How do I get a bond?

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If you or a loved one has recently been arrested, the first thing on your mind is getting out of jail.  Unfortunately, the process of bonding out is more complicated than expected.  So, what do you need to know to get out of jail as quickly as possible?

1)      Will I get a bond?  If so, when?

In Georgia, the rules are organized according to whether the arrest offense is a felony or a misdemeanor.  If it is a misdemeanor, then you are entitled to a bond by law.  If the charge is a felony, then it is in the judge’s discretion whether to grant bail.  There are certain serious offenses for which only a superior court judge can grant bail.  In that case, the superior court will be notified of your arrest within 48 hours.  The superior court is then required to set a bond hearing within 30 days after receiving the notice.  However, if you file a petition for a bond, then the hearing must be held within 10 days after receiving the petition.

2)      What does the court consider when determining whether to grant bond and when determining high the bond should be? 

Judges consider four factors when determining whether to grant bond, and when determining how much the bond should be: (1) Are you a risk to run away and not come back to court?; (2) Do you pose a threat or danger to people or property in the local community?; (3) Is it likely that you will commit a felony before your case is resolved?; and (4) Are you likely to intimidate witnesses against you?

3)      Once I get a bond, what are my options for covering the amount? 

Cash bond – This requires you to put up the entire bond amount in cash or by money order.  Most people cannot afford the entire amount, and that is where bondsmen come in.  As long as you are able to pay 13-15% of the bond, then a bondsman will put up the money for you and require that you pay a fee.

*The money that you pay to bond out will be refunded at the close of the case as long as it is not forfeited by your failure to appear in court.  The fee to the bonding company will not be refunded. 

Property bond – You may be able to put up real property (house or land) as a way to guarantee your appearance in court.  Generally, you must have enough equity in the home or property to cover the amount of the bond.  In some places, you have to have twice the amount of the bond in equity.  Most bondsmen will still help you bond out of jail, and they may accept more than just real property.  For example, some will allow you to put up the title to your car as a guarantee that you will return to court.  Remember, if you use property to bond out and you fail to appear in court, then you are at risk of losing that property!

If you or a loved one have recently been arrested and want help bonding out, do not hesitate to contact us at 404-581-0999. You can trust that our firm will do everything possible to get you or your loved one out of jail and to make the process as simple and painless as possible.

Do I Have A Criminal History?

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“I’ve been arrested.  Does that mean I have a criminal history?”

Many of our clients have two primary goals when they come in the office for a free consultation: 1) stay out of jail and 2) keep their record clean.    Often people are amazed to hear that even though they have not yet been convicted of anything, they STILL have a criminal history!  How could this be?

The short answer: in Georgia, your criminal history is tracked by your finger prints.  Your criminal history begins when the Officer placed you under arrest and took you to the jail.  Most jails in Georgia have an electronic fingerprinting system.  The jailer takes your fingerprints and those images are transmitted to the Georgia Crime Information Center (GCIC).  GCIC then creates a profile for each person who has been fingerprinted.  The profile includes your name, your height, weight, eye color, and any distinguishing marks that you may have.   Your profile will list what the police officer charged you with,  what the State’s attorney intends to charge you with in court, and ultimately the final result of your case.

If you are arrested for ANY crime in the State of Georgia and you are fingerprinted, then you have a GCIC profile.   There are several ways a case can be resolved in a way that would restrict your profile so that future employers cannot see that you were arrested.   Our goal in every case is to find a solution that not only keeps you out of jail, but also protects your criminal history.  Your future is our priority.

Please contact our office for a free consultation if you have been arrested and fingerprinted in the State of Georgia.

I Got Arrested for DUI, But They Never Read Me My Rights

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One of the most common DUI questions we get at W. Scott Smith, P.C. is: “Why didn’t the Officer have to read me my Miranda rights?”  What a great question!  Let me see if I can explain.

The Miranda warning stems from a famous United Supreme Court case, Miranda vs. the State of Arizona.   In that case, the Supreme Court of the United States said that IF you are placed into custody and then the Officer attempts to interrogate you, he/she has to warn you of a few rights.  We know these rights as the Miranda Rights and they go like this:

You have the right to remain silent.

