Can you get in trouble for bringing cigarettes or a cellphone to an inmate in Georgia?

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By: Mary Agramonte

            Georgia law has made it a felony for someone to give an inmate certain illicit items. These include guns, weapons, alcohol, drugs, tobacco and cellphones. If any of these items are given to an inmate without the warden’s permission, both the inmate and the person who gave it to the inmate, can be charged with a felony offense. This law is codified at O.C.G.A. § 42-5-18.

It is against the law for Inmates to possess certain items while in jail.

            If the inmate possesses a gun, weapon, alcohol, drugs, or tobacco, he or she can be convicted and imprisoned for 1 to 5 years (which can run consecutive to whatever sentence they are currently serving). Interestingly, if the person in jail is being held for a misdemeanor arrest or conviction, and is caught with a cell phone in violation of Georgia law, Georgia law can be more lenient as this offense is actually a misdemeanor. On the other hand, if the person is being held for a felony and is caught with a cell phone, it will be charged as a felony.

The person on the outside bringing the items can be punished more severely in Georgia.

            Another caveat is that Georgia law is that is treats more harshly the person bringing the items, than it does the inmate possessing them. If you are the one who brings the prohibited items in, or even attempts to do so, it is a mandatory minimum of two years to serve in prison (and all the way up to 10 years). The mandatory two years cannot be served on probation meaning it is a mandatory prison sentence. This includes weapons, drugs, and alcohol will all result in a mandatory two years in prison if the person is convicted of that crime. If it is only cigarettes or tobacco, then the sentence is slightly lighter in Georgia in that is a mandatory one to five years in that situation if the person is convicted at trial or plea.

What about drones?

            As technology develops more in the outside world, people are becoming creative in ways to bring prohibited items into jails and prisons. In this regard, the Georgia legislature has enacted laws to prevent the use of drones and other unmanned aircraft systems in either taking photos of jails and prisons, or using the unmanned aircraft to bring the banned items into the prison walls.  In this situation, it is a 1 to 5 year sentence to use the drone to take photos, and a 1 to 10 year offense to actually attempt to bring items into jail or prison. Both of these are considered felony offenses.

            Whether you or a loved one has been caught either possession the items while in prison, or bringing the items into the prison, there is hope. Experienced criminal defense attorneys can put together a defense to mitigate and protect your future. Call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Possession of Tools

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. 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, hammers, and glass break devices as these are all commonly used in burglaries and thefts. You could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand, even if there is no theft. However, not only tools associated with burglary are criminalized.  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 Georgia?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. (See O.C.G.A. § 16-7-20). Possession of tools is a felony offense, which means it is sentenced more harshly than misdemeanors. Felonies can take away your civil rights moving forward and can make finding employment very difficult. For example, if you are convicted of Possession of Tools, you immediately lose your right to vote and your ability to carry a firearm.

What are Possible Defenses to Possession of Tools in Georgia?

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 with a felony 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 that the accused actually possessed a tool, but the tool 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 in that situation. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case for the same reason: it is not a device commonly used to commit that crime.

The rule of lenity may also apply in felony Possession of Tools cases. This means that even if you are charged with a felony, Georgia law may require you be given a misdemeanor sentence. 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 State of Georgia, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Possession of Firearm by Convicted Felon

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A felony conviction has serious consequences. It remains on your criminal record permanently, making jobs and housing extremely difficult to obtain. Aside from incarceration, probation, fines, counseling, and other conditions the sentencing judge may impose, a felony conviction also strips away certain constitutional rights. One of these rights is the right to possess a firearm. In enacting the below statute prohibiting the possession of a firearm by a convicted felon, the General Assembly has sought to keep guns out of the hands of those individuals who by their prior conduct have demonstrated they may not possess a firearm without being a threat to society. This article will explain the three key components of the criminal offense, the punishment, and defenses.

The Offense

It is illegal for any person who has been convicted of a felony to possess a firearm. O.C.G.A. § 16-11-131.

Felony convictions include: any person who is on felony first offender probation, felony conditional discharge probation, or has been convicted of a felony in Georgia or any other state (also includes U.S. territories and courts of foreign nations).

A “firearm,” includes any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge. Therefore, toys or non-functioning replicas do not qualify as weapons. However, it is important to note that even disassembled firearms or even projectiles by themselves constitute “firearms” under the statute.

