Giving False Names and Statements to Police in Georgia

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by Mary Agramonte

The Constitution gives us an absolute right to remain silent in response to police questioning. Our best advice is to use it. Your silence cannot be used against you and is not a crime. So proudly use it!

Often times, people will instead make stories up to police officers in hopes of convincing them: ‘it wasn’t me!’ This can put you in a worse position as it is against the law to give false names, or false statements to police. In other words, providing basic identifying information is encouraged; lying can land you in jail.

It is a misdemeanor crime in Georgia to give a false name or birth date to a police officer if he’s in the lawful discharge of his official duties. O.C.G.A. §16-10-20.  Misdemeanors in Georgia have a fine of up to $1,000, plus all the taxes and surcharges. Giving a false name or birthday to an office can even carry up to a year in prison, or can land you on costly and time-consuming probation.

Similarly, under O.C.G.A. §16-10-20, it is against the law to make a use or make false statement to any government agency. In Georgia, it is a felony to make a false statement, or to make or use a false writing or document in any matter involving a government agency. The punishment for speaking or writing a false statement is a mandatory minimum of one to five years in prison, or a fine of $1,000, or both.

For example, it is illegal to alter or falsify information on any applications or documents that you are presenting to any branch of the government. It is also against the law to knowingly conceal or cover up something to the police, and it is illegal to lie to a police officer. All of these things can place you in a position where you are facing felony charges and serious prison time.

If you have been arrested and charged with giving a false name or false statement, it is important you have experienced criminal defense attorneys on your team fighting for innocence and freedom. Call the office now at 404-581-0999 and mention this blog to get a FREE CONSULTATION on your false name or false statement case in Georgia.

 

Mandatory Minimum Sentences in Federal Court

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by John Lovell

If you’ve been charged with a federal crime in the state of Georgia, many federal crimes require a “mandatory minimum” sentence. Mandatory minimum sentences reflect a “one-size-fits-all” form of justice. It is the legislative and executive branches of the government imposing arbitrary sentences without information pertaining to the person convicted or the specifics of the crime. Mandatory minimum sentences strip the judge hearing the case from deciding what is a just and fair sentence.* Mandatory minimum sentences range from 2 years to life without parole. Families Against Mandatory Minimums has compiled a list of crimes and mandatory minimums. These mandatory minimum sentences are not just unique to federal crimes in Georgia, but are mandatory all across the country.

There are some ways to avoid mandatory minimum sentences. First and foremost, don’t commit a crime that exposes you to man mins! Obvious, right? If you are charged, seek an attorney who is familiar with federal law. I have seen many an attorney counsel a client to plea guilty, unaware of the mandatory minimum sentence. I have seen this where a life sentence was imposed. There are few circumstances where a person would voluntarily agree to be sentenced to life in prison, particularly for a drug offense.

Also, it may be possible to negotiate a plea to a charge that does not require a mandatory minimum sentence.

Finally, learn whether an exception applies that allows the judge to NOT impose a mandatory minimum sentence. Next month I’ll write about the most common exception under federal law, the “safety valve.”

*One of many examples: I had the privilege of representing a young man on appeal who received a mandatory life sentence for delivering drugs. There was no dispute but that he was a “mule.” I did not represent him at trial but read the transcript of the sentencing hearing where the conservative, George W. Bush appointed judge, described the mandatory sentence as “savage, cruel and unusual.” I filed a federal habeas motion and was able to get the young man’s sentence reduced to a term of years where he will, in the coming years, be free and not lose his life to a mandatory minimum sentence.

Sentencing Guidelines in Federal Court in Criminal Cases

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Perhaps the biggest difference between defending a criminal case in federal court versus trial courts in Georgia is the sentencing guidelines. The federal sentencing guidelines manual is complex, it includes over 500 pages of rules and formulas.

Often, to determine whether to go to trial, a person accused of a federal crime must be informed of the likely outcome of a plea and of trial. This is how one makes an informed decision. I have practiced as a federal prosecutor and private attorney since 2000. I have seen changes that have significantly affected the sentencing guidelines. The most significant change came in 2005 when the Unites States Supreme Court found that the guidelines would no longer be deemed mandatory (the “Booker” case). Prior to Booker, judges were largely compelled to follow the guidelines. Federal judges lacked discretion to determine what is a fair sentence. Lawyers were left to argue for a sentence within a narrow “guideline range.”

