Self Defense in Georgia: Are You Immune from Criminal Prosecution?

The police put you handcuffs for shooting another person. You are on your way to the county jail. You know you acted in self-defense and want a jury trial. But before your jury trial, you are entitled to a hearing to see if you are immune from criminal prosecution. 

O.C.G.A. 16-3-24.2 authorizes a pre-trial hearing to decide if a defendant is immune from criminal prosecution. You must first file an immunity motion requesting a hearing. To avoid trial, a defendant has the burden of proof that he is entitled to immunity. The standard of proof is by a preponderance of evidence.

If the trial judge finds that you have met the burden of proof regarding self-defense, then your indictment is dismissed, and the State cannot continue to prosecute you.

If the defendant cannot meet its burden regarding self-defense at an immunity hearing, he can still argue self-defense at trial. You get two shots at winning your case. First, argue self-defense at an immunity hearing. If you lose, argue self-defense to a jury at trial.

At the immunity hearing, the defendant would call witnesses, present evidence and persuade the judge that he was acting in self-defense. The judge must employ O.C.G.A. 16-3-21(a) to make the finding. This section requires the judge to make a finding of justification based on evidence of the defendant’s reasonable belief that the use of deadly force against the other person was necessary to prevent the defendant from dying or being seriously injured.

If the judge makes such a finding, then the case is over.

If you believe you are being charged with a crime but that you had to act in self-defense to avoid death or serious injury, then call our office and lets discuss whether an immunity motion is proper in your case.

We can meet you at any time at either our Atlanta or Marietta office. Please call us at 404-581-0999 or email me at mike@peachstatelawyer.com

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

By: Mary Agramonte

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

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

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

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

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

What about drones?

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

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

Georgia Criminal Law – Possession of Tools

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

Examples of tools that can result in criminal charges are crowbars, hammers, and glass break devices as these are all commonly used in burglaries and thefts. You could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand, even if there is no theft. However, not only tools associated with burglary are criminalized.  For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

What is the sentence for Possession of Tools in Georgia?

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

What are Possible Defenses to Possession of Tools in Georgia?

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

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

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

The rule of lenity may also apply in felony Possession of Tools cases. This means that even if you are charged with a felony, Georgia law may require you be given a misdemeanor sentence. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

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

Georgia DUI Law – What a Georgia DUI Costs

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

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

Contact Us

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

Georgia DUI Law: Challenging the Stop, Improper Turn

Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of what type of things police officers are looking for when stopping for improper turn.

The Offense

O.C.G.A. § 40-6-120 requires the driver of a vehicle intending to turn at an intersection to do the following:

(1) RIGHT TURN. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway;

(2) LEFT TURN.

(A) As used in this paragraph, the term “extreme left-hand lane” means the lane furthest to the left that is lawfully available to traffic moving in the same direction as the turning vehicle. In the event of multiple lanes, the second extreme left-hand lane shall be the lane to the right of the extreme left-hand lane that is lawfully available to traffic moving in the same direction as the turning vehicle. The third extreme left-hand lane shall be the lane to the right of the second extreme left-hand lane and so forth.

(B) The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the turning vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to exit the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as the turning vehicle on the roadway being entered.

(C) In the event of multiple turn lanes, the driver of a vehicle turning left shall exit the intersection in the same relative travel lane as the vehicle entered the intersection. If the vehicle is in the second extreme left-hand lane entering the intersection the vehicle shall exit the intersection in the second extreme left-hand lane. Where there are multiple lanes of travel in the same direction safe for travel, a vehicle shall not be permitted to make a lane change once the intersection has been entered.

The most common way to violate this law is when you make a “wide turn.” A wide turn is when you start your turn in one lane and drift over into another lane while executing or finishing your turn. This is a common maneuver you will see on the road and a close look at the language of the law prohibits this conduct.

Interestingly, in State v. Morgan, 260 Ga. App. 263, 581 S.E.2d 296 (2003), the Court of Appeals upheld the trial court’s suppression of the traffic stop. Morgan was stopped for making a right hand turn into the left lane of two eastbound lanes of Hwy 278, then immediately got into a left turn lane to turn onto Hazelbrand Rd. approximately 100 yards from where he entered Hwy 278; the turn was reasonable and the reasonable suspicion for the stop was unreasonable. Because the spirit of our traffic laws is to ensure safe and reasonable driving among motorists, the Court decided, given the facts of Morgan and the reasonableness of his driving, there was no reasonable and articulable suspicion to stop his vehicle even though Morgan made a wide turn.

Challenging the Stop

Like any traffic stop,  is important to challenge the officer’s observations to determine whether the stopping officer has reasonable and articulable suspicion necessary to stop your car. The most successful way to accomplish this is to challenge the officer’s perception. Key issues include, but are not limited to:

  • Distance between the officer and your vehicle
  • Angles of officer’s observation
  • Traffic conditions (no traffic makes an improper turn more reasonable and safe)
  • Lighting
  • The mechanics of the turn

Contact Us

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

Did I get arrested? A discussion of what constitutes an arrest and how it impacts your Georgia Criminal History

In Georgia, many offenses that are not crimes in every state, like traffic offenses, are considered criminal offenses. Because so many offenses that aren’t treated like crimes in every state are crimes, it’s important to know if your interaction with law enforcement constitutes an arrest in the State of Georgia.

Not every arrest will go on your criminal history. For an arrest to go on your Georgia criminal history or GCIC you must be fingerprinted and it must be reported to the Georgia Bureau of Investigation. If you aren’t fingerprinted, that arrest should not show up on your criminal history. Lets talk about some specific instances and whether they constitute an arrest

Traffic Citations

Traffic citations are considered arrests in Georgia, but not in the traditional sense, and most likely do not have to be reported. If you are given a traffic citation and allowed to drive away, or given a citation by an officer on the street and allowed to leave, that is technically an arrest. But that arrest will not show up on your criminal history because you were never fingerprinted. A conviction for any traffic offense will show up on your driving history.

Traditional Arrest (Handcuffed, Taken to Jail, and Fingerprinted)

If you were handcuffed, taken to jail, and fingerprinted by any Georgia law enforcement officer, you should expect that arrest to show up on your criminal history. Most non-traffic offenses will result in arrest, but occasionally some minor misdemeanor offenses in Georgia like possession of marijuana less than an ounce, theft by shoplifting, minor in possession of alcohol, and disorderly conduct will not result in arrest. You may only be issued a citation. However, in these instances, you may be asked to be fingerprinted when your case is resolved, even if that resolution ends in dismissal.

Warrant Application Hearings

A warrