Georgia Gang Statute

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O.C.G.A.  § 16-15-4 is commonly referred to as the Georgia Gang Statute. But, this statute can be difficult to understand. Georgia case law is clear that it is not illegal to simply be a member of a gang. In fact, a 2019 Georgia Supreme Court case called Chavers v. State says that a defendant cannot be convicted under the Street Gang Terrorism and Prevention Act for merely being associated with a gang that commits criminal acts; the defendant must personally commit an enumerated offense himself.  However, if the state can prove that you are a member of a gang AND commit an illegal activity to further the interests of the gang, you can be charged with violation of the Georgia Street Gang Terrorism Act. A conviction under the Georgia Gang Statute could result in up to 20 years in prison.

One way the state can charge an individual with violating the Georgia Gang Statute is under section (a) of the statute. Section (a) states that it shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3. The enumerated offenses in paragraph 1 of 16-15-3 include things like racketeering, stalking, rape, kidnapping, criminal trespass or damage to property, any crime of violence, or compromising the security of a jail or prison.

Another way the state can charge an individual under the Georgia Gang Statute is under section (c) of the statute. Section (c) states that It shall be unlawful for any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived therefrom any interest in or control of any real or personal property of any nature, including money. This simply means that a person could violate the Georgia Gang Statute by accepting money that was gained from illegal acts by a known gang. For example, a person who is holding money that was acquired through gang activity could be prosecuted under the Georgia Gang Statute.

It is important to remember that the state must prove 4 elements in order to convict someone of violating the Georgia Gang Statute:

(1) the existence of a “criminal street gang,” defined as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity”;

(2) the defendant’s association with the gang;

(3) that the defendant committed any of several enumerated criminal offenses, including those involving violence, possession of a weapon, or use of a weapon; and

(4) that the crime was intended to further the interests of the gang.

If you are charged with violating the Georgia Gang Act in Fulton, Dekalb, Gwinnett, Clayton, Cobb, or Rockdale counties, it is important that you hire an attorney who understands the intricacies of the statute. At W. Scott Smith, our lawyers have handled numerous gang cases and require the state to meet their burden.  If you have been charged with gang crimes, call our office at 404-581-0999 for a free consultation today.

Changes to the Way Search Warrants for Cell Phone Content Must be Obtained

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A new decision released by the Georgia Supreme Court changes the way police must obtain warrants if they want to search the contents of your cell phone. In State v. Wilson, released on February 21, the Court tightened the reigns on what officers must include in their search warrants.

In Wilson, a defendant was on trial for murder. The defendant’s lawyer argued that the search of his cell phone was illegal because it did not specify what police were looking for and sought to have any evidence recovered from his phone kept out of his trial. The trial court agreed with the defendant’s attorney and said that “the search warrant was overly broad and authorized a general search of [the defendant’s] personal effects without probable cause in violation of the Fourth Amendment and O.C.G.A § 17-5-21”.  The judge ruled that evidence found in defendant’s phone could not be used in trial.

The State appealed the trial court’s decision, but the Georgia Supreme Court agreed with the trial court. The Supreme Court reminded us that the Fourth Amendment requires that search warrants list the particular items sought in order to prevent “general, exploratory rummaging in a person’s belongings”. Because the search warrant in Wilson just listed “contents of phone” and didn’t mention that it was limited to evidence pertaining to the commission of a certain crime, it was overbroad and illegal, and the search was unconstitutional.

This means that search warrants for the contents of phones must contains a particular description  of the things to be seized (i.e. text messages or pictures in a child molestation case, or internet search history in a murder case). If you have been charged with a crime in Fulton, Cobb, Dekalb, Forsyth, Gwinnett, Clayton, Rockdale, or any metro county,  and the police searched your phone, it is important to have a lawyer review the search warrant and see if it was properly executed. The lawyers at W. Scott Smith specialize in spotting issues like this and standing up to the State to protect our clients’ constitutional rights. Call our office at 404-581-0999 today for a free consultation.

 

 

Was my search warrant obtained properly?

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In order for an investigator to obtain a search warrant, they have to prove to a magistrate judge that they have probable cause that a criminal activity occurred or is occurring. Probable cause basically means that investigators can communicate a “reasonable belief” that a criminal activity is taking place. Investigating officers have to lay out this probable cause in an affidavit attached to an application for search warrant. Then, a magistrate judge will review the affidavit and application and grant or deny the warrant. In addition to the written affidavit, magistrates may consider oral testimony of the officers during the warrant application process.

