Georgia Criminal Law – Felony Murder

/in , , , , /by

Georgia has several laws regarding homicide – the killing of another person. There are, however, many subtle nuances and distinctions separating murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and felony murder from each other. This article aims to explore the offense of felony murder, limitations on prosecution, and punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-1(c), a person commits the offense of felony murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

Intent

“Malice” required for malice murder conviction consists of intent to kill and lack of provocation or justification. In the context of the statute on murder, a specific intent to kill is “express malice,” whereas an intent to commit acts with such a reckless disregard for human life as to show an abandoned and malignant heart amounts to “implied malice.” But, in felony murder, malice aforethought is implied by the intent to commit the underlying felony. Premeditation and/or motive is not an element of murder in Georgia.

Underlying Felony

The underlying felony for a felony murder conviction must be inherently dangerous to human life; for a felony to be considered inherently dangerous, it must be dangerous per se, or it must by its circumstances create a foreseeable risk of death. Examples include but are not limited to: robbery, rape, kidnapping, felony fleeing, burglary, arson, firearms offenses, narcotics offenses, and aggravated assault. In determining whether a felony is inherently dangerous, the court does not necessarily consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.

Causation

To support conviction for felony murder, the State has to show that defendant’s commission of the alleged predicate felonies was a proximate cause of victim’s death. Proximate causation exists if the felony the defendant committed directly and materially contributed to the happening of a subsequent accruing immediate cause of death, or if the homicide was committed within the res gestae of the felony and is one of the incidental, probable consequences of the execution of the design to commit the predicate felony. Hood v. State, 303 Ga. 420 (2018).

Punishment

In Georgia, a felony murder conviction results in either life in prison (with or without parole) or the death penalty.

Contact Us

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

Georgia Criminal Law – Burglary and Home Invasion

/in , , , , , /by

Every state has enacted laws prohibiting the entering the home of another without permission of the occupant. This article serves to explore Georgia specific laws regarding this conduct and the penalties if convicted.

Burglary – The Offense

O.C.G.A § 16-7-1, a person commits the offense of burglary in the first degree when, “without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another.”

A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant building, structure, railroad car, watercraft, or aircraft.

“Dwelling” is defined as any building, structure, or portion thereof which is designed or intended for occupancy for residential use. Burglary is a specific-intent crime; the state must prove that the defendant intended to commit a felony after making an unauthorized entry. Dillard v. State, 323 Ga.App. 333 (2013). Furthermore, the offense of burglary does not require proof that defendant’s entry into victim’s apartment was forced; rather, all that is required is finding that the defendant entered or remained in apartment without victim’s authority, with intent to commit felony or theft therein. Dupree v. State, 303 Ga. 885 (2018).

Burglary – The Punishment

A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years.

A person who commits the offense of burglary in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions for burglary in the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years.

Home Invasion – The Offense

O.C.G.A. § 16-7-5 creates a separate criminal offense of home invasion in the first degree when a person, “without authority and with intent to commit a forcible felony therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.”

A person commits the offense of home invasion in the second degree when, without authority and with intent to commit a forcible misdemeanor therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.

As we can see, the difference between first degree home invasion and second degree home invasion relates to intent, where the former requires proof of intent to commit a felony and the latter requires proof of intent to commit a misdemeanor.

Home Invasion – The Punishment

A person convicted of the offense of home invasion in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for life or imprisonment for not less than ten nor more than 20 years and by a fine of not more than $100,000.00. A person convicted of the offense of home invasion in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.

Contact Us

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

How to Post a Cash Bond at the Fulton County Jail

/in , , , /by

If your loved one is in the Fulton County Jail with a bond posted, here is how you can post a cash bond to get them released. 

  1. Go to the jail with your UNEXPIRED license/identification card (must be over the age of 18) and the amount required on the posted bond in EXACT CHANGE. To get the exact amount with all the additional fees included, you can call the jail beforehand with the inmate’s name and date of birth. You can also check the bond amount at www.cashbondonline.com
  • Once the jail has verified your identity and the payment has been received, the jail will start the release process. This process can take from a couple minutes to a couple hours because the process depends on a lot of factors such as their workload and checking for any holds. 
  • As long as there are no holds on the inmate, the payment will secure the release of the inmate. 
  • The bond amount paid will not be returned to you until the entire court case for the defendant is over.

Link to the Fulton Bonding Website: http://www.fultonsheriff.org/bonding-agencies.html

Georgia Criminal Law – RICO Act

/in /by

To combat “the increasing sophistication of various criminal elements,” the Georgia General Assembly adopted the Racketeer Influenced and Corrupt Organizations Act (RICO), developed from existing federal law. The RICO Act is intended to sanction organized criminal activity and to provide compensation to private parties injured as result of such activity.

Criminal Offense

The Georgia RICO Act makes it a crime for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money. O.C.G.A. § 16-14-4.  

A Georgia RICO prosecution requires proof that a defendant has committed at least two predicate acts of conduct that are crimes chargeable by indictment under certain laws of the state of Georgia or the United States in order to establish “racketeering activity.”

An essential element of this offense is proving a connection or nexus between the enterprise and the racketeering activity. See Dorsey v. State, 279 Ga. 534, 540 (2005) (holding that evidence was sufficient to sustain RICO conviction because there was “a clear connection between the enterprise … and the predicate acts”).

Predicate crimes under this Act used to establish a “pattern of racketeering activity” have been held to include the following: drug crimes, homicide, battery, arson, burglary, forgery, theft, robbery, prostitution and pandering, bribery, influencing witnesses, tampering with witnesses or victims, kidnapping, false imprisonment, terroristic threats, motor vehicle and aircraft hijacking, intimidation of a juror or court officer, perjury, tampering with evidence, commercial gambling, firearm offenses, illegally reproducing copyrighted material, securities violations, credit card fraud, destroying or misrepresenting identification numbers, certain computer crimes, insurance fraud, and mortgage fraud.

Criminal Punishment

If convicted under Georgia’s RICO Act, the defendant will be sentenced to imprisonment for five (5) to twenty (20) years, a fine, or both. Regarding the fine, the sentencing judge may impose a fine up to three times the amount of any money obtained by the defendant during the racketeering scheme.

Civil Law Applicability

For private parties who have suffered injuries as a result of the racketeering activity may have available remedies under civil law. The RICO statutes provide for damages for a plaintiff, including punitive damages, and also authorize a court to order the property or organization to be divested, dissolved, or other injunctive relief.

Contact Us

Being charged under Georgia’s RICO Act is a serious and complex criminal offense.  If you or a loved one are facing criminal prosecution through the RICO Act, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling RICO Act cases in multiple jurisdictions across Georgia.

Fayette County Georgia Violent Crime Attorney

/in , , , /by

If you are charged with a violent crime in Fayette County, then you have come to the right place.  We have defended hundreds of violent charges ranging from simple battery to murder.  Fayette County has no shortage of these cases, and we are often called to assist in defending these violent crime allegations.

The first step is to determine your charges which are usually stacked meaning that you can have 3 or more charges for one just one punch, kick or push.  The extent of the injury will largely dictate what you are charged with, but the alleged victim’s status can also play a role.  The alleged victim’s age, occupation, relationship to you, and the location of the incident all factor into the potential charge and corresponding penalties.

Regardless of your exact charge, we stand ready to assist in defending your case in Fayette County.  If the alleged victim made a false allegation, then we look to the discredit the charge by presenting alibi evidence or witnesses who were present at the time of the alleged attack.  If there are no other witnesses, then it is just his or her word versus your word.  In those situations, we work to build up your character through your contacts in the community.  Simultaneously, we work to find discredit the alleged victim.  The reality of police work is that the person who makes the initial outcry (aka the 911 call) is usually the one who gets the labeled the victim while the other party gets hauled off to jail.  Of course, the officer is trained to look for injuries, but a savvy victim can injure himself or herself prior to the officer’s arrival just to add credibility to his or her story so injuries do not automatically equal guilt.

If you are not denying the violence, but instead seek to argue self-defense, then we argue that your actions were justified.  Georgia is a “Stand Your Ground” state that does not require you to retreat and allows you to defend yourself, your property, or even other people from what you believe to be an imminent threat of harm.  The amount of force used in those situations depends on the amount of force threatened by the other person.  These decisions are often made in the blink of an eye, and sometimes what you believed to be a threat turns out to be a cellphone instead of a gun.  Luckily, a reasonable mistake is still protected under the law.  How do you prove your actions were reasonable?  That requires the assistance of a skilled criminal defense attorney.