Anything you say or do may be used against you in a court of law.

You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.

If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?

If the officer chooses not to read you the warning while you are in custody and still proceeds with questioning, then any statements you make may be suppressed by the court at a later date and ultimately result in your case being much stronger.

 

So Why Didn’t the Officer Read Those to Me When He Placed Me Under Arrest for DUI?

In most DUI cases, not all, the Officer is NOT required to read you the Miranda Warning.  Most Officers will wait to place a driver they suspect to be under the influence of alcohol or drugs under arrest (or in custody) to avoid having to read the Miranda Warning.  Which makes sense, right?  The Officer is trying to get you to answer questions about your consumption of alcohol and have you submit to testing that he/she plans to use against you at trial.  If he starts telling you that you have the right to have a “pesky” lawyer like me present, you’re probably not going to do anything.   In Georgia, our appellate courts have determined that when you are asked to exit the vehicle and perform field sobriety testing or answer questions about where you were or where you are going, you are NOT deemed to be in custody, and thus, not entitled to have the Miranda Warning read to you.

BUT, the question of whether or not you are in custody CAN be a sticky issue.  We encourage anyone who has been arrested for DUI in the State of Georgia to contact our office immediately for a FREE consultation (404-581-0999).   Our lawyers can use their knowledge and experience to determine whether or not the Miranda Warning should have been read in your case, which sometimes can mean the difference between your case being dismissed and a conviction for DUI.

VIDEO: DUI Courthouse Procedure in Municipal Court of Atlanta

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Peachstate’s own W. Scott Smith discusses procedure in the Municipal Court of Atlanta for people arrested for DUI in the City of Atlanta.

http://www.youtube.com/watch?v=8EYTmmB0KDc&feature=youtu.be

For those arrested for DUI in the city of Atlanta, you are generally pulled over by a city of Atlanta police officer or a Georgia Department of Public Safety state trooper. They will give you a citation to appear in court at 150 Garnett Street, Atlanta, GA 30303 generally within 72 hours of the time of arrest. The Municipal Court of Atlanta generally has between 800 and 1500 people on its calendar daily. The courtroom that handles DUI in the Municipal Court of Atlanta is Courtroom 5A and the Judge is Christopher E. Ward. He takes the bench promptly around 8:10 every morning. He handles all cases for citizens who have retained private counsel first before handling unrepresented persons or persons who have hired the public defender. No electronic devices are allowed in his courtroom and he requires everyone pay attention to all proceedings (no reading of books, newspapers, or magazines, either).

If you’ve been arrested, we can handle that first court appearance for you. If you hire our law firm we will file an entry of appearance on your behalf and show up at that first court date. We will also show up at all subsequent court dates on your behalf which will hopefully ease the burden of arrest. Don’t go into the City of Atlanta unrepresented. Call 404-581-0999 today for a FREE CONSULTATION. We will meet with you on the weekend if necessary to discuss your case and representing you in this pending DUI charge.

House Bill 407 Enacts Changes to Mandatory License Suspension Requirements for Second Conviction in Five Years

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The State of Georgia imposes a mandatory suspension of a driver’s license if a person is convicted of one of the following offenses:

O.C.G.A. §40-5-54

1)       Homicide by Vehicle as Defined in §40-6-393

2)       Any Felony in the Commission of Which a Motor Vehicle is Used

3)       Hit and Run or Leaving the Scene of an Accident in Violation of §40-6-270

4)       Racing on Highways and Streets

5)       Using a Motor Vehicle in Fleeing or Attempting to Elude an Officer

6)       Fraudulent of Fictitious Use of or Application for a License as Provided in §40-5-120 or §40-5-125

7)       Operating a Motor Vehicle with a Revoked, Canceled, or Suspended Registration in Violation of §40-6-15

8)       Any felony violation of Article 1 of Chapter 9 of Title 16 If such offense related to an identification document as defined in §16-9-4 (Manufacturing, Selling, or Distributing a Forged Identification Document)

