Georgia Gang Statute

O.C.G.A.  § 16-15-4 is commonly referred to as the Georgia Gang Statute. But, this statute can be difficult to understand. Georgia case law is clear that it is not illegal to simply be a member of a gang. In fact, a 2019 Georgia Supreme Court case called Chavers v. State says that a defendant cannot be convicted under the Street Gang Terrorism and Prevention Act for merely being associated with a gang that commits criminal acts; the defendant must personally commit an enumerated offense himself.  However, if the state can prove that you are a member of a gang AND commit an illegal activity to further the interests of the gang, you can be charged with violation of the Georgia Street Gang Terrorism Act. A conviction under the Georgia Gang Statute could result in up to 20 years in prison.

One way the state can charge an individual with violating the Georgia Gang Statute is under section (a) of the statute. Section (a) states that it shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3. The enumerated offenses in paragraph 1 of 16-15-3 include things like racketeering, stalking, rape, kidnapping, criminal trespass or damage to property, any crime of violence, or compromising the security of a jail or prison.

Another way the state can charge an individual under the Georgia Gang Statute is under section (c) of the statute. Section (c) states that It shall be unlawful for any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived therefrom any interest in or control of any real or personal property of any nature, including money. This simply means that a person could violate the Georgia Gang Statute by accepting money that was gained from illegal acts by a known gang. For example, a person who is holding money that was acquired through gang activity could be prosecuted under the Georgia Gang Statute.

It is important to remember that the state must prove 4 elements in order to convict someone of violating the Georgia Gang Statute:

(1) the existence of a “criminal street gang,” defined as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity”;

(2) the defendant’s association with the gang;

(3) that the defendant committed any of several enumerated criminal offenses, including those involving violence, possession of a weapon, or use of a weapon; and

(4) that the crime was intended to further the interests of the gang.

If you are charged with violating the Georgia Gang Act in Fulton, Dekalb, Gwinnett, Clayton, Cobb, or Rockdale counties, it is important that you hire an attorney who understands the intricacies of the statute. At W. Scott Smith, our lawyers have handled numerous gang cases and require the state to meet their burden.  If you have been charged with gang crimes, call our office at 404-581-0999 for a free consultation today.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Henry County, Georgia

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Henry County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and attempting to elude in Henry County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Henry County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing or attempting to elude on, or after, July 1st, 2022, the sentencing will be enhanced due to this new law.

Contact Us

Due to the severity of the punishment for fleeing or attempting to elude, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing or attempting to elude in Henry County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Hapeville DUI – Criminal Defense Attorney

Hapeville, Georgia is home to the Hapeville Municipal Court where Judge Monica Ewing presides over DUI, Traffic, Marijuana, and other City Violation cases brought by Hapeville Police Department. The Hapeville Municipal Court is located at 700 Doug Davis Drive, Hapeville, GA 30354.

 

One of the most common cases we see in the Hapeville Municipal Court are DUI cases. In Georgia, DUI can be charged in either two ways under O.C.G.A. § 40-6-391.  Driving under the Influence Per Se means the State is charging the individual with being over the .08 legal limit for drivers over 21 years old. It is a .02 legal limit for DUI cases involving drivers under 21. DUI Per Se is charged where there is a breath, blood, or urine test. The second way a DUI can be charged in Georgia is DUI Less Safe. Under Georgia law, DUI Less Safe means the person is accused of driving under the influence to the extent they were a less safe driver. We typically see DUI Less Safe cases where there is no chemical test, or where there is a chemical test but it is below the legal limit.

 

There are numerous defenses to DUI to be explored and raised. A skilled DUI defense attorney must fiercely evaluate and raise issues starting at the purpose of the stop and ultimately the probable cause in making the arrest. Factors to be assessed are the performance of field sobriety tests if any were conducted, the lack of odor or admissions, and the driving that was observed. Additionally, the Implied Consent portion of the DUI case is highly relevant in DUI defense because in order for the chemical test to be admissible in Court, the proper Implied Consent must be read after arrest, and there must be true knowing and voluntary consent to submit to the chemical test. Under Georgia law, mere acquiescence to authority is not voluntary consent. It should be noted that any refusal to submit to breath testing following an arrest is deemed inadmissible evidence given the Georgia Constitution gives the right to decline incriminatory acts. This law was clarified and confirmed in Elliott v. State, 305 Ga. 179 (2019).

 

In all first DUI cases, the mandatory minimum sentence is 24 hours in jail, 12 months on probation, a $300.00 fine plus court costs (nearly doubles it), 40 hours of community service, a Risk Reduction course, and an alcohol and drug evaluation and treatment if deemed necessary. The maximum sentence is 12 months in jail on each charge. On a second, or third DUI in 10 years, the jail time is increased, as well as the fines and the community service.

 

Remember that DUI is a misdemeanor crime that goes onto your criminal history. In Georgia, DUI can never be expunged or restricted, and thus a DUI conviction will remain on your history forever.

 

A DUI charge also has intense license repercussions.  If there is a refusal on the chemical test, the Officer can suspend your license for at least a year. This must be challenged within 30 days of your arrest, so time is of the essence in DUI cases. Depending on what else the individual is charged with, and how many prior DUIs he or she has, it is possible a DUI conviction could lead to a 5-year habitual violator suspension.

 

The options in Hapeville Municipal Court are to enter into pretrial negotiations with the goal of avoiding the harsh consequences of a DUI, or to enter a Not Guilty plea and have a trial by Judge or by Jury in State Court. As experienced DUI lawyers practicing in Hapeville regularly, we have the skill and knowledge to accomplish your goals both in Hapeville. We are trial lawyers constantly staying on top of DUI law. If you or a loved one has been charged with DUI in Hapeville Municipal Court, call us now for a FREE CONSULTATION at 404-581-0999.

 

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Forsyth County, Georgia

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Forsyth County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and attempting to elude in Forsyth County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Forsyth County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing or attempting to elude on, or after, July 1st, 2022, the sentencing will be enhanced due to this new law.

Contact Us

Due to the severity of the punishment for fleeing or attempting to elude, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing or attempting to elude in Forsyth County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Child Molestation in Paulding County

Child Molestation is a serious crime in Paulding County.  If you are arrested in Paulding County  for child molestation or aggravated child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Paulding County District Attorney’s Office has a unit called the Crimes Against Women and Children Unit and they zealously prosecute these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on a calendar the next day for First Appearance. At this hearing, the Paulding County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Paulding County Courthouse.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Paulding County Courthouse.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Paulding County, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

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. Our office is in downtown Atlanta and in downtown Marietta.

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.

Cherokee County Immunity Motion in Felony Domestic Violence Case

If a person is charged in the State of Georgia with a Felony Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with felony domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with felony domestic violence.

If you or someone you know has been arrested for a felony domestic violence charge, 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.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Clayton County, Georgia

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Clayton County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and eluding in Clayton County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Clayton County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing and eluding on, or after, July 1st, 2022, the sentencing will be enhanced pursuant to this new law.

Contact Us

Due to the severity of the punishment for fleeing or attempting to elude, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing or attempting to elude in Clayton County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Possession of Tools – DeKalb County Criminal Defense Attorney

Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in DeKalbCounty for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The DeKalb County Magistrate Judge will notify the person of the charges, as well as set bond at this stage.

 

If arrested in DeKalb County for Possession of Tools, the case will be prosecuted by the DeKalb County District Attorney’s Office. The next court date will be the Arraignment and takes place at the DeKalb County Superior Court.

 

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

 

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

 

What is the sentence for Possession of Tools in DeKalb County?

 

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

 

What are Possible Defenses to Possession of Tools in DeKalb County?

 

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

 

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

 

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

 

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

 

If you or a loved one has been arrested for POSSESSION OF TOOLS in the DeKalb County or the Atlanta area, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

 

What Kind of Intent is Required for Assault?

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.

 

 

Gwinnett County Immunity Motion in Felony Domestic Violence Case

If a person is charged in the State of Georgia with a Felony Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with felony domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with felony domestic violence.

If you or someone you know has been arrested for a felony domestic violence charge, 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.