannot be defended. Children can mimic their parents and older siblings and make statements that aren’t always factual for many reasons. They are prone to suggestion and sometimes coercion by family and friends.

It is important for a defense attorney to get involved early in these cases. Relationships have to be examined. Motives must be found. The Law Offices of W Scott Smith specialize in handling child molestation cases and investigations. Call us today at 404-581-0999 to discuss your case. There is no time to wait in protecting your freedom.

Your Fitbit Might End Up Being the Star Witness Against You

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By Mary Agramonte

You have the right to remain silent. Anything you say may be used against you in a court of law. Knowing these two things, a good rule of thumb is to not say anything and to ask for a lawyer.

Even when you don’t talk, your own technology speaks volumes. Your Fitbit knows when you are awake and when you are asleep. Your cell phone sends data of your location any time you log in or send a message. Your Amazon Echo sits and waits to be called Alexa and then listens for a command, which is then recorded and stored along with the time and date. Your Facebook shows where you were when you last posted. Your silence is one thing, but your electronics can tell their own story.

Believe it or not: a murder case in Connecticut was just solved based on the victim’s Fitbit. A husband called 911 and told police a masked intruder had shot his wife. He gave a timeline of the incident of when she got home to when the intruder appeared and killed her. The police got a search warrant for the data on his wife’s Fitbit. The Fitbit showed she was awake and walking at a time the husband stated she had already been killed. It poked holes in his defense and after 18 months while the case was being investigated, the State has charged him with murder.

The Amazon Echo (Alexa) has also made its way into criminal cases. A man in Arkansas allegedly killed his friend after a night of drinking and watching football. Investigators sought to obtain the recordings from Alexa, and served a warrant to Amazon noting there was “reason to believe Amazon.com is in possession of records related to a homicide investigation being conducted by the Bentonville Police Department.” Investigators, not sure what they would find, wondered if the suspect possibly had asked Alexa something like how to clean up a crime scene. Amazon refused, but the defense lawyer filed a motion consenting to the data pull.
We know technology is here in part to make our lives easier. It’s also making it easier for police to solve crimes and see through suspects’ false statements. When your alibi is you couldn’t have committed the crime because you were somewhere else sleeping, the police may later learn from your Fitbit that you weren’t asleep at all.

Technology’s impact in the courtroom will continue to increase. As we become more dependent on technology, law enforcement will also turn to technology in solving crimes. If you have been arrested for a crime in the State of Georgia, hire an experienced criminal defense lawyer that is familiar with the challenges to privacy protections and search warrants as they relate to technology. Call us today for a free consultation at 404-581-0999.

Sources: “Cops use murdered woman’s Fitbit to charge her husband” http://www.cnn.com/2017/04/25/us/fitbit-womans-death-investigation-trnd/index.html
“Suspect OKs Amazon to hand over Echo recordings in murder case” http://www.cnn.com/2017/03/07/tech/amazon-echo-alexa-bentonville-arkansas-murder-case/index.html

Peach State Lawyer Welcomes John Lovell to Our Blogging Team

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I’d like to introduce a new member of our blogging team, John Lovell. John has practiced criminal law for a quarter century as an Assistant DA in New York and Atlanta. He also worked for 6.5 years in the U.S. Attorney’s Office in Atlanta. For over 11 years now he has zealously defended the accused. A recent successful case John handled typifies his work ethic.

The United States Court of Appeals for the 11th Circuit, the top federal court covering Georgia, Florida, and Alabama, awarded John’s client a new appeal to the Georgia Supreme Court. This will almost certainly result in a new trial. In 2009, his client was convicted of murder in Coweta County. However, she did not receive the trial the United States Constitution requires.

John accepted the case after his client had lost a trial and lost on appeal. 99+% of the time, the case is over at that time. However, as John looked closely at the record in the case, it became apparent to him that critical testimony was presented to the jury without his client having access to her attorney. John raised this issue in a habeas proceeding in Georgia. The judge who heard the evidence ordered a new trial. However, the state appealed the decision to the Georgia Supreme Court. The Georgia Supreme Court ruled unanimously that John’s client was not entitled to a new trial and that the conviction would stand.

