Arrested for Gang Activity in Fulton County

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The Fulton County District Attorney’s office is cracking down on gangs in the Atlanta area. If you are charged with being in a criminal street gang, do not make any statements to the police. You have a Constitutional right to remain silent.

If you are arrested for being in a criminal street gang, then you will be in front of a Fulton County Magistrate Court judge the following day after your arrest. You will need an attorney for this hearing.

OCGA 16-15-4 sets out the offenses that are related to criminal street gang activity.

It is unlawful for:

  1. A person employed or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of a crime.
  2. Any person to commit an offense with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.
  3. Any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived from any interest in or control of any real or personal property of any nature, including money.
  4. Any person who occupies a position of organizer, a supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or directly, or conspire to engage in criminal gang activity.
  5. Any person to cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.
  6. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter such person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.
  7. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member or associate of a criminal street gang.
  8. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member of associate of a criminal street gang.
  9. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for providing statements or testimony against criminal street gangs or any criminal street gang member or associate.
  10. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent such person from communicating to any law enforcement or corrections officer, prosecuting attorney, or judge information relating to criminal street gangs, criminal street gang members or associates, or criminal gang activity.

 

The Fulton County District Attorney’s office is indicting many cases under the street gang statute. You do not have to be an actual gang member to be indicted under this statute.

The sentence for a conviction for OCGA 16-15-4 is a minimum of 5 years in prison and a maximum of 20 years in prison and a fine between $ 10,000 – $ 15,000.

If you are charged in Fulton County with violating the criminal street gang statute, please call us at 404-581-0999. You need to zealously defend yourself against these allegations.

Family Violence Battery with an Uncooperative Alleged Victim

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Family Violence Battery is defined in O.C.G.A. 16-5-23.1 as intentionally causing substantial physical harm or visible bodily harm to another person who are:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges. A family violence battery can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. A major consequence of a family violence battery conviction is that any future convictions of the same crime is an automatic felony. The first conviction of a family violence battery is sentenced as a misdemeanor, however, the second and subsequent convictions have a maximum penalty of 5 years in prison.

It is not uncommon for an alleged victim in a Family Violence Battery case to be reluctant to testify or even want the charges to be dismissed altogether. It is very difficult, although not impossible, for the State to prove its case without having an alleged victim testify.

Due to the severity of the penalties for a family violence charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such a serious charge. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations. Therefore, if you have been charged with Family Violence Battery and the alleged victim is reluctant or does not want to testify, please call our office today at 404-581-0999 for a free consultation.

Defenses to Trafficking Marijuana in Fulton County

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Being charged with trafficking marijuana in Fulton County is a serious charge. In Georgia, if you are found guilty of trafficking 10-2,000 pounds of marijuana, you will be sentenced to a mandatory minimum of 5 years in prison and a fine of $100,00.00.

The State often has strong evidence in a marijuana trafficking case, often because the accused is arrested with the marijuana in their possession. However, an experienced defense attorney can evaluate your case for defenses. The most successful defenses are often proving to the court that your constitutional rights were violated in some way during the search or seizure that led to the discovery of the marijuana.

For example, a police officer must have some sort of reasonable suspicion that a suspect is engaged in, or has previously engaged in, criminal activity to initiate a temporary detention to investigate a crime. Then, to arrest and search a vehicle, an officer must have probable cause that a crime has occurred. If the state cannot prove that the officer had the required level of suspicion to temporarily or permanently detain you, the evidence they obtained must be suppressed and cannot be used against you.

If you have been accused of trafficking marijuana, it is important to hire an experienced criminal defense attorney that will review your case and search for all possible defenses. The lawyers at the Law Office of Scott Smith handle marijuana trafficking cases regularly and will work hard to protect your constitutional rights. Call us today at 404-581-0999 for a free consultation.