Today, federal judges have discretion and the lawyers advocating for clients are critical. A lawyer who has mastered the guidelines must first strive to place a client at the lowest possible guideline level. Then, the skilled attorney can argue for a “reasonable sentence” below the sentencing guideline range.

If you’d like to read the federal sentencing guidelines for yourself, they may be found at https://www.ussc.gov/guidelines.

The sentencing guidelines are one of the two most critical factors in determining what a sentence will likely be. The other is mandatory minimum sentences. I will discuss that in my next blog.

Be Ready for the Unthinkable – Child Molestation in Georgia

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by Ryan Walsh

Charges of child molestation or the sexual abuse of a child are the most serious cases we face as attorneys in Georgia. They usually begin with a call from someone who says they’ve been contacted by a detective regarding allegations of improper contact with a child and need to know if they should make a statement. We urge anyone who has been contacted by a law enforcement officer to call our office immediately before making any sort of statement. It is okay to tell them I need to contact my attorney. Get the detectives name and telephone number and bring that information to our office immediately.

To understand how to defend charges of child molestation and sexual abuse, you need to understand what child molestation is. Child molestation is define in the Official Code of Georgia Section 16-6-4 and states a person commits the act of child molestation when someone commits an immoral or indecent act to or in the presence of or with any child under the age of sixteen years old with the intent to satisfy the sexual desires of either the child or the person. You can also be charged with child molestation if you send a sexually explicit image to a child under 16 with the intent to arouse or satisfy the sexual desires of either the child or the sender.

The sentencing range for someone convicted of Child Molestation carries a minimum sentence of five years, and can be up to life imprisonment depending on the facts and circumstances surrounding the accusation.

Defending those accused of child molestation is difficult. The allegation often arises from the statement of a child to a person of authority, usually a parent or teacher. That statement then gets communicated to a law enforcement official and their investigation begins. At some point the child should be interviewed by a forensic psychologist, and that interview is often the most significant piece of evidence presented in the case. But just because there is an outcry from a child, doesn’t mean the case cannot be defended. Children can mimic their parents and older siblings and make statements that aren’t always factual for many reasons. They are prone to suggestion and sometimes coercion by family and friends.

It is important for a defense attorney to get involved early in these cases. Relationships have to be examined. Motives must be found. The Law Offices of W Scott Smith specialize in handling child molestation cases and investigations. Call us today at 404-581-0999 to discuss your case. There is no time to wait in protecting your freedom.

Peach State Lawyer Welcomes John Lovell to Our Blogging Team

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I’d like to introduce a new member of our blogging team, John Lovell. John has practiced criminal law for a quarter century as an Assistant DA in New York and Atlanta. He also worked for 6.5 years in the U.S. Attorney’s Office in Atlanta. For over 11 years now he has zealously defended the accused. A recent successful case John handled typifies his work ethic.

The United States Court of Appeals for the 11th Circuit, the top federal court covering Georgia, Florida, and Alabama, awarded John’s client a new appeal to the Georgia Supreme Court. This will almost certainly result in a new trial. In 2009, his client was convicted of murder in Coweta County. However, she did not receive the trial the United States Constitution requires.

John accepted the case after his client had lost a trial and lost on appeal. 99+% of the time, the case is over at that time. However, as John looked closely at the record in the case, it became apparent to him that critical testimony was presented to the jury without his client having access to her attorney. John raised this issue in a habeas proceeding in Georgia. The judge who heard the evidence ordered a new trial. However, the state appealed the decision to the Georgia Supreme Court. The Georgia Supreme Court ruled unanimously that John’s client was not entitled to a new trial and that the conviction would stand.

John and his client did not give up. John was convinced that the unanimous Georgia Supreme Court was unanimously wrong. There was only one avenue available … an “appeal” to federal court using a mechanism called the federal habeas corpus. The federal habeas corpus is a mine field. The rules seem designed to exclude cases from the courts. The slightest mistake results in the case being forever dismissed. John had to flawlessly follow the rules and meet every deadline just to have his client’s case heard.

