Prostitution, Pimping and Pandering in Georgia

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What is prostitution?

Prostitution is when a person performs or offers or consents to perform a sexual act for money or other items of value. O.C.G.A. §16-6-9.

The statute is not about sexual activity per se but is solely concerned with commercial transactions involving sexual activity. The harm is done to society and not to the individual. Therefore, the State is not required to name the person solicited for prostitution.

Both males and females are prohibited from selling sexual acts. Prostitution is only concerned with the seller. The buyer’s activities are not prostitution.

Is prostitution a misdemeanor or felony?

Prostitution is a misdemeanor and is punished up to 1 year imprisonment. In addition, a person may be fined up to $ 2,500 for prostitution if the offense was committed within 1,000 feet of any school building, school grounds, public place of worship, or playground or recreation center which is primarily used of people under the age of 17.

 

What is pimping?

Pimping is when a person performs any of the following acts:

  1. Offers or agrees to procure a prostitute for another;
  2. Offers or agrees to arrange a meeting of persons for the purposes of prostitution
  3. Directs or transports another person to a place when he or she knows or should know that the direction or transportation is for the purpose of prostitution;
  4. Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or
  5. Aids or abets, counsels, or commands another in the commission of prostitution or aids of assists in prostitutions where the proceeds or profits derived therefrom are to be divided on a pro rata basis.

An indictment for pimping does not need to name the prostitute or the person solicited because the focus is on the harm done to society.

Misdemeanor or felony?

Pimping is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pimping involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

What is pandering?

Pandering is when a person solicits another person to perform an act of prostitution in his or her own behalf or on behalf of a third person or when he or she knowingly assembles persons at a fixed place for the purpose of being solicited by others to perform an act of prostitution.

Pandering is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pandering involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

The clerk of court in which a person is convicted of pandering must cause to be published a notice of conviction for that person in the legal organ of the county in which the person resides or, if a nonresident, in the legal organ of the county in which the person was convicted of pandering.

What do I do?

It is imperative that you do not talk to the police if you are accused of prostitution, pimping or pandering. Only speak to a qualified attorney so that you can properly defend yourself.

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

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

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

Georgia DUI Blood Cases

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Can The Government Take My Blood for DUI?

This section addresses the question of how law enforcement can legally obtain an individual’s blood in the context of a DUI arrest. Generally speaking, a law enforcement agent may obtain a person’s blood in three ways:

  • Pursuant to a lawful search warrant;
  • The presence of an emergency circumstance; and
  • Through that person’s consent

  • Search Warrant

“A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.” Williams v. State, 296 Ga. 817, 819 (2015). There are generally two types of searches, those with a search warrant and those without. Warrantless searches are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” Id.

Therefore, if a police officer can obtain a valid search warrant for your blood, then they are entitled to draw your blood for purposes of investigating a DUI. It is important to note that even though your blood may have been drawn legally; there are still viable defenses to blood analysis (discussed in section below).  

Emergency Circumstances

One of the “specifically established and well-delineated exceptions” to the search warrant requirement is the presence of exigent [emergency] circumstances. But what constitutes an emergency circumstance? The answer is . . . it depends.

Georgia case law used to say that because intoxicants naturally dissipate in the body over time, this fact alone provided the exigency (emergency). Essentially, this meant that because the evidence of intoxication would disappear over time, the police would be prevented from obtaining that evidence if there was not enough time to get a search warrant. The Supreme Court of Georgia later adopted the United States Supreme Court’s decision rejecting this line of thought. The law now states that just because you have alcohol or another intoxicant in your system, that fact by itself does not create an exigency (emergency) justifying the drawing of a person’s blood. Instead, the court held, “whether a warrantless blood test of a drunk-driving suspect is reasonable [is to] be determined case by case based on the totality of the circumstances.”[1]

The resulting rule is that rather than automatically being entitled to drawing blood just because intoxicants naturally dissipate over time, courts will review police conduct on a case by case basis to determine whether an emergency situation exists sufficient to justify a blood draw.[2]

Defending Blood Test Cases

Analysis of a DUI suspect’s blood for intoxicants (alcohol or drugs) is considered to be the most reliable method of obtaining an accurate reading of a person’s blood alcohol content (BAC). This scientific procedure is designed to determine the amount of alcohol present in a person’s blood at a given time.