If you are charged with a crime of violence in Fayette County, call our office today at 404-581-0999 for your free consultation.

Butts County Georgia DUI Lawyer

/in , , , /by

If you have been charged with driving under the influence (“DUI”) in Butts County, you have come to the right place.  Our firm has a strong record at successfully defending all kinds of DUIs ranging from alcohol to marijuana to prescription drugs cases.  Butts County is known to aggressively patrol their roads and prosecute these DUI arrests, but their aggressiveness also leads to many wrongful arrests.

As with most DUIs, the initial stop of the vehicle is usually based on an alleged violation of some traffic law like speeding or failure to maintain lane.  A technical violation such as window tint or expired tag can also serve as the basis of the stop, but there’s nothing inherently unsafe about a technical violation. Therefore, a skilled defense attorney will argue that a technical violation is not evidence of impaired driving.  If someone is so impaired that they are unable to drive safely, then why is it that the officer could not find one single traffic infraction to support their assumption that you are impaired!?  A very reasonable theory is that you were not impaired, the officer made some false assumptions, and you should be found not guilty of DUI.  Piece of cake, right?  Well, there is actually a lot of training that goes into DUI detection, and your attorney needs to understand that training before he can skillfully use that training against the officer.  The law is constantly evolving, and the training that goes into DUI enforcement is updated every year or two.  So you need a lawyer who has performed the tests himself/herself (in a classroom setting), and you need the best possible DUI attorney in Butts County.

So if you have been charged with a DUI in Butts County, then you need to call our office today at 404-581-0999 for your free consultation.

Criminal Defense in Newton County, Georgia

/in , , , , , , , , /by

If you have been charged with a crime in Newton County, then you have come to the right place.  We specialize in criminal defense and stand ready to defend you.  The first question that needs to be answered is where your case will be heard.  If you are charged with a felony, then your case will begin in magistrate court and finish in superior court.  The first appearance, initial bond hearing, and preliminary hearing are all heard by a magistrate judge at the Newton County Jail located at 15151 Alcovy Road, Covington, GA 30014.  After these initial hearings, your case will be transferred to Newton County Superior Court in the Newton County Judicial Center located at 1132 Usher St, Covington, GA 30014.  The Judicial Center also houses the Magistrate Court, Juvenile Court, and Probate Court of Newton County.

Unlike some of the larger metropolitan counties, Newton County does not have a state court so even misdemeanor offenses will be heard in the Superior Court.  If you are charged with a serious misdemeanor, then your case will go straight to Superior Court.  Otherwise, your case will likely begin in Newton County Probate Court or one of the three municipalities in Newton County:  Covington, Porterdale, or Oxford.  

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Covington, your case will begin in the Municipal Court of Covington located at 1143 Oak Street, Covington, GA 30015.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Porterdale, your case will begin in the Municipal Court of Porterdale located at 2800 Main Street, Porterdale, GA 30014.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Oxford, your case will begin in the Municipal Court of Oxford located at 110 West Clark Street, Oxford, GA 30054.

If you have been charged with a crime in Newton County, call us today at 404-581-0999 to ensure you get the best outcome possible.

Georgia Criminal Law – Types of Bail Bonds

/in , /by

In Georgia criminal cases you are allowed to get a bond in order to be released from custody. Getting a bond is essentially assuring that you will attend all the mandatory court appearances with an amount of money that the Judge sets for you. A Judge will determine your eligibility of bond with factors such as past criminal history, risk of fleeing, employment history, and whether the defendant has close ties in the community – also referred to as Ayala Factors.

In Georgia, there are 4 types of bond that you can get set:

  • Signature
  • Property
  • Cash
  • Surety

A signature bond is often granted to defendants if their charge is minor or if it is their first time committing a crime. This type of bond typically does not require the defendant to pay any kind of money, and the defendant is allowed to go free as long as they sign a document promising to show up to all of their mandatory court appearances.  In Fulton County, the t majority of bonds we acquire for our clients on non-murder or domestic violence cases are signature bonds.  The key to a signature bond in Fulton County is to be cooperative and compliant with a Fulton County pretrial release officer.