The battle wore on through federal court going all the way to the Eleventh Circuit Court of Appeals (one court below the U.S. Supreme Court). After reading his brief and hearing John’s arguments, the 11th circuit granted his client a new direct appeal which, based on the law in Georgia, should result in a new trial.

John began representing this client in 2011. It has taken six years to get a favorable result that will stand. John showed persistence on behalf of his client, a trait we pursue at Peachstate Law.

 

City of Atlanta Municipal Court Practices and Procedure

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by Ryan Walsh

We get questions every day about how the Atlanta Municipal Court operates on a day to day basis. The Atlanta Municipal Court is the busiest courthouse in the southeast, and it is easy to get overwhelmed in the process. It is located at 150 Garnett Street, Atlanta, GA 30303 on the corner of Pryor Street and Garnett Street in downtown Atlanta. The courthouse is open from 7am – 5pm Monday through Friday (excluding city holidays).

The most important thing you can do to prepare for court at the Atlanta Municipal Court is to verify your court date and time. You can do this in three ways.

Two of those methods are done through online searches:

  • Go to Find My Court Case at the Atlanta Municipal Court’s website and put in your full name or citation number: http://court.atlantaga.gov/mycase/
  • You can search daily dockets for the current month of cases through the Atlanta Courtview system: http://courtview.atlantaga.gov/courtcalendars/default.aspx?Calendar=D Click on the date of your scheduled appearance and scroll through the court dates until you find your name. It should also tell you the time of your appearance and courtroom you are assigned.
  • Finally, you can call the Atlanta Municipal Court clerk’s office at 404-954-7914.

There are 10 Judges assigned to courtrooms in the Atlanta Municipal Court. Those Judges assigned by courtroom are:

3A – Judge Ward, 3B – Judge Gaines , 5A – Judge Portis, 5B – Judge Butler, 5C – Judge Sloan, 5D – Judge Dupre, 6A – Judge Bey, 6B – Judge Gundy, 6C – Judge Graves, and 6D – Judge Jackson

Judge Ward currently handles clients who have previously failed to appear in court. Judge Sloan only handles clients who are charged with Driving under the Influence (DUI). Judge Portis only handles code violations, which are generally residential, business, and noise ordinances. The other Judges handle a combination of state law offenses (traffic and some misdemeanors) and city ordinances.

Court is held at four times each day. Court times are 8:00am, 10:00am, 1:00pm, and 3:00pm. Depending which Judge you are assigned to will determine the time you need to appear in court each day.

Some charges in the City of Atlanta are eligible for the Pre-Trial Intervention program. Completion of the Pre-Trial Intervention program assures your case will be dismissed and your record will be restricted. Our office of experienced attorneys can guide you through the Pre-Trial Intervention program and determine whether we believe your charges will be eligible.

Clients often come to our office after failing to appear in court. Once you fail to appear in court in the Atlanta Municipal Court, your case is taken off the calendar and a bench warrant is issued for your arrest. If you do not address your failure to appear in twenty-one (21) days, the Atlanta Municipal Court sends information to the Georgia Department of Driver Services to suspend your Georgia driver’s license or your privilege to drive in the State of Georgia. At that point your case must be resolved in order to receive documentation to re-instate your driver’s license.

In order to get a court date after you fail to appear in court, you must show up between 7 and 8am at the City of Atlanta Courthouse. You will go downstairs to courtroom 1B where they will add your case to the failure to appear courtroom that day. That courtroom is courtroom 3A. You will then have the option to resolve your case through a plea, or ask for a trial. No matter what happens, you will receive paperwork that recalls the active bench warrant. After your case is resolved you will receive the paperwork to reinstate your driver’s license with the Department of Driver Services to lift any current suspension due to failing to appear.

The Atlanta Municipal Court is the busiest courthouse in the Southeast, handling more cases daily than any other courthouse. Navigating the court process can be difficult. Our firm handles charges in Atlanta every day. We are here to answer your questions and help you. Call us today at 404-581-0999 for a free consultation.

New Georgia Drivers License Suspension Rules after DUI Arrest

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by Ryan Walsh

On July 1, 2017, the law changed in respect to administrative license suspensions after DUI arrests for drivers with a Georgia driver’s license under Georgia law.

