Felony Murder in Georgia

In Georgia a person will be convicted of felony murder in this State “when, in the commission of a felony, he causes the death of another human being irrespective of malice.”  In determining whether a felony meets that definition, the Court will tell the jury to consider the circumstances under which the felony was committed.  Further, there must be some connection between the felony and the homicide.

 

Here is a breakdown of the felony murder statute and the elements the state must prove beyond a reasonable doubt:

 

  1. In the commission of a felony

 

The homicide must have been done in carrying out the unlawful act and not collateral (accompanying but secondary) to it. It is not enough that the homicide occurred before or after the felony was attempted or committed.

 

The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life.

 

For a felony to be considered inherently dangerous, it must be “dangerous per se” or it must “by its circumstances create a foreseeable risk of death.”

 

The reason for the felony murder rule is to furnish an added deterrent to the perpetration of felonies, which create a foreseeable risk of death. This function is not served by application of the rule to felonies not foreseeably dangerous.

 

Some common crimes that qualify for felony murder include:

 

  • Aggravated assault
  • Armed robbery
  • Arson
  • Burglary
  • Firearms offenses; in some cases possession of a firearm by a convicted felon.
  • Kidnapping
  • Narcotics offenses or VGCSA – including sale of drugs
  • Party to a crime
  • Sexual assault

 

 

  1. Causes the death of another person.

 

The person charged must directly cause the death of the victim to be convicted of felony murder.  For example, a defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if the defendant directly causes the death of the victim while in the commission of the felony.

 

  1. You do not need malice.  

 

There are two types of Malice.  A specific intent to kill is “express malice,” whereas an intent to commit acts with such a reckless disregard for human life as to show an abandoned and malignant heart amounts to “implied malice.”

Malice is where the actor acted deliberately knowing his conduct was dangerous or reckless and he was not concerned as to whether anyone was harmed or not.  So what is less than malice?   Can the action be as low as gross negligence or even less than negligence?

Georgia Criminal Law – Disorderly Conduct

Disorderly conduct is an offense that occurs very frequently in today’s climate, especially during this past summer where protests over racial injustice and police brutality in Atlanta filled the streets. Even with the frequency of this charge, a conviction for disorderly conduct can have grave consequences. For some clients, this is their first interaction with police and their concerns include: jail time, a permanent criminal record, and possibility of trial. All these concerns are very real when facing a disorderly conduct arrest and/or conviction and it is strongly recommended to speak to a criminal defense attorney when one is facing such charges.

The Offense

In Georgia, disorderly conduct is a misdemeanor. Georgia Criminal Code § 16-11-39 states that an individual commits disorderly conduct when they act in a violent or tumultuous manner toward another person, which causes that person to fear for their safety. It can also occur where the individual acts violently toward another’s property, placing that property in danger of being damaged or destroyed. It can even occur where an individual uses provoking language or “fighting words” in which could create a violent encounter with another or by threatening a “breach of the peace.”

“Fighting Words”

An individual can be convicted of disorderly conduct solely based on the utterance of “fighting words.” Fighting words are known as abusive words or phrases that are directed at another and by their very utterance inflict injury or provoke a violent reaction. The focus is primarily on the nature of the words and the circumstances in which they are spoken rather than on the response to those words. This type of language is not protected under our constitutional right to freedom of speech under the First Amendment. “Fights words” can be the sole cause for a conviction of disorderly conduct.

“Breach of the Peace”

“Breach of the peace” generally covers conduct that disturbs the public peace and quiet of the community. An individual who uses “fighting words” or abusive language, without being provoked by another, in which by its very nature could create a public disturbance, can be arrested and/or convicted of disorderly conduct.

Punishment

Many municipalities have their own disorderly conduct ordinances, one of which is the City of Atlanta. This means that, in those cities, a person may be charged with either a violation of state law or municipal law. The penalties can be different for each, but in general, a first conviction of disorderly conduct carries a maximum penalty of one year in jail and a $1,000 fine. Disorderly conduct charges are subjective in nature and can be worked out with the prosecution, as well as dismissed at trial.

