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.

Why do I have Multiple DUI charges??

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If you are charged with DUI, you may have noticed that you do not have just 1 charge of driving under the influence, but you could be charged with several. But what does this mean and how does this affect you?

If you are charged with multiple counts of DUI stemming from the same incident, the most likely reason is because there is a chemical test of your blood, breath, urine, or other bodily substance which indicates a blood alcohol concentration of at least 0.08 grams and/or at the time of the DUI stop, there were children under the age of 14 in the vehicle.

Generally when a prosecutor accuses a DUI, they will attempt to categorize the offense as as many different kinds of DUIs as they can. If your case does not have a chemical test, that is, you refused the State’s requested chemical test and no one sought a warrant either for your blood or from hospital records, you are likely charged with DUI Less Safe. In Georgia, the State does not have to prove beyond a reasonable doubt that your blood alcohol concentration was a 0.08 or above, merely that you were driving while you were under the influence of alcohol, and as a result of the alcohol consumed, you were a less safe driver. This means that the State does not have to have “proof” of your BAC, only that you had consumed some amount of alcohol.

However, if you consented to the officer’s requested chemical test or the officer sought a warrant for your blood, and the results of that test or blood draw indicated a BAC of 0.08 grams or more, you are likely charged with DUI Unlawful Alcohol Content, also referred to as DUI “per se.” This kind of DUI does require evidence of a defendant’s BAC, generally in the form of a scientific report.

If you are charged with both DUI Less Safe and DUI Per Se, think of them as two ways the State can attempt to prove the same charge. One is not any worse than the other, and a conviction of one results in the other being “merged,” that is, effectively dismissed. The penalties under law are the same for a DUI Less Safe and a DUI Unlawful Alcohol Content, and the effect on your license doesn’t change depending on whether you are convicted of one or the other. A DUI conviction is a DUI conviction.

If you are charged with one or both of the above-referenced kinds of DUIs, and an additional DUI charge, you may be looking at a charge of DUI Child Endangerment. You could be charged with this crime if, at the time of your DUI arrest, there was a child under 14 years of age in the vehicle. The most important thing about DUI Child Endangerment is that, unlike the other two kinds of DUI, it does not merge into a DUI. It counts as an entirely separate DUI upon conviction.

Here is an example: Jayme was arrested for DUI. His 10 year old son, Billy, 6 year old daughter, Sarah, and 14 year old nephew, Steven, are all in the car at the time. When he is arrested, he consents to the officer’s request that he submit to a State-administered chemical test of his blood. When the blood test comes back from the lab, it indicates a blood alcohol content of 0.10 grams. When Jayme goes to Court, he notices that he is charged with 4 counts of DUI: DUI Less Safe, DUI Unlawful Alcohol Content, and 2 counts of DUI Child Endangerment. Note that he could not be charged with a 5th count of DUI for his nephew, because Steven is 14 years old. At trial, Jayme is convicted on all counts. However when the Judge sentences Jayme, he is only sentenced as though he was convicted of 3 of the DUI counts, because the DUI Less Safe would merge into the DUI Unlawful Alcohol Content by operation of law. Again, note that unlike DUI Unlawful Alcohol Content and DUI Less Safe, the counts of DUI Child Endangerment do not merge, even upon conviction of multiple counts of the same. Thus, although the charges all come from one DUI investigation and arrest, they count as 3 separate and distinct convictions of DUI.

Don’t be like Jayme. If you are charged with DUI, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

What to do if you are arrested for marijuana trafficking at the airport ?

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Imagine you have just flown into Hartsfield Jackson International Airport. You get off the plane and proceed to baggage claim. After you grab your bag, you are approached by several people who identify themselves as law enforcement. They ask to search your luggage and you agree. A search reveals a large quantity of marijuana and you have no idea how it got in your bag. You are now facing marijuana trafficking charges in Clayton County, Georgia.

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.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of marijuana 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).

Clayton County

If you have been arrested in Clayton County for marijuana trafficking at Hartsfield-Jackson airport, 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:

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

Our firm can get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In Clayton County, bonds for trafficking range from $50,000 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).

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 speak with the Clayton County District Attorney’s Office in an attempt to discuss a resolution. IF a resolution cannot be reached, then we will schedule the case for a motions hearing and jury trial.

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.

 

What is calendar call or a pretrial court date for a criminal case in Fulton County?