In Georgia, an officer can petition the Department of Driver Services to suspend your driver’s license under the Georgia implied consent statute if the officer places you under arrest for Driving under the Influence (DUI), reads you the Georgia implied consent notice, and you either refuse to submit to the requested sample of your blood, breath, or urine, say nothing, or present a sample that is positive for alcohol at a level over .08, or shows the presence of drugs.

The officer must then issue to you a DS-1205 form stating the reason for the license suspension. This DS-1205 form acts in three ways. It is a notice of license suspension. It is a temporary driving permit. And it also informs you of your right to appeal this suspension of your driver’s license based on the Georgia implied consent law.

As of July 1, 2017, when you are arrested for DUI in Georgia and issued a DS-1205 form, that form now serves as a forty-five (45) day temporary driving permit. You have two options to proceed, and if you do nothing your Georgia driver’s license will be suspended at the end of 45 days.

Your first option is to use the old procedure to request a hearing. You have 30 days (not business days) to request a hearing regarding the suspension of your license by submitting a written request along with a money order for $150.00 to the Department of Driver Services. Requesting a hearing begins a process which is identical to the old method of Administrative License Suspension hearings with the same potential outcomes. We have writtentwo blogs outlining the old procedure which can be read here: http://www.peachstatelawyer.com/ds-1205-where-is-my-license-and-whats-this-piece-of-paper/ and http://www.peachstatelawyer.com/ds-1205-als-this-sheet-of-paper-is-nice-but-i-want-my-license-back-man/

Your second option is to forego asking for a hearing regarding the license suspension. Instead, you can apply for an ignition interlock device limited permit through the Department of Driver Services. To apply for a permit you must go to the Department of Driver Services and do the following things within thirty (30) days of receiving the DS-1205 form: (1) Install and maintain an ignition interlock device with a vendor of your own choosing for the twelve month period of your ignition interlock device limited permit. Once the Ignition Interlock Device is installed you can go to a Georgia DDS location and pay a $25.00 ignition interlock device limited permit fee, surrender your Georgia driver’s license, and execute an affidavit stating you waive your right to a hearing under the Georgia implied consent law to obtain an ignition interlock device limited permit.

Your permit will be revoked if you are convicted of a moving violation under the laws of the State of Georgia, if you have been found to have violated the terms of the limited driving permit, or you have been found to have tampered with the ignition interlock device.

You can only drive on your ignition interlock device permit for the following reasons: (1) to and from work along with performing the normal duties of your job, (2) receiving medical care or obtaining prescriptions, (3) attending school, (4) attending treatment, (5) attending court ordered driver education, (6) attending court, (7) attending community service, (8) taking a family member to work, school, or a medical appointment, (9) court ordered activities, and (10) visiting the ignition interlock provider monthly.

At the time you apply for your Ignition Interlock permit you waive your right to a hearing challenging the administrative license suspension. You must be over 21 and have a Georgia driver’s license to apply for an ignition interlock device permit. You will not be given a permit if you have a DUI conviction on your record with an arrest date within the past five years. Applying for an interlock permit will remove your CDL status if you have a commercial driver’s license.

If you choose to go the Ignition Interlock Device Permit route, you must have the ignition interlock device installed within ten days of receiving the permit. The device must be installed for a minimum of 120 days. You cannot drive any vehicle that does not have an ignition interlock device installed on it. If your case is resolved with a disposition that is not DUI while you have an ignition interlock device permit, you must remain on the permit for the entire twelve months unless you gave an implied consent sample on a DUI alcohol case. Refusal cases must continue on the permit for the entire twelve months, even if their case is dismissed or reduced.

Time spent on an ignition interlock device permit is credited towards any driver’s license suspension for a DUI conviction. You must pay a $100 reinstatement fee at the expiration of your ignition interlock device permit to reinstate your full driving privileges.

These rules are a significant departure from the longstanding procedures regarding Georgia driver’s licenses after DUI arrests. Call us today at 404-581-0999 if you have any questions about your drivers license.

VIDEO – Georgia Fireworks Laws

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by Scott Smith and Ryan Walsh

Beginning on July 1, 2015 it became legal to purchase fireworks in Georgia. What used to be annual trips around the major holidays to the Alabama and South Carolina border has ended and consumer fireworks are now available for purchase in Georgia.

