Possession of Tools – Fulton County Criminal Defense Attorney

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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 Fulton County 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 Fulton County Judge will notify the person of the charges, as well as set bond at this stage.

If arrested in Fulton County for Possession of Tools, the case will be prosecuted by the Fulton County District Attorney’s Office. The next court date will be the Arraignment and takes place at the Fulton 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 Fulton 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 Fulton 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 Fulton County, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Child Molestation in Gwinnett County

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Gwinnett County  for 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 Gwinnett 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 Gwinnett 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 Gwinnett County jail.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Gwinnett County jail.  

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 Gwinnett 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.  

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.  

What to expect during a DUI stop in Atlanta, GA

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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.

Second DUI arrest in Fulton County, Georgia

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By: Erin Dohnalek

In Georgia, sentencing and license consequences get more severe with each new DUI arrest and subsequent conviction. There are mandatory minimum sentences that judges must abide by, and there are required consequences for an accused person’s driving privileges mandated by the Georgia Department of Driver’s Services.

The Offense:

According to O.C.G.A. § 40-6-391, a person commits driving under the influence of alcohol or drugs when it renders them less safe to drive, the person’s alcohol concentration is 0.08 grams or more at any time within 3 hours after such driving occurred, or there is any amount of an illegal controlled substance present in the accused person’s blood or urine.

The mandatory minimum sentencing for a second DUI conviction, if the first was committed in the 10 years preceding the second arrest for DUI, is at least three days in custody. In Fulton County, that means three days must be served at the Fulton County Jail. There also is a requirement that the accused must complete 240 hours of community service, a substance abuse evaluation plus recommended treatment, DUI school, and a Victim Impact Panel. This is all mandated by Georgia law.

In Fulton County, there are two judges who primarily preside over individuals charged with a second DUI: Judge Edlein and Judge Tailor. Both of these judges are in charge of the Fulton County DUI Court Program. A potential consequence of being charged with a second DUI in Fulton County is that DUI Court is pushed to avoid substantial jail sentences.

License Consequences:

One of the most pressing consequences of a second DUI conviction is a mandatory license suspension. If the accused has had a prior DUI conviction in the last ten years, but not in the last five years, the license suspension will be for a period of 120 days. However, a Georgia driver’s license holder will be eligible for a limited permit during that suspension to allow them to drive to essential locations.

Alternatively, if the accused has had a prior DUI conviction in the last five years, the consequences for his/her driving privileges are severe. The accused will be required to surrender their license, and he/she will have a hard license suspension for 120 days with no eligibility for a limited permit. After the 120-day license suspension is up, he/she will then be required to install an ignition interlock device in their vehicle for a period of 12 months. After the 12-month period has expired, the accused must continue to drive on a limited permit for two additional months before they will be able to reinstate their permanent driver’s license.

Contact Us:

Due to the severity of the consequences following a second DUI arrest, it is imperative to hire an experienced criminal defense attorney to explain all the possible options for an individual charged with a second DUI, to challenge that arrest in order to avoid some of the direct and collateral consequences of a second DUI conviction, and to advocate for their client’s constitutional rights. Therefore, if you have been arrested for a second DUI in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Possession of Drugs in Cobb County – Marietta Lawyers

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The legal system in Cobb County treats drug crimes very seriously. If you have been arrested for the possession of drugs in Cobb County, you could be facing jail, fines, and harsh penalties.

If you have been arrested in Cobb County, the Cobb County District Attorney’s Office will prosecute the case. The Cobb County Superior Court is located 70 Haynes St, Marietta, GA 30090 in Marietta, Georgia. Shortly after arrest, you will have a First Appearance hearing where the Judge will notify you of your charges and rights and then make a determination for bond. In Georgia, there are five factors Judges use to determine whether or not to release someone on bond. These are known as the Ayala factors (Ayala v. State, 262 Ga. 704 (1993)). Judges may issue a bond upon a finding of the following factors:

  • The person poses no significant risk of fleeing or failing to appear in court when required
  • The person poses no significant risk or danger to a person, property, or community
  • The person poses no significant risk of committing a felony while out on bond
  • The person poses no significant risk of intimidating witnesses or otherwise obstructing justice

Under the Georgia Controlled Substance Act, drugs are classified into 5 schedules based on their potential for abuse, tendency for addiction, and their recognized medical uses. Schedule I is considered to have the highest risk of physical and psychological dependency and are considered to have no medical use, while Schedule V is recognized to have lower risk of dependency and legitimate medical use. The following are common examples of drugs that the lawyers of W. Scott Smith P.C. have defended in the past.

Schedule I

Heroin, THC, LSD, and MDMA (ecstasy).

Schedule II

Cocaine, Codeine, Hydrocodone, Morphine, Methadone, Amphetamine, Methamphetamine, Oxycontin, Percocet

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Cobb County

The penalties in Cobb County and in Georgia can be harsh. Possession of drugs in Georgia is a felony, except for marijuana if it less than an ounce. If it is your first offense and you are found guilty of a Schedule I or II drug, you could be looking at 2-15 years in prison, intense probation, and high fines.

On second or subsequent offenses of Schedule I or II drugs, the sentence could include 5 years in prison, and up to 30, with the possibility of similar probation and high fines as the first.

If you are found with Schedule III, IV, or V drugs, the penalty could be 1 to 5 years in prison. If it is your second or subsequent offense, you are facing 1 to 10 years prison time.

Additionally, if you are found guilty and a car was used during the felony, your driver’s license will be suspended.

How the State Proves Possession

The drugs do not have to be found on your person for you to be guilty of drug possession. Driving a car in which drugs are found is sufficient for the law to determine that you are in violation of the Controlled Substance Act. Even if the drugs are found thrown out or hidden, the State will still try to prove you were in possession. Depending on where the drugs were found, two people or more can be considered to have possession of the same drugs. Important facts for both the state and defense are whether or not paraphernalia or residue in plain view was found, and also whether you attempted to flee.

Additionally, drug crimes almost always implicate Fourth Amendment a analysis which can serve as a basis for suppression of the drugs. This means that if the State unlawfully searched or seized the drugs, the drugs are thrown out of evidence, and the case dismissed. The Lawyers at W. Scott Smith specialize in Fourth Amendment arguments and have successfully defended hundreds of cases with these issues.

Talk to an Attorney

Because a conviction of drug possession can carry serious prison time and a criminal record, it is important you speak with an attorney who is knowledgeable about drug possession laws in Georgia. Pleading guilty to any drug possession offense will have lifelong consequences that we want you to avoid. We would like for you to understand what you are facing and all of your legal options so that you can move on from this arrest in the best way possible. Call us for a FREE CONSULTATION today at 404-581-0999 and mention this blog.

DUI Court in Cobb County

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If you have been charged with a DUI in Cobb County, it is important to be aware of your options. One option you may not have considered if you are facing significant jail time is DUI Court. DUI Court is available to those who are charged with their 2nd DUI in 10 years, 3rd DUI or more in their lifetime, or 1st DUI with a history of Reckless Driving convictions. To be eligible for DUI Court in Cobb County, you must also be facing charges sufficient to support a 24-month sentence. This means that you must have at least two charges, such as “DUI” and “Failure to Maintain Lane” or some other offense. There are several other conditions to be met to enroll in DUI Court:

  • Participants may not have any prior convictions for violent felonies or current felony charges involving the use of force against another;
  • Participants may not have any out-of-state warrants;
  • Participants must have a valid immigration status with no immigration holds; and
  • Participants must be 17 years of age or older.

It is important to note that DUI Court is an option even if you do not reside in Cobb County. Non-residents of DUI Court who are accepted into Cobb’s DUI Court program may be able to transfer to the DUI Court in their county of residence.

Cobb County is an intensive program; it is not for the feint of heart. It requires multiple weekly meetings and court appearances, and can sanction you if you violate the program rules. So, why would you consider DUI Court? There are several reasons why DUI Court might be right for you:

  • DUI Court generally offers less jail time than traditional Court-adjudicated DUIs.
  • Court-ordered fines are typically reduced by those who complete DUI Court.
  • Folks struggling with alcohol and substance abuse can find support, counseling, accountability, and treatment in DUI Court.
  • Cobb County DUI Court can help participants in meeting requirements for license reinstatement.

Cobb County DUI Court can make a big difference in the lives of folks who are struggling with alcohol abuse or who are facing a difficult odds in their case. The decision to enter DUI Court is a big one and you shouldn’t have to make it alone. Call our office for a free consultation, and let us know if you are considering DUI Court so that we can help you make an informed decision. 404-581-0999. Written by Attorney Katherine Edmonds.

Statutory Rape in Fulton County

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Statutory Rape in Fulton 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 Georgia 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, 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 Fulton County for Statutory Rape, you will see a Magistrate judge the following day at 11am. At this initial court date, the Fulton 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 Fulton 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  Fulton 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.

Should I Pay My Speeding Ticket?

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It happens. You’re running late for work and you don’t realize you’re pressing down on the gas as the numbers on your speedometer tick up. Blue lights come out of nowhere, and you’re faced with a speeding ticket. Some luck. While you might be inclined to just pay the ticket and get it over with, take a moment to consider the implications. Paying a speeding ticket has the same effect as entering a guilty plea, so it is important to be mindful of the possible consequences.

If you were speeding 14 miles per hour or fewer over the speed limit, this ticket will not result in any points on your license and will not be reported to the Department of Driver Services. If you were speeding over 14 mph above the speed limit, but less than 19 mph over, your ticket is considered a “super speeder” ticket, and entering a plea to that will result in 2 points on your license, the ticket is reported to DDS, and DDS assesses an additional $200 fine. Speeding 19-23 mph over the speed limit results in 3 points, the ticket is reported to DDS, and you are hit with the $200 fine from DDS. 24-33 mph over is 4 points, along with the other penalties outlined above, and speeding 34 mph or more over the speed limit results in 6 points, the ticket is reported, and you get the additional $200 fine.

Points on your license can have an adverse impact on the cost of your insurance, and getting 15 or more points within a 24 month period can result in a license suspension. If you are under 21, there may be additional penalties to paying speeding tickets. Before you pay that ticket and move on, make sure you understand the risks involved in doing so. We can help you negotiate reductions with the solicitor to help you get the best possible outcome when you are stuck with a speeding ticket.

If you have been charged with speeding, it is important to understand your options. We want to make sure you are educated and empowered throughout the criminal justice process. Give us a call for a free consultation at 404-581-0999. Written by Attorney Katherine A. Edmonds.

Cobb County State Court – Pre Trial Diversion

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If you are arrested for the following offenses, you may be eligible to participate in a diversion program.

The eligible offenses are:

  1. Minor in Possession of Alcohol
  2. Possession of a Fake ID
  3. Possession of Marijuana (VGCSA)
  4. Theft by Shoplifting
  5. Theft by Taking

So if you are arrested on any of these charges, do not walk in to court and plead guilty. You definitely will want to consider the diversion program. If you are accepted and complete the diversion program, then the case will be dismissed and your record will be sealed.

In Cobb County, the prosecutor, otherwise known as the Cobb County Solicitor General, will require you to have an attorney. They will not let anyone enter into the diversion program if they are not represented by an attorney. We will work with you on a payment plan that fits your budget.

There is a $ 350 fee for any person that would like to participate in the diversion program.

There are several requirements that must be completed within 12 weeks once you enter the program. You can complete the requirements earlier than 12 weeks.

  1. Community Service:
    1. For Marijuana possession, theft by shoplifting and theft by taking, you must complete 40 hours of community service.
    2. For possession of a fake ID, you must complete 60 hours of community service.
    3. For minor in possession of alcohol, the community service varies:
      • 40 hours – if you blow below a .08 or are not offered an opportunity to blow into a portable breath device
      • 60 hours – if you possess a fake ID and blow below a .08
      • 80 hours – if you blow between a .08 and .15
      • 120 hours – if you blow above a .15 or refuse.4.

All Cobb County Police Officers are trained to request a breath test if you are caught with an alcohol and are not 21 years of age.

  1. Admissions
    1. For possession of a Fake ID and Minor in Possession of Alcohol, the defendant must admit, in writing, from whom and where they obtained the alcohol and fake ID
  2. Clean Screens
    1. You must pass 3 drug/alcohol screens during the 12 weeks. These drugs screens must be done through the Cobb County Superior Court Drug Lab unless previous permission is granted to do it elsewhere.
    2. These drug screens are for Minor in Possession of Alcohol, Fake ID and Marijuana Possession cases only.
  3. Alcohol and Drug Evaluation
    1. If you are charged with Minor in Possession of Alcohol, Fake ID or Marijuana Possession then you must complete an evaluation from a state certified evaluator. If this evaluation requires treatment, then you must complete the treatment within the allotted time.
  4. Theft Seminar
    1. If charged with theft by shoplifting or theft by taking, you must complete an approved theft seminar.
  5. Essay
    1. If you are under 21 years old, then you must handwrite a 2 page essay about why you should be admitted into the diversion program.
  6. Additional Classes
    1. For Minor in Possession of Alcohol, Possession of a Fake ID and Possession of Marijuana (VGCSA) you must complete one of the following:
      • MADD Victim Impact Panel
      • Teen Drug and Alcohol Impact Program (only if under 25 years old)
      • S.M.A.R.T. Program

So if you are arrested for any of the above, do not panic. Please call us so we can discuss your case, your defenses to your case and see if you are eligible to participate in the diversion program. It is a great way to make sure you do not have a criminal record.

Give us a call 24/7 at 404-581-0999

Can I get a Misdemeanor conviction off my record?

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By: Erin Dohnalek

A misdemeanor conviction can lead to many adverse consequences, including barriers to employment, education, and sometimes even housing. However, in the State of Georgia, there are potentially three avenues available to restrict and seal (expunge) misdemeanors off your criminal record to help avoid these collateral consequences that are associated with misdemeanor convictions. They are as follows:

  1. Retroactive First Offender (O.C.G.A. § 42-8-66)
  2. Restrict and Seal Two Misdemeanor Convictions (O.C.G.A. § 35-3-37)
  3. Vacate, Restrict, & Seal under the Survivors First Act (O.C.G.A. § 17-10-21, 35-3-37)

In this blog, we will focus on the 2021 change in the law here in Georgia that allows two misdemeanor convictions to be restricted and sealed under O.C.G.A. § 35-3-37.

Process of Record Restriction

In Georgia, there are certain charges that cannot be restricted, even under the new law that allows for two misdemeanor convictions to be sealed from a client’s criminal history. These include sex crimes against children, pimping and pandering, crimes against minors, sexual battery, peeping tom crimes, family violence battery (unless the accused is under the age of 21 years old), child molestation, public indecency, hindering persons from making an emergency telephone call, certain theft cases, driving under the influence, and certain serious traffic offenses.

In order to be eligible to restrict misdemeanor convictions under O.C.G.A. § 35-3-37, you must not have any criminal convictions in the four years prior to requesting record restriction. You also must not have any pending charges and must have completed all terms and conditions of your sentence. Furthermore, Georgia only allows expungement for two lifetime misdemeanor convictions.

The first step in restricting and sealing a misdemeanor conviction is to petition the court to expunge your conviction if you meet all the eligibility requirements. It is up to the Judge’s discretion whether the conviction will be sealed. However, an experienced criminal defense attorney will meet with the client, learn their background, and understand why it is important to have their criminal record expunged. They will use this information to persuade the Court to grant their petition. If you are interested in having a misdemeanor conviction expunged, please go to your local police department or sheriff’s office and request your criminal history (GCIC) under the “E” code. This will assist an attorney in giving you the best possible options for record restriction.

Contact Us

Here at the Law Offices of W. Scott Smith, our attorneys are well-versed in all possible avenues for record restriction in the State of Georgia. Therefore, if you or a loved one are interested in expunging a misdemeanor conviction from your criminal history, please call our office at 404-581-0999 for a free consultation.