To prove possession, the prosecution must establish has two requirements, a culpable mental state and the act of possessing a firearm. First, the prosecution must establish the person knowingly possessed  a firearm. Knowledge can be proven through direct evidence (person’s statement admitting possession) or through circumstantial evidence (firearm found on person’s bed side table and nobody else had access to the house). Possession can be further broken down into two categories, actual and constructive possession. Actual possession is what it sounds like. If you have a firearm in your hand (or holster, or in your waistband), you are in actual possession of a firearm. Constructive possession, however, is a situation where you have control or dominion over property without being in actual possession of it. For example, imagine you are seated in the front passenger seat of a vehicle along with the driver. The vehicle is pulled over, searched by police, and illegal drugs are found in the center console. Although neither you nor the driver was in actual possession of the drugs, you are both arguably in constructive possession of the drugs because of your mutual ability to access and control of the drugs.

Punishment

A person convicted of possession of a firearm by a convicted felon shall be sentenced to no less than one year and no more than ten years. If this is a second or subsequent conviction, the person shall be sentenced to prison for no less than five and no more than ten years. If the underlying felony was a “forcible felony” the person shall be sentenced to five years imprisonment. A forcible felony is defined as, “any felony involving the use or threat of physical force or violence against any person . . .”

Defenses

There are several defenses available to a person charged with this offense. One is to challenge the underlying conviction. If the conviction is not a felony or was a felony but was discharged under the First Offender Act or conditional discharge sentence, then there is no underlying felony. This offense also does not apply to those who have been convicted but had their convictions pardoned by the state.

The next available defense is to challenge the required mental state; that the person was “knowingly” in possession of a firearm. You cannot be in possession of something that you have no knowledge of.

The defense may also challenge whether the person was in constructive possession. In Harvey v. State, the court found insufficient evidence the defendant was in constructive possession of a firearm (by a convicted felon) even though defendant’s name appeared on documents in closet of apartment where firearm was found; the gun was found on the floor next to an unidentified individual, defendant’s name was not on the lease, and defendant had no belongings inside the apartment. 344 Ga.App. 7 (2017).

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.

Criminal City Ordinance Violations in Metro Atlanta, Georgia

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More and more municipalities are beginning to charge their citizens with city ordinance violations instead of state law violations when they are arrested for breaking the law in Georgia. Especially in municipalities like Atlanta and Sandy Springs. These violations are similar to their state law counterparts, charges like Disorderly Conduct, Theft by Shoplifting, and Possession of less than an ounce of Marijuana, but they have a different impact on your criminal history.

Police Officers will tell you they are cutting you a break when they only charge you with a city ordinance violation. They will often say, “don’t worry, it won’t show up on your criminal history.” That statement is only partly true. Every time you get fingerprinted after an arrest, whether it’s a city ordinance or a state law violation, a cycle will be created on your Georgia Criminal History. That cycle may only say city ordinance non-fingerprintable offense, but it will by a cycle on your history. Also the clerk’s office in the municipality where you were arrested or cited will have a record of your charge in their office. Many private background check companies go to all of the municipal courts in your area and search your name and date of birth for cases.

Having an attorney to represent your city ordinance violation in cities like Sandy Springs, Dunwoody, Atlanta, Alpharetta, and Roswell will give you the best opportunity to make sure your case is dismissed and your record is restricted. Call us today for a free consultation, 404-581-0999.

Georgia DUI Law – Necessity Defense to a DUI Charge

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There are many legal challenges and defenses available to defendants in a DUI case. One of these defenses is an “affirmative defense.” An affirmative defense is one in which the defendant argues that, even if the allegations of the indictment or accusation are true, there are circumstances that support a determination that he cannot or should not be held criminally liable. In the context of a DUI, the defendant would be arguing to the judge or jury that the defendant was in fact DUI, but the defendant is justified or excused in driving under the influence. One justification defense[1] to DUI is “necessity.”   

Under federal law[2], the doctrine of necessity requires:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

In 1991, the Georgia Supreme Court reversed a conviction for DUI because a jury could have found driving under the influence was justified when Defendant was driving 8 ½ month pregnant wife to the doctor.[3] 

Contact Us

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

[1] O.C.G.A. § 16-3-20

[2] Manners v. Cannella, 891 F.3d 959, 11th Cir. (2018)

[3] Tarvestad v. State, 261 Ga. 605 (1991)

Released on Copy of Citation in Georgia – Is it Still a Crime?

