How Other Acts Evidence Can Benefit a Criminal Defendant

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The State often uses “other acts” evidence to introduce other bad things that a defendant has done to a jury. While the State cannot bring this evidence in to show that the defendant has a bad character, they can bring the evidence in if they can convince a judge that they are doing so to prove something like motive, intent, knowledge, identity, plan, or purpose. These exceptions are all part of the Georgia Rules of Evidence and can be found in O.C.G.A § 24-4-404(b) (often referred to as 404(b) evidence).

But the defense can use these powerful exceptions to their advantage to introduce other bad acts of an alleged victim to the jury (often call reverse 404(b) evidence). Here is an example of how reverse 404(b) evidence could be used to your advantage:

Imagine that you are working in your garage and see a teenager approach your elderly neighbor’s front door. You see the teenager peering in windows and you feel that the teenager is going to harm your elderly neighbor. You approach the teenager, with your firearm by your side, and ask them to leave the property. The teenager reports your behavior to the police and you suddenly find yourself facing criminal charges.

Luckily, you have hired one of the lawyers at W. Scott Smith who begins thoroughly investigating your case and discovers that only two weeks after the incident at your neighbor’s, the teenager is arrested for breaking into another house nearby. By utilizing Rule 404(b) your lawyer is able to introduce this other robbery evidence to a jury to show that the teenager intended to rob your neighbor and that you were justified in approaching the teenager with your firearm.

If you are charged with a serious crime like murder or aggravated assault, it is important that you hire an experienced lawyer who will thoroughly investigate your case and fight to admit any evidence that helps to prove your innocence. If you are charged in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Newton County, and believe that there is evidence that should be admitted about an alleged victim, call our office at 404-581-0999 today for a free consultation.

I am under 21 and got a DUI… help!

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If you are under 21 and have been charged with DUI, it is important to note that there are big differences between defending a DUI when someone is over 21 and a DUI where you were under 21.

The biggest difference between them is the acceptable blood alcohol content for young drivers. While the legal limit for drivers 21 and over is .08, drivers under 21 may not “be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within 3 hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.” OCGA 40-6-391(k)(1). This means that folks under 21 can drink less and still be considered DUI.

The other main difference is the mandatory minimum punishment under law. For a first offense in 5 years, folks under 21 who plead or are found guilty to DUI must be sentenced to 1 day in jail (although you will receive credit for any time you already served, and may be able to serve your time on weekends or during non-working hours), 40 hours of community service which must be completed within 60 days of the date of sentencing, an alcohol and drug evaluation and any additional treatment recommended by the evaluator, an a DUI Risk Reduction class. You must also be on probation for 12 months. Your license may also be suspended.

If you are under 21 and you have been charged with DUI, it is important to understand your rights and any defenses. Call our office for a free consultation. 404-581-0999.

Keeping Evidence of Bad Character Out of Your Trial

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It is not uncommon in criminal cases for the state to attempt to introduce evidence of other bad things defendants have done. The Georgia Rules of Evidence are very clear that this evidence can not be admitted for propensity purposes. That means the state can’t introduce bad character evidence just to try to make the jury believe that because a defendant acted a certain way in the past that they acted in the same way during the commission of whatever crime they are charged with. For example, if you are charged with armed robbery, the state cannot admit evidence that you were involved in another armed robbery just to say “because he armed robbed someone in the past, he armed robbed someone this time”. But the state will also often try to use the Rules of Evidence to get around this ban on bad character evidence. If the state can convince a judge that they are attempting to bring in the evidence as proof of intent, motive, knowledge, identity, plan, or purpose, they will be allowed to present the evidence.

Additionally, the evidence the state is attempting to introduce should be kept out if any probative value (i.e., usefulness) is substantially outweighed by prejudice to the defendant. It is important to hire an attorney who will zealously fight to keep any bad character evidence out of your trial. At the Law Offices of W. Scott Smith, we fight to protect our clients and will work tirelessly to prevent the state from being able to introduce this bad character evidence to the jury. If you have been charged with a serious crime like murder, rape, armed robbery, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Clayton, or Rockdale Counties, call our office at 404-581-0999 for a free consultation.

DUI Probation in Hall County

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If you are entering a plea to a DUI in Hall County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Hall County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Hall County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Hall County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Hall County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

 

Written by Attorney Katherine Edmonds

Hapeville DUI – Criminal Defense Attorney

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Hapeville, Georgia is home to the Hapeville Municipal Court where Judge Monica Ewing presides over DUI, Traffic, Marijuana, and other City Violation cases brought by Hapeville Police Department. The Hapeville Municipal Court is located at 700 Doug Davis Drive, Hapeville, GA 30354.

 

One of the most common cases we see in the Hapeville Municipal Court are DUI cases. In Georgia, DUI can be charged in either two ways under O.C.G.A. § 40-6-391.  Driving under the Influence Per Se means the State is charging the individual with being over the .08 legal limit for drivers over 21 years old. It is a .02 legal limit for DUI cases involving drivers under 21. DUI Per Se is charged where there is a breath, blood, or urine test. The second way a DUI can be charged in Georgia is DUI Less Safe. Under Georgia law, DUI Less Safe means the person is accused of driving under the influence to the extent they were a less safe driver. We typically see DUI Less Safe cases where there is no chemical test, or where there is a chemical test but it is below the legal limit.