Contact Us

Being arrested for disorderly conduct can be a stressful event in anyone’s life and it is always recommended to speak to an attorney as soon as possible. At the Law Offices of W. Scott Smith, our lawyers are trained to know all your possible options when facing this type of charge. We are also experienced in all other misdemeanor offenses and strive to protect our clients’ rights throughout this process. If you or a loved one has been arrested or charged with disorderly conduct, please call our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Accusations, Indictments, and Demurrers

We tend to think a criminal case begins when a police officer arrests a person. Although a person is arrested for a criminal offense, a formal charging document must be drafted and filed by the prosecutor if the charges are to be formally prosecuted.

There are two types of formal charging documents in Georgia, accusations and indictments. This blog article will discuss the differences between these charging documents, when these charging documents must be filed, the basic language required to be included, and the potential attacks on these documents.

Accusations

In misdemeanor cases in Georgia, a prosecuting attorney may draft an accusation charging a defendant with criminal offenses. O.C.G.A. § 17-7-71. An accusation is sufficiently technical and correct if the offense stated in the terms and language of the statute. O.C.G.A. § 17-7-71(c). The prosecutor has the authority to amend the accusation prior to trial so long as the defendant or their lawyer is given notice.

Indictments

Although a person’s federal constitutional right to a grand jury does not apply to the States (Hurtado v. California, 110 U.S. 516 (1884)), a person in Georgia has a statutory right to a grand jury indictment for most felonies. O.C.G.A. § 17-7-70. Ordinarily, a prosecutor may not proceed to trial without a grand jury’s “true bill” of the proposed indictment. A defendant may waive the right to a grand jury indictment in writing and proceed to trial on an accusation (for non-capital offenses) or may waive by entering a plea to the accusation.

Like an accusation, an indictment is sufficiently technical and correct if the offense is stated in the terms and language of the statute. O.C.G.A § 17-7-54. But, unlike accusations, an indictment may not be materially amended by removing or adding to the allegations or charges.

Drafting Requirements

The language of an indictment or accusation must:

  • Be “legally sufficient” to state a crime; and
  • Put the defendant on “due process” notice of what he / she must defend against at trial

An accusation or indictment that fails to allege the essential elements of a crime is insufficient as a matter of law. If the accused can admit to all of the allegations in the accusation or indictment and still be innocent of a crime, then the language is legally insufficient. This is the legal test of a “general demurrer.” A general demurrer is a powerful tool in the defense lawyer’s arsenal.

Due process requires the accusation or indictment to adequately inform the nature of the crime being charged as to enable the defendant to prepare a defense and avoid surprises at trial. Failure to do so exposes the accusation or indictment to a “special demurrer.” A special demurrer attacks the accusation or indictment by asking not whether the charging document could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he / she must be prepared to meet. Broski v. State, 196 Ga. App. 116 (1990).

Filing Deadlines

An accusation or indictment must be filed with the Clerk of Court before the expiration of the applicable statute of limitations for the crimes charged. Statutes of limitation run from the date of the alleged offense to the date the accusation or indictment is filed.

There are different periods of time for different types of offenses. For example, there is no statute of limitations for the offense of murder. Other felony crimes that are punishable by death or life in prison contain a seven (7) year statute of limitations (except forcible rape – 15 year statute of limitations; certain felony offenses where DNA evidence is used to establish identity of the accused – no statute of limitations; crimes against children committed on and after July 1, 2012 – no statute of limitations). Most felonies have a four (4) year statute of limitations. Misdemeanors have a two (2) year statute of limitations.

An applicable statute of limitations period may be suspended or tolled if:

  • The accused is not usually and publicly a resident in Georgia
  • The person committing the crime is unknown or the crime is unknown
  • The accused is a government officer or employee and the crime charged is theft by conversion or public property while the person is such an officer or employee
  • The accused is a guardian or trustee and the crime charged is theft by conversion of public property of the ward or beneficiary

O.C.G.A. § 17-3-2. It is important to note the prosecution is not constrained to prove the date alleged in the accusation or indictment, but may prove the offense occurred at any time within the statute of limitations. If this occurs, the defense may be entitled to a continuance due to surprise.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Georgia Criminal Law – Perjury

Perjury is a serious offense that causes immeasurable harm to the functioning and integrity of our legal system and to private individuals. As such, a conviction of perjury can have serious consequences on the accused. This article aims to explore the nature of perjury, possible punishment, and available defenses.