O.C.G.A. §40-6-391 – Driving Under the Influence of

1)    Alcohol that it is Less Safe to Drive

2)    Drugs that it is Less Safe to Drive

3)    Glue, Aerosol, or Any Toxic Vapor that it is Less Safe to Drive

4)    Alcohol with an Alcohol Concentration of .08 Grams or More

House bill 407, which goes into effect on July 1, 2013 makes changes to the periods of suspension and the methods of returning licenses to drivers. It relates solely to a “second in five” which is a second conviction for arrests that occur within five years of each other. If a second conviction occurs for any offenses listed under §40-5-54, Georgia residents may apply for reinstatement of their license after a 120 day period. Georgia residents convicted under §40-5-54 must also finish an approved Defensive Driving or DUI Alcohol or Drug Risk Reduction program and pay a license restoration fee which ranges from $200-510.

If a second conviction occurs under §40-6-391, Georgia residents must wait a minimum of eighteen (18) months before applying for reinstatement of their licenses. Georgia Residents whose license is suspended for a “second in five” under §40-6-391 must do all of the above including payment of the fine and completion a DUI Alcohol or Drug Risk Reduction program. On top of those requirements they must apply for an ignition interlock device limited driving permit (O.C.G.A. §40-5-64) and provide proof of installation and maintenance of an ignition interlock device for a period of one year.

However, if the Georgia resident who was convicted under §40-6-391 is a member of drug court program or is enrolled in clinical treatment they may apply for an ignition interlock device limited driving permit after 120 days without completing a DUI Alcohol or Drug Risk Reduction program. If for any reason the Georgia resident is granted a waiver from an ignition interlock device, they must wait at least one year from date of suspension before becoming eligible for a limited driving permit.

If for any reason, the court orders installation of an ignition interlock device as a contingency of a resident’s probation, the resident can only drive vehicles that contain the ignition interlock device. They must complete the entire one year ignition interlock period and participate in a substance abuse program.

Finally, if a Georgia resident is a habitual violator of §40-6-391 and has had their license revoked but the court grants eligibility for an ignition interlock device, the Georgia resident must wait two years from the date of conviction for which the eligibility was granted. The following conditions are required before a probationary license is granted in this circumstance: 1) the resident must complete a DUI Alcohol or Drug Risk Reduction Program, 2) the resident has completed a clinical evaluation, 3) the resident has installed an ignition interlock device in any vehicle they are driving, and 4) a ceritifcate of elgigibility for an ignition interlock device is presented by the court. After the one year period, this habitual violator may apply for a renewal of their probationary license without an ignition interlock device.

Any driver operating with an ignition interlock device as required by the court or Department of Driver Services who receives an unsatisfactory report during the ignition interlock period can have their permit revoked by Department of Driver Services. The habitual violator can request a hearing with a payment of $250 regarding the failure to report any ignition interlock issues.

House Bill 407 makes pretty broad changes to the way Georgia residents convicted of a “second in five” can get limited driving privileges and ultimately request reinstatement of their license. It is imperative you understand your right in driving by speaking with a criminal lawyer.

GA Record expungement goes away in July 2013

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The passage of HB 1176 means that the current expungement laws in Georgia (O.C.G.A. 35-3-37) will disappear in July 2013.  In fact, the ability to expunge (remove, erase, strike out) an arrest off of a criminal record will be gone under the new O.C.G.A. 35-3-37 which takes effect in July 2013.

Under the new law, the Georgia Crime Information Center (“the Center”) will “restrict” the criminal history record information of an individual relating to a particular charge.  Therefore, the information will be available only to judicial officers and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34.  (O.C.G.A. 35-3-37(a)(6)-effective July 1, 2013).

Under the old law, the impetus was on the individual to request expungement of eligible offenses.  A review of the new law shows that the duty is now on the Center to restrict the information.  “Access to an individual’s criminal history information…SHALL BE RESTRICTED BY THE CENTER… (O.C.G.A. 35-3-37(h)-effective July 1, 2013).  Further placing the impetus on the State agencies involved, if the case is never indicted or accused, and never referred to the prosecutor by the arresting agency, the arresting agency shall contact the center and inform the center that the record should be restricted.  If the Center does not receive notice from the arresting agency (meaning the agency does not follow its statutorily mandated duty to report to the Center) then the Center must restrict the record after 2 years on misdemeanor charges or 4 years on felony charges.  (NOTE: there are restrictions on felony offenses including serious violent felonies and felony sexual offenses).