A property bond requires the defendant to use their property such as the title to your car or real estate as collateral instead of paying the bond with money. Typically, the value of the property should be about twice as high as the bail amount the Judge set in order for it to be accepted as collateral. This type of bond can be complicated because you need an appraiser to calculate the value of the property.  In Fulton, Dekalb, Gwinnett and Cobb Counties you can use more than one property as long as the properties are located in Georgia.

A cash bond is often set for defendants who are deemed as “high-risk”. This type of bond does not allow for you to use a bail agent, and you must pay the entire amount that the Judge sets in cash. If you pay the bail amount and do not show up to your court date, the money will be forfeited to the court. Most counties have a 10 percent option but you must ask the judge setting the bond to include the 10 percent bond language in the order.

Lastly, a surety bond is a bond that you can use a bail agent/bail bondsman for the amount that the judge sets. In this case, the bail agent/bail bondsmen company will agree to pay the bail money and charge the defendant with a fee, which is typically about 10 percent of the bail amount the judge sets.  

Georgia Criminal Law – Drug Trafficking in Hall County Georgia

/in , , , , , , , /by

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Hall County, Georgia. Why Hall County? Hall County is a large jurisdiction, which has significant issues in trafficking of methamphetamine. There was even a recent arrest for drug trafficking within Hall County jail.  Because of the concentration of drug trafficking within this large geographical area, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, deliver, or bring into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams of cocaine (minimum purity of 10% or more). If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

For methamphetamine and/or amphetamine, any person who sells, delivers, or brings into this state or who possesses 28 grams or more is guilty of trafficking. If the quantity is greater than 28 grams but less than 200 grams the person shall be sentenced to a mandatory minimum prison sentence of 10 years and pay a fine of $200,000. For quantities greater than 200 grams but less than 400 grams, it is a 15 year mandatory minimum prison sentence plus a $300,000 fine. If the quantity is greater than 400 grams, the mandatory minimum prison sentence is 25 years plus a $1,000,000 fine.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of trafficking may be sentenced to less prison time than what is required by the mandatory minimums:

  • If the defendant provides “substantial assistance” to the government in identifying, arresting, and/or convicting other people involved in the drug conspiracy, the prosecutor may move the court to reduce or suspend part or all of the defendant’s sentence;
  • by agreement of the parties through a “negotiated plea”; or
  • if certain mitigating factors exist (no prior felonies, no firearm used, defendant not head of conspiracy, nobody was injured as a result of criminal conduct, or if the interests of justice would not be served by imposing a mandatory minimum sentence).

Hall County

If you have been arrested in Hall County for drug trafficking, the first and most important step is getting a bond. Only a superior court judge may set bail on a trafficking charge. When considering whether to grant a bond the judge analyzes four factors, whether the defendant is a significant risk of:

  • Fleeing from the jurisdiction of the court
  • Posing a threat or danger to any person
  • Committing a felony while on pre-trial release
  • Intimidating witnesses

An experienced attorney may be able to get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In Hall County, bonds for trafficking range from $65,000 up to $125,000. The judge may also impose non-monetary restrictions (house arrest, no contact provisions, GPS ankle monitor, curfew, etc.). There is always the possibility, however, that a judge will deny setting a bond in the case, even if the bond was consented to. If the prosecutor will not agree to a bond, then the defendant will have to go before the judge and offer evidence of defendant’s ties to the communities (length of residence, family ties, employment status and history, history of responding to legal process – failure to appears or probation violations, lack of criminal history). The judge will normally set a “surety bond” where the defendant is only responsible for posting 10% of the overall bond amount and a bond company pays the rest (percentage varies depending on bond company).

If a bond is granted, the next step is fighting the case. Once all the evidence is gathered through the discovery process and our firm’s own independent investigation, we then communicate with the Hall County District Attorney’s Office in an attempt to discuss a resolution. If these preliminary discussions are to no avail, we then proceed to file a “motion to suppress” illegally obtained evidence. If granted, the prosecution would not be able to proceed with the case. If denied, and the prosecutor is unwilling to dismiss or reduce the charges then we would be fully prepared to try the case before a jury.