The Offense

O.C.G.A. § 16-10-70 provides, “a person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.”

Thus, the essential elements of perjury are: (1) knowingly and willfully making a false statement, (2) material to the issue or point in question, (3) while under oath in a judicial proceeding. Sneiderman v. State, 336 Ga.App. 153 (2016). Perjury is different from the offense of “false swearing” in that perjury requires both the intent to testify falsely and the act of false testimony, as opposed to swearing rashly or inconsiderately, according to belief (false swearing). Gates v. State, 252 Ga.App. 20 (2001).

The test of “materiality” is whether false testimony is capable of influencing tribunal on issue before it. U. S. v. Cosby, 601 F.2d 754 (1979).

Possible Punishment

A person convicted of perjury can be punished by a fine of up to $1,000.00 or by imprisonment for between one and ten years, or both. If the person convicted of perjury was the cause of another person being imprisoned will be sentenced to a term of imprisonment no greater than the sentence for which the other person was convicted. Further, if a person convicted of perjury was a cause of another person being punished by death, the perjurer shall be punished by life imprisonment.

Defenses

  • Defendant was not under oath at the time the statement was made.
  • The false statements were not “material.”
  • The false statements were not knowingly or willfully made.
  • Defendant’s belief that his testimony was truthful constitutes absolute defense to charge of perjury regardless of whether the testimony is actually false. Richards v. State, 131 Ga.App. 362 (1974).

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Identification of Suspects in Georgia Criminal Law

Under Georgia law, the testimony of a single witness is sufficient to sustain a conviction (assuming the jury believes that witness). But, prosecutions based entirely or primarily on the testimony of a single eyewitness are said to be the most common cause of wrongful convictions.

This article will discuss the different types of identification procedures, factors that influence the precision of eyewitness identifications, case law dictating how and when a judge should filter out inherently suggestive procedures, and constitutional considerations regarding suppression of unduly suggestive identifications.

Types of Identification Techniques

O.C.G.A. § 17-20-2 provides that any law enforcement agency that conducts lineups shall adopt written policies for using such lineups.

Live Lineups

A live lineup consists of a row of 6 people, including the suspect. The witness is then asked to identify the suspect. Typically, these live lineups are done at the jail and inmates are used to fill the lineup. Someone who does not know the identity of the suspect conducts the lineup. The administrator is supposed to instruct the witness the perpetrator may or may not be present in the lineup. The lineup should be composed so the fillers generally resemble the witness’ description of the suspect. The lineup is to consists of at least four fillers. The administrator is supposed to document the witness’ statement as to their confidence level in their identification.

A suspect in custody may be forced to participate in a lineup because showing one’s physical characteristics is not considered “testimonial” for 5th Amendment purposes. U.S. v. Wade, 388 U.S. 218 (1967). If an in-custody suspect refuses to participate, the prosecutor may comment upon this refusal at a later trial. If a suspect is not in custody, court intervention may be required (upon proof of reasonable and articulable suspicion or probable cause). Importantly, an in custody suspect does NOT have the right to the presence of counsel at a lineup as these procedures occur prior to the formal initiation of charges. Kirby v. Illinois, 406 U.S. 682 (1972).

Show-ups

A show-up is any identification procedure that provides the eyewitness with only one choice. Although a show-up identification is inherently suggestive, it is not necessarily inadmissible. So long as a show-up is reasonably and fairly conducted at or near the time of offense, it will not be deemed impermissibly suggestive. Wallace v. State, 295 Ga. App. 452 (2009). A timely show-up aids in a speedy police investigation, especially in an emergency situation.

