What to expect during a DUI stop in Atlanta, GA

By: Attorney Alex Henson

If you are suspected of driving under the influence of alcohol in Atlanta you might be pulled over and investigated by police. What can you expect during a DUI stop?

First, the officer might ask you if you’ve had anything to drink. You have the right to remain silent and refuse to answer the question, but always be polite and respectful. Any statements you make could be used against you later in court.

Next, the officer might ask you to perform certain exercises to see if you are safe to drive. These exercises are called Standardized Field Sobriety Tests and your performance could be used against you in court later. The most common of these tests are the horizontal gaze nystagmus (HGN), the one leg stand, and the walk and turn. It is voluntary to participate in field sobriety tests. Refusing to participate cannot be used against you in court later.

The officer may decide that you are under the influence and less safe to drive. If the officer decides to arrest you, he or she may read you Georgia’s implied consent statement and request chemical testing of your breath or blood. These tests are voluntary, but refusal can result in your license being suspended. If you have been arrested for DUI and would like a free consultation, call us at (404) 581-0999.

I have an FTA in Municipal Court of Atlanta. What do I do?

If you missed your Court date, you may be concerned about whether or not there are warrants out against you. What you may not know is that an FTA in Municipal Court of Atlanta (hereafter, “MCOA”,) can also result in a license suspension. If you have missed a Court date, you should act swiftly to clear up the FTA. Failing to take action could result in your arrest. So what should you do?

To clear up an FTA in MCOA, you can go to the Courthouse and request a new Court date. The clerk will lift the warrant and place you on an “FTA Calendar.” Note that the license suspension will not be lifted until the Judge approves it at the FTA Calendar. Keep in mind that, until the warrant is lifted, if any officer finds that you have an active warrant, they would have the authority to arrest you. Although you probably do not have to worry about being arrested inside the Courthouse when you go to address your FTA, it is wise to enlist the help of an attorney to go with you or to ask the Court to lift the warrant on your behalf.

Once the warrant is lifted, you are no longer at risk of being arrested for the FTA. However, your license will remain suspended until the Judge releases the suspension. This will not happen until your Court date. In the meantime, continuing to drive on your suspended license puts you at risk. If you are stopped for a traffic offense (speeding, for example,) and the officer determines your license is suspended, not only will you get a speeding ticket, but you will also be charged with Driving on a Suspended License, a misdemeanor which can result in fines, additional jail time, and can suspend your license for six months.

Of course, it can be difficult to go about your daily life with a suspended license. We can help expedite things to get you an earlier Court date so you can get your license back and address the underlying charges. Missing a Court date can be serious, but you don’t have to address it alone. Give us a call. We are within walking distance of Municipal Court of Atlanta and we can walk down to get your FTA lifted same-day. For a free consultation with one of our attorneys, call 404581-0999. Written by Attorney Katherine A. Edmonds.

Armed Robbery in Atlanta/Fulton County, Georgia

By: Mary Agramonte

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in Fulton County.

            The first thing that happens after someone is arrested for Armed Robbery in Fulton County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant., and it occurs at the Fulton County Jail at 901 Rice Street in Atlanta. At the First Appearance hearing, a Fulton County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in Fulton County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the Fulton County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed on. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the Fulton County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in Fulton County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in Fulton County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in Fulton County and throughout the State. 404-581-0999

Georgia Criminal Law – Drug Weight

In Georgia, there are many different kinds of drug charges that differ in a multitude of things such as the penalty. A misdemeanor drug charge can result in up to a $1000 fine excluding surcharges and up to one year in jail. A felony drug charge can result in 1 to 15 years, and even up to 30 years or life in prison depending on the charge and/or quantity of drugs. 

The quantity of drugs you’re charged with makes an enormous difference in the penalty and how the case proceeds. For example, you can be charged with trafficking marijuana if you possess more than 10 pounds of marijuana. If you possess somewhere between 10 pounds and 2,000 pounds, the minimum sentence is 5 years. If you possess somewhere between 2,000 pounds and 10,000 pounds, the minimum sentence is 7 years. And lastly, if you possess 10,000 pounds or more, the minimum sentence is 15 years. Therefore, the amount/weight of drugs you are found to possess is crucial to the defense of your case.

A multitude of things can work against you and your case. One very important factor can be the excess water weight found in drugs. Excess water can be found in drugs such as cannabis and can lose around two thirds of its weight when dried out. This factor can negatively impact your Georgia case because the excess water weight can push the weight from a non-trafficking amount to a trafficking amount or from a small drug trafficking charge to a higher charge. 