After an indictment or accusation, the CENTER SHALL RESTRICT THE RECORD if:  the case is dismissed or nolle prossed, the offender was sentenced under 16-13-2 and successfully completed the terms and conditions, or the individual successfully completed drug court treatment or mental health court treatment program.

The new law also requires the restriction of the record if the individual was acquitted of all charges by a judge or jury.  However, the prosecuting attorney can, within 10 days of the verdict, demonstrate to the court by clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record being publicly available because either: 1) the prosecutor was barred from introducing material evidence on legal grounds (granting of motion to suppress or motion in limine) OR 2) the individual has been formally charged with the same offense within the previous five years.

Similar to the old law, the new law does not allow for restriction of the record if the charges were dismissed or nolle prossed because of a plea agreement, the granting of a motion to suppress or motion in limine, the conduct was part of a pattern of conduct which led to prosecution by another state, or the individual had immunity from prosecution.  Furthermore, if the individual was tried and acquitted of some, but not all of the charges.

Another twist in the new law allows for restriction of the record where an individual had felony charges dismissed or was acquitted of the felony charges BUT was convicted of misdemeanor charges arising out of the same conduct.  NOTE, in this instance the impetus is back on the individual and they must petition the Superior Court of the county where the arrest occurred to restrict access to the felony charges within four years of the arrest.  Additionally, if  an individual’s case has been on the dead docket for more than 12 months, the individual may petition the Superior Court of the county where the case is pending to restrict access to criminal history record information for such offense.

As with any dramatic change in the law, the implementation of the new “record restriction” will face challenges as individuals attempt to restrict access to their criminal history.  The attorneys at W. Scott Smith, P.C. are well versed in the new law and will be able to assist you navigate the hurdles of the new law.  Please do not hesitate to contact W. Scott Smith, P.C. with questions about the current expungement law or with questions about the new record restriction law.

 

U.S. Supreme Court strikes down key parts of Arizona Immigration Law

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The U.S. Supreme Court ruled largely in favor of the federal government in a case involving Arizona’s immigration law, striking down most of its key provisions.  However, it upheld the most controversial provision involving checks on people’s immigration status while enforcing other laws.

UPHELD: The Court let stand a provision that lets police check a person’s immigration status while enforcing other laws if “reasonable suspicion” exists that the person is in the United States illegally.

STRUCK DOWN: The Supreme Court’s 5-3 ruling struck down key parts of the Arizona law, including:

  • Authorizing police to arrest immigrants without a warrant where “probable cause” exists that they committed any public offense making them removable from the country.
  • Making it a state crime for “unauthorized immigrants” to fail to carry registration papers and other government identification.
  • Forbidding those not authorized for employment in the United States to apply, solicit or perform work.  That would include immigrants standing in a parking lot who “gesture or nod” their willingness to be employed.

For a full text of the decision, please visit: http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=11, or click here: Arizona v. United States

Source: CNN

 

 

Happy Birthday Miranda Rights!

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Ignorance of the law is not a defense.  The Peach State Lawyers want you to know the law so you can protect your rights.

Today we will be talking about the Miranda rights/warning.  These are the rights that everyone knows about, or has at least heard on television!   “You have the right to remain silent, anything you say can and will be used against you in a court of law…”

So why talk about this today?  These rights have been around for a long time, haven’t they?  Yes.  But today is June 13, 2012.  On this date in 1966 the United States Supreme Court issued the landmark decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966).  In the 5-4 decision, the Court held that both inculpatory (tending to show guilt) and exculpatory (tending to show innocence) statements made while in custody to law enforcement (or other agents of the government) are admissible only if the Defendant was informed of the right to have an attorney present before and during questioning and that the Defendant knowingly and voluntarily waived the right.  Thus was born the Miranda warning.

Happy Birthday to the Miranda rights!