Photo Lineups

Also called “photo arrays,” these lineups consist of 6 photographs (including the suspect’s) displayed together to the witness and are conducted prior to the arrest of the suspect. After all, if the suspect is in custody a live lineup is preferred. Some law enforcement agencies present the photos to witnesses one at a time as an added layer of protection to the suspect so the witness will not just choose the photo most resembling the suspect. In a photo lineup the administrator is not supposed to know who the suspect, or, if they do know, use photos placed in folders which are randomly shuffled so the administrator doesn’t know who the witness is looking at until the procedure is complete. The administratior should tell the witness the suspect may or may not be in the photo lineup, use a minimum of five fillers, use fillers resembling generally the witness’ description of the suspect, and document statement of witness’s confidence in identification.

Again, suspects do not have the right to presence of counsel during a photo lineup because the preservation and documentation of the photo lineup is sufficient to protect suspect’s right to challenge the procedure.

In-Court Identification

At trial, an eyewitness is typically asked to identify the defendant in the courtroom (where they are sitting and what article of clothing they are wearing). A prosecutor is not allowed to ask a witness whether anyone in the courtroom resembles the perpetrator because this causes the witness to search for similarities.

Factors Affecting Accuracy of Identification

Identifications can be influenced by “estimator” and “system” variables. Estimator variables relate to the person making the identification: witnesses perceptive abilities, memory, and environmental factors. System variables include: method of ID (live lineup, photo array, show-up), how identification procedure was administered.

Constitutional Limitations

A pre-trial identification procedure will be suppress on Due Process grounds if such procedure:

  • Is deemed to have been “impermissibly suggestive,” and
  • Posed a “very substantial likelihood of misidentification.”

Carr v. State, 289 Ga. App. 875 (2008). An identification procedure is impermissibly suggestive if it would lead an eyewitness to an all but inevitable identification of the suspect. Russell v. State, 288 Ga. 372 (2007). In determining whther a “very substantial likelihood of misidentification” is present courts look to factors articulated in Neil v. Biggers, 409 U.S. 188 (1972).

  • Opportunity of the witness to view the criminal at the time of the crime
  • The witness’ degree to attention
  • The accuracy of the witness’ prior description of the accused
  • The level of certainty demonstrated by the witness at the time of confrontation
  • The length of time between crime and confrontation

Both the eyewitness’ pre-trial identification and in-court identification are admissible unless the defendant shows the identification fails to satisfy both prongs of the due process test.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Theft by Shoplifting in DeKalb County, Georgia

A shoplifting conviction is no small matter. It will negatively impact your ability to gain employment, apply for housing, and it will permanently remain on your criminal record. It is critical you contact an experienced attorney to investigate the facts, prepare legal challenges and defenses, and mitigate possible punishment. Our firm routinely handles shoplifting cases in DeKalb County State Court. This article means to explain the nature of shoplifting under Georgia law, the possible punishment, and how these matters are specifically handled in DeKalb County.

 

The Offense

 

Under O.C.G.A § 16-8-14, the offense of theft by shoplifting occurs when a person has the intent to either appropriate merchandise without paying for it or deprive the owner of possession of the merchandise or of its value AND:

 

  • Takes possession of or conceals the goods or merchandise of a store or retail establishment;
  • Alters the price marked on the goods or merchandise of a store or retail establishment;
  • Transfers the goods or merchandise of a store or retail establishment from its original box or container to another one;
  • Switches the price tag or label from one merchandise item with the price tag or label from another merchandise item; or
  • Wrongfully causes the amount paid for an item to be less than the merchant’s state price for the item

 

Arrest, formal criminal charges, and aggressive prosecution are all possibilities if you engage in the above conduct.

 

Punishment

 

The penalties for shoplifting in DeKalb County depend on the “value” of the property taken. A first shoplifting conviction involving the theft of merchandise valued at $500 or less is a misdemeanor. This is punishable by a fine up to $1,000 and incarceration for up to 12 months in jail, or both. Shoplifting offenses involving the theft of merchandise worth more than $500 are deemed felonies and can be punished by imprisonment for as long as ten years, depending on the total value of merchandise stolen.

 

It is important to note that a fourth or subsequent conviction for shoplifting is punished as a felony even though the prior convictions were all for misdemeanor shoplifting. Fourth or subsequent convictions are punishable by a prison sentence of one to ten years.