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In Georgia, you don’t have to be arrested to be charged with a crime. All traffic offenses and certain other crimes allow officers to release you on a copy of citation. This includes city ordinance violations in many Georgia municipalities, all traffic offenses including DUI, some drug crimes, minor theft cases, and other crimes and misdemeanors. Just because you haven’t been arrested does not mean you aren’t facing a serious criminal charge that could be on your criminal record forever.

The good news is that because you weren’t arrested and fingerprinted, it means that arrest is not on your criminal history right now. But it very well could be later, and it is important to have the right Georgia criminal defense attorney on your side to prevent that citation from hurting you later.

The right Georgia criminal defense attorney can acquire all the evidence in the case and do everything they can to try and prevent you from being fingerprinted later and a cycle appearing on your Georgia Criminal History. Many municipalities require fingerprinting after conviction, or sometimes if you request a jury trial on your case. Once you are fingerprinted, that charge may appear on your Georgia criminal history and be available to people running background checks.

Also, just because you aren’t fingerprinted, doesn’t mean there is not a record of your case in the Clerk’s office where you are charged. Many background check companies are now going directly to local Clerk’s offices in your area looking for open and closed cases with your name and date of birth. Even if you weren’t arrested, and often if a case is dismissed and proper procedures aren’t taken, the charges of your case still show up in the Clerk’s record, potentially impacting your ability to find work in Georgia.

Our office of criminal defense attorneys will do everything we can to protect your criminal history. Call us today for a free consultation at 404-581-0999.

Georgia DUI Law: Calendar Call

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There are several court dates in the life of a DUI case. The first court date is arraignment. This is where the court formally notifies the defendant of the charges and asks the defendant whether they plead guilty or not guilty. After arraignment, the case is then scheduled for a “calendar call,” court date.

What is Calendar Call?

The purpose of calendar call is for the parties to appear in court and “announce” to the judge the status of the case. This way, the judge will know whether the case is going to be a trial, a plea, or if the case needs to be continued due to an outstanding issue (missing evidence, witness unavailability, accountability court applications, scheduling conflicts, etc.). Calendar calls promote judicial efficiency.

Who Must Appear?                                                             

Unrepresented defendants must appear at calendar call. Failure to appear will cause a bench warrant to be issued for your arrest and forfeiture of your bond. At calendar call, an unrepresented defendant who does not desire to hire an attorney may announce “pre-trial” at calendar call. This announcement signals to the judge that the defendant wishes to have a brief conversation with the prosecuting attorney about the case in an effort to reach a resolution. In this “pre-trial” conference, the defendant should ask the State what their offer is on the case. If acceptable, then accept. If the offer is unacceptable, or confusing, or seems fishy, the defendant should hire a lawyer. It is important to remember any statements the unrepresented defendant makes to the prosecutor can be used against the defendant at trial.

Represented defendants may have to appear at calendar call, depending on the judge. Most judges will allow the attorney to appear and make an announcement on the defendant’s behalf. Therefore, it is critically important attorneys know the judge’s preferences in advance of court as to avoid a possible bench warrant. If a judge is particular about represented defendants appearing in court, the attorney may still be able to excuse the defendant by filing a “waiver of presence,” with the court. This is simply a notarized document signed by defendant stating they waive the right to be present. Furthermore, some judges will allow attorneys to make their calendar call announcements via email in advance of court. This saves the attorney and possibly the defendant a trip to court.

Contact Us

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

Georgia DUI Law: How a DUI Becomes a Felony

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The vast majority of DUI arrests are charged as misdemeanors in Georgia. There are certain circumstances, however, that will cause the DUI charge to be elevated from a misdemeanor to a felony. This article serves to explain the three major ways a driver in Georgia could obtain a felony DUI charge.

Multiple Prior DUI Convictions

A fourth DUI arrest within a ten year period[1] that results in a conviction is punishable as a felony. A first, second, or third DUI conviction in a ten year period will be treated as a misdemeanor, although the third conviction will be a high and aggravated misdemeanor.

If convicted of a fourth offense within a ten year period, the judge has the authority to impose a prison sentence between one and five years (all of which may be on probation except 90 days).

Causing Serious Injury or Death

You can be charged with a felony if you seriously injure another person while driving under the influence. Under O.C.G.A. 40-6-394(b), “[a]ny person who, without malice aforethought, causes an accident that results in bodily harm while violating Code Section 40-6-390 or 40-6-391 commits the crime of serious injury by vehicle. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.” Bodily harm is defined as, “an injury to another person which deprives him or her of a member of his or her body, renders a member of his or her body useless, seriously disfigures his or her body or a member thereof, or causes organic brain damage which renders his or her body or any member thereof useless.”