In Georgia, the courts have laid out several scenarios that instruct when probable cause has or has not been communicated. For example, a tip from a confidential informant in a drug case is not enough to establish probable cause. The tip would have to be corroborated by other circumstances. However, if police come to your door and you voluntarily speak with them and admit to a crime, there is enough probable cause to obtain a search warrant.

If a warrant is granted and it lacked probable cause, the warrant is bad and any search resulting from the warrant violates your Fourth Amendment rights. In this case, you need a lawyer to argue that your rights have been violated and that any evidence obtained during the execution of the bad search warrant must be suppressed.

At the Law Offices of W. Scott Smith, we are experienced at spotting issues with search warrants and often successful at having evidence suppressed. Often, after a judge has ruled that evidence must be suppressed, prosecutors are more willing to negotiate or even dismiss charges because they no longer have a strong case. If you are in Cobb, Clayton. Fulton, Gwinnett, Henry, or Rockdale County and are charged with a serious offense like Violation of the Georgia Controlled Substance Act, trafficking drugs, or possession of drugs with the intent to distribute and believe that your Fourth Amendment rights have been violated by a warrant lacking probable cause, call us for a free consultation at 404-581-0999.

Can I claim self-defense?

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In Georgia, pursuant to O.C.G.A § 16-3-21, a person is justified in using force to defend themselves or others when a person reasonably believes that such force is necessary to defend themselves or a third person against another person’s imminent use of unlawful force. This means that a person in Georgia may be justified in an action that would otherwise be a crime if they can make out a case to the court that they were defending themselves or another person.

If you believe that you were justified in using force and find yourself charged with a serious felony like aggravated assault, manslaughter, or murder, your attorney will petition the court for an immunity hearing, asking the court to find you immune from prosecution. At this hearing the defendant carried the burden to show the court, by a preponderance of the evidence, that they were justified in their actions because they reasonably believed that they were at risk of receiving a serious or life threatening injury if they did not act.

In order to make this showing to the court the defendant mut show several things:

  • The defendant was not the initial aggressor. If you were the initial aggressor in an argument, meaning that you started a fight or an altercation, you are not permitted to claim self-defense.
  • The defendant was not engaged in mutual combat with the victim. If you and the victim agreed (by words or actions) to engage in a fight, you are not permitted to claim self-defense. However, if you remove yourself from the fight, and communicate this to the other person, and then the other person comes after you, you may now be entitled to claim self-defense.
  • The force used by the defendant was not unreasonable. The amount of force used to defend yourself must be reasonable based upon the amount of force used against you. For example, if someone says “I’m going to slap you” it is not reasonable to shoot them.

If you can show the judge that you were in fact justified in defending yourself, the case will be dropped and you will be immune from prosecution. It is very important that you have a lawyer representing you who can help you make out your case to the court. At the Law Offices of W. Scott Smith, we have handled immunity motions like this is Fulton, Cobb, Dekalb, Gwinnett, Clayton, Newton, Forsyth, and many other counties. Call us today at 404-581-0999 for a free consultation.

Why do I have Multiple DUI charges??

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Possession of Tools – DeKalb County Criminal Defense Attorney

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in DeKalbCounty for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The DeKalb County Magistrate Judge will notify the person of the charges, as well as set bond at this stage.

 

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

 

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

 

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

 

What is the sentence for Possession of Tools in DeKalb County?

 

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

 

What are Possible Defenses to Possession of Tools in DeKalb County?

 

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

 

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

 

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

 

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

 

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

 

What Kind of Intent is Required for Assault?

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According to O.C.G.A § 16-5-20, a simple assault includes any action that places another in reasonable apprehension of immediately receiving a violent injury. This statute includes an element of general intent, meaning that it doesn’t matter what the person performing the action intended to do- it only matters what the person observing the action apprehended.  In other words, there is no requirement that a person intended to create an apprehension of receiving violent injury. Technically, this means that something as simple as shaking your fist at someone (general intent because you intended to do the fist-shaking) could be charged as assault if the victim says that they apprehended a violent injury as a result- even if the accused never intended to actually harm the victim (meaning to cause the harm would be specific intent which is not an element of simple assault in Georgia).

O.C.G.A. § 16-5-21 defines aggravated assault as simple assault combined with one of three statutory aggravators: 1. intent to rob, rape or murder, 2. use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury, or 3. shooting towards people from a vehicle without justification. There are many things that can be classified as deadly weapons if they are used in an offensive manner: automobiles, firearms, metal pipes, knives, etc. That means that any time a gun is involved and a victim is in apprehension of receiving an injury, regardless of the accused’s intent to harm anyone, aggravated assault charges could result.  It is important to note that aggravated assault still does not require specific intent. Basically, it doesn’t matter what the accused intended, only what the other party perceived.