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If you are charged with committing a crime, there are many different hearings and/or court dates that you may have to attend. One of those is, what some jurisdictions refer to as, calendar call or pretrial hearing. What is calendar call or pretrial hearing? A calendar call and/or pretrial hearing is a court date where the judge is wanting to know the status of where the case is, i.e., ready for trial or needing additional time.

What is the purpose of calendar call or pretrial? The purpose is to inform the court where the attorneys are in the case so that the court can set the case for trial. Some examples that an attorney would announce at calendar call or pretrial is that negotiations still pending, still reviewing discovery, still investigating, still missing discovery from the prosecutors, still waiting on medical documents or reports, still waiting on testing etc. Generally, nothing of significance happens at this court date unless you plan to enter a plea and close your case out. Some counties have calendar call or pretrial a week or two after arraignment. Typically, the scheduling for calendar call or pretrial is dependent on the county you have a case in and the judge you are in front of. Some counties and judges set calendar call or pretrial a month or two out.

If you or someone you know has been charged with a crime and has a pending case in Fulton County, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I am a student charged with stalking on Georgia Tech’s campus. What should I expect?

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If you are a student on Georgia Tech’s campus and charged with stalking, you case will have two components: a criminal component and an administrative component.

The criminal component will be investigated and charged pursuant to O.C.G.A. §16-5-90(a). O.C.G.A. § 16-5-90(a) provides that “[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.”

“Contact,” has been broadly defined as, “any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.”

Furthermore, “harassing and intimidating,” is defined as, “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

A person who commits the offense of stalking is guilty of a misdemeanor (up to 12 months in jail and $1,000 fine or both). If convicted of stalking a second time (or any subsequent conviction) the person will be punished as a felony and can be sentenced to at least one year in jail and no more than ten years in jail.

Many people are unaware that an accusation of stalking on Georgia Tech’s campus also carries an administrative component. The school will conduct an administrative hearing and the consequences range from no longer being able to reside on campus to being suspended from school. You may (and should) have an attorney represent you at this hearing.

If you have been accused of stalking on Georgia Tech’s campus, you need an experienced attorney to protect your rights and help you obtain the best outcome. The Law Office of W. Scott Smith is experienced in stalking defense. Call our office at 404-581-0999 today for a free consultation.

 

 

 

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Clayton 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 Clayton 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 eluding in Clayton 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 Clayton 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 and eluding 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 Clayton County, Georgia, please call our office today at 404-581-0999 for a free consultation.

I was arrested for DUI at a roadblock/checkpoint. What do I do?

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Georgia law and the United States Constitution requires that police officers possess a certain level of suspicion in order to stop a driver. Police officers must have reasonable articulable suspicion that a driver is, has, or is about to break the law in order to pull them over. However, DUI checkpoints and roadblocks are an exception to this requirement, and police do not have to have any suspicion whatsoever to stop a car passing through a checkpoint.

If you have been arrested at a checkpoint, you may be wondering how to best defend your case. The good news is that the State must show that the roadblock was conducted in such a way that complies with Georgia law. In the case of Baker v. State, 252 Ga. App. 695 (2001), the Georgia Court of Appeals articulates the six prongs which must be shown to support a stop at a checkpoint. The Court in Baker held that a roadblock is valid when:

  1. The decision to implement the checkpoint in question was made by supervisory officers and not officers in the field;
  2. The supervisors had a legitimate purpose in conducting a checkpoint;
  3. All vehicles passing through the checkpoint are stopped, not just “random” vehicles;
  4. The delay to drivers is minimal;
  5. The checkpoint operation is well identified as a police checkpoint (think flashing lights, marked vehicles, and traffic cones);
  6. The screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be administered field sobriety tests.

This test is all-or-nothing. If the prosecutors cannot show each and every one of these elements, the stop and any subsequent observations, statements, or arrests may be suppressed.

If you have been arrested at a checkpoint, you may have a valid defense in your case. Call our office for a free consultation and find out what your best options are. 404-581-0999. Written by Attorney Katherine A. Edmonds.

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

 

If arrested in DeKalb County for Possession of Tools, the case will be prosecuted by the DeKalb County District Attorney’s Office. The next court date will be the Arraignment and takes place at the DeKalb 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 DeKalb 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 DeKalb County?

 

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

 

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

 

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

 

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

 

If you or a loved one has been arrested for POSSESSION OF TOOLS in the DeKalb County or the Atlanta area, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.