Driving with a Suspended License in Fulton County

/in , , , , , , , , , /by

By: Attorney Alex Henson

In Georgia, driving with a suspended license can result in an arrest and conviction for a misdemeanor. If you are found guilty of driving on a suspended license you will face no less than two days in jail and a fine of $500 to $1000. You could also be placed on probation. Pleading guilty to driving on a suspended license will also result in a new suspension of your Georgia driver license for six months. You can avoid a new suspension by pleading nolo contendre (no contest), but this option is only available once every five years.

A second or third conviction of driving on a suspended license in a five-year period will result in no less than 10 days jail and a fine of $1000 to $2,500. You can also face additional penalties such as probation. A fourth conviction in a five-year period will be considered a felony and is punishable by 1 to 5 years in prison as wells as fines and probation. If you are arrested or cited for driving with a suspended license having a lawyer fight your case can result in a better outcome. Call us at (404)  581-0999 for a free consultation.

I was arrested without a warrant, and they did not bring me to court in Henry County, what do I do?

/in , , , , , , , , /by

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody. 

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991). 

If you or someone you know has been arrested in Henry County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

What do you do if you are arrested for child molestation in Georgia?

/in , , , , , , , , , , , , , /by

If you or a loved one is arrested for child molestation in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Georgia and prosecutors and the police believe children who make the accusations.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

Here is what you should do if arrested for child molestation:

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for child molestation:

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

If you are arrested for child molestation, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Vehicular Homicide in Georgia

/in , , , , , , /by

If you have been charged with vehicular homicide in Georgia and you were under the influence of prescription medication when you were driving you do have a unique defense available to you that many lawyers in Georgia will sometimes overlook.  For starters, Georgia law does not punish you for mistake or an accident.  Meaning, if you are prescribed prescription medicine and drive after you took prescription medication you may be excused in your conduct through excusable ignorance.  There are several factors the jury will consider, but in my experience, you have to meet several criteria to have a more robust defense.  First, you have to have taken the impairing drugs pursuant to a lawful prescription.  Second, you will need to be within therapeutic limits – meaning taking the drug as prescribed.  It doesn’t do good if you are prescribed 5 mg of a drug and you are taking three times the amount.  Third, your doctor or pharmacist failed to warn you not to drive after taking the medication.  Similarly, if your prescription bottle displays a warning of ‘do not drive under this prescription’ then you should not drive and your defense of accident or mistake is seriously weakened.  Fourth, it should be a newer prescription.  Why is this important?  It means you are unfamiliar with the reaction your body and/or mind has when having taken the prescription medicine.

As mentioned, once you have been charged with Vehicular Homicide in Georgia and you are taking a medication as prescribed and the jury believes you did so through not knowing any better you can be excused from the criminal act.  Yes, nobody likes excuses – especially a jury – but if you truly did not have the intent to become impaired or did not know the disruption on your mind of consuming a prescription medicine, Georgia law protects you.  It is important to understand the difference between justification and excuse.  Justification means you intended the act and consequences that stem from the act but you were justified.  An example may be self-defense where you shot and killed someone trying to kill you.  Excuse is where your conduct is not justified, but in the Georgia legislature’s estimation your actions are excusable because of what failed to transpire in your mind.  A top level highly experienced Georgia criminal defense lawyer can explain this to a jury.

Georgia Criminal Street Gang Act – Fulton County

/in , , , , , , , , , /by

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

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

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

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

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

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

  1. The defendant committed a criminal street gang activity.

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

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

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

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

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

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

What to expect during a DUI stop in Cartersville, GA

/in , , , , , , , , , , , /by

By: Attorney Alex Henson

If you are suspected of driving under the influence of alcohol in Cartersville, GA you might be pulled over and investigated by police. What can you expect during a DUI stop?

First, the officer might ask you if you’ve had anything to drink. You have the right to remain silent and refuse to answer the question, but always be polite and respectful. Any statements you make could be used against you later in court.

Next, the officer might ask you to perform certain exercises to see if you are safe to drive. These exercises are called Standardized Field Sobriety Tests and your performance could be used against you in court later. The most common of these tests are the horizontal gaze nystagmus (HGN), the one leg stand, and the walk and turn. It is voluntary to participate in field sobriety tests. Refusing to participate cannot be used against you in court later.

The officer may decide that you are under the influence and less safe to drive. If the officer decides to arrest you, he or she may read you Georgia’s implied consent statement and request chemical testing of your breath or blood. These tests are voluntary, but refusal can result in your license being suspended.

If you are arrested for DUI in Cartersville, GA, your case will be sent to Cartersville Municipal Court. In Municipal Court, you will have the opportunity to resolve your case. However, if you decide you want a jury trial, your case will be transferred to the Superior Court of Bartow County.

If you have been arrested for DUI in Cartersville, GA and would like a free consultation, call us at (404) 581-0999.

 

Cruelty to Children in Gwinnett County

/in , , , , , , , , , /by

By: Attorney Erin Dohnalek

In Georgia, the offense of cruelty to children is broken down into three different degrees, depending on the severity of the alleged abuse. Because of the consequences of such a serious crime, it is vitally important to understand the offense, as well as your individual rights when dealing with such allegations.

According to O.C.G.A. § 16-5-70, first-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, under the age of eighteen, willfully deprives the child of necessaries to the extent that the child’s well-being is jeopardized. Additionally, conduct in which such person causes a minor child cruel or excessive physical or mental pain is considered first-degree child cruelty.