John and his client did not give up. John was convinced that the unanimous Georgia Supreme Court was unanimously wrong. There was only one avenue available … an “appeal” to federal court using a mechanism called the federal habeas corpus. The federal habeas corpus is a mine field. The rules seem designed to exclude cases from the courts. The slightest mistake results in the case being forever dismissed. John had to flawlessly follow the rules and meet every deadline just to have his client’s case heard.

The battle wore on through federal court going all the way to the Eleventh Circuit Court of Appeals (one court below the U.S. Supreme Court). After reading his brief and hearing John’s arguments, the 11th circuit granted his client a new direct appeal which, based on the law in Georgia, should result in a new trial.

John began representing this client in 2011. It has taken six years to get a favorable result that will stand. John showed persistence on behalf of his client, a trait we pursue at Peachstate Law.

 

City of Atlanta Municipal Court Practices and Procedure

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by Ryan Walsh

We get questions every day about how the Atlanta Municipal Court operates on a day to day basis. The Atlanta Municipal Court is the busiest courthouse in the southeast, and it is easy to get overwhelmed in the process. It is located at 150 Garnett Street, Atlanta, GA 30303 on the corner of Pryor Street and Garnett Street in downtown Atlanta. The courthouse is open from 7am – 5pm Monday through Friday (excluding city holidays).

The most important thing you can do to prepare for court at the Atlanta Municipal Court is to verify your court date and time. You can do this in three ways.

Two of those methods are done through online searches:

  • Go to Find My Court Case at the Atlanta Municipal Court’s website and put in your full name or citation number: http://court.atlantaga.gov/mycase/
  • You can search daily dockets for the current month of cases through the Atlanta Courtview system: http://courtview.atlantaga.gov/courtcalendars/default.aspx?Calendar=D Click on the date of your scheduled appearance and scroll through the court dates until you find your name. It should also tell you the time of your appearance and courtroom you are assigned.
  • Finally, you can call the Atlanta Municipal Court clerk’s office at 404-954-7914.

There are 10 Judges assigned to courtrooms in the Atlanta Municipal Court. Those Judges assigned by courtroom are:

3A – Judge Ward, 3B – Judge Gaines , 5A – Judge Portis, 5B – Judge Butler, 5C – Judge Sloan, 5D – Judge Dupre, 6A – Judge Bey, 6B – Judge Gundy, 6C – Judge Graves, and 6D – Judge Jackson

Judge Ward currently handles clients who have previously failed to appear in court. Judge Sloan only handles clients who are charged with Driving under the Influence (DUI). Judge Portis only handles code violations, which are generally residential, business, and noise ordinances. The other Judges handle a combination of state law offenses (traffic and some misdemeanors) and city ordinances.

Court is held at four times each day. Court times are 8:00am, 10:00am, 1:00pm, and 3:00pm. Depending which Judge you are assigned to will determine the time you need to appear in court each day.

Some charges in the City of Atlanta are eligible for the Pre-Trial Intervention program. Completion of the Pre-Trial Intervention program assures your case will be dismissed and your record will be restricted. Our office of experienced attorneys can guide you through the Pre-Trial Intervention program and determine whether we believe your charges will be eligible.

Clients often come to our office after failing to appear in court. Once you fail to appear in court in the Atlanta Municipal Court, your case is taken off the calendar and a bench warrant is issued for your arrest. If you do not address your failure to appear in twenty-one (21) days, the Atlanta Municipal Court sends information to the Georgia Department of Driver Services to suspend your Georgia driver’s license or your privilege to drive in the State of Georgia. At that point your case must be resolved in order to receive documentation to re-instate your driver’s license.

In order to get a court date after you fail to appear in court, you must show up between 7 and 8am at the City of Atlanta Courthouse. You will go downstairs to courtroom 1B where they will add your case to the failure to appear courtroom that day. That courtroom is courtroom 3A. You will then have the option to resolve your case through a plea, or ask for a trial. No matter what happens, you will receive paperwork that recalls the active bench warrant. After your case is resolved you will receive the paperwork to reinstate your driver’s license with the Department of Driver Services to lift any current suspension due to failing to appear.