Aggravated assault carries huge penalties in Georgia and could result in up to 20 years in prison. It is important that your attorney understands the elements of the charged crime and holds the State to their burden. If you have been charged with simple assault or aggravated assault in Fulton, Dekalb, Cobb, Gwinnett, or Clayton counties, you need a lawyer. Call our office today at 404-581-0999 for a free consultation.

 

 

Georgia Supreme Court Clarifies Rules About Hearsay

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In Georgia, the rules of evidence only allow hearsay evidence (a statement being made outside the current trial and being offered for its truth) if the hearsay meets certain exceptions. Each of the exceptions are based on the fact that if the statement meets one of the exceptions, it has a high level of reliability. Just a few of these exceptions include:

  • Present sense impression- This happens when a person is describing something as it is happening. This type of hearsay is though to be reliable because there is no time for the person making the statement to create a lie.
  • Excited utterance- This happens when a person makes a statement while they are under the stress or excitement of a situation. This type of hearsay is thought to be reliable because the person making the statement is still excited about the event they just witnessed or endured so they are truthfully saying something spontaneous.
  • Statements made for medical treatment- This happens when a person tells a person something so that they may be medically treated. This type of hearsay is though to be reliable because a person tells the truth if they need medical care.

In a Georgia criminal defense case, prosecutors will often try to have hearsay evidence admitted under what is called the Residual Exception Rule. The Residual Exception Rule says that statements that have guarantees of trustworthiness may be admitted after a judge (the “gatekeeper” in a trial) examines the totality of the circumstances under which the statement was made and any evidence corroborating the statement. Prosecutors will often try to use this catch-all rule to bring in the most damning evidence, even if it doesn’t fit into one of the many hearsay exceptions.

A new Georgia Supreme Court case, The State v. Kenney, tightens the reigns on the use of the Residual Exception Rule. In Kenny, the State attempted to have a hearsay statement admitted under the Residual Exception Rule. After the Court had examined the statement and found that it lacked exceptional guarantees of trustworthiness and thus was inadmissible, the State attempted to have the statement admitted under the present sense exception or excited utterance exception. The Supreme Court ruled that once the State attempts to have a hearsay statement admitted under the Residual Exception Rule, they have waived the right to try to have the statement admitted under any of the other hearsay exceptions.  The Supreme Court guides that things such as the closeness of the relationship between the witness testifying in trial and the person making the statement and the level of intoxication of the person making the statement should be considered when determining if a hearsay statement has an exceptional guarantee of trustworthiness.

As you can see, the rules of evidence in a Georgia criminal defense case, particularly the ones surrounding hearsay evidence, are complex. But, even if incriminating statements have been made about you, there are ways to prevent the jury from hearing about them. It is important to hire an attorney who is comfortable with these rules and will fight to keep unfair evidence out of your trial. The attorneys at W. Scott Smith are educated in the hearsay rules and will work with you to make sure your case is as strong as possible when it is presented to a jury. If you are charged with a crime and would like to be represented by seasoned trial attorneys, call our office today at 404-581-0999.

 

Big Win for DUI Defense and What it Means for You

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In November, the Supreme Court of Georgia issued a ruling which marks a major victory for the United States and Georgia Constitutions, as well as folks charged with driving under the influence. In Ammons v. State, the Court held that suspects have the right to refuse an officer’s request to perform a preliminary breath test and field sobriety tests. What is more, is that the Court stated that refusal to take the tests is inadmissible under Georgia law.

The Constitution of Georgia protects citizens rights against self-incrimination. In Georgia, the government, including police and prosecutors cannot force you to speak or act in ways that could result in criminal consequences. Before the Georgia Supreme Court issued its decision in Ammons, however, the prosecution could introduce evidence that a suspect declined to take part in field sobriety tests at the request of an officer. The purpose of introducing refusals of field sobriety tests was to indicate to the jury or judge that the suspect refused to perform fields because they guilty. This is an improper purpose, and because of the Ammons decision, the State cannot try to convince the jury of your guilt based on your refusal because it is a constitutional right to refuse to offer incriminating evidence against yourself.

So what does this mean for you? This means that if you are stopped by police and asked to perform field sobriety tests, it may be in your best interests to refuse to do so, particularly if you have been drinking or have a history of DUI arrests.

Of course, if you are reading this blog, you may have already been charged with DUI and wondering what your options are. If you have been charged with DUI and refused field sobriety tests, that refusal is not admissible. However, there may be other evidence in your case that could be admitted if gone unchallenged. You should consider hiring an experienced DUI attorney to protect your interests and ensure that the State is not able to admit evidence which was improperly or illegally obtained. If you want to learn more about your options, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.