Defenses

There are several defenses available to someone charged with drug trafficking:

  • Insufficient Drug Quantity (a motion to inspect evidence could reveal the weight of the substance does not meet the quantity as required in order to charge trafficking)
  • No Possession  – Actual or Constructive (this defense asserts the defendant did not knowingly possess the substance in question, directly or indirectly)
  • Equal Access to Drugs (this defense relates to other individuals having access to the container or area in which the drugs were found, thereby raising doubt that the defendant knowingly possessed the drugs)
  • Illegally Obtained Evidence (this is the basis of a successful motion to suppress)

Contact Us

If you or someone you know has been arrested for drug trafficking, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf.

Georgia Criminal Law – Drug Trafficking in Forsyth County Georgia

/in , , , , , , /by

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Forsyth County, Georgia. Why Forsyth County? Forsyth County is a large jurisdiction that has a high number of drug trafficking cases on an annual basis. Because of the concentration of drug trafficking within this large county, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, deliver, or bring into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams of cocaine (minimum purity of 10% or more). If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

For methamphetamine and/or amphetamine, any person who sells, delivers, or brings into this state or who possesses 28 grams or more is guilty of trafficking. If the quantity is greater than 28 grams but less than 200 grams the person shall be sentenced to a mandatory minimum prison sentence of 10 years and pay a fine of $200,000. For quantities greater than 200 grams but less than 400 grams, it is a 15 year mandatory minimum prison sentence plus a $300,000 fine. If the quantity is greater than 400 grams, the mandatory minimum prison sentence is 25 years plus a $1,000,000 fine.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of trafficking may be sentenced to less prison time than what is required by the mandatory minimums:

  • If the defendant provides “substantial assistance” to the government in identifying, arresting, and/or convicting other people involved in the drug conspiracy, the prosecutor may move the court to reduce or suspend part or all of the defendant’s sentence;
  • by agreement of the parties through a “negotiated plea”; or
  • if certain mitigating factors exist (no prior felonies, no firearm used, defendant not head of conspiracy, nobody was injured as a result of criminal conduct, or if the interests of justice would not be served by imposing a mandatory minimum sentence).

Forsyth County

If you have been arrested in Forsyth County for drug trafficking, the first and most important step is getting a bond. Only a superior court judge may set bail on a trafficking charge. When considering whether to grant a bond the judge analyzes four factors, whether the defendant is a significant risk of:

  • Fleeing from the jurisdiction of the court
  • Posing a threat or danger to any person
  • Committing a felony while on pre-trial release
  • Intimidating witnesses

An experienced attorney may be able to get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In Forsyth County, bonds for trafficking range from $65,000 up to $125,000. The judge may also impose non-monetary restrictions (house arrest, no contact provisions, GPS ankle monitor, curfew, etc.). There is always the possibility, however, that a judge will deny setting a bond in the case, even if the bond was consented to. If the prosecutor will not agree to a bond, then the defendant will have to go before the judge and offer evidence of defendant’s ties to the communities (length of residence, family ties, employment status and history, history of responding to legal process – failure to appears or probation violations, lack of criminal history). The judge will normally set a “surety bond” where the defendant is only responsible for posting 10% of the overall bond amount and a bond company pays the rest (percentage varies depending on bond company).

If a bond is granted, the next step is fighting the case. Once all the evidence is gathered through the discovery process and our firm’s own independent investigation, we then communicate with the Forsyth County District Attorney’s Office in an attempt to discuss a resolution. If these preliminary discussions are to no avail, we then proceed to file a “motion to suppress” illegally obtained evidence. If granted, the prosecution would not be able to proceed with the case. If denied, and the prosecutor is unwilling to dismiss or reduce the charges then we would be fully prepared to try the case before a jury.

Defenses

There are several defenses available to someone charged with drug trafficking:

  • Insufficient Drug Quantity (a motion to inspect evidence could reveal the weight of the substance does not meet the quantity as required in order to charge trafficking)
  • No Possession  – Actual or Constructive (this defense asserts the defendant did not knowingly possess the substance in question, directly or indirectly)
  • Equal Access to Drugs (this defense relates to other individuals having access to the container or area in which the drugs were found, thereby raising doubt that the defendant knowingly possessed the drugs)
  • Illegally Obtained Evidence (this is the basis of a successful motion to suppress)

Contact Us

If you or someone you know has been arrested for drug trafficking, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf.