The “Safety Valve” Alternative to Mandatory Minimum Sentencing in Federal Court

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by John Lovell

I recently wrote about mandatory minimum sentences in federal court. There is a means to be sentenced below the mandatory minimum sentence, the “safety valve” provision.

First, let me tell you what the safety valve is not: It is not a first offender statute similar to the Georgia statute where, when certain conditions are met, there is no conviction on the record of the beneficiary. A federal conviction, with rare exceptions, remains a federal conviction for life.

Safety valve is only available for certain narcotics related crimes.

There are two benefits obtained from safety valve in United States District Court: 1) A two level reduction in the sentencing guidelines, and 2) “Permission” for a United States District Judge to sentence below the guidelines.

There are five requirements to be granted a safety valve:

(1) No more than 1 criminal history point under the sentencing guidelines (you will need to consult an attorney as calculation of criminal history points can be tricky. For instance, one could be on probation for shoplifting a $25 pair of sunglasses while committing the crime charged in federal court and not be eligible for safety valve);

(2) The accused “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;”

(3) The “offense did not result in death or serious bodily injury” to anyone;

(4) The accused was not a leader or organizer of the offense; and

(5) the person told the prosecutor all that he knows about the offense.

The last requirement can be tricky. The person seeking safety valve must meet with the Assistant United States Attorney (AUSA) and, usually, one or more agents (the case agent) and tell them everything they know about the case. Technically, it is not “cooperation,” but, in practice, it often becomes cooperation. The AUSA and case agent are permitted to ask questions. They may ask for names, locations, and endless other details. If, at sentencing, the AUSA tells the judge that you were not truthful, and the judge believes the AUSA, safety valve must be denied. Of course, a zealous attorney will assist in proving that the statement was truthful where facts demonstrate that it was truthful. However, the best practice is to not participate in the safety valve unless you are prepared to tell the complete truth.

The best advice: Seek the advice of an attorney with extensive experience in federal court.

Aggressive Driving Attorneys in Georgia

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by Mary Agramonte

Georgia uses a point system to categorize different types of traffic tickets. Traffic offenses range from 1 point all the way up to 6 points. 6 point offenses are considered the most serious, have the harshest penalties, and are the most likely to land you in jail facing high fines and even a suspended license.

Georgia treats the offense of Aggressive Driving as a 6 point offense, meaning it is considered a very serious offense in Georgia courts. Under Georgia law, a person commits the offense of Aggressive Driving when he or she operates any motor vehicle with the intent to annoy, harass, intimidate, injure, or obstruct another person. For example, if you are overtaking and passing someone with that intent, then you can be charged with Aggressive Driving. Similarly, if you are “tailgating” someone by following them very closely, then you can be charged with Aggressive Driving. In Georgia, you can be cited or arrested for Aggressive Driving if an officer observes you commit an act of road rage or if someone on the road calls 911 to report it.

Aggressive Driving has harsh penalties, and because of that you need the best Aggressive Driving Attorneys in Atlanta on your side fighting for you and your freedom. Aggressive Driving is considered a High and Aggravated Misdemeanor. This means that the maximum penalty can be a $5,000 fine (which ends up being much higher with the additional court costs and fees), and can land you in jail for up to 12 months. This is all in addition to the 6 points it will add to your driver’s license , which is then reported to your car insurance company, which can result in significantly higher premiums.

If you are under 21, an Aggressive Driving conviction will automatically suspend your license. Even if you are over 21 years old, the Aggressive Driving charge can still suspend your license depending on how many other tickets you have had in the past two years. Additionally, if you are arrested on scene for Aggressive Driving, then this will appear on your criminal history forever, unless the case is won with the help of knowledgeable Atlanta criminal defense attorneys.

Get the legal help you need. There are defenses available to those charged with Aggressive Driving in Georgia, but you need experienced criminal defense attorneys on your side to protect your freedom, your wallet, and your future. Call us today for a FREE CONSULTATION at 404-581-0999.

Terroristic Threats in Georgia

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by Mary Agramonte

Many people are surprised to learn that you can actually be arrested for threatening to kick someone’s a**. There tends to be an assumption that such a statement would be covered by our country’s First Amendment on free speech. However, this is not the case. Threatening to commit any crime of violence can result with you facing serious criminal charges in Georgia, as it can land you with an arrest for Terroristic Threats.

Under O.C.G.A. §16-11-37(b), a person commits the criminal charge of Terroristic Threats in Georgia when he or she threatens to commit any crime of violence against another. Depending on the nature of the threat, the crime can be charged as either a misdemeanor or a felony.  For example, if you tell someone you are going to hit them, it is a misdemeanor; if you suggest you are going to cause the death of someone, then it is a felony. It does not matter if the threat is by phone or in person.

In Georgia, a misdemeanor Terroristic Threat charge carries with it probation, fines, classes, community service, and a criminal history that cannot be undone. If you have been charged with felony Terroristic Threat in Georgia, you can be punished with even higher fines. Additionally, you can spend one to five years in prison, and be considered a convicted felon for the rest of your life.

Given the harsh consequences associated with an arrest for a Terroristic Threats in Georgia, it is important you have a criminal defense firm on your side who is not afraid to fight for you. There are defenses to Terroristic Threats and ways to avoid criminal conviction for it. Call 404-581-0999 to schedule your FREE CONSULTATION with a Georgia Terroristic Threat attorney today.

Marietta Driving under the Influence (DUI) Lawyer

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by Mary Agramonte

If you or a loved one has been charged with a Marietta DUI, contact our firm to speak with experienced DUI attorneys on how to best defend your case. Experienced Marietta lawyers in our firm are available any time, including nights and weekends, to provide you with the best possible outcome and advice. We can be contacted 24/7 at 404-581-0999 and provide free consultations.

Our firm consists of six highly trained Marietta and Cobb County attorneys. We have an office near the Marietta Square and Cobb Courthouse – with the Peach State Lawyer Hummer parked out front. W. Scott Smith has 18 years of DUI under his belt, and is active The National College of DUI Defense, Georgia Association for Criminal Defense Lawyers, The Lawyer Club of Atlanta, the Cobb County Bar Association and the Sandy Springs Bar Association. Mary Agramonte is an associate of W. Scott Smith and is a Marietta and Cobb County DUI lawyer and has successfully completed multiple advanced DUI seminars, as well as attended the renowned Bill Daniels Trial Lawyers College.

The address of Marietta Municipal Court is 240 Lemon St NE, Marietta, GA 30060. It is located in the same building as the Marietta Police Department. This court handles all cases where defendants are charged with traffic misdemeanors and local ordinances within the City of Marietta in Cobb County. The City of Marietta has its own police department, and so if you are arrested for a DUI in Cobb County by a Marietta Police Officer, your case will begin in the Marietta Municipal Court.

If you have been arrested with a DUI in Marietta or in Cobb County, our lawyers are ready to fight to avoid a DUI conviction. We are a group of knowledgeable attorneys prepared to defend against your Cobb County DUI in order to best protect your freedom and your license. If you have been charged with Driving with a Suspended License, a Super Speeder Speeding ticket, or Possession of Marijuana, and your case is in the Marietta Municipal Court, then call a law firm with the experience necessary to achieve the most favorable result for you.  We are available 24/7 to speak with you about your Marietta DUI or Marietta traffic case at 404-581-0999.

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

What are your rights to a search of your dorm room or locker in Georgia?

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As a student, what rights do you have to contest the search and seizure of drugs or alcohol on campus? Whether you are in high school or college, you still have limited rights to privacy that can only be overcome in accordance with school policies or a search warrant if law enforcement is involved. The Fourth Amendment prohibits unreasonable searches and seizures but those protections typically do not extend to actions taken by school officials. However, if the facts of your case show that the school officials violated their own handbook and/or acted in a law enforcement capacity, then there could be a valid defense to your case. There is no bright line rule, but you can contact us at 404-581-0999 for a free consultation to discuss the specifics of your case and decide whether hiring an attorney is in your best interest.

Serious Injury by Vehicle and Vehicular Homicide in Georgia

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You have been charged in Georgia with Vehicular Homicide or Serious Injury by Vehicle.  There is no way to describe in detail everything that needs to be done in order to reach a successful outcome for a client charged with Vehicular Homicide or Serious Injury by Vehicle in Georgia.  As with every type of Georgia criminal defense case, each case is unique, and there will never be a one size fits all recommendation on how to proceed.

Vehicular Homicide in Georgia provides:

“(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(c) Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person’s license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.”

The Georgia charge of Serious Injury by Vehicle provides “Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle. A person convicted under this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.”

What do you do if you have been charged in Georgia with Vehicular Homicide or Serious Injury by Vehicle?  The answer is going to depend on several factors.  Lets assume for this discussion the accident occurred more than one week prior to you reading this post and less than six months.  The accident happened in Georgia and you already gave a statement to law enforcement as to your recollection.

First, you want to retain a Georgia lawyer that is qualified to handle vehicular homicide cases.  The lawyer’s job will be to recreate the accident scene, assist you with your time line, assist in preserving your recollection and assisting in the investigation from the defense’s perspective.  The most important role will be in collecting and preserving evidence for the investigation.  Examples include: preserving phone records, marks on the highway, weather conditions from the accident day, videos from near the scene and credit card receipts.  Further, the serious injury Georgia lawyer will be a good sounding board for questions and expectations.  The Georgia vehicular homicide attorney will likely put the client on a to-do list involving things to help prepare the case.  The vehicular homicide or serious injury attorney will facilitate hiring an investigator and experts.  The attorney will also want to walk through the scene with the client as soon as possible.

As with anyone facing vehicular homicide charges or serious injury by vehicle charges, one of your immediate concerns will be bond.  If you cannot post a bond on a vehicular homicide case you are going to have no ability to earn money which is very much needed in order to prepare your case.  Further, the cases generally take slightly longer before formal charges are brought as there is almost always an accident reconstruction done by the city, county or State of Georgia that takes time to complete.  The case will not be indicted or accused until the final police accident report is approved.  You will want to be released on a nominal bond with as little conditions as possible.  The consideration for bond are the same as general criminal cases.  They include, likelihood to appear in court when summoned, danger to the community to commit a new felony offense, likelihood of harassing or intimidating witnesses, and your ties to the community.  In some vehicular homicide cases I have handled Judges have required special conditions in order to be released.  They include no driving, no alcohol and a treatment program.

Additionally, in the majority of cases, the injured party themselves or their family in a vehicular homicide case will need to be contacted.  If the fault is clear and the remorse is genuine, you will want to make the injured party or parties aware of your apology.  This step was an integral part of several vehicular homicide cases I successfully defended.  One reason is the prosecutor has a duty to consider the injured victim(s) input on desired outcome.  This is a very sensitive time and you must handle the communication in an appropriate manner.

Lastly, you will want to stop talking about the case to friends, family, law enforcement.  You will want to not post items to social media as your account will be monitored by someone from law enforcement or the victim’s family.  Any statements you make can potentially be used against you.  In rare cases, where you already made a statement to law enforcement, but left out exculpatory (items tending to prove innocence) information, you will want to supplement your statement to law enforcement.  This statement will be made through your attorney after properly being vetted for accuracy and potential harm to your case.

If you or a loved one is facing a Vehicular Homicide or Serious Injury by Vehicle charge, it is important you have an experienced criminal defense attorney with the experience and skill necessary to fight this case. Call us today for a FREE CONSULTATION at 404-581-0999.

False Report of a Crime in Georgia

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By: Mary Agramonte

Under Georgia law, it is illegal to transmit false information to law enforcement, fire departments, and the public at large. For example, you can be charged with a crime in Georgia for calling 911 to report crimes, bombs, fires, or other serious situations that do not actually exist. In Georgia, these crimes are called False Report of a Crime, False Report of a Fire, and Transmitting a False Public Alarm.

In Georgia, it is a crime to willfully and knowingly give a false report of a crime to any law enforcement officer or agency. In fact, you can be charged with felony false statement AND misdemeanor false report of a crime for making up a crime that did not actually happen. If you are charged with both of these crimes, you will be sentenced for committing the misdemeanor, and will be subject to up to a year in jail, costly probation, and a fine of up to $1,000. Similarly, it is also a misdemeanor in Georgia to call the fire department for a fire that does not exist. This can also subject you to jail, probation, fines, and a criminal history for life.

Georgia treats the offense of Transmitting a False Public Alarm much more seriously. For example, if someone reports a bomb or other hazardous substance that does not actually exist, you can be found guilty of a high and aggravated misdemeanor. Depending on the location of the warning, you can be found guilty of a felony, where the mandatory minimum would be five to ten years in prison, and a fine of up to $100,000, that you would be required to pay.

Georgia courts treat False Report of Crimes, False Report of Fires, and Transmitting a False Public Alarms very seriously. If you or a friend has been charged with a crime involving the false report of a crime, call an experience criminal defense law firm right away. We provide FREE CONSULTATIONS that can protect your freedom and your future. 404-581-0999.

Are you entitled to Bond in the State of Georgia in Criminal Cases?

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The court is authorized but not required to grant a bond in most cases. The court may deny bond or grant a very high bond for more serious offenses, especially with repeat offenders. When deciding whether to grant a bond as well as to what amount, the court considers the following:

Does the person pose a significant threat of fleeing or failing to appear in court?

Does the person pose a significant danger to any person, the community or property?

Does the person pose a significant risk of committing a felony pending trial?

Does the person pose a significant risk of intimidating witnesses or otherwise obstructing the administration of justice?

Hiring an attorney shows that the defendant is committed to showing up to defend against the charges. If you have an active warrant for your arrest, then we can help streamline the turn in process and ensure that there is a bond for the charges so as to prevent excessive incarceration. If your loved one has been denied a bond, then contact us at 404-581-0999 to discuss how we can assist in bringing them back home.

Giving False Names and Statements to Police in Georgia

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by Mary Agramonte

The Constitution gives us an absolute right to remain silent in response to police questioning. Our best advice is to use it. Your silence cannot be used against you and is not a crime. So proudly use it!

Often times, people will instead make stories up to police officers in hopes of convincing them: ‘it wasn’t me!’ This can put you in a worse position as it is against the law to give false names, or false statements to police. In other words, providing basic identifying information is encouraged; lying can land you in jail.

It is a misdemeanor crime in Georgia to give a false name or birth date to a police officer if he’s in the lawful discharge of his official duties. O.C.G.A. §16-10-20.  Misdemeanors in Georgia have a fine of up to $1,000, plus all the taxes and surcharges. Giving a false name or birthday to an office can even carry up to a year in prison, or can land you on costly and time-consuming probation.

Similarly, under O.C.G.A. §16-10-20, it is against the law to make a use or make false statement to any government agency. In Georgia, it is a felony to make a false statement, or to make or use a false writing or document in any matter involving a government agency. The punishment for speaking or writing a false statement is a mandatory minimum of one to five years in prison, or a fine of $1,000, or both.

For example, it is illegal to alter or falsify information on any applications or documents that you are presenting to any branch of the government. It is also against the law to knowingly conceal or cover up something to the police, and it is illegal to lie to a police officer. All of these things can place you in a position where you are facing felony charges and serious prison time.

If you have been arrested and charged with giving a false name or false statement, it is important you have experienced criminal defense attorneys on your team fighting for innocence and freedom. Call the office now at 404-581-0999 and mention this blog to get a FREE CONSULTATION on your false name or false statement case in Georgia.