What Kind of Intent is Required for Assault?

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According to O.C.G.A § 16-5-20, a simple assault includes any action that places another in reasonable apprehension of immediately receiving a violent injury. This statute includes an element of general intent, meaning that it doesn’t matter what the person performing the action intended to do- it only matters what the person observing the action apprehended.  In other words, there is no requirement that a person intended to create an apprehension of receiving violent injury. Technically, this means that something as simple as shaking your fist at someone (general intent because you intended to do the fist-shaking) could be charged as assault if the victim says that they apprehended a violent injury as a result- even if the accused never intended to actually harm the victim (meaning to cause the harm would be specific intent which is not an element of simple assault in Georgia).

O.C.G.A. § 16-5-21 defines aggravated assault as simple assault combined with one of three statutory aggravators: 1. intent to rob, rape or murder, 2. use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury, or 3. shooting towards people from a vehicle without justification. There are many things that can be classified as deadly weapons if they are used in an offensive manner: automobiles, firearms, metal pipes, knives, etc. That means that any time a gun is involved and a victim is in apprehension of receiving an injury, regardless of the accused’s intent to harm anyone, aggravated assault charges could result.  It is important to note that aggravated assault still does not require specific intent. Basically, it doesn’t matter what the accused intended, only what the other party perceived.

Aggravated assault carries huge penalties in Georgia and could result in up to 20 years in prison. It is important that your attorney understands the elements of the charged crime and holds the State to their burden. If you have been charged with simple assault or aggravated assault in Fulton, Dekalb, Cobb, Gwinnett, or Clayton counties, you need a lawyer. Call our office today at 404-581-0999 for a free consultation.

 

 

Georgia Supreme Court Clarifies Rules About Hearsay

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In Georgia, the rules of evidence only allow hearsay evidence (a statement being made outside the current trial and being offered for its truth) if the hearsay meets certain exceptions. Each of the exceptions are based on the fact that if the statement meets one of the exceptions, it has a high level of reliability. Just a few of these exceptions include:

  • Present sense impression- This happens when a person is describing something as it is happening. This type of hearsay is though to be reliable because there is no time for the person making the statement to create a lie.
  • Excited utterance- This happens when a person makes a statement while they are under the stress or excitement of a situation. This type of hearsay is thought to be reliable because the person making the statement is still excited about the event they just witnessed or endured so they are truthfully saying something spontaneous.
  • Statements made for medical treatment- This happens when a person tells a person something so that they may be medically treated. This type of hearsay is though to be reliable because a person tells the truth if they need medical care.

In a Georgia criminal defense case, prosecutors will often try to have hearsay evidence admitted under what is called the Residual Exception Rule. The Residual Exception Rule says that statements that have guarantees of trustworthiness may be admitted after a judge (the “gatekeeper” in a trial) examines the totality of the circumstances under which the statement was made and any evidence corroborating the statement. Prosecutors will often try to use this catch-all rule to bring in the most damning evidence, even if it doesn’t fit into one of the many hearsay exceptions.

A new Georgia Supreme Court case, The State v. Kenney, tightens the reigns on the use of the Residual Exception Rule. In Kenny, the State attempted to have a hearsay statement admitted under the Residual Exception Rule. After the Court had examined the statement and found that it lacked exceptional guarantees of trustworthiness and thus was inadmissible, the State attempted to have the statement admitted under the present sense exception or excited utterance exception. The Supreme Court ruled that once the State attempts to have a hearsay statement admitted under the Residual Exception Rule, they have waived the right to try to have the statement admitted under any of the other hearsay exceptions.  The Supreme Court guides that things such as the closeness of the relationship between the witness testifying in trial and the person making the statement and the level of intoxication of the person making the statement should be considered when determining if a hearsay statement has an exceptional guarantee of trustworthiness.

