DUI IN GWINNETT RECORDER’S COURT

After the accused has been arrested for a DUI, if one of the following occurred, the accused MUST send the 30-day appeal letter to attempt to save his/her driver’s license:

  1. After the accused has been arrested, an officer on scene read him/her the correct “Implied Consent” notice and he/she refused to comply with either a blood, breath, or urine test in order to determine his/her blood alcohol content, OR
  2. The accused consented to a blood, breath, or urine test and the results showed that the blood alcohol content of the accused was 0.08 grams or more.

If one of the following occurred, it is of vital importance to send the 30-day appeal of the license suspension letter prior to the deadline or risk the suspension of the accused person’s driver’s license. The suspension could last as long as 1 year.

After sending the 30-day letter, the accused must also be ready to defend his/her criminal allegations. The penalties for a DUI conviction are serious, thus, it is imperative to hire an experienced criminal defense attorney who understands all the elements of the offense, the affirmative defenses to such a charge, and all possible options for the accused.

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 marijuana or other controlled substances present in the accused person’s blood, breath, or urine.

Once the Gwinnett County Police Department or the Georgia State Patrol, depending on the department that arrested the accused, transfers the criminal charge to the Gwinnett County Recorder’s Court, the criminal case will begin at a proceeding known as an arraignment. There are a few options when the case has landed on an arraignment calendar. Such options include:

  • The accused may plead guilty to DUI, which for a first DUI conviction usually will result in 12 months of probation, as well as completion of a Risk Reduction course, at least 40 hours of community service, and a substance abuse evaluation.
  • The accused may plead not guilty to DUI and seek a bench trial with the Gwinnett County Recorder’s Court judge;
  • The accused may plead not guilty to DUI and seek a jury trial. This will result in the case being bound over to the Gwinnett County State Court; OR
  • At arraignment, the accused has the option to speak to the Gwinnett County solicitor in a pretrial conference to discuss other possible options, such as a reduction from the original DUI charge.

Due to the complexity of a driving under the influence criminal case, as well as the related license suspension proceeding, it is of great importance to hire an experienced criminal defense attorney who is skilled at defending such allegations. At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about all possible options for our clients and have vast experience defending such charges. Therefore, if you have been arrested for driving under the influence in Gwinnett County, please call our office today at 404-581-0999 for a free consultation.

Georgia DUI: How many points in a DUI?

In Georgia, a driver’s license will be automatically suspended if engaged in serious traffic violations. Therefore, a DUI does not accumulate any points on your driving record, also called a Motor Vehicle Report (MVR) but carries immediate consequences. For a first DUI conviction (for drivers over the age of 21), your license will be suspended for 12 months by DDS (Georgia Department of Driver Services).

 

Ways a driver can reinstate their license after six months:

  • Your license has already been suspended for 120 days;
  • Completion of a state-approved Risk Reduction Program; and
  • Submit a $210 fine for license reinstatement fees.

Note that this reinstatement will depend on your driving history and will permit you to drive to and from work and school and other permissible places.

 

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If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf.

Laying Drag

According to O.C.G.A. § 40-6-251, laying drag is defined as operating a vehicle “in such a manner as to create a danger to persons or property by intentionally and unnecessarily causing the vehicle to move in a zigzag or circular course or to gyrate or spin around.”

There are two exceptions to this law:

(1) If the driver lays drag as a necessary maneuver to avoid a collision, injury, or damage to their vehicle or person, they will not be prosecuted under this statute.

 

(2) If the driver is operating the vehicle in or on any raceway, drag strip, or similar place customarily and lawfully used for such purposes, it will not be construed as laying drag in accordance with O.C.G.A. § 40-6-251.

The State of Georgia has ample case law detailing how laying drag is made, and further, whether certain evidence of laying drag can constitute criminal conduct pursuant to O.C.G.A. § 40-6-251. For example, the following circumstances are not sufficient evidence to cite a driver for laying drag:

(1) It is not unlawful for a driver’s vehicle tires to cause smoke while he/she is making a turn, and it would not be sufficient evidence to prosecute a driver for laying drag.

 

(2) There also will not be enough evidence to prosecute a driver for laying drag if the only evidence of laying drag is the sound of an engine coupled with screeching tires. There must be additional evidence in order to prosecute a driver for laying drag.

Penalties

The offense of laying drag will be characterized as a misdemeanor The maximum penalty for a misdemeanor in the State of Georgia is 12 months in custody, and a $1,000 fine.

In Georgia, laying drag also includes assessing three points on an accused person’s driver’s license. If he/she has assessed 15 or more points in any 24-month period, he/she will be at risk of a suspension of his/her driving privileges.

However, if the accused person is under the age of 18 these general rules are different. Drivers under the age of 18 will have their driver’s license suspended if they have accessed four or more points in any 12-month period. Thus, laying drag for a driver under the age of 18 can have much more serious consequences than drivers older than the age of 18.

Contact Us

Due to the severity of the penalties for laying drag, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, we are skilled at defending such charges. Therefore, if you or a loved one has been cited or arrested for laying drag, please call our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Justification as a Defense

As an affirmative defense, the fact that a person’s conduct is justified under the law is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:

(1) When the person’s conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;

(2) When the person’s conduct is in reasonable fulfillment of his duties as a government officer or employee;

(3) When the person’s conduct is the reasonable discipline of a minor by his parent or a person in loco parentis;

(4) When the person’s conduct is reasonable and is performed in the course of making a lawful arrest;

(5) When the person’s conduct is justified for any other reason under the laws of this state, including as provided in Code Section 51-1-29; or

(6) In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.

Raising an Affirmative Defense

With respect to any affirmative defense authorized under Georgia law, unless the state’s evidence raises the issue invoking the alleged defense, the defendant, to raise the issue, must present evidence of an affirmative defense. See O.C.G.A. § 16-1-3(1).

In order to raise an affirmative defense, a criminal defendant need not “admit” anything, in the sense of acknowledging that any facts alleged in the indictment or accusation are true. Rather, in asserting an affirmative defense, a defendant may accept certain facts as true for the sake of argument, and the defendant may do so for the limited purpose of raising the specific affirmative defense at issue. A defendant is entitled to a requested jury instruction regarding an affirmative defense when at least slight evidence supports the theory of the charge, whether in the state’s evidence or evidence presented by the defendant, and regardless of whether the theory of the affirmative defense conflicts with any other theory being advanced by the defendant.

Deadly Force by Law Enforcement Officers

Georgia’s statute on the use of deadly force provides that law enforcement agents may use deadly force to apprehend a suspected felon only (1) when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; (2) when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or (3) when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. This statute does not prevent sheriffs or peace officers from using reasonable nondeadly force as may be necessary to apprehend and arrest a suspected felon or misdemeanant.

Good Samaritan Defense

In 2014, there were numerous incidents where children, who were left inside hot, locked motor vehicles, were injured or died. In order to encourage the rescue of children in these situations, the General Assembly made it clear with the amendment of O.C.G.A. § 16-3-20(5) in 2015 that individuals who damaged and entered such motor vehicles in order to rescue children from injury or death would be justified in doing so and would have a defense to criminal prosecution.

Rape Charges in DeKalb County, Georgia

Rape is a serious crime in Dekalb County. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for 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 Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

If you are charged with Rape in Dekalb County, you will be brought over before a Magistrate Judge within the first 72 hours of your arrest. This judge will not set a bond on Rape. You will need to have a bond motion filed before a Dekalb County Superior Court judge.

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.

Initial (First) Appearance in Georgia Criminal Cases

An “initial appearance” is an accused’s first face-to-face encounter with a judge after arrest. The purpose of an initial appearance is to inform the accused of the nature of the charges and advise him/her of their basic rights.

The initial appearance may also serve as a probable cause hearing if the person was arrested without a warrant and no arrest warrant is secured prior to the initial appearance. However, getting an arrest warrant within 48 hours after a warrantless arrest satisfies this probable cause requirement.

Police making an arrest without a warrant shall bring the arrested person in front of a judge within 48 hours after the arrest. O.C.G.A. § 17-4-62.

Police making an arrest with a warrant shall bring the arrested person in front of a judge within 72 hours after the arrest. O.C.G.A. § 17-4-26. These time limitations include weekends and holidays.

Failure to meet these time requirements may result in the release of the arrested person through a writ of habeus corpus under O.C.G.A. § 17-4-62. The failure to provide a timely first appearance, however, will not prevent the State from prosecuting the case.

At the initial appearance the judge shall:

  • Inform the accused of the charges
  • Inform the accused of their Miranda rights
  • Determine whether the accused wants a court appointed attorney and how to obtain one
  • Inform the accused of their right to a committal (probable cause) hearing, unless waived by getting bond
  • In the case of a warrantless arrest, make a probable cause determination
  • Inform accused of right to grand jury indictment or accusation
  • Inform accused of when grand jury will next convene
  • Inform accused of right to jury trial
  • Inform accused of right to waive rights and plead guilty
  • Set bail unless offense is only bailable by superior court judge

Importantly, a defendant’s volunteered statements at the initial appearance may be admissible against the accused at trial. The accused person is NOT entitled to an attorney at the initial appearance because the initial appearance is not considered a “critical stage” in the criminal justice process. Gerstein v. Pugh, 420 U.S. 103 (1975).

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

 

Georgia Criminal Law – Mobs: Inciting a Riot and Unlawful Assembly

The State of Georgia has a legitimate interest in protecting the public and preventing disturbances of the peace. As a result, the Georgia legislature has enacted several criminal statutes to protect its citizenry. The criminal offenses include inciting a riot and unlawful assembly.

This article serves to explore the differences between these offenses and possible punishment if convicted.

Inciting a Riot

O.C.G.A. § 16-11-31 states, “the offense of inciting to riot occurs when a person who with intent to riot does an act or engages in conduct which urges, counsels, or advises others to riot, at a time and place and under circumstances which produce a clear and present danger of a riot.

To sustain a conviction for this offense, the prosecution must prove beyond a reasonable doubt that the person:

  • Engaging in conduct which urges, counsels, or advises others to riot
  • With intent to riot, and
  • At a time and place and under circumstances which produce a clear and present danger of a riot.

Punishment if Convicted

A person convicted of inciting a riot is guilty of a misdemeanor. Misdemeanors are punishable by up to one year in jail and $1,000 in fines, or both.

Unlawful Assembly

Under Georgia law O.C.G.A. §16-11-33, a person commits the crime of unlawful assembly when:

  • The assembly of two or more persons for the purpose of committing an unlawful act and the failure to withdraw from the assembly on being lawfully commanded to do so by a peace officer and before any member of the assembly has inflicted injury to the person or property of another; or
  • The assembly of two or more persons, without authority of law, for the purpose of doing violence to the person or property of one supposed by the accused to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person by violence.

Punishment if Convicted

A person convicted of unlawful assembly will be punished as a misdemeanor. Misdemeanors carry the up to one year in jail or up to $1,000 in fines, or both.

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Possession of Schedule 1 Controlled Substances – VGCSA – Georgia

Possession of Schedule 1 drugs are classified as felonies in the State of Georgia. According to the laws of our state, criminal charges associated with the possession of these drugs are in accordance with the Georgia Controlled Substances Act. The following controlled substances are examples of drugs classified as Schedule 1:

  • Heroin
  • LSD
  • Morphine
  • Ecstasy

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act, include the charge of possessing Schedule I drugs. The Georgia Controlled Substances Act is laid out in the following statutes: O.C.G.A. § 16-13-20 through § 16-13-30. A list of all of the controlled substances considered to be Schedule I are referenced in O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, which does encompass any Schedule I drug.

SENTENCING

If an accused is prosecuted under the Georgia Controlled Substances Act for possessing a Schedule I controlled substance, the charge will be classified as a felony. If the accused is later convicted of these charges, the following punishments may occur:

  1. If the aggregate weight is less than one gram of a solid substance or less than one milliliter of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-3 years;
  2. If the aggregate weight is at least one gram but less than four grams of a solid substance or at least one milliliter but less than four milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-8 years;
  3. If the aggregate weight is at least four grams but less than 28 grams of a solid substance or at least four milliliters but less than 28 milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-15 years.

Because of the severity of the punishment for possessing a Schedule I controlled substance, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all possible options of an accused arrested and charged with V.G.C.S.A., we understand and assert all potential defenses for such a charge, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of a Schedule I controlled substance, please call our office today at 404-581-0999 for a free consultation.

Georgia’s New Street Racing Law

Street racing and laying drag (https://www.peachstatelawyer.com/laying-drag-arrests-and-citations-in-atlanta-georgia/)  has long been illegal in the State of Georgia. However, in response to increased street racing incidents across the city of Atlanta, Governor Kemp recently signed new legislation creating even more harsh penalties for those who continue to engage in street racing.

 

First, the bill now criminalizes an act, that before, was not against the law: promoting or organizing an exhibiting of illegal drag racing.  The State of Georgia is now cracking down on Instagram and other social media accounts who promote meetups for illegal street racing events. Anyone charged and convicted under this new law, found at O.C.G.A § 16-11-43.1, will be guilty of a high and aggravated misdemeanor.

 

Second, the Georgia law adds a completely new code section titled Reckless Stunt Driving, at O.C.G.A. § 40-6-390.1. Under Georgia law, it is now specifically illegal to drag race in reckless disregard for safety of persons. The law includes drag racing both on public roads, as well as on private property. The punishment for Reckless Stunt Driving includes a mandatory ten days in jail, up to 6 months for this charge alone, along with a minimum fine of $300.00.  It is considered a misdemeanor of a high and aggravated nature. A second conviction within ten years increases the jail time to 90 days to 12 months, and a third conviction has a mandatory 120 days to 12 months in jail, and the base fines can go up to $5000.00. A fourth conviction of Reckless Stunt Driving in a ten year period becomes a felony and a mandatory one year in prison.

 

Historically, a conviction for reckless driving did not suspend a Georgia driver’s license. This has now changed, drastically. Under Georgia’s New Street Racing Law, if you are convicted of reckless stunt driving in violation of O.C.G.A. § 40-6-390.1, your license will be suspended for up to 12 months, however you can apply for early reinstatement after 120 days. On a second conviction, it is a mandatory 3 year license suspension, but you may be able to reinstate your license after finishing an 18 months hard license suspension. A third conviction in five years will lead to a Habitual Violator status, whereby the license suspension will be five years, with a potential probationary license after two years.

 

The new law even allows for forfeiture after being declared a habitual violator. This means that the State of Georgia can confiscate your car, forever, if you have been convicted three times of reckless stunt driving in five years.

 

Street racing, laying drag, and reckless stunt driving are being taken more seriously in Georgia than ever before. If you or a loved one has been arrested or charged with street racing in Atlanta, call the Law Office of W. Scott Smith PC at 404-581-0999 for a free consultation. A criminal conviction is forever, so engage an experienced lawyer to assist in avoiding the harsh consequences of jail-time, and license suspension, that come with Georgia’s New Street Racing Law.

Aggravated Battery Charges in Georgia

In Georgia, there are multiple types of battery offenses such as simple battery, battery, family violence battery, and aggravated battery. This blog will solely focus on aggravated battery.

According to O.C.G.A. § 16-5-24, a person commits the offense of aggravated battery when he/she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by seriously disfiguring his/her body or a member thereof. The crime of aggravated battery does not require that the victim’s disfigurement be permanent, however, the injury must be more severe than a superficial wound. Some examples of aggravated battery include, but are not limited to:

  • Striking a person with a weapon or dangerous object;
  • Inflicting an injury upon a person in which causes them to have blurred vision, broken bones, severe bruising, memory lapse, or permanent nerve damage;
  • Shooting a person with a firearm;
  • Inflicting an injury upon a person in which causes them to suffer temporary or permanent disfigurement;
  • A battery against a particular group of people that are protected such as police officers, healthcare providers, social services workers, the elderly, and the developmentally disabled.

A conviction of aggravated battery requires the jury to find that an accused person acted with intent. Thus, an experienced criminal defense attorney may defend these allegations by arguing that the accused did not have the requisite state of mind to commit an aggravated battery. Another example of an affirmative defense that may be raised in a case like this is self-defense.

Penalties

An aggravated battery charge is a serious offense and is characterized as a felony. A person convicted of this offense can be punished anywhere between 1-20 years in prison. However, the punishment is enhanced when the victim of an aggravated battery is part of a particular class of persons. If the victim is a police officer engaged in his/her official duties then the accused, if convicted, may be sentenced to a prison term of at least 10 years, but no more than 20 years. Furthermore, if the victim is a person over the age of 65 years old, the accused may be punished anywhere between 5-20 years in prison. Additionally, if the victim is a teacher or other school personnel, and the offense occurred within a school safety zone, the penalty upon conviction is at least 5 years, but no more than 20 years in prison. Finally, if the aggravated battery is considered to have been committed against a person who has a familial relationship with the accused, he/she could be sentenced anywhere between 3-20 years in prison.

Due to the severity of the penalties for an aggravated battery charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated battery, please call our office today at 404-581-0999 for a free consultation.