 

Police Searches and Consent: Know Your Rights

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The State of Georgia takes individual rights and liberties very seriously. This helps act as a roadmap of what government officials and police can and cannot do. One of these rights is property rights. The Fourth Amendment of the US Constitution protects citizens against unreasonable searches and seizures. This means that police generally need a search warrant to search your property. It also means that they need probable cause to determine if a crime is being or has been committed. You can almost always decline is a police officer asks to search your property. There are, however, some exceptions:

  • You give permission. One helpful tool is that you can limit what the police officer can search. For example, if they ask to search your home, you can consent to a certain part of the home but not to other parts.
  • If there is an emergency situation that justifies an immediate search.
  • Evidence of a crime is in plain view.
  • If you’ve just been arrested, police can search you and your immediate surroundings if you are lawfully arrested.

If you’ve been asked by a police officer to consent to a search, they may have been doing so unconstitutionally. This is important because a case can be completely dismissed due to the unconstitutionality of the search and/or seizure. Give us a call today.

Theft of Services – Marietta Criminal Defense

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In Georgia, it is against the law to avoid payment of services, entertainment, accommodations, or for the use of personal property. This is known as Theft of Services, found at O.C.G.A.  § 16-8-5. If you have been arrested for Theft of Services in Marietta, your case will either be prosecuted by the Cobb County Solicitor General, or the Cobb County District Attorney, depending on the value of the services and whether it is a misdemeanor or a felony.

Examples of Theft of Services include utilizing a cleaning or lawn care company, and then not paying. Other service examples could be legal services, hair styling services, or accounting services. Simply put, it is against the law to use someone’s services and then avoid payment. Theft of services in Georgia also includes theft of utility services like water and electricity. In that situation, you can be charged with numerous crimes for tampering with electric or water meters.

In order for Theft of Services to be a criminal issue, thus potentially involving loss of liberty and a criminal history, the State must prove that the avoidance of payment was done by deception and with the intent to avoid the payment. Without deception and criminal intent, theft of services is more accurately defined as a civil or monetary legal issue, versus a criminal one. If the State is unable to prove deception or criminal intent to avoid the payment, there is a strong defense case for an acquittal. This is because civil courts are filled with people not paying other people back. In most instances, it is a contract issue. However, if there is the criminal intent to avoid payment and done so deceptively, the prosecuting attorney will bring the case to court.

So what is deception? Deception is defined in Georgia law for purposes of Theft of Services as providing knowingly false information to another with the intention to avoid payment. For example, Georgia law has held deception to be found when the suspect used a forged check to pay for lawn mower repair. In that situation, the State proved deception via the falsifying check as well as intention to avoid payment as the person never returned to make the payment.

What is the Punishment for Theft in Georgia?

  • If Theft of Services amount is:
    • Less than $1,500: the maximum punishment is 12 months in jail and/or $1,000.
    • $1,500.01 – $5,000: 1 to 5 years imprisonment
    • $5,000.01 – $24,999.99: 1 to 10 years imprisonment
    • $25,000 or more: 2 to 20 years imprisonment

Note that there is increased punishment if the theft involved a fiduciary in breach of a fiduciary obligation.

So long as the amount of theft is less than $25,000, the trial court actually has discretion to treat it as a misdemeanor. Misdemeanors, if convicted, carry less harsh sentences. Misdemeanors also do not require the forfeiture of civil rights (i.e. to carry a firearm or sit on a jury).

If you or a loved one has been arrested for Theft of Services in Marietta or Cobb County, or any type of Theft case in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

How to Lift a Bench Warrant in Fulton County State Court

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If you miss a court date in Fulton County State Court, the solicitor has the ability to request that a bench warrant be issued, and the judge may grant the request. This means that there is an active warrant for your arrest, and you could be picked up at any time. But we can help you resolve the bench warrant and get your case back on track.