As you can see, the rules of evidence in a Georgia criminal defense case, particularly the ones surrounding hearsay evidence, are complex. But, even if incriminating statements have been made about you, there are ways to prevent the jury from hearing about them. It is important to hire an attorney who is comfortable with these rules and will fight to keep unfair evidence out of your trial. The attorneys at W. Scott Smith are educated in the hearsay rules and will work with you to make sure your case is as strong as possible when it is presented to a jury. If you are charged with a crime and would like to be represented by seasoned trial attorneys, call our office today at 404-581-0999.

 

Big Win for DUI Defense and What it Means for You

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In November, the Supreme Court of Georgia issued a ruling which marks a major victory for the United States and Georgia Constitutions, as well as folks charged with driving under the influence. In Ammons v. State, the Court held that suspects have the right to refuse an officer’s request to perform a preliminary breath test and field sobriety tests. What is more, is that the Court stated that refusal to take the tests is inadmissible under Georgia law.

The Constitution of Georgia protects citizens rights against self-incrimination. In Georgia, the government, including police and prosecutors cannot force you to speak or act in ways that could result in criminal consequences. Before the Georgia Supreme Court issued its decision in Ammons, however, the prosecution could introduce evidence that a suspect declined to take part in field sobriety tests at the request of an officer. The purpose of introducing refusals of field sobriety tests was to indicate to the jury or judge that the suspect refused to perform fields because they guilty. This is an improper purpose, and because of the Ammons decision, the State cannot try to convince the jury of your guilt based on your refusal because it is a constitutional right to refuse to offer incriminating evidence against yourself.

So what does this mean for you? This means that if you are stopped by police and asked to perform field sobriety tests, it may be in your best interests to refuse to do so, particularly if you have been drinking or have a history of DUI arrests.

Of course, if you are reading this blog, you may have already been charged with DUI and wondering what your options are. If you have been charged with DUI and refused field sobriety tests, that refusal is not admissible. However, there may be other evidence in your case that could be admitted if gone unchallenged. You should consider hiring an experienced DUI attorney to protect your interests and ensure that the State is not able to admit evidence which was improperly or illegally obtained. If you want to learn more about your options, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

The Statute of Limitations in Georgia

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The statute of limitations means how long the State has to bring charges against an individual after a crime has been committed (not how long the state has to actually try the case). In Georgia, there are several categories of crimes that determine the length of the statute of limitations:

  • Murder- none
  • Other felonies punishable by death or life imprisonment- 7 years
  • Forcible rape- 15 years
  • Offenses of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery when DNA evidence is used to establish the ID of the accused – none
  • Trafficking a person for sexual servitude, cruelty to children in the first degree, rape, aggravated sodomy, child molestation or aggravated child molestation, enticing a child for indecent purposes, or incest against children less than 16 years old committed on and after July 1, 2012- none
  • Other felonies- 4 years
  • Felonies committed against victims less than 18 years old- 7 years
  • Misdemeanors- 2 years

The statute of limitations is “tolled” (or suspended) until the crime becomes known. This means that the clock does not start running until the crime is known. The state often argues that the crime becomes “known” when the state becomes aware of the charges (i.e. a victim reports the crime to authorities). However, a recent Georgia Supreme Court decision, State v. Jones (case cite: S22A0425), clarifies this issue. The Georgia Supreme Court held in Jones held that a crime becomes known, and thus the statute of limitations begins running, when the crime is known to the victim. This means that if a victim waits until the statute of limitations has run out, charges may not be brought. The Court cites their earlier decision in Harper v. State saying that ““the actual knowledge of a crime victim about the crime is imputed to the State for purposes of applying the tolling provision”, and that “the correct date to apply in analyzing the statute of limitation is the date that the crime became known to the victim of the crime.”  Another decision, Womack v. State clearly says that “it seems to be well settled that . . . the knowledge of the victim is the knowledge of the State . . . .”

If you believe that you have been charged with a crime outside of the statute of limitations in Fulton, Dekalb, Gwinnett, Cobb or Clayton Counties, it is important that you work with an experienced criminal defense attorney who understands the nuances of the law. At the Law Office of W. Scott Smith, our attorneys will leave no stone unturned to ensure that charges brought against our clients are legal. If you need representation for any criminal offense, call our offices at 404-581-0999.