 

 

In addition to jail time and a fine, punishment may also include a psychological evaluation and treatment at their own expense, shoplifting seminars, community service, and restitution for the value of the property taken (if not returned).

 

How it Works in DeKalb

 

After arrest, a case file is created with the DeKalb County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within DeKalb County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case.

 

It is possible to resolve a theft by shoplifting charge prior to the filing of an accusation. Attorneys should contact the Solicitor General’s Office to see if they are eligible to be admitted into the DeKalb County Pre-Trial Diversion Program. If the accused successfully completes the diversion program, their charges will be dismissed with their records restricted.

 

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” If accused and not eligible for diversion, the accused must begin preparing their case for a possible trial, subject to reaching a plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, DeKalb County prosecutors are largely unwilling to outright dismiss shoplifting charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to shoplifting or proceed to trial.

 

Contact Us

 

Being charged with Theft By Shoplifting can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every shoplifting case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with shoplifting, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

 

 

Georgia Criminal Lawyer – Tampering with Evidence

There are several ways in which a person may “tamper with evidence” in Georgia. This article aims to explore the nature of the offense and the possible punishment if convicted.

The Offense

Under O.C.G.A. § 16-10-94, a person commits the offense of tampering with evidence when

  • with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person,
  • he knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence.

Case Examples

Sufficient evidence for tampering with evidence: defendant threw envelope containing a forged check out the window of van in which he was riding as soon as traffic stop of van was instigated by police. Foster v. State, 311 Ga.App. 129 (2011).

Sufficient evidence to support two misdemeanor counts of tampering with evidence: defendant wiped the passenger side of the victim’s vehicle with a towel so as to alter or destroy physical evidence, and defendant bleached and washed his clothing to destroy, alter, and conceal physical evidence. Brown v. State, 288 Ga. 404 (2010).

Evidence was not sufficient to support conviction for tampering with evidence: police officers observed leafy substance in defendant’s mouth following physical struggle during a traffic stop; although officers testified they smelled burned marijuana on her person and that substance in her mouth was consistent with raw or fresh marijuana, officers did not see defendant place substance in her mouth, they did not attempt to recover substance from her mouth, and they did not command her to remove substance, and videotape of stop showed defendant repeatedly complying with officer’s request to open her mouth for inspection with flashlight.  King v. State, 317 Ga.App. 834 (2012).

Punishment

Felony Punishment

Tampering with evidence can be charged as a felony in two ways:

  • When a person tampers with evidence during the prosecution of a felony that involves another person. Here, the penalty is 1-3 years imprisonment; or
  • When a person tampers with evidence during the prosecution of a serious violent felony involving another person. In this situation, the penalty is 1-10 years imprisonment.

Misdemeanor Punishment

If the underlying charge was a misdemeanor or if you tamper with evidence in your own case (felony or misdemeanor), a tampering with evidence charge will result in a misdemeanor which is punishable by up to one year in jail and a $1,000 fine.

Contact Us

If you or someone you know is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

 

Georgia Criminal Law: Drug Trafficking in Gwinnett County

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Gwinnett County, Georgia. Why Gwinnett County? Gwinnett County is a highly populated and geographically vast jurisdiction that sees a high number of drug trafficking cases on an annual basis. Therefore, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, delivers, or brings into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams[1] of cocaine. If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

For methamphetamine and/or amphetamine, any person who sells, delivers, or brings into this state or who possesses 28 grams or more is guilty of trafficking. If the quantity is greater than 28 grams but less than 200 grams the person shall be sentenced to a mandatory minimum prison sentence of 10 years and pay a fine of $200,000. For quantities greater than 200 grams but less than 400 grams, it is a 15 year mandatory minimum prison sentence plus a $300,000 fine. If the quantity is greater than 400 grams, the mandatory minimum prison sentence is 25 years plus a $1,000,000 fine.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of trafficking may be sentenced to less prison time than what is required by the mandatory minimums: (1) If the defendant provides “substantial assistance” to the government in identifying, arresting, and/or convicting other people involved in the drug conspiracy, the prosecutor may move the court to reduce or suspend part or all of the defendant’s sentence; (2) by agreement of the parties through a “negotiated plea”; or (3) the judge may depart from these mandatory minimums if certain mitigating factors exist (no prior felonies, no firearm used, defendant not head of conspiracy, nobody was injured as a result of criminal conduct, or if the interests of justice would not be served by imposing a mandatory minimum sentence).

Gwinnett County

If you have been arrested in Gwinnett County for drug trafficking, the first and most important step is getting a bond. Only a superior court judge may set bail on a trafficking charge. When considering whether to grant a bond the judge analyzes four factors, whether the defendant is a significant risk of:

  • Fleeing from the jurisdiction of the court
  • Posing a threat or danger to any person
  • Committing a felony while on pre-trial release
  • Intimidating witnesses

An experienced attorney may be able to get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In Gwinnett County, bonds for trafficking range from $65,000 up to $125,000. The judge may also impose non-monetary restrictions (house arrest, no contact provisions, GPS ankle monitor, curfew, etc.). There is always the possibility, however, that a judge will deny setting a bond in the case, even if the bond was consented to. If the prosecutor will not agree to a bond, then the defendant will have to go before the judge and offer evidence of defendant’s ties to the communities (length of residence, family ties, employment status and history, history of responding to legal process – failure to appears or probation violations, lack of criminal history). The judge will normally set a “surety bond” where the defendant is only responsible for posting 10% of the overall bond amount and a bond company pays the rest (percentage varies depending on bond company).

If a bond is granted, the next step is fighting the case. Once all the evidence is gathered through the discovery process and our firm’s own independent investigation, we then communicate with the Gwinnett County District Attorney’s Office in an attempt to discuss a resolution. If these preliminary discussions are to no avail, we then proceed to file a “motion to suppress” illegally obtained evidence. If granted, the prosecution would not be able to proceed with the case. If denied, and the prosecutor is unwilling to dismiss or reduce the charges then we would be fully prepared to try the case before a jury. There are several defenses available to someone charged with drug trafficking:

  • Insufficient Drug Quantity (a motion to inspect evidence could reveal the weight of the substance does not meet the quantity as required in order to charge trafficking)
  • No Possession – Actual or Constructive (this defense asserts the defendant did not knowingly possess the substance in question, directly or indirectly)
  • Equal Access to Drugs (this defense relates to other individuals having access to the container or area in which the drugs were found, thereby raising doubt that the defendant knowingly possessed the drugs)
  • Illegally Obtained Evidence (this is the basis of a successful motion to suppress)

Contact Us

If you or someone you know has been arrested for drug trafficking, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

[1] With a minimum purity of 10% or more of cocaine as described in Schedule II

Georgia Criminal Law: Drug Trafficking in DeKalb County

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in DeKalb County, Georgia. Why DeKalb County? DeKalb County is a highly populated county adjacent to Fulton that sees a high number of drug trafficking cases on an annual basis. Therefore, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, delivers, or brings into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams[1] of cocaine. If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

For methamphetamine and/or amphetamine, any person who sells, delivers, or brings into this state or who possesses 28 grams or more is guilty of trafficking. If the quantity is greater than 28 grams but less than 200 grams the person shall be sentenced to a mandatory minimum prison sentence of 10 years and pay a fine of $200,000. For quantities greater than 200 grams but less than 400 grams, it is a 15 year mandatory minimum prison sentence plus a $300,000 fine. If the quantity is greater than 400 grams, the mandatory minimum prison sentence is 25 years plus a $1,000,000 fine.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of trafficking may be sentenced to less prison time than what is required by the mandatory minimums: (1) If the defendant provides “substantial assistance” to the government in identifying, arresting, and/or convicting other people involved in the drug conspiracy, the prosecutor may move the court to reduce or suspend part or all of the defendant’s sentence; (2) by agreement of the parties through a “negotiated plea”; or (3) the judge may depart from these mandatory minimums if certain mitigating factors exist (no prior felonies, no firearm used, defendant not head of conspiracy, nobody was injured as a result of criminal conduct, or if the interests of justice would not be served by imposing a mandatory minimum sentence).