To legally purchase fireworks in Georgia you must be 18 years of age and provide a photo ID at a physical store licensed to sell fireworks. There are no online sales of fireworks in Georgia, so you can’t log in to your Amazon account and order your Fourth of July arsenal.

State law restricts the hours you can set off fireworks. On any day throughout the year, you can light fireworks from 10am until 9pm. Some counties and municipalities may extend these regular hours until 11:59pm depending on local noise ordinances. However, On July 3rd, 4th, December 31st and January 1st, the hours to light fireworks are extended until Midnight or 1am depending on date.

All fireworks must be lit by adults. Fireworks cannot be ignited in a public roadway or within 100 feet of gas stations, airports, jails or prisons.

If you’ve been cited for improper use of fireworks, give us a call at 404-581-0999. Our office of attorneys understands Georgia fireworks law and is ready to defend your citation.

Thank you.

VIDEO – Selling or Purchasing Alcohol for Minors in Georgia

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by Ryan Walsh and Scott Smith

Graduations. Proms. Birthdays. All your teenage milestones. You’re going to be the cool parent and buy some beers for your kids and their friends to drink in your home.  What’s the law? Can you do it? The sale or distribution of alcohol to minors is the subject of today’s video blog.

Georgia law is clear. No one under the age of 21 can purchase, try to get another to purchase, or consume alcohol. There’s only one exception when alcohol can be purchased for someone underage, and that is when you are the parent or guardian of that child, and the alcohol is being served in your home with you present.

It is illegal for any other minors to drink with the child unless their parent or guardian is present as well. Anyone caught selling to, purchasing for, or attempting to buy alcohol for someone under 21 can be charged with a misdemeanor offense under Official Code of Georgia §3-3-23 which carries a potential punishment of twelve months in custody and a $1000 fine.

Our office is experienced in defending Georgia citizens charged with providing alcohol to minors. Through our free consultation we can ask the right questions to aid in your defense. The key to defending criminal charges is to address them quickly to preserve all necessary evidence. Call us today at 404-581-0999 for a free consultation. Thank you.

VIDEO – Seizure and the 4th Amendment under Georgia Criminal Law

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by Ryan Walsh and Scott Smith

You’re sitting in a park with friends. An officer comes up to you and asks you if you’ve been smoking weed. You say no, but they place you in handcuffs while they search the area. Is this legal? What are your rights? The 4th amendment’s protection against unreasonable seizures is the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith.

The Fourth Amendment of the United States Constitution prevents the government from unreasonable seizures without a warrant. A seizure is a restriction on your freedom.

In order for you to be seized under the fourth amendment, the officer must have an arrest warrant, or have a legal reason to continue to detain you. Whether the officer has that reason depends on the interaction between you and the police officer.

Lets go back to the park example.

The officer comes up to you and He says hey, how you doing? He just asks if you’ve been smoking weed, but does nothing more. You’re free to respond to him or not. You’re free to walk away. This type of encounter is a tier 1 encounter. It can happen at any time.

But what if you’re sitting in the park and the officer says, hey, I smell marijuana over here. Are you guys smoking? Sit right here while we investigate. Is this seizure legal? The United States Supreme Court created this second tier of police-citizen encounters in the case of Terry vs. Ohio. It’s called a tier 2 encounter or Terry stop, and is lawful only if the officer has reasonable articulable suspicion that a crime has been committed.

You can’t leave in this situation, but the officer must also be in active investigation to find evidence of the specific criminal activity for which they’ve detained you.

Finally, you’re back in the park and the officer says, hey, I smell marijuana, are you guys smoking? Immediately, the officer places you in handcuffs while they look for evidence of weed. This is what’s called a tier 3 stop, which is the same as an arrest. An officer can’t arrest you without probable cause. Whether you’re under arrest depends on the officer’s statements and actions. Have they told you you are under arrest? Have they physically restricted your freedom? These factors and more are used to determine whether the encounter has escalated to this level.

Remember, in all situations the police officer’s job is to find evidence of criminal activity. Anything you say or do can be used against you later. Politely decline consent to search. Politely decline to answer any questions. Tell the officer you want to speak with your attorney.

The attorneys at the law offices of W. Scott Smith specialize in seizure issues. We’re available 24 hours a day, 7 days a week for free consultations. If you feel you’ve been arrested unlawfully, call us today at 404-581-0999. Thank you.