The Atlanta Municipal Court is the busiest courthouse in the Southeast, handling more cases daily than any other courthouse. Navigating the court process can be difficult. Our firm handles charges in Atlanta every day. We are here to answer your questions and help you. Call us today at 404-581-0999 for a free consultation.

New Georgia Drivers License Suspension Rules after DUI Arrest

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by Ryan Walsh

On July 1, 2017, the law changed in respect to administrative license suspensions after DUI arrests for drivers with a Georgia driver’s license under Georgia law.

In Georgia, an officer can petition the Department of Driver Services to suspend your driver’s license under the Georgia implied consent statute if the officer places you under arrest for Driving under the Influence (DUI), reads you the Georgia implied consent notice, and you either refuse to submit to the requested sample of your blood, breath, or urine, say nothing, or present a sample that is positive for alcohol at a level over .08, or shows the presence of drugs.

The officer must then issue to you a DS-1205 form stating the reason for the license suspension. This DS-1205 form acts in three ways. It is a notice of license suspension. It is a temporary driving permit. And it also informs you of your right to appeal this suspension of your driver’s license based on the Georgia implied consent law.

As of July 1, 2017, when you are arrested for DUI in Georgia and issued a DS-1205 form, that form now serves as a forty-five (45) day temporary driving permit. You have two options to proceed, and if you do nothing your Georgia driver’s license will be suspended at the end of 45 days.

Your first option is to use the old procedure to request a hearing. You have 30 days (not business days) to request a hearing regarding the suspension of your license by submitting a written request along with a money order for $150.00 to the Department of Driver Services. Requesting a hearing begins a process which is identical to the old method of Administrative License Suspension hearings with the same potential outcomes. We have writtentwo blogs outlining the old procedure which can be read here: http://www.peachstatelawyer.com/ds-1205-where-is-my-license-and-whats-this-piece-of-paper/ and http://www.peachstatelawyer.com/ds-1205-als-this-sheet-of-paper-is-nice-but-i-want-my-license-back-man/

Your second option is to forego asking for a hearing regarding the license suspension. Instead, you can apply for an ignition interlock device limited permit through the Department of Driver Services. To apply for a permit you must go to the Department of Driver Services and do the following things within thirty (30) days of receiving the DS-1205 form: (1) Install and maintain an ignition interlock device with a vendor of your own choosing for the twelve month period of your ignition interlock device limited permit. Once the Ignition Interlock Device is installed you can go to a Georgia DDS location and pay a $25.00 ignition interlock device limited permit fee, surrender your Georgia driver’s license, and execute an affidavit stating you waive your right to a hearing under the Georgia implied consent law to obtain an ignition interlock device limited permit.

Your permit will be revoked if you are convicted of a moving violation under the laws of the State of Georgia, if you have been found to have violated the terms of the limited driving permit, or you have been found to have tampered with the ignition interlock device.

You can only drive on your ignition interlock device permit for the following reasons: (1) to and from work along with performing the normal duties of your job, (2) receiving medical care or obtaining prescriptions, (3) attending school, (4) attending treatment, (5) attending court ordered driver education, (6) attending court, (7) attending community service, (8) taking a family member to work, school, or a medical appointment, (9) court ordered activities, and (10) visiting the ignition interlock provider monthly.

At the time you apply for your Ignition Interlock permit you waive your right to a hearing challenging the administrative license suspension. You must be over 21 and have a Georgia driver’s license to apply for an ignition interlock device permit. You will not be given a permit if you have a DUI conviction on your record with an arrest date within the past five years. Applying for an interlock permit will remove your CDL status if you have a commercial driver’s license.

If you choose to go the Ignition Interlock Device Permit route, you must have the ignition interlock device installed within ten days of receiving the permit. The device must be installed for a minimum of 120 days. You cannot drive any vehicle that does not have an ignition interlock device installed on it. If your case is resolved with a disposition that is not DUI while you have an ignition interlock device permit, you must remain on the permit for the entire twelve months unless you gave an implied consent sample on a DUI alcohol case. Refusal cases must continue on the permit for the entire twelve months, even if their case is dismissed or reduced.

