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

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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

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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

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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

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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

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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

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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.

Statements to the Police While in Custody

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According to Miranda v. Arizona, a suspect must be given warning of their rights at the outset of the interrogation process. If a suspect states that he does not wish to speak with police, the police have a duty to halt the interrogation process.

A new ruling by the Georgia Supreme Court (State v. Burton) further affirms that the State holds the burden of proving that any statements made by a person suspected of a crime are made knowingly and voluntarily in light of a person’s right not to speak. If police ask a suspect if they want to speak and the suspect responds in an unambiguous way that they don’t, any statement that a suspect gives cannot be used against them in court. In fact, the interrogation should end immediately. Even if a suspect responds in a way that could be interpreted to be an agreement to speak, the totality of the circumstances should be examined to determine if the suspect actually knowingly and voluntarily agrees to speak with police

In the case of juvenile suspects, courts look at nine factors to determine whether a suspect knowingly and voluntarily waived his rights not to speak with police: (1) the age of the accused; (2) the education of the accused; (3) the knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) the methods used in interrogation; (7) the length of interrogations; (8) whether the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

If you believe that you have been questioned by police after you have invoked your right not to speak, it is important that those statements are not used against you. It doesn’t matter how serious the charges, you have a right to have those statements suppressed. Contact our office today at 404-581-0999 so that we may help protect your constitutional rights.

 

DUI Probation in Clayton County

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If you are entering a plea to a DUI in Clayton County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Clayton County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Clayton County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Clayton County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Clayton County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

 

Written by Attorney Katherine Edmonds

Georgia Criminal Street Gang Act – Fulton County

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Fulton County District Attorney Fani Willis said last month that Fulton County has a “gang problem” and that her office is committed to prosecuting gang members to combat violent crime. DA Willis went on to say that there are at least 50,000 active gang members in the metro Atlanta area.

So if the Fulton County District Attorney’s office charges you with being in a criminal street gang and returns an indictment against you, here are the elements that must be proven beyond a reasonable doubt by the Fulton County District Attorney.

  1. You are associated either directly or indirectly with a group.

It is not enough to say you are just associated with a group. The Georgia Criminal Street Gang statute does not criminalize membership with a group. It must be proven in court that you actively participated in criminal street gang activity through the commission of an actual criminal act.

  1. The group itself has to be a criminal street gang.

This means that three or more people have organized themselves to engage in criminal activity. This can be proven with a common name, signs, symbols, graffiti, clothing or other distinguishing items.

  1. The defendant committed a criminal street gang activity.

The Fulton District Attorney must prove that you committed, attempted to commit, conspired to commit or intimidated another person to commit any offense in O.C.G.A. 16-15-3.

  1. This act was in furtherance of the criminal street gang.

There must be some link between your specific act and the intent to further the interest of your gang. The Fulton County District Attorney must prove that you had the specific intent to further the interest of your gang.

It is vital that if you are arrested under the gang statute in Fulton County, that you do not make any statements to the police. Hire an attorney immediately. The Fulton County District Attorney’s office is zealously prosecuting gang cases and has an entire unit dedicated to prosecuting gang cases. You must take your case seriously and challenge every aspect of the State’s case.

Also, remember that all phone calls in the Fulton County jail are being recorded. Do not profess your innocence on a recorded phone line.

Give us a call at 404-581-0999. We are located just a few blocks from the Fulton County Courthouse at 100 Peachtree Street, Suite 2060, Atlanta, GA 30303.

Cruelty to Children in Gwinnett County

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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 being convicted of first-degree cruelty to children in Gwinnett 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 Gwinnett County, please call our office today at 404-581-0999 for a free consultation.