Another factor that can work against your case is the scale used to measure the drugs. I’ve had the opportunity to observe a scale used at the jail. A vital thing to remember is that a large portion of large scales are not correctly calibrated. This is important for your defense because you can attack the validity of the scale to work in favor of your case. Further, there can be times where the scale is not properly cleaned, leaving residue from other cases on the scale, which can potentially increase the amount of drugs you are charged with. 

Although there can be a lot of factors working against you in a simple drug charge and/or a drug trafficking charge, there are a lot of defense strategies that can reduce the sentence or even get your case dismissed. For example, we can file a motion under the authority of Williams v. State Ga. 749, 312 S.E.2d 40 (1983) to inspect and examine everything that was found and hire our own expert to examine the contents (sample of our motion down below). 

Should you have a trafficking cocaine or trafficking drugs case please inquire of your legal counsel about the weight of the marijuana or weight of the cocaine.  If you have a drug trafficking warrant or a loved one in custody on a drug trafficking charge and they are unrepresented in Fulton County, Cobb County, Dekalb County, Gwinnett County, Cherokee County, or Forsyth County please call us.

The experienced lawyers at our PeachStateLawyer firm have been winning serious and big drug cases for over twenty years. Call us today at 404-581-0999 for a free consultation to see how we can help you win your case. 

Interference with Custody – Georgia Criminal Attorney

By: Mary Agramonte

            In most divorce and child custody cases, the Judge will issue an order or decree for parents to abide by as it relates to the parenting time, visitation, and responsibilities for each parent. When one parent fails to follow the order, a family law case can quickly turn criminal. In Georgia, the crime is known as Interference with Custody and is codified at O.C.G.A. § 16–5–45. A criminal arrest and prosecution can occur when one parent keeps the child past the visitation time that was ordered in the plan.

Under O.C.G.A. § 16–5–45, a person can be charged with Interference with Custody when they knowingly or recklessly take or entice the child away from the individual who has lawful custody. In this scenario, a felony Kidnapping charge can also occur. A person commits crime of kidnapping when they steal away another person without lawful authority to do so.

            However, the more common way Georgia parents find themselves being arrested for Interference of Custody is where one parent intentionally retains possession of he child past the lawful visitation time disclosed in the order. This can even happen when the parent keeps the child an extra day past their mandated week or day of visitation.

            A third way a person can be charge with Interference with Custody occurs when he or she harbors a child who has run away. This means you can be charged under this statute even if you are not the parent. If a child runs away from home and stays at your house, you can be charged for harboring the run away and be subject to criminal penalties.

The Interference with Custody statute in Georgia applies to all children under the age of 17, or children under age of 18 if they are alleged to be a ‘dependent child or child in need of services.’

What is the punishment for Interference with Custody in Georgia?

On a first conviction, the case is treated as a misdemeanor, with the penalties to include one to five months in jail, and/or a fine between $200 and $500. On a second conviction, the case is still treated as a misdemeanor but will include a minimum three months in jail, up to 12 months, as well as a higher fine in the amount of at least $400.00. The stakes get much higher on a third conviction of Interference of Custody. In this instance, the person accused of Interfering with Custody will be charged with a Felony offense. Felonies are treated more harshly in the justice system, and Judges can sentence up to five years to serve on a third conviction.

Interstate Inference with Custody has Increased Penalties

A person commits the offense of Interstate Interference of Custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor away from the individual who has lawful custody of such minor, and in so doing brings the minor into Georgia or removes the minor  from Georgia. This can apply in child custody issues where the person keeps the child longer than the period of lawful visitation.  Interstate Interference of Custody is a felony in Georgia with a punishment, if convicted of the crime, of 1 to 5 years imprisonment.

Defenses to Interference with Custody include challenging the venue where the case is brought, meaning that jurisdiction has to be the correct county to be able to prosecute the person accused of the crime. For example, when a parent lawfully removes child from state, but unlawfully retains custody out of state, the county of custodial parent, would be venue of any criminal prosecution. Oftentimes the police get involved where the child is taken, and the defense can lie in what county brings the charges. Additionally, the substance of the child custody order or decree can offer defenses. As in all cases, each and every element of the statute has to be proven beyond a reasonable doubt in order to be convicted of any crime.

The purpose of the Georgia law criminalizing interference with custody is to protect custody interests of child’s lawful custodian from interference by another person. Child custody and divorce cases are not the only types of cases where the person can be charged under this statute. A person can be charged under this statute in child abduction scenarios, as well as situations where the child is in an unlawful physical relationship with an older person.