Similarly, “[a]ny person who, without malice aforethought, causes the death of another person . . . [while driving under the influence] shall be punished by imprisonment for not less than three years nor more than 15 years. O.C.G.A 40-6-393.

High Risk Operator

The law recognizes people who are convicted of DUI should be punished more severely because they are transporting children at the time of impaired driving. This occurs in two ways.

A third conviction of DUI child endangerment will result in a felony charge. This offense is punishable by one to five years imprisonment and a fine of $1,000 to $5,000.

Finally, under O.C.G.A. 40-6-391.3, a school bus driver convicted of DUI while driving a school bus is punishable as a felony. The school bus driver will face a one to five year prison sentence and a fine between $1,000 and $5,000.

Contact Us

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

[1] Measured from the dates of arrest (but only since July 1, 2008). Arrests resulting in convictions prior to this date do not apply towards the total number of arrests for this purpose.

Georgia DUI Law – What a Georgia DUI Costs

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In 2018, there were 21,784 DUI convictions in Georgia. A DUI arrest and conviction has serious consequences. Among those consequences, you can expect to pay a significant amount of money in defending the case. This article serves to provide a general idea of what it costs to be arrested and convicted of DUI.

  1. Bail/Bond: $150 – $2,500. Cost of bail in a DUI arrest depends on a variety of factors including but not limited to prior criminal history, case facts, and ties to the community.
  2. Towing: $50 – $200. The cost of towing and impounding a car can increase daily.
  3. Insurance Increase: $4,500 or more. Depending on your insurance carrier and driving history, your rates could double, triple or even quadruple over a period of three to five years.
  4. Legal Fees: $2,000- $25,000.
  5. Fines: $300 – $5000. These base fines vary depending on the nature of your offense and any prior DUI’s. These base fines do not include statutory court costs which can increase the base fine by 50% or more. 
  6. Alcohol Evaluation: $95 – $300. The law requires completion of an alcohol and drug evaluation and treatment if recommended by the evaluator.
  7. Classes: $500 – $4,000. As part of a DUI conviction you will be required to complete a Risk Reduction class (also referred to as “DUI School”). This class costs $350. You are also required to complete a Victim Impact Panel which costs roughly $100.
  8. License reinstatement fees: $210 – $410. License reinstatement generally costs $210. However, depending on your history, you could be required to install an ignition interlock device on your vehicle in order to reinstate your license. You would have to pay for the installation of the device plus daily maintenance costs.

Contact Us

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

Georgia DUI Law: DUI and Your Record

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An arrest and/or conviction for DUI in Georgia will impact your record. There are two types of records, a criminal record, maintained by the Georgia Crime and Information Center (GCIC) and your driving record, also called a Motor Vehicle Report (MVR – maintained by the Department of Driver’s Services).

This article serves to explain how a DUI affects your record, both criminal and driving, and whether you can get a DUI taken off of your records.

Georgia Criminal Record

If you are arrested, booked, and fingerprinted, this information will be forwarded to GCIC and placed on your record. If you are applying for a new job, housing, or if your employer runs a background check on you, they will be able to see the arrest on your GCIC. Each arrest is reported as a “cycle,” which shows the date of arrest, the arresting agency, the offense charged, and a “disposition.” The disposition describes the outcome of the case. If the case is still pending, the disposition will show an arrest but no outcome. If you are convicted or the case was dismissed or reduced, the disposition will state as such.

If you are convicted of DUI, whether at trial or through a plea, it will remain on your record permanently. You will not be able to get the record restricted, you cannot get it expunged, you cannot use first offender. This remains true even if your DUI charge was reduced to Reckless Driving.

Georgia Driving Record

Your Motor Vehicle Report (MVR) is very similar to your GCIC. If you have been arrested for DUI and the officer takes your driver’s license in order to facilitate an administrative suspension of your license, your MVR will show a pending administrative license suspension. If this administrative potion of the case is dismissed, your MVR will be cleared up. However, if you are ultimately convicted of DUI through a plea or trial, your MVR will reflect this conviction and you can expect your insurance prices to rise because insurance companies have access to these MVR’s. This conviction will remain on your MVR permanently.

Contact Us

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