Statutory Rape in Cobb County

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Statutory Rape in Cobb County is a serious crime in Georgia.

O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Cobb County can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape in Cobb County, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

If you are arrested in Cobb County for Statutory Rape, you will see a Cobb Magistrate judge the following day. At this initial court date, the Cobb Magistrate Judge will read the warrant to you and may consider bond. If bond is not given at first appearance, you will be reset to a preliminary hearing and bond hearing date in front of another Cobb County Magistrate judge.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in  Cobb County for Statutory 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 Sex Offenses. You must protect your rights and take this matter very seriously.

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.

 

Cobb County Serious Injury by Vehicle

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DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in Cobb County will be prosecuted by the Cobb County District Attorney’s Office.  It is a felony charge, and the Cobb District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the Cobb County Superior Court located at 70 Haynes St, Marietta, GA 30090.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckess Drviving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in Cobb County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in Cobb County or the Marietta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.

 

Corporal Punishment of Children and Family Violence

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I’m charged with an act of family violence… against my kids!

Georgia law forbids acts of simple battery between past or present spouses, persons who are parents of the same child, parents and children, and other parental-child relationships. This is meant to protect citizens from physical abuse by family and household members. However, reasonable corporal punishment is legal in Georgia, and corporal punishment is a defense to a charge of simple battery family violence against a minor child. The statute that prohibits acts of simple battery between parents and their children, O.C.G.A. 16-5-23, goes on to say that “in no event shall this subsection be applicable to corporal punishment administered by a parent or guardian to a child…”

This means that parents can take measures to discipline, restrain, or detain their children, and may use reasonable, physical force to do so. What does “reasonable” mean within this context? While never strictly defined, we can look to case  law to help understand how to apply the law to the facts. Case law on corporal punishment of children more often tackles the definition in its application to school discipline. In a case from 1985, the Court of Appeals determined that the paddling of a student by a school principal which resulted in “severe bruises” did not rise to a level of punishment that was “excessive, unduly severe, and administered in bad faith.” A 2003 case, Buchheit v. Stinson, looked at the 1985 case involving a teacher, and applied similar reasoning to Buchheit’s corporal punishment of her child. In Buchheit, Mary Buchheit had allegedly slapped her child across the face.

The Court in Buchheit found that “there was no evidence that Buchheit’s action of slapping her child in response to the child’s disrespectful behavior fell outside the bounds of permissible ‘reasonable discipline.’ Although we recognizes that in ertain instances, paddling or spanking could rise to the level of family violence under the statute, the circumstances of this case did not constitute this prohibited conduct.”

In Georgia, parents are free to use reasonable force to discipline their children. If you are charged with family violence against your minor child for the way in which you chose to discipline the child, you may have a valid and protected defense. Call one of our experienced attorneys to set up a free consultation. 404-581-0999.

Georgia Public Drunkenness Attorney

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As holiday parties and events are in full swing, you may wonder the best way to stay clear of police encounters after a night out of drinking. The most obvious way to avoid trouble after a night out is to use a rideshare or designated driver, so as not to drive while intoxicated. But what about simply being drunk in public? Could that land you in jail for the night too?

Drinking to the point of being intoxicated is not always against the law. However, when your condition is made manifest by “boisterousness, by indecent conditions or act, or by vulgar, profaine, loud, or unbecoming language,” you can be arrested for the charge of Public Drunkenness.

Under O.C.G.A § 16-11-41 it is a misdemeanor offense to be intoxicated in a public place, or in the outskirts of a private residence other than your own, or one you are invited to be on. But it is only against the law if your intoxication  is manifested by boisterous, vulgar, loud, profane, or unbecoming language, or by indecent condition. Simply being drunk without an outward manifestation is not against the law in Georgia as mere drunkenness in a public place is not enough to be convicted.