DeKalb County

If you have been arrested in DeKalb County for drug trafficking, the first and most important step is getting a bond. Only a superior court judge may set bail on a trafficking charge. When considering whether to grant a bond the judge analyzes four factors, whether the defendant is a significant risk of:

  • Fleeing from the jurisdiction of the court
  • Posing a threat or danger to any person
  • Committing a felony while on pre-trial release
  • Intimidating witnesses

An experienced attorney may be able to get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In DeKalb County, bonds for trafficking range from $65,000 up to $125,000. The judge may also impose non-monetary restrictions (house arrest, no contact provisions, GPS ankle monitor, curfew, etc.). There is always the possibility, however, that a judge will deny setting a bond in the case, even if the bond was consented to. If the prosecutor will not agree to a bond, then the defendant will have to go before the judge and offer evidence of defendant’s ties to the communities (length of residence, family ties, employment status and history, history of responding to legal process – failure to appears or probation violations, lack of criminal history). The judge will normally set a “surety bond” where the defendant is only responsible for posting 10% of the overall bond amount and a bond company pays the rest (percentage varies depending on bond company).

If a bond is granted, the next step is fighting the case. Once all the evidence is gathered through the discovery process and our firm’s own independent investigation, we then communicate with the DeKalb County District Attorney’s Office in an attempt to discuss a resolution. If these preliminary discussions are to no avail, we then proceed to file a “motion to suppress” illegally obtained evidence. If granted, the prosecution would not be able to proceed with the case. If denied, and the prosecutor is unwilling to dismiss or reduce the charges then we would be fully prepared to try the case before a jury. There are several defenses available to someone charged with drug trafficking:

  • Insufficient Drug Quantity (a motion to inspect evidence could reveal the weight of the substance does not meet the quantity as required in order to charge trafficking)
  • No Possession – Actual or Constructive (this defense asserts the defendant did not knowingly possess the substance in question, directly or indirectly)
  • Equal Access to Drugs (this defense relates to other individuals having access to the container or area in which the drugs were found, thereby raising doubt that the defendant knowingly possessed the drugs)
  • Illegally Obtained Evidence (this is the basis of a successful motion to suppress)

Contact Us

If you or someone you know has been arrested for drug trafficking, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] With a minimum purity of 10% or more of cocaine as described in Schedule II

Georgia Criminal Law – Party to a Crime

This blog serves to explore this fundamental question: Who can be charged with a criminal offense?

The Offense

O.C.G.A. § 16-2-20(a) provides, every person “concerned in the commission of a crime” is a party thereto and may be charged with and convicted of commission of the crime.

What does it mean to be “concerned in the commission of a crime”?

O.C.G.A. § 16-2-20(b) states a person is concerned in the commission of a crime only if he:

(1) Directly commits the crime;

(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;

(3) Intentionally aids or abets in the commission of the crime; or

(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

Therefore, under Georgia law, a person may be convicted of a crime even if he or she does not directly commit the crime, but is instead a party to the crime. Demps v. State, 337 Ga.App. 657 (2016). To be convicted as a party to a crime, there must be proof, beyond a reasonable doubt, that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. Lonon v. State, 348 Ga.App. 527 (2019).

Importantly, all of the participants in a plan to commit a crime are criminally responsible for the acts of each other, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan. Cisneros v. State, 299 Ga. 841, (2016). For example, if Bob, Joe, and Rob all agree to rob a bank, and during the robbery Rob spontaneously kills a bank teller, both Bob and Joe could be convicted of murder because they are a party to the crime.

Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime. Harper v. State, 298 Ga. 158 (2015). Other examples include:

  • Serving as the getaway driver in an armed robbery.
  • Turning off the alarm system of a store in where you work, knowing that it will be robbed later that day.
  • Providing a firearm to someone who you know is planning to commit a crime.
  • Directing a vehicle to a location where you know an armed carjacker is waiting.

But, mere presence at the scene of a crime and mere approval of the criminal act are not sufficient evidence to establish that the defendant was a party to the crime.  Garcia v. State, 290 Ga.App. 164 (2008).

Contact Us

If you or someone you know is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.