Time spent on an ignition interlock device permit is credited towards any driver’s license suspension for a DUI conviction. You must pay a $100 reinstatement fee at the expiration of your ignition interlock device permit to reinstate your full driving privileges.

These rules are a significant departure from the longstanding procedures regarding Georgia driver’s licenses after DUI arrests. Call us today at 404-581-0999 if you have any questions about your drivers license.

VIDEO – Georgia Fireworks Laws

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by Scott Smith and Ryan Walsh

Beginning on July 1, 2015 it became legal to purchase fireworks in Georgia. What used to be annual trips around the major holidays to the Alabama and South Carolina border has ended and consumer fireworks are now available for purchase in Georgia.

To legally purchase fireworks in Georgia you must be 18 years of age and provide a photo ID at a physical store licensed to sell fireworks. There are no online sales of fireworks in Georgia, so you can’t log in to your Amazon account and order your Fourth of July arsenal.

State law restricts the hours you can set off fireworks. On any day throughout the year, you can light fireworks from 10am until 9pm. Some counties and municipalities may extend these regular hours until 11:59pm depending on local noise ordinances. However, On July 3rd, 4th, December 31st and January 1st, the hours to light fireworks are extended until Midnight or 1am depending on date.

All fireworks must be lit by adults. Fireworks cannot be ignited in a public roadway or within 100 feet of gas stations, airports, jails or prisons.

If you’ve been cited for improper use of fireworks, give us a call at 404-581-0999. Our office of attorneys understands Georgia fireworks law and is ready to defend your citation.

Thank you.

VIDEO – Selling or Purchasing Alcohol for Minors in Georgia

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by Ryan Walsh and Scott Smith

Graduations. Proms. Birthdays. All your teenage milestones. You’re going to be the cool parent and buy some beers for your kids and their friends to drink in your home.  What’s the law? Can you do it? The sale or distribution of alcohol to minors is the subject of today’s video blog.

Georgia law is clear. No one under the age of 21 can purchase, try to get another to purchase, or consume alcohol. There’s only one exception when alcohol can be purchased for someone underage, and that is when you are the parent or guardian of that child, and the alcohol is being served in your home with you present.

It is illegal for any other minors to drink with the child unless their parent or guardian is present as well. Anyone caught selling to, purchasing for, or attempting to buy alcohol for someone under 21 can be charged with a misdemeanor offense under Official Code of Georgia §3-3-23 which carries a potential punishment of twelve months in custody and a $1000 fine.

Our office is experienced in defending Georgia citizens charged with providing alcohol to minors. Through our free consultation we can ask the right questions to aid in your defense. The key to defending criminal charges is to address them quickly to preserve all necessary evidence. Call us today at 404-581-0999 for a free consultation. Thank you.

VIDEO – Georgia Drivers License Consequences of a Second in Five Year DUI Conviction in Georgia

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If you are convicted of a second DUI charge within a five year period from the dates of arrest, the penalty against your drivers license by the Georgia Department of Drivers Services is escalated. For a second in five conviction, your full driving privileges will be suspended for eighteen months. After first serving a 120 day hard suspension of your license which means no driving at all in those first 120 days, you will be eligible for a twelve month ignition interlock device permit if you have completed the following requirements:

  • You must submit an original certificate of completion of a DDS approved alcohol or drug use risk reduction program
  • Complete a clinical evaluation with a counselor licensed by the Department of Behavioral Health and Developmental Disabilities along with any treatment required by the counselor
  • Show proof of installation of an Ignition Interlock Device in your vehicle from a DDS approved vendor
  • Pay a $25 permit fee.

If you cannot afford the cost to obtain an ignition interlock device in your vehicle, the court can exempt you from the requirements of the device, but you will still have to serve that additional twelve month suspension of your license.

After serving the 120 day hard suspension and the additional twelve months with an ignition interlock device, you must still serve an additional two months without the interlock device for a total of eighteen months before you can reinstate your full license.

For reinstatement you must pay the $210 reinstatement fee and show DDS proof that an ignition interlock device was maintained in your vehicle for twelve months or show an order from the court exempting you from the interlock device due to hardship.