As you can see there is a defense to the charge of Public Drunkenness in Georgia. If convicted, however, it is a misdemeanor crime that can remain on your criminal history forever. The maximum penalty in a Public Drunkenness case in Georgia is 12 months to serve in custody, and a $1,000 fine, or both.

If you have been arrested or cited for Public Drunkenness in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999. A night out on the town should not have lasting consequences and our lawyers are on call to assist you.

HGN and Head Trauma

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If you have been pulled over in Georgia on suspicion of DUI, the investigating officer will probably ask you to perform a battery of standardized field sobriety tests. This request may take the form of any number of questions, such as “can we just check to see if you are safe to drive?” or “we want to perform some tests before we let you on your way, is that alright?”. These tests are not required, and declining to perform these tests cannot be used against you in a prosecution of DUI. For this reason, it is better to decline to perform any tests, no matter how much reassurance the police officer gives you that they are “just to make sure you are safe on the roads.”

Still, many people opt to perform the tests, either because they don’t see the harm, they wish to be congenial with the officer, or because they don’t know that they can decline to perform the tests. If you choose to perform the tests, the officer may ask you if he can “take a look at your eyes.” This is an indication that he is about to perform the first of three standardized field sobriety tests, the horizontal gaze nystagmus.

This test is considered to be a “scientific” test, and because of this, it is important that the officer comply with his training as exactly as possible. The test must begin with a number of questions designed to medically qualify the participant. The officer is trained that he must ask you whether or not you have recently had any head, neck, or brain injuries, as these kinds of trauma can affect whether someone exhibits nystagmus, even if not under the influence of alcohol. It is common practice to ask whether or not the subject has “any eye problems” or vision issues, but this is not enough. The officer must also determine that it is appropriate to use this test. If the subject has been in a recent accident, suffering from whiplash, a concussion, vertigo, or some other balance and coordination related condition, the HGN test may not be accurate or reliable.

If you have been in an accident at the time of your DUI investigation, the officer may have overlooked potential head trauma before administering this test. As a result, the “clues” of the test may be unreliable, and could be subject to suppression before trial.

It is important to understand your rights and protections when you are charged with DUI. If you want an attorney that is knowledgeable about DUI police training and procedure, call our office for a free consultation at 404-581-0999. Written by Attorney Katherine A. Edmonds.

How Hearsay Rules Apply in a Probation Revocation Hearing

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If you are on probation for an offense in Georgia, your probation comes with certain conditions. If you are accused of violating your probation, the judge may be able to revoke your probation and sentence you to jail time if the state can show that you violated the conditions of your probation by a preponderance of the evidence. It is important that you have an experienced attorney by your side to protect your rights during your probation revocation hearing.

The rules of evidence still apply in a probation revocation hearing, including how the State may use hearsay statements to prove that you are guilty of violating your probation if a witness is unavailable to testify to the facts that prove the violation.

In a recent Georgia Court of Appeals decision, Grimes v. State, the defendant was accused of violating the conditions of his probation in Henry County when he allegedly made violent contact with individuals he had been ordered to stay away from as a condition of his probation. Rather than calling the alleged victim to testify during the hearing, the State relied on the testimony of a responding police officer and the alleged victim’s 911 call to relay the information needed to prove that the defendant had violated his probation.

The Court of Appeals held that this testimony was hearsay and should not have been admitted during the hearing because it violated the defendant’s constitutional right to due process. The Court of Appeals instructed that the trial court should have, at a minimum, looked into the reasons for the alleged victim’s absence. Additionally, the Court of Appeals held that the hearsay testimony was not reliable because it did not fit into any of the exceptions to the hearsay rule.

If you are on probation and are being accused of violating the conditions of your probation, it is important to have an attorney by your side who understands the rules of the process. At W. Scott Smith, our attorneys specialize in protecting the constitutional rights of our clients. If you are facing a probation revocation hearing, call our office at 404-581-0999 for a free consultation.