Public Indecency in Fulton County

Public Indecency is a serious crime in Georgia. It is imperative that you retain a qualified attorney immediately if you have been charged with public indecency.

O.C.G.A. § 16-6-8(a) defines public indecency as follows:

A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

  1. An act of sexual intercourse
  2. A lewd exposure of the sexual organs
  3. A lewd exposure in a state of partial or complete nudity; or
  4. A lewd caress or indecent fondling of the body of another person.

A public place means any place where the conduct involved may be reasonably be expected to be viewed by people other than members of the accused’s family or household.

Under O.C.G.A. 16-1-3(15), a public place is any place where the conduct involved may reasonably be expected to be viewed by someone other than immediately family members. In fact, the residence of the accused may be considered a public place if the person performs the lewd act in front of a window or someplace where he intends the public to see it.

Lewd has been defined as any gross indecency so notorious as to tend to corrupt community morals. The act is one in which it represents a moving away from some form of community morality norms towards amorality, immorality or obscenity which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination. The statute does not require that some person be embarrassed, offended or otherwise outraged by the lewd act.

The intent of the accused is relevant in a prosecution for public indecency.

The offense of public indecency is not a crime against the person. The person viewing the lewd act is a witness and not a victim of the crime.

The United States Supreme Court has held that the First Amendment’s guarantee of freedom of expression does not prevent the State of Georgia from enforcing its public indecency laws.

The punishment for public indecency is up to 1 year in prison. If it is a 3rd or subsequent violation, then the punishment is 1 to 5 years imprisonment. Also, the accused may be required to register as a sex offender under O.C.G.A. §42-1-12.

It is imperative that you do not talk to the police if you are accused of public indecency. Only speak to a qualified attorney so that you can properly defend yourself.

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

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

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

Have you been charged with Possession of a firearm by a convicted felon in Cobb County?

In Georgia, if you have been convicted of a felony the law does not allow for you to have a firearm.  If you are caught being in possession of a firearm, and you are a convicted felon, you can be punished by a sentence of 1-10 years.

What is possession?

Possession of a firearm can be actual or constructive.  Actual possession means that the person has direct control of the firearm i.e. on their person, in their vehicle, etc. Constructive possession is having knowledge of the firearms location and knowledge of its existence being near you but not on your person. For example, living in the same house with someone who has firearms is illegal and you can be charged.

Sentence for possession of a firearm by a convicted felon?

A first-time conviction for possession of a firearm by a felon is punishable by a sentence of 1-5 years in prison.

A second or subsequent conviction for possession of a firearm by a felon is punishable by a sentence of 5-10 years in prison.

If you or someone you know needs help with weapon charges in Cobb County, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Aggravated Assault in Gwinnett County

In Gwinnett County, Georgia, there are two types of assault offenses that an accused person may be convicted of: simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in Gwinnett County in one of the above-mentioned manners the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the crime:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years, in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits an aggravated assault against the elderly may be sentenced to at least 3 years, but no more than 20 years, in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If an aggravated assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years, in prison; and
  • Lastly, any person who commits an aggravated assault with the intent to rape a child under the age of 14 years old may be punished by a prison sentence of anywhere between 25-50 years.

 CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges, we zealously advocate for our client’s rights, and we are knowledgeable about all possible options for an accused dealing with such serious allegations. Therefore, if you or a loved one has been arrested for aggravated assault in Gwinnett County, please call our office today at 404-581-0999 for a free consultation.

 

Aggravated Assault in Cobb County

In Cobb County, Georgia, there are two types of assault offenses that an accused person may be convicted of: simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in Cobb County in one of the above-mentioned manners the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the crime:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years, in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits an aggravated assault against the elderly may be sentenced to at least 3 years, but no more than 20 years, in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If an aggravated assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years, in prison; and
  • Lastly, any person who commits an aggravated assault with the intent to rape a child under the age of 14 years old may be punished by a prison sentence of anywhere between 25-50 years.

 CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges, we zealously advocate for our client’s rights, and we are knowledgeable about all possible options for an accused dealing with such serious allegations. Therefore, if you or a loved one has been arrested for aggravated assault in Cobb County, please call our office today at 404-581-0999 for a free consultation.

Using Cell Phone Data in Defense of Murder in Fulton, Dekalb, and Clayton Counties

Cell phone data is becoming more and more popular as a tool that the State uses to try to place a defendant at the scene of a murder in Fulton, Dekalb, and Clayton Counties. The State often applies for, and is given, a search warrant for a suspect’s cell phone and performs a data dump of the phone to acquire all of the location data associated with calls and text messages around a given time. Fortunately, it is also a valuable tool that defense attorneys can use to prove that a defendant was not at the scene of a murder.

Utilizing cell phone data efficiently requires a basic understanding of how location data works. Each time a call or text message is sent or received, the phone pings off the nearest tower. Each tower is then divided into 3 sectors, or azimuths, comprising 120 degrees. Each azimuth then projects a “cone”, and the cone determines which direction the phone is (or is not) located. Thus, although the State will try to convince a jury that they can pinpoint the exact location of a defendant’s call phone, they can only show that the phone was located within one of the 120-degree cones and not at a specific location.

Cell phone data is more appropriately used by a defense attorney to prove that a defendant’s cell phone was not located at or near the scene of a murder. For example, if a murder occurred in the 120-degree cone of a certain cell tower pointing northwest, but the defendant’s cell phone is pinging off the cone pointing southeast from the same tower, the defendant’s phone may be excluded from being near the scene of the murder (if there were call or text messages being sent or received at or near the time of the murder).

The State will likely call an expert witness to present the cell phone data and try to place a defendant at the scene of a murder or other serious crime. Having an attorney that is familiar with how cell phone data works is important because they can cross-examine the witness and show why their analysis is incorrect. The defense attorney may then call an expert of their own to teach the jury about how to use cell phone data to show that the defendant’s cell phone was, in fact, not present at the scene.

The attorneys at W. Scott Smith have a proven track record of using cell phone data to exonerate their clients. If you are charged with a serious crime in Fulton, Dekalb, or Clayton Counties and feel that your cell phone data would show that you were not near the scene of the crime, call our office at 404-581-0999 for a free consultation.

Paulding County – Aggravated Assault by Strangulation

We see it happening more and more often in Paulding County: Battery-Family Violence charges being upgraded to Aggravated Assault-Strangulation. This means that the person originally arrested for a misdemeanor, can now be facing not only the misdemeanor of Battery-Family Violence, but also the serious felony offense of Aggravated Assault by Strangulation.

Why was my Battery Family Violence case transferred to the Paulding County District Attorney’s Office?

Officers initially make the arrest decision, but prosecutors have the ability to draft up indictments to present to a grand jury based on the facts within the officer’s original report. If there is any mention that the person placed their hands on the victim’s neck, it is possible and probable that the case will be upgraded to a felony offense of Aggravated Assault-Strangulation. Given the fact that it is a felony, the case will be sent to be prosecuted in felony court also known as Paulding County Superior Court, by attorneys who prosecute more serious cases.

What is Aggravated Assault Strangulation?

Georgia law states that a person commits the offense of Aggravated Assault by Strangulation when he or she assaults with any object, device, or instrument, which when used offensively against a person, is likely to or actually does result in strangulation. There are defenses in these cases as Georgia no longer defines what Strangulation means. The Georgia statute used to say that “Strangulation” is defined as impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person. Without that definition on the books anymore, it is very fact specific on whether or not the State can actually prove strangulation. In most cases, where there has been no loss of conscious, it will be difficult for the State to prove actual strangulation. Therefore, when the facts state that someone’s hands were placed on another’s neck, then arguably the person has committed a misdemeanor battery instead of the serious felony offense of Aggravated Assault by Strangulation.

What does it mean for my Paulding County criminal case if I am now facing Aggravated Assault by Strangulation?