Second-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, with criminal negligence, causes a child, under the age of eighteen, cruel or excessive physical or mental pain. Additionally, third-degree cruelty to children occurs when a parent, guardian, or other person supervising a minor child acts in one of the following ways:

  • Such person acts as the primary aggressor and intentionally allows a minor child to witness the commission of a forcible felony, battery, or family violence battery; or
  • Such person, who is acting as the primary aggressor, knows that the minor child is present or knows that the child can either hear or see the act, commits the act of forcible felony, battery, or family violence battery.

Penalties

The penalty for being convicted of first-degree cruelty to children in Gwinnett County, Georgia is a prison sentence between 5-20 years. For second-degree cruelty to children, the prison term is anywhere between 1-10 years. Alternatively, if a person is convicted of third-degree cruelty to children, he/she may be sentenced to a misdemeanor penalty, depending on his/her past criminal history. If the person has never been convicted of third-degree cruelty to children or has only been convicted once in the past, he/she may be sentenced to a misdemeanor penalty. However, if such person has been convicted in the past more than twice for the same offense then he/she will be sentenced to a felony prison term between 1-3 years and/or a fine of no less than $1,000, but no more than $5,000.

Defenses

Due to the severity of the punishment, as well as the collateral consequences for a charge of cruelty to children, it is vitally important to hire an experienced criminal defense attorney to defend you against such allegations and who also understands all the possible defenses to such a charge. Some defenses to cruelty to children include, but are not limited to:

  • Accident, if it did not result from the person’s recklessness or criminal negligence;
  • Parent’s right to discipline, if reasonable; and
  • Actual innocence or false allegations.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of cruelty to children, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for cruelty to children in Gwinnett County, please call our office today at 404-581-0999 for a free consultation.

Giving a False Name

/in , , , , , , , , , , , , /by

A person who gives a false name, address, or date of birth to a law officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate can be charged with the misdemeanor of Giving False Name. Georgia law (O.C.G.A. 16-10-25) makes it illegal to lie to the police about your identity. However, simply refusing to hand over your ID does not give the police officer probable cause to believe that you have falsely identified yourself, so you cannot be charged with Giving a False Name under those circumstances, but refusing to hand over your license might result in an obstruction charge.

To prove that someone is guilty of Giving a False Name, the State will generally provide proof of the person’s real name, address, or date of birth by showing records such as a birth certificate, driving records, or registration.

If you have been charged with Giving a False Name, you face penalties up to 1 year and jail, a fine of $1000, or both. You need an experienced attorney to help you navigate the charges, evidence, and defenses. Give our office a call for a free consultation if you or someone you know has been charged with giving a false name. 404-581-0999. Written by Attorney Katherine Edmonds.

What is an Arraignment in Cobb?

/in , , , , , , , , /by

If you are charged with committing a crime, there are many different hearings that you might have to attend. One of those is an Arraignment. What is an Arraignment? An arraignment is the first court appearance or first court date someone receives after they get out of jail on bond or after they receive a traffic ticket. Some counties don’t give you a court date immediately. Other counties will mail you a court date. Sometimes it can be a while before you have your first court date.

What is the purpose of Arraignment? Arraignment is to notify you what your charges are and give you an opportunity to plead guilty or not guilty. In Georgia, every defendant has the right to an arraignment in a felony and misdemeanor case.

Sometimes the charge you were originally given or arrested for is not the same charge that the prosecutor is going forward on. This means that they can charge you with something more serious or charge you with something less serious.

Arraignment is not the time where you can present evidence or argue your case to the judge.  It is simply the time to enter guilty or not guilty and hear the formal charges the prosecutor is moving forward against you on. In all, not much happens at Arraignment. Ideally, you should have an attorney to represent you at arraignment. A lawyer can appear in court on your behalf and waive arraignment to excuse you from court.

If you or someone you know has been arrested or charged with a crime or under investigation in Cobb 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.

What to expect during a DUI stop in Austell, GA

/in , , , , , , , , , , , /by

By: Attorney Alex Henson

If you are suspected of driving under the influence of alcohol in Austell, GA you might be pulled over and investigated by police. What can you expect during a DUI stop?

First, the officer might ask you if you’ve had anything to drink. You have the right to remain silent and refuse to answer the question, but always be polite and respectful. Any statements you make could be used against you later in court.

Next, the officer might ask you to perform certain exercises to see if you are safe to drive. These exercises are called Standardized Field Sobriety Tests and your performance could be used against you in court later. The most common of these tests are the horizontal gaze nystagmus (HGN), the one leg stand, and the walk and turn. It is voluntary to participate in field sobriety tests. Refusing to participate cannot be used against you in court later.

The officer may decide that you are under the influence and less safe to drive. If the officer decides to arrest you, he or she may read you Georgia’s implied consent statement and request chemical testing of your breath or blood. These tests are voluntary, but refusal can result in your license being suspended.

If you are arrested for DUI in Austell, GA, your case will be sent to Austell Municipal Court. In Municipal Court, you will have the opportunity to resolve your case. However, if you decide you want a jury trial, your case will be transferred to the State Court of Cobb County.

If you have been arrested for DUI in Austell, GA and would like a free consultation, call us at (404) 581-0999.