 

There are numerous defenses to DUI to be explored and raised. A skilled DUI defense attorney must fiercely evaluate and raise issues starting at the purpose of the stop and ultimately the probable cause in making the arrest. Factors to be assessed are the performance of field sobriety tests if any were conducted, the lack of odor or admissions, and the driving that was observed. Additionally, the Implied Consent portion of the DUI case is highly relevant in DUI defense because in order for the chemical test to be admissible in Court, the proper Implied Consent must be read after arrest, and there must be true knowing and voluntary consent to submit to the chemical test. Under Georgia law, mere acquiescence to authority is not voluntary consent. It should be noted that any refusal to submit to breath testing following an arrest is deemed inadmissible evidence given the Georgia Constitution gives the right to decline incriminatory acts. This law was clarified and confirmed in Elliott v. State, 305 Ga. 179 (2019).

 

In all first DUI cases, the mandatory minimum sentence is 24 hours in jail, 12 months on probation, a $300.00 fine plus court costs (nearly doubles it), 40 hours of community service, a Risk Reduction course, and an alcohol and drug evaluation and treatment if deemed necessary. The maximum sentence is 12 months in jail on each charge. On a second, or third DUI in 10 years, the jail time is increased, as well as the fines and the community service.

 

Remember that DUI is a misdemeanor crime that goes onto your criminal history. In Georgia, DUI can never be expunged or restricted, and thus a DUI conviction will remain on your history forever.

 

A DUI charge also has intense license repercussions.  If there is a refusal on the chemical test, the Officer can suspend your license for at least a year. This must be challenged within 30 days of your arrest, so time is of the essence in DUI cases. Depending on what else the individual is charged with, and how many prior DUIs he or she has, it is possible a DUI conviction could lead to a 5-year habitual violator suspension.

 

The options in Hapeville Municipal Court are to enter into pretrial negotiations with the goal of avoiding the harsh consequences of a DUI, or to enter a Not Guilty plea and have a trial by Judge or by Jury in State Court. As experienced DUI lawyers practicing in Hapeville regularly, we have the skill and knowledge to accomplish your goals both in Hapeville. We are trial lawyers constantly staying on top of DUI law. If you or a loved one has been charged with DUI in Hapeville Municipal Court, call us now for a FREE CONSULTATION at 404-581-0999.

 

How do I get a reduction to Reckless Driving in my DUI case?

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If you have been charged with DUI, you likely have many questions about what your best options are, how you can best defend your case, and what you can do to help your attorney as they prepare your case and pursue your interests with a prosecutor.

The best thing you can do to help your attorney and improve your prospects for being offered a reduction is to avoid getting additional charges, especially charges involving drugs or alcohol. Getting another DUI while one is already pending can severely hurt your case and reduce your chances of getting a reduction by a great deal.

There are several things you can do to improve the likelihood of getting a reduction. Completing 40 hours of community service at a 501(c)(3) organization is one task that costs nothing, and is generally a required term of probation. The organization cannot be religiously affiliated, but volunteering at an animal shelter, public library, or soup kitchen are all great ideas.

Completing a Mothers Against Drunk Driving Victim Impact Panel can also be beneficial. This online panel consists of individuals sharing their stories about the impacts of drunk driving. You can sign up here: https://online.maddvip.org/.

Taking a DDS-sponsored Risk Reduction class is also generally a condition of probation. There are online and on-the-road options available all over Georgia. For a list of locations and their contact information, visit this link: https://online.dds.ga.gov/ddsgeorgiagov/locations/certified-dui-schools.aspx.

The last thing you can do is get an alcohol and drug assessment done. This can be through any State-sponsored provider, and can be done in person or over the phone. The cost of the assessment varies depending on the provider, so you may choose to shop around to find the right counselor for you. If, after your evaluation is complete, any treatment is recommended, you can also help your attorney by working on the recommended treatment.

These steps show integrity and proactiveness, and can be good mitigating evidence for your attorney to provide to the prosecutor. For questions or a free consultation, call us at 404-581-0999.

 

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.

What is calendar call or a pretrial court date for a criminal case in Fulton County?

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If you are charged with committing a crime, there are many different hearings and/or court dates that you may have to attend. One of those is, what some jurisdictions refer to as, calendar call or pretrial hearing. What is calendar call or pretrial hearing? A calendar call and/or pretrial hearing is a court date where the judge is wanting to know the status of where the case is, i.e., ready for trial or needing additional time.

What is the purpose of calendar call or pretrial? The purpose is to inform the court where the attorneys are in the case so that the court can set the case for trial. Some examples that an attorney would announce at calendar call or pretrial is that negotiations still pending, still reviewing discovery, still investigating, still missing discovery from the prosecutors, still waiting on medical documents or reports, still waiting on testing etc. Generally, nothing of significance happens at this court date unless you plan to enter a plea and close your case out. Some counties have calendar call or pretrial a week or two after arraignment. Typically, the scheduling for calendar call or pretrial is dependent on the county you have a case in and the judge you are in front of. Some counties and judges set calendar call or pretrial a month or two out.

If you or someone you know has been charged with a crime and has a pending case in Fulton County, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

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.

Clayton County Serious Injury by Vehicle

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DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in Clayton County will be prosecuted by the Clayton County District Attorney’s Office.  It is a felony charge, and the Clayton County District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the Clayton County Courthouse located at 9151 Tara Boulevard, Jonesboro, GA 30236.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckless Driving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in Clayton County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in Clayton County or the Jonesboro or Atlanta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.