Rape in Douglas County

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Rape is a serious crime in Douglas 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 Douglas County 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 Douglas 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 Douglas County Superior Court judge. There are currently 3 Superior Court Judges in Douglas County.

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.

Hapeville DUI – Criminal Defense Attorney

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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.

 

Changes to the Way Search Warrants for Cell Phone Content Must be Obtained

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A new decision released by the Georgia Supreme Court changes the way police must obtain warrants if they want to search the contents of your cell phone. In State v. Wilson, released on February 21, the Court tightened the reigns on what officers must include in their search warrants.

In Wilson, a defendant was on trial for murder. The defendant’s lawyer argued that the search of his cell phone was illegal because it did not specify what police were looking for and sought to have any evidence recovered from his phone kept out of his trial. The trial court agreed with the defendant’s attorney and said that “the search warrant was overly broad and authorized a general search of [the defendant’s] personal effects without probable cause in violation of the Fourth Amendment and O.C.G.A § 17-5-21”.  The judge ruled that evidence found in defendant’s phone could not be used in trial.

The State appealed the trial court’s decision, but the Georgia Supreme Court agreed with the trial court. The Supreme Court reminded us that the Fourth Amendment requires that search warrants list the particular items sought in order to prevent “general, exploratory rummaging in a person’s belongings”. Because the search warrant in Wilson just listed “contents of phone” and didn’t mention that it was limited to evidence pertaining to the commission of a certain crime, it was overbroad and illegal, and the search was unconstitutional.

This means that search warrants for the contents of phones must contains a particular description  of the things to be seized (i.e. text messages or pictures in a child molestation case, or internet search history in a murder case). If you have been charged with a crime in Fulton, Cobb, Dekalb, Forsyth, Gwinnett, Clayton, Rockdale, or any metro county,  and the police searched your phone, it is important to have a lawyer review the search warrant and see if it was properly executed. The lawyers at W. Scott Smith specialize in spotting issues like this and standing up to the State to protect our clients’ constitutional rights. Call our office at 404-581-0999 today for a free consultation.

 

 

Was my search warrant obtained properly?

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In order for an investigator to obtain a search warrant, they have to prove to a magistrate judge that they have probable cause that a criminal activity occurred or is occurring. Probable cause basically means that investigators can communicate a “reasonable belief” that a criminal activity is taking place. Investigating officers have to lay out this probable cause in an affidavit attached to an application for search warrant. Then, a magistrate judge will review the affidavit and application and grant or deny the warrant. In addition to the written affidavit, magistrates may consider oral testimony of the officers during the warrant application process.

In Georgia, the courts have laid out several scenarios that instruct when probable cause has or has not been communicated. For example, a tip from a confidential informant in a drug case is not enough to establish probable cause. The tip would have to be corroborated by other circumstances. However, if police come to your door and you voluntarily speak with them and admit to a crime, there is enough probable cause to obtain a search warrant.

If a warrant is granted and it lacked probable cause, the warrant is bad and any search resulting from the warrant violates your Fourth Amendment rights. In this case, you need a lawyer to argue that your rights have been violated and that any evidence obtained during the execution of the bad search warrant must be suppressed.

At the Law Offices of W. Scott Smith, we are experienced at spotting issues with search warrants and often successful at having evidence suppressed. Often, after a judge has ruled that evidence must be suppressed, prosecutors are more willing to negotiate or even dismiss charges because they no longer have a strong case. If you are in Cobb, Clayton. Fulton, Gwinnett, Henry, or Rockdale County and are charged with a serious offense like Violation of the Georgia Controlled Substance Act, trafficking drugs, or possession of drugs with the intent to distribute and believe that your Fourth Amendment rights have been violated by a warrant lacking probable cause, call us for a free consultation at 404-581-0999.

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

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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

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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.

How do I get a reduction to Reckless Driving in my DUI case?

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If you have been charged with DUI, you likely have many questions about what your best options are, how you can best defend your case, and what you can do to help your attorney as they prepare your case and pursue your interests with a prosecutor.

The best thing you can do to help your attorney and improve your prospects for being offered a reduction is to avoid getting additional charges, especially charges involving drugs or alcohol. Getting another DUI while one is already pending can severely hurt your case and reduce your chances of getting a reduction by a great deal.

There are several things you can do to improve the likelihood of getting a reduction. Completing 40 hours of community service at a 501(c)(3) organization is one task that costs nothing, and is generally a required term of probation. The organization cannot be religiously affiliated, but volunteering at an animal shelter, public library, or soup kitchen are all great ideas.

Completing a Mothers Against Drunk Driving Victim Impact Panel can also be beneficial. This online panel consists of individuals sharing their stories about the impacts of drunk driving. You can sign up here: https://online.maddvip.org/.

Taking a DDS-sponsored Risk Reduction class is also generally a condition of probation. There are online and on-the-road options available all over Georgia. For a list of locations and their contact information, visit this link: https://online.dds.ga.gov/ddsgeorgiagov/locations/certified-dui-schools.aspx.

The last thing you can do is get an alcohol and drug assessment done. This can be through any State-sponsored provider, and can be done in person or over the phone. The cost of the assessment varies depending on the provider, so you may choose to shop around to find the right counselor for you. If, after your evaluation is complete, any treatment is recommended, you can also help your attorney by working on the recommended treatment.

These steps show integrity and proactiveness, and can be good mitigating evidence for your attorney to provide to the prosecutor. For questions or a free consultation, call us at 404-581-0999.

 

Can I claim self-defense?

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In Georgia, pursuant to O.C.G.A § 16-3-21, a person is justified in using force to defend themselves or others when a person reasonably believes that such force is necessary to defend themselves or a third person against another person’s imminent use of unlawful force. This means that a person in Georgia may be justified in an action that would otherwise be a crime if they can make out a case to the court that they were defending themselves or another person.

If you believe that you were justified in using force and find yourself charged with a serious felony like aggravated assault, manslaughter, or murder, your attorney will petition the court for an immunity hearing, asking the court to find you immune from prosecution. At this hearing the defendant carried the burden to show the court, by a preponderance of the evidence, that they were justified in their actions because they reasonably believed that they were at risk of receiving a serious or life threatening injury if they did not act.

In order to make this showing to the court the defendant mut show several things:

  • The defendant was not the initial aggressor. If you were the initial aggressor in an argument, meaning that you started a fight or an altercation, you are not permitted to claim self-defense.
  • The defendant was not engaged in mutual combat with the victim. If you and the victim agreed (by words or actions) to engage in a fight, you are not permitted to claim self-defense. However, if you remove yourself from the fight, and communicate this to the other person, and then the other person comes after you, you may now be entitled to claim self-defense.
  • The force used by the defendant was not unreasonable. The amount of force used to defend yourself must be reasonable based upon the amount of force used against you. For example, if someone says “I’m going to slap you” it is not reasonable to shoot them.

If you can show the judge that you were in fact justified in defending yourself, the case will be dropped and you will be immune from prosecution. It is very important that you have a lawyer representing you who can help you make out your case to the court. At the Law Offices of W. Scott Smith, we have handled immunity motions like this is Fulton, Cobb, Dekalb, Gwinnett, Clayton, Newton, Forsyth, and many other counties. Call us today at 404-581-0999 for a free consultation.

Possession of Tools – Cobb 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 Cobb 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 Cobb County Judge will notify the person of the charges, as well as set bond at this stage.

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

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

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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 Cobb 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 Cobb 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 Cobb 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 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 Cobb County, Georgia, please call our office today at 404-581-0999 for a free consultation.