A second in five DUI conviction will cause a major impact to your ability to drive. Therefore, it’s important to get out in front of a second DUI arrest by consulting with an attorney to discuss your options in fighting the case. Our experienced attorneys are available twenty four hours a day  seven days a week to talk with you about your case.

Call us today at 404-581-0999. Thank you.

VIDEO – Effects on a Drivers License of a First DUI Conviction in a Five Year Period in Georgia

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by Ryan Walsh and Scott Smith

We get questions all the time regarding what happens to your Georgia drivers license after a DUI conviction. The Georgia Department of Driver Services looks at Drivers License suspensions for DUI convictions in five year periods from the date the incident occurs.

The information provided in this video blog is for people that hold Georgia drivers licenses. If you do not hold a Georgia drivers license, you will not be eligible for a limited driving permit in Georgia and must serve the full period of suspension before you are eligible for a drivers license in Georgia.

If you have an out of state drivers license, it is important to consult with an attorney licensed to practice in the state you hold your drivers license about the consequences of a DUI on your out of state drivers license. Please remember, if you do not have a Georgia drivers license, you will not have the privilege to drive in Georgia during the suspension period.

If this is your first conviction for an arrest occurring in the past five years, the period of drivers license suspension is 120 days. You will be eligible for a limited driving permit for those 120 days if you have not had a conviction for an offense that suspends your Georgia drivers license in the past five years.

The limited driving permit costs $25 and is valid for one year, even though the period of suspension is only 120 days. To obtain a limited driving permit you must also have a First DUI Conviction Affidavit issued by the Court or a certified copy of your disposition.

A Limited Driving Permit means you can only use your car for the following:

  • Going to your place of employment or performing the normal duties of your job
  • Receiving medical treatment or obtaining prescription drugs
  • Attending college or school if you are regularly enrolled as a student
  • Attending Addiction or Abuse treatment for alcohol or drugs by organizations recognized by DDS
  • Court ordered driver education, driver implement, or alcohol and drug treatment programs
  • Attending court, reporting to a probation office or officer, or performing community service
  • And Transporting an unlicensed immediate family member for work, medical care, or prescriptions, or to school.

After the 120 day period you can reinstate your license if you pay the $210 reinstatement fee and submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Use Risk Reduction Program.

Our attorneys and staff are experts in the field of Georgia DUI. If you have a question in regards to your Georgia drivers license suspension or DUI arrest, please call us immediately at 404-581-0999.Addressing a DUI case early is the key to gathering the necessary evidence to present the best defenses in your case.

VIDEO – Police Searches and the 4th Amendment under Georgia Law

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by Scott Smith and Ryan Walsh

You’re driving and the blue lights come on behind you. You pull over and the officer comes up to your vehicle. He immediately asks if he can search? Do you know what your rights are? The Fourth Amendment’s protection against unreasonable searches is the subject of today’s video blog.
Hello, I’m Scott Smith. The Fourth Amendment of the United States Constitution prevents the government from unreasonable searches without a warrant.
Lets go back to the example we talked about in the introduction. You’re driving down the road and the blue lights come on behind you. The officer comes up to your vehicle and asks you if they can search. Are you going to let them? No.
For an officer to be justified in searching your car they must have probable cause that evidence of criminal activity will be found in your vehicle. It has to be more than just a hunch that they will find evidence of criminal activity inside. Always say no. But that doesn’t mean they can’t get probable cause to search. If you leave a bag of weed out in plain view for the officer to see, the officer has probable cause to search your car. They can also search you and your immediate area after you are placed under arrest. And if they have to impound your vehicle, they can do what’s called an inventory search of your vehicle.
Whether a search is reasonable is always up for argument. An experienced attorney can use the facts of the encounter to argue why this specific incident isn’t reasonable under the law. At the Peach State Lawyer we recommend always politely declining to allow an officer to search your home, vehicle, or belongings. A search can only hurt you, it can never help you.
If you feel like you’ve been the victim of an unlawful search, or you’ve been charged with a crime where a search was involved, call us today at 404-581-0999 for a free consultation. We’re available twenty four hours a day, seven days a week to meet with you. Thank you.