If you or a loved one has been charged with Interference of Custody, or have any questions about the crime in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Incest

In major sex offenses, the person charged faces an uphill battle. These types of offenses are inflammatory in our society and many people rush to judgment, deeming the person guilty from the onset. The truth is there are people who are wrongly accused of committing these types of offenses. This article serves to explore the nature of the laws against incest, what the penalties are, and applicable defenses.

The Offense

Under O.C.G.A. § 16-6-22, a person commits the offense of incest when such person engages in sexual intercourse or sodomy, with a person he or she knows he or she is related to by blood or by marriage as follows:

  • Mother and child or stepchild;
  • Father and child or stepchild;
  • Siblings of the whole blood or half blood;
  • Grandparent and grandchild of the whole blood or half blood;
  • Aunt and niece or nephew of the whole blood or half blood; or
  • Uncle and niece or nephew of the whole blood or half blood

The Penalty

Incest is a felony and a conviction will result in between ten and thirty year’s imprisonment. If the victim was under the age of fourteen, the prison term is between twenty-five and fifty years. Furthermore, a person convicted of incest will be required to register as a sex offender.


Before we discuss applicable defenses, it is important to know what is not a valid defense to a charge of incest. It is not a defense that the intercourse was consented to by the victim. Consent is invalid where the victim is under the age of fourteen because that child is mentally incapable of giving consent.

One applicable defense to a charge of incest is that no sexual intercourse or sodomy occurred. But how does someone prove something didn’t happen? Evidence tending to establish issues with the victim’s credibility, bias, motives, or perception are beneficial to the defense. Also, one should consider obtaining an expert witness to analyze the case. An expert can assist in performing or rebutting forensic examinations of the alleged victim.

Another possible defense is that the parties involved simply do not meet the relationship required by law. The law is very strict as to which relationships apply and if the relationship falls outside of those stated under the law, a charge of incest will not stand.

Finally, the State has to prove beyond a reasonable doubt that the defendant knows he or she is related to the other person. The law requires proof the defendant knew or should have known they are engaging in intercourse with someone who meets the relationship requirements. However, one cannot simply ignore such a relationship when, under the circumstances, the defendant should reasonably know of such as relationship.

Contact Us

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

Can you get in trouble for bringing cigarettes or a cellphone to an inmate in Georgia?

By: Mary Agramonte

            Georgia law has made it a felony for someone to give an inmate certain illicit items. These include guns, weapons, alcohol, drugs, tobacco and cellphones. If any of these items are given to an inmate without the warden’s permission, both the inmate and the person who gave it to the inmate, can be charged with a felony offense. This law is codified at O.C.G.A. § 42-5-18.

It is against the law for Inmates to possess certain items while in jail.

            If the inmate possesses a gun, weapon, alcohol, drugs, or tobacco, he or she can be convicted and imprisoned for 1 to 5 years (which can run consecutive to whatever sentence they are currently serving). Interestingly, if the person in jail is being held for a misdemeanor arrest or conviction, and is caught with a cell phone in violation of Georgia law, Georgia law can be more lenient as this offense is actually a misdemeanor. On the other hand, if the person is being held for a felony and is caught with a cell phone, it will be charged as a felony.

The person on the outside bringing the items can be punished more severely in Georgia.

            Another caveat is that Georgia law is that is treats more harshly the person bringing the items, than it does the inmate possessing them. If you are the one who brings the prohibited items in, or even attempts to do so, it is a mandatory minimum of two years to serve in prison (and all the way up to 10 years). The mandatory two years cannot be served on probation meaning it is a mandatory prison sentence. This includes weapons, drugs, and alcohol will all result in a mandatory two years in prison if the person is convicted of that crime. If it is only cigarettes or tobacco, then the sentence is slightly lighter in Georgia in that is a mandatory one to five years in that situation if the person is convicted at trial or plea.

What about drones?

            As technology develops more in the outside world, people are becoming creative in ways to bring prohibited items into jails and prisons. In this regard, the Georgia legislature has enacted laws to prevent the use of drones and other unmanned aircraft systems in either taking photos of jails and prisons, or using the unmanned aircraft to bring the banned items into the prison walls.  In this situation, it is a 1 to 5 year sentence to use the drone to take photos, and a 1 to 10 year offense to actually attempt to bring items into jail or prison. Both of these are considered felony offenses.