Having the case upgraded to Aggravated Assault-Strangulation can lead to much harsher sentence if you are found guilty.  The crime itself carries 1-20 years in prison, which can be stacked with the other crimes originally charged and can result in a lengthy prison sentence. If you are charged with Aggravated Assault by Strangulation in Paulding County, you will be prosecuted by the Paulding County District Attorney’s office in Paulding County Superior Court and the stakes are certainly higher. Given the harsher penalties associated with violent felonies, it is imperative to seek a Paulding criminal defense attorney early on who can evaluate the case and immediately begin building the defense. Being proactive by speaking to a lawyer immediately after an arrest is the best way to ensure a strong defense when your case goes to court. Call us today for a FREE CONSULTATION about your Aggravated Assault by Strangulation case at 404-581-0999.

Civil Asset Forfeiture- Butts County

Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Arrested for Gang Activity in Dekalb County

The Dekalb County District Attorney’s office is cracking down on gangs in Dekalb County. If you are charged with being in a criminal street gang, do not make any statements to the police. You have a Constitutional right to remain silent.

If you are arrested for being in a criminal street gang, then you will be in front of a Dekalb County Magistrate Court judge the following day after your arrest. You will need an attorney for this hearing.

OCGA 16-15-4 sets out the offenses that are related to criminal street gang activity.

It is unlawful for:

  1. A person employed or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of a crime.
  1. Any person to commit an offense with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.
  2. Any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived from any interest in or control of any real or personal property of any nature, including money.
  3. Any person who occupies a position of organizer, a supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or directly, or conspire to engage in criminal gang activity.
  4. Any person to cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.
  5. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter such person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.
  6. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member or associate of a criminal street gang.
  7. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member of associate of a criminal street gang.
  8. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for providing statements or testimony against criminal street gangs or any criminal street gang member or associate.
  9. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent such person from communicating to any law enforcement or corrections officer, prosecuting attorney, or judge information relating to criminal street gangs, criminal street gang members or associates, or criminal gang activity.

 

The Dekalb County District Attorney’s office is indicting many cases under the street gang statute. You do not have to be an actual gang member to be indicted under this statute.

The sentence for a conviction for OCGA 16-15-4 is a minimum of 5 years in prison and a maximum of 20 years in prison and a fine between $ 10,000 – $ 15,000.

If you are charged in Dekalb County with violating the criminal street gang statute, please call us at 404-581-0999. You need to zealously defend yourself against these allegations.

 

Cruelty to Children in Douglas County

By: Attorney Erin Dohnalek

In Georgia, the offense of cruelty to children is broken down into three different degrees, depending on the severity of the alleged abuse. Because of the consequences of such a serious crime, it is vitally important to understand the offense, as well as your individual rights when dealing with such allegations.

According to O.C.G.A. § 16-5-70, first-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, under the age of eighteen, willfully deprives the child of necessaries to the extent that the child’s well-being is jeopardized. Additionally, conduct in which such person causes a minor child cruel or excessive physical or mental pain is considered first-degree child cruelty.

Second-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, with criminal negligence, causes a child, under the age of eighteen, cruel or excessive physical or mental pain. Additionally, third-degree cruelty to children occurs when a parent, guardian, or other person supervising a minor child acts in one of the following ways:

  • Such person acts as the primary aggressor and intentionally allows a minor child to witness the commission of a forcible felony, battery, or family violence battery; or
  • Such person, who is acting as the primary aggressor, knows that the minor child is present or knows that the child can either hear or see the act, commits the act of forcible felony, battery, or family violence battery.

Penalties

The penalty for a conviction of first-degree cruelty to children in Douglas County, Georgia is a prison sentence between 5-20 years. For second-degree cruelty to children, the prison term is anywhere between 1-10 years. Alternatively, if a person is convicted of third-degree cruelty to children, he/she may be sentenced to a misdemeanor penalty, depending on his/her past criminal history. If the person has never been convicted of third-degree cruelty to children or has only been convicted once in the past, he/she may be sentenced to a misdemeanor penalty. However, if such person has been convicted in the past more than twice for the same offense then he/she will be sentenced to a felony prison term between 1-3 years and/or a fine of no less than $1,000, but no more than $5,000.