Resolving a bench warrant in Fulton County State Court is typically simple if you have not yet been arrested on the warrant. When you hire our firm, we will go to the clerk’s office and request that the bench warrant be recalled or cancelled. Occasionally, certain judges will assign a cash bond to a bench warrant and, if you have been arrested, you will have to post that cash bond to be released. There are also some judges that require an in-person court appearance to have a bench warrant lifted.

The lawyers at the Law Office of Scott Smith are experienced at handling bench warrants in Fulton County State Court and familiar with the policies and procedures of each court room. If you find your case in bench warrant status, call us today for a free consultation.

License Consequences for DUI Convictions in Municipal Court of Suwanee

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of DUI in the City of Suwanee, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and has paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation plus recommended treatment and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, 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 defending a DUI, 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 DUI in Suwanee, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

Help! I Failed to Appear in Johns Creek Municipal Court!

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If you miss court in the John Creek Municipal Court, you are likely in FTA status. This means that you failed to appear for your court date and it is probable that your driver’s license has been suspended. The tricky thing about FTAs is that you likely don’t even know that you missed court until you are pulled over and an officer tells you that your license is suspended.

The court will not lift your FTA suspension until you deal with the underlying traffic charge. This could mean just paying a fine, but it may also require an in court appearance. An experienced lawyer can help you navigate the process quickly and effectively and get you on the road to reinstating your license.

The lawyers at W. Scott Smith are experienced at helping clients resolve FTAs and guiding clients in the best way to resolve the underlying traffic charge. Call us today at 404-581-0999 for a free consultation on how to move forward, resolve the FTA, and have your driver’s license reinstated.

Smash and Grab Burglary in Fulton County

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Fulton County is seeing more and more smash and grab burglaries where suspects are using vehicles to gain entry into retail establishments in order to steal merchandise, cash, ATM machines. A Smash and Grab Burglary is one where a person intentionally enters a retail establishment with the intent to commit a theft, and causes damage in excess of $500.00 damages to the establishment. One of the more common forms of Smash and Grab burglary is done in a jewelry store where the glass cases are broken. However, all retail establishments are included under Georgia law, including restaurants. If a glass door is broken during a burglary, or a lock is broken, and it results in more than $500 in damage, you can be charged under the Smash and Grab statute in Fulton County and throughout Georgia. This is true even if nothing is ever taken or stolen.

Smash and Grab burglaries are treated more harshly in Fulton County than a regular retail burglary (which is known as Burglary in the 2nd degree in Georgia). For example, on a first offense for Smash and Grab, it is a mandatory minimum 2 to 20 years to serve and/or a fine of up to $100,000.  On a second conviction for Smash and Grab, the sentence will range of a minimum of 5 years in prison and up to 20 years or a fine of up to $100,000.  On the other hand, a Burglary in the 2nd degree is a lesser included offense, and has a mandatory minimum sentence of a year (versus two years on a first offense Smash and Grab).

Under Georgia law, eyewitnesses are not required for a conviction for burglary, and this includes a Smash and Grab burglary. Fingerprints, DNA on cigarette left nearby, surveillance footage, and even cell phone records showing the person near the scene can all be sufficient for a conviction. A seasoned attorney who has handled these unique cases will do a full case evaluation and may attack the methods of the investigation, as well as any cell phone records, search warrants, and forensic testing done by law enforcement.

If you or a loved one has been charged with Burglary in Fulton County, including a Smash and Grab, call the Law Office of W. Scott Smith today for a free case evaluation at 404-581-0999.

Aggravated Child Molestation in Bartow County

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Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation in Bartow County. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself. All it takes is the word of the child, if believed, to convict you.

The Bartow County Courthouse is at 135 W. Cherokee Avenue, Cartersville, Georgia 30120

O.C.G.A. § 16-6-4 defines aggravated child molestation as follows:

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

If you are convicted of aggravated child molestation in Bartow County, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

If someone is making an allegation of aggravated child molestation against you, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of aggravated child molestation and call us. Time is of the essence to properly investigate the allegations.

Do not wait until the   Bartow County District Attorney actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.