            Whether you or a loved one has been caught either possession the items while in prison, or bringing the items into the prison, there is hope. Experienced criminal defense attorneys can put together a defense to mitigate and protect your future. Call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia DUI Law – Necessity Defense to a DUI Charge

There are many legal challenges and defenses available to defendants in a DUI case. One of these defenses is an “affirmative defense.” An affirmative defense is one in which the defendant argues that, even if the allegations of the indictment or accusation are true, there are circumstances that support a determination that he cannot or should not be held criminally liable. In the context of a DUI, the defendant would be arguing to the judge or jury that the defendant was in fact DUI, but the defendant is justified or excused in driving under the influence. One justification defense[1] to DUI is “necessity.”   

Under federal law[2], the doctrine of necessity requires:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

In 1991, the Georgia Supreme Court reversed a conviction for DUI because a jury could have found driving under the influence was justified when Defendant was driving 8 ½ month pregnant wife to the doctor.[3] 

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] O.C.G.A. § 16-3-20

[2] Manners v. Cannella, 891 F.3d 959, 11th Cir. (2018)

[3] Tarvestad v. State, 261 Ga. 605 (1991)

Georgia DUI Law: How a DUI Becomes a Felony

The vast majority of DUI arrests are charged as misdemeanors in Georgia. There are certain circumstances, however, that will cause the DUI charge to be elevated from a misdemeanor to a felony. This article serves to explain the three major ways a driver in Georgia could obtain a felony DUI charge.

Multiple Prior DUI Convictions

A fourth DUI arrest within a ten year period[1] that results in a conviction is punishable as a felony. A first, second, or third DUI conviction in a ten year period will be treated as a misdemeanor, although the third conviction will be a high and aggravated misdemeanor.

If convicted of a fourth offense within a ten year period, the judge has the authority to impose a prison sentence between one and five years (all of which may be on probation except 90 days).

Causing Serious Injury or Death

You can be charged with a felony if you seriously injure another person while driving under the influence. Under O.C.G.A. 40-6-394(b), “[a]ny person who, without malice aforethought, causes an accident that results in bodily harm while violating Code Section 40-6-390 or 40-6-391 commits the crime of serious injury by vehicle. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.” Bodily harm is defined as, “an injury to another person which deprives him or her of a member of his or her body, renders a member of his or her body useless, seriously disfigures his or her body or a member thereof, or causes organic brain damage which renders his or her body or any member thereof useless.”

Similarly, “[a]ny person who, without malice aforethought, causes the death of another person . . . [while driving under the influence] shall be punished by imprisonment for not less than three years nor more than 15 years. O.C.G.A 40-6-393.

High Risk Operator

The law recognizes people who are convicted of DUI should be punished more severely because they are transporting children at the time of impaired driving. This occurs in two ways.

A third conviction of DUI child endangerment will result in a felony charge. This offense is punishable by one to five years imprisonment and a fine of $1,000 to $5,000.

Finally, under O.C.G.A. 40-6-391.3, a school bus driver convicted of DUI while driving a school bus is punishable as a felony. The school bus driver will face a one to five year prison sentence and a fine between $1,000 and $5,000.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] Measured from the dates of arrest (but only since July 1, 2008). Arrests resulting in convictions prior to this date do not apply towards the total number of arrests for this purpose.

Georgia DUI Law – What a Georgia DUI Costs

In 2018, there were 21,784 DUI convictions in Georgia. A DUI arrest and conviction has serious consequences. Among those consequences, you can expect to pay a significant amount of money in defending the case. This article serves to provide a general idea of what it costs to be arrested and convicted of DUI.

  1. Bail/Bond: $150 – $2,500. Cost of bail in a DUI arrest depends on a variety of factors including but not limited to prior criminal history, case facts, and ties to the community.
  2. Towing: $50 – $200. The cost of towing and impounding a car can increase daily.
  3. Insurance Increase: $4,500 or more. Depending on your insurance carrier and driving history, your rates could double, triple or even quadruple over a period of three to five years.
  4. Legal Fees: $2,000- $25,000.
  5. Fines: $300 – $5000. These base fines vary depending on the nature of your offense and any prior DUI’s. These base fines do not include statutory court costs which can increase the base fine by 50% or more. 
  6. Alcohol Evaluation: $95 – $300. The law requires completion of an alcohol and drug evaluation and treatment if recommended by the evaluator.
  7. Classes: $500 – $4,000. As part of a DUI conviction you will be required to complete a Risk Reduction class (also referred to as “DUI School”). This class costs $350. You are also required to complete a Victim Impact Panel which costs roughly $100.
  8. License reinstatement fees: $210 – $410. License reinstatement generally costs $210. However, depending on your history, you could be required to install an ignition interlock device on your vehicle in order to reinstate your license. You would have to pay for the installation of the device plus daily maintenance costs.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.