Defenses

Due to the severity of the punishment, as well as the collateral consequences for a charge of cruelty to children, it is vitally important to hire an experienced criminal defense attorney to defend you against such allegations and who also understands all the possible defenses to such a charge. Some defenses to cruelty to children include, but are not limited to:

  • Accident, if it did not result from the person’s recklessness or criminal negligence;
  • Parent’s right to discipline, if reasonable; and
  • Actual innocence or false allegations.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of cruelty to children, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for cruelty to children in Douglas County, please call our office today at 404-581-0999 for a free consultation.

Reducing a Lifetime CDL Disqualification to 10 Years in Georgia

If you are convicted of two DUIs in Georgia, your commercial driver’s license (CDL) is disqualified for your lifetime. However, new rules provide a process to allow your CDL to be reinstated after only ten years. If you meet the following requirements, you are eligible to have your Lifetime CDL Disqualification reduced to 10 years:

  • At time of application, you must possess a valid Class C Georgia driver’s license. The term “valid” means that the license is not expired and is not cancelled, suspended, or revoked.
  • Any Lifetime CDL Disqualification you are applying to have reduced must have been in effect for a period of not less than ten (10) years.
  • Any Lifetime CDL Disqualification that is based on a conviction for homicide by vehicle in the first degree or serious injury by vehicle, you are not eligible to have your Lifetime CDL Disqualification reduced to ten (10) years.
  • Any Lifetime CDL Disqualification that is based on the use of a motor vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance; OR any Lifetime CDL Disqualification that is based on a conviction for Human Trafficking, is not eligible to be reduced to ten (10) years.
  • In addition to the $210.00 non-refundable CDL Restoration Fee, your application must include the following supporting documents:
    • A certified seven (7) year Georgia motor vehicle report (MVR) dated within 30 days of application. Your driving history must be free of any convictions for the five (5) year period preceding date of application.
    • If your Lifetime CDL Disqualification is based on a violation that was alcohol related, you must include a clinical evaluation dated within 90 days of the date of application reflecting no substance abuse treatment necessary.
    • If your Lifetime CDL Disqualification is not based on a violation that was alcohol related, you must include a certificate of completion from a DDS-certified driver improvement clinic dated within 90 days of the date of application.
    • A copy of your current, unexpired United States Department of Transportation (USDOT) medical certificate card.

If you are approved to have your Lifetime CDL Disqualification reduced to 10 years:

  • You will be eligible to obtain a Georgia Commercial Learner’s Permit (CLP), which must be held for a minimum period of 14 days before becoming eligible to upgrade to a Georgia Commercial Driver’s License (CDL).
  • You must complete and successfully pass all applicable knowledge and/or skills tests to obtain a Georgia CLP/CDL. You must also pay $35.00 for the CDL Application Fee, $10.00 for each CDL Knowledge Exam, and $50 for each CDL Road Skills Test attempt.
  • Any Georgia CDL you are issued will be restricted for first two (2) years to intrastate driving only.
  • You will not be eligible for a Passenger (P) endorsement on any Georgia CDL for the first two (2) years following issuance.
  • Restrictions may be removed after two (2) years if your driving history is free of any convictions.
  • No person whose Lifetime CDL Disqualification is reduced to ten (10) years shall ever possess a School Bus (S) or a HAZMAT (H) endorsement.
  • If you are convicted of a major traffic violation at any time after your Lifetime CDL Disqualification has been reduced to ten (10) years, you will be subject to a permanent lifetime disqualification.

 

If your CDL has been the subject of a lifetime ban, we can help you have the ban reduced.  This is a complicated process and having an experienced layer by your side is important. Please call our office at 404-581-0999 and let us help you have your driving privileges restored.