The BAC results from a blood analysis can be inaccurate, however, for a number of reasons:

  • Human error in performing the blood testing;
  • Flawed preservation and handling techniques of the blood sample;
  • Improperly maintained or malfunctioning machines which measure results;
  • Testing of blood plasma rather than whole blood can produce higher BAC readings;
  • Trauma or other incidents suffered by hospitalized suspect may affect BAC readings

Peach State Lawyers have been trained to attack the following aspects of blood test cases:

  • Qualifications of the person who drew the blood;
  • Qualifications of the analyst;
  • Whether the analyst followed laboratory procedures;
  • Whether the machine measuring results was working properly;
  • Whether the blood sample itself flowed through the proper chain of custody; and
  • Whether the analyst is required to testify

If you or someone you know has been arrested for DUI, do not hesitate to contact our office. Our highly skilled and experienced attorneys will work tirelessly to resolve your case. Feel free to call us 24 hours a day at 404.581.0999.

[1]  Missouri v. McNeely, 569 U. S. ___ (133 S.Ct. 1552, 1563, 185 LE2d 696) (2013)

[2] An potential example of such an emergency case is where there is a car accident and a DUI suspect is not located for several hours and after the suspect is found the police believe they do not have time to obtain a warrant; but they know if they do not get a blood sample soon, the possible evidence of intoxication will be lost.

 

by Casey Cleaver

Online Solicitation in Georgia

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What is online solicitation?

Local law enforcement agencies are conducting more and more online child predator stings. Online solicitation of a child for purposes of engaging in a sexual act is a felony in Georgia. It carries a possible punishment of up to 20 years in prison and a $ 25,000 fine.

The Georgia Internet Crimes Against Children (ICAC) Task Force, The Georgia Bureau of Investigation’s Child Exploitation and Computer Crimes (CEACC) Unit and local law enforcement agencies are conducting operations all over the State of Georgia to catch individuals who are using the internet to solicit underage children for sex.

What should you do?

If you are arrested in one of these stings, do not talk to the police without a lawyer. Do not attempt to tell your side of the story without a lawyer. If the police tell you that they will cut you a break if you speak to them about the case, please tell them that you want a lawyer before making a statement. Nothing you say to law enforcement when you are arrested is going to benefit your case. Do not make any statements such as you thought the person was an adult or that you did not intend to actually go through with the sexual act. Do not talk to law enforcement without a lawyer present.

You have an absolute right to speak to a lawyer before making any statements. If you have already made a statement to the police, then please do not make any further statements without calling a lawyer. The stakes in these cases are too high to not retain a lawyer and fight these allegations. Your freedom is literally at stake in these cases. The State of Georgia and its local law enforcement agencies are aggressively prosecuting these cases.

What qualifies as solicitation?

Online solicitation is when you intentionally or willfully utilize the internet, local bulletin board, chat room, e-mail, instant messaging service, or any other electronic device, to solicit, seduce, lure, or entice a child, another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act, by, with, or against a child as described in O.C.G.A. 16-6-3, sodomy or aggravated sodomy; O.C.G.A. 16-6-4, child molestation or aggravated child molestation; O.C.G.A. 16-6-5, enticing a child for indecent purposes; or O.C.G.A 16-6-8 public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

So, if you are talking to someone that you believe is underage and it turns out that you are actually speaking to law enforcement, you can still be charged and convicted of online solicitation. Do not think that just because the person you were chatting with turned out to not be a child, then you have nothing to worry about. It is still against the law, even if the child turns out to be law enforcement.

Direct communication with a minor is not required for a conviction. There is no requirement that you actually perform any type of sexual act to be convicted. All that is required is that you believed that the person you were speaking to was underage and your purpose in talking to them was for a sexual act.

If you have been charged with online solicitation and exploitation, child pornography and/or human trafficking, then it is very important to hire a lawyer who handles these types of cases. Please call my office 24/7 at 404-581-0999. We will meet with you for a free consultation to discuss the facts of your case and explain the procedure that will take place in court.

 

by Mike Jacobs

Possession of Drug Related Objects

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What’s a drug related object?

It is not uncommon for an officer to search your car or home and not only arrest you for the marijuana or drugs they found, but also for Possession of Drug Related Objects. In Georgia, under O.C.G.A. § 16-13-32.2, it is illegal to possess objects used to smoke, store, ingest, manufacture, and conceal drugs with. The most common drug related object we defend against are the use of pipes, but other examples are syringes, grinders, and scales. Possession of a drug related object is a misdemeanor charge in Georgia, and can carry up to 12 months in jail and a $1,000 fine. Even if the pipe or other item does not have any residue in it, you can still be arrested. Even if there were no drugs found in the car, police officers will routinely arrest you nonetheless for any drug related object that comes up in the search.

What will my case look like?

The defense in these cases vary, but if the officer finds the paraphernalia or drug related object as a result of an unlawful search, then the drugs and the drug objects can be suppressed as what is referred to as fruit of the poisonous tree. Examples of unlawful searches include those without a warrant in some circumstances, or those with faulty search warrants. An experienced and aggressive criminal defense attorney can attack the search and seizure of the drug paraphernalia or drugs found during a search by police officers. If you or a loved one has been charged with possession of drugs or possession of drug related objects in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

by Mary Agramonte

Probation Revocation and Parole

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Can a judge revoke my probation when I have allegedly violated probation after being sentenced but I have not yet started my probation?  Can a judge revoke my probation where it goes non-report or suspended upon completion of doing an act (classes, drug screens or evaluation).

The question requires some explanation as to situations as to where this scenario may rear its ugly head.  Defendant is sentenced in one county to a sentence of 10 years to serve 2, balanced probated.  While client is in prison or on parole he commits a new crime; ie he gets charged with possession of drugs in prison.  Even though he has not started probation as he is under the department of corrections supervision he can still be revoked on the county level by the judge.  Here are a couple of additional scenarios where the judge has the ability to revoke probation even though you are not technically on probation:

Judge sentences you in Cobb County to probation to run Consecutive to your sentence in Paulding County.  You are currently serving time in Paulding County and have not yet started serving your probation in Cobb.  Nonetheless, you can be revoked in Paulding and Cobb for committing a new crime.

Similarly, where a judge suspends a sentence.  For example you get 5 year sentence suspended upon completion of an alcohol evaluation.  You violate your probation shortly after being placed on the suspended sentence – in this scenario you can be revoked for the five years less any time that has elapsed since your sentence started even if you have already completed the evaluation – where the court has not signed an order allowing suspension to commence.

OCGA 17-10-1 (a) provides: that the trial court has the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including the authority to revoke the  [*630]  suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has beg

un.

Here are the reasons the court of appeals found persuasive on why  you can still be revoked even though you are not technically on reporting probation:

While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The Legislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant’s integrity and future good behavior. Unlike parole, granted by an administrative agency, probation is granted by the court when the sentencing judge deems the protection of society does not demand immediate incarceration. In cases where a convicted defendant’s “future good behavior” has already been compromised by the commission of another criminal act even before the formal probationary period begins, a trial court should not be required to allow such  defendant to serve a previously imposed probated sentence when the court deems the protection of society demands revocation.

by Scott Smith

 

False Identification in Georgia

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A couple times a month we receive a call from someone who receives a letter from the Department of Driver Services stating they are being investigated for providing fraudulent information, false identification, on their drivers license. That crime and others are covered in Official Code of Georgia Annotated (O.C.G.A.) 16-9-4; Manufacturing, Selling, or Distributing False Identification Documents.

What exactly does this mean?

Under O.C.G.A. 16-9-4 it is unlawful for any person to knowingly possess, display, or use any false, fictitious, fraudulent, or altered identification document. It is also unlawful to make, alter, sell, distribute or deliver the identification document with intent to provide them for others. An identification document has to be issued by a government agency or by authority of the government and it must contain a name, and a description or photograph. Common identification documents include passports, VISAs, military IDs, driver’s licenses, or state issued ID cards. This also includes employer issues ID badges, if the badges contain a trademark or trade name and access cards that are unique to specific individuals.

What will happen?

Anyone found guilty of possessing an identification document for their own use would be guilty of a misdemeanor. If you’ve made, altered or sold identification documents for others, they you would be guilty of a felony. Also, if you’re found to use property to help you in violating this code section, you can be subject to civil forfeiture of the property used to aid in possessing, making, altering, or selling these identification documents.

 

If you’ve been charged or are worried you are going to be charged with an identification document violation in Georgia, call us today for a free consultation at 404-581-0999.

 

by Ryan Walsh

Pre-Trial Diversion in Georgia

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Being arrested for the first time can be one of the most stressful experiences in one’s life. An arrest has the potential to change everything – where you work, go to school, your car insurance, where you live, and how others see you. If this is the first time you have found yourself in the position, do not walk into court and plea Guilty or Nolo Contendere, because there may be another option for you. A Georgia criminal defense attorney may be able to negotiate something different – something that doesn’t require you to plead guilty. If you enter a plea of Guilty or Nolo, the arrests and convictions do not age off your record; they remain on there forever. There are only a few ways that an arrest is restricted off your record from the public seeing it. Participating in a pretrial diversion program is one of those ways and might be an option to explore for your criminal case. Several counties and cities across Georgia have pretrial diversion programs designed to give you a second chance, and serve as an alternative to jail and convictions.

Pretrial diversion is an alternative to the traditional court process. It allows some first offenders, and even still others who have a history, to complete requirements prior to a court date in exchange for their case being completely dismissed. Requirements may include community service, theft class, or anger management. Pretrial diversion may be available for you if you were arrested in Georgia for Possession of Marijuana, Possession of drugs, Shoplifting, Battery, Assault, Minor in Possession, and the list goes on. A criminal defense attorney who is knowledgeable with the court can negotiate that the prosecutors potentially divert you from prosecution altogether, resulting in your case being dismissed.

Once you successfully complete a pretrial diversion program in Georgia as a first offender, the arrest itself disappears off your criminal record from the public’s view, and you can truthfully state with pride that you have never been convicted of a crime before. Your case will be dismissed in its entirety and you can breathe a sigh of relief.

If you are interested in resolving your case through pretrial diversion in Georgia, call us today for a free consultation at 404-581-0999. W. Scott Smith and his team have years and years of experience negotiating clients into pretrial diversion programs with the most favorable terms, even if the clients were ineligible under the State’s traditional guidelines.

 

by Mary Agramonte

Rape Shield

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

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

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

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

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

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

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

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

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

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously. The statute of limitation for a prosecution of rape is 15 years. I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

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

by Mike Jacobs

 

Child Abuse Registry in Georgia

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If you are charged with a crime involving child abuse or sexual abuse of a child then you will likely be receiving notice of your inclusion on the Child Protective Services Information System (Child Abuse Registry).

It is important that you contact an attorney immediately upon receiving this notice. You only have 10 days to challenge your name being on the Child Abuse Registry. If you respond within 10 days by requesting a hearing challenging your name being on the Child Abuse Registry then you will receive a court date. This written request must contain your current address and telephone number so that you may be notified of the date of your hearing.

This court date is in front of an Administrative Law Judge. At this hearing, you may present evidence as to why you do not think your name should be included on the Child Abuse Registry.When a DFACS office receives a report that you are alleged to have committed child abuse or sexual abuse of a child, then your name will be entered on the Child Abuse Registry.

Child Abuse means:

Physical injury or death inflicted upon a child by a parent or caretaker thereof by ot

her than accidental means, and this shall be deemed to be physical abuse for purposes of the classification required by paragraph (4) of subsection (b) of Code Section 49-5-183; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child; Neglect or exploitation of a child by a parent or caretaker thereof if said neglect or exploitation consists of a lack of supervision, abandonment, or intentional or unintentional disregard by a parent or caretaker of a child’s basic needs for food, shelter, medical care, or education as evidenced by repeated incidents or a single incident which places the child at substantial risk of harm, and this shall be deemed to be child neglect for purposes of the classification required by paragraph (4) of subsection (b) of Code Section 49-5-183

 

Sexual Abuse of a Child means:

Sexual abuse” means a person’s employing, using, persuading, inducing, enticing, or coercing any minor who is not that person’s spouse to engage in any act which involves:

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) Bestiality;

(C) Masturbation;

(D) Lewd exhibition of the genitals or pubic area of any person;

(E) Flagellation or torture by or upon a person who is nude;

(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

(G) Physical contact in an act of apparent sexual stimulation or gratification with any person’s clothed or unclothed genitals, pubic area, or buttocks or with a female’s clothed or unclothed breasts;

(H) Defecation or urination for the purpose of sexual stimulation;

(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure; or

This law was established on July 1, 2016 and is listed under O.C.G.A. 49-5-182.

If you face charges of either sexual abuse or child abuse, then it is imperative that you speak to a qualified attorney immediately. Do not speak to anyone about the allegations except with your attorney. You are facing criminal charges in Superior Court and a hearing on your inclusion with the Child Protective Services Information System (Child Abuse Registry) in front of the Office of State Administrative Hearings.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations. Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case. It is your life, your criminal record and you deserve the best representation possible.

 

by Mike Jacobs

 

Georgia’s First Offender Act

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by Casey Cleaver

What is it?

Under Georgia Code § 42-8-60, the First Offender Act is a sentencing option which allows a person with no prior felony convictions to dispose of their criminal case without a conviction. The law can be paraphrased as follows:

Where a defendant has not been previously convicted of a felony, the court may, upon a verdict or plea of guilty or nolo contendere, and before adjudication of guilt, without entering a judgment of guilty and with the consent of the defendant, defer future proceedings and place the defendant on probation or sentence the defendant to a term of confinement.

O.C.G.A. § 42-8-60(a). Essentially, this means that if a guilty verdict or plea of guilty or nolo contendere is entered against a first-time offender, the State will delay entering a judgment and place the first-time offender on probation or in confinement (or a hybrid of both). The First Offender Act is not a substitute for punishment, but rather an alternative to a conviction.

Although the first-time offender is “sentenced” to probation or confinement, if the person successfully completes their sentence (along with any accompanying terms, fines, and/or programs) then the case is discharged by the court without a conviction and disappears from their criminal history for most employment purposes.

However, if a person fails to complete all the applicable terms of their sentence or commits a new crime, the judge can revoke that person’s First Offender status, and they will be automatically convicted because of the previously entered guilty verdict or plea.  Additionally, the judge could re-sentence you.[1]

Retroactive Application

Initially, a first-time offender could only receive First Offender treatment at the time of sentencing. This limitation ignored a large population of individuals who were eligible for First Offender treatment in the past, but, for various reasons, were not sentenced under the Act; the Act also did not originally include those who were not represented by an attorney and who were not informed of the First Offender sentencing option by the court at their sentencing.

In 2015, the Georgia legislature passed reform allowing for the retroactive application of First Offender sentencing. The law was further clarified in 2017 to make the retroactive provisions applicable to any case sentenced on or after March 18, 1968. The law governing retroactive application of the First Offender Act can be paraphrased as follows:

An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment or an individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.

O.C.G.A. § 42-8-66(a) (emphasis added). The process for retroactively applying First Offender status is relatively simple and can be broken down into three steps. The first step is to determine whether the individual is eligible to receive First Offender status retroactively. To be eligible, the person must have been able to receive First Offender treatment at the time he was originally sentenced. There are some offenses under Georgia that disqualify First Offender treatment (such as certain violent felony offenses and sex offenses listed in O.C.G.A. § 17-10-6.1). Most offenses, however, qualify for First Offender treatment so long as the person does not have a prior felony conviction and has not previously been sentenced under the First Offender Act.

If the individual was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year then the individual is not required to have been unaware they qualified before they were sentenced. Conversely, to obtain retroactive First Offender treatment for sentences imposed after October, 31 1982, the person must have been unaware that he qualified before he was sentenced. For instance, if an individual requested First Offender at the time of sentencing but was denied First Offender treatment by the judge, he would most likely not be eligible to receive First Offender treatment retroactively.

The second step in the process is to file a petition in the court where the person was convicted. A petition will request that the court hold an evidentiary hearing to determine whether First Offender treatment should be retroactively granted. In order to file a petition, the prosecuting attorney that handled the original case must consent to the filing of the petition.

Lastly, the court will hold a hearing to determine whether to grant the petition. At the hearing, the judge will consider evidence introduced by the petitioner, evidence introduced by the prosecutor, and other relevant evidence. After all the evidence has been presented:

[t]he court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence[2] that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition.

O.C.G.A. § 42-8-66(d) (emphasis added). Typically, petitioners have character witnesses testify at the hearing to demonstrate to the judge the petitioner is an upstanding member of society. The judge also considers whether the individual has been arrested or convicted of any offenses since the time of their first conviction. Subsequent arrests or convictions are disfavored by the judge and are likely to decrease the probability the petition will be granted.

If the petition is granted, “[t]he court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly.” Once granted, this procedure allows for the prior conviction to be retroactively discharged without an adjudication of guilt and sealed from a person’s criminal history for most employment purposes.[3]

Every case is different. If you or someone you know may benefit from this type of sentencing modification, contact our office today. We have extensive experience in this process and have successfully handled cases of this nature. We will be able to assist you in investigating your eligibility, navigating the complicated legal process, and fighting for the Georgia First Offender Act to be retroactively applied to your conviction.

 

[1] For example, if you were sentenced to serve three years on probation under the First Offender Act, and you successfully completed two years and 364 days of probation but committed a new crime on the last day of your probation, the judge could re-sentence you to three years probation.

[2] Preponderance of the evidence simply means, ‘more likely than not.’ (Mathematically similar to 51%)

[3] Keep in mind lawyers, law enforcement, judges, police, and certain third party vendors and employers will be able to see the charge. Furthermore, although the law clearly prohibits employers from using a discharge under the First Offenders Act to disqualify a person for employment (under O.C.G.A. § 42-8-63.1), Georgia is an employment-at-will state, so employers may choose not to hire or appoint any person at any time for any reason, or no reason at all, subject, of course, to constitutional requirements.  O.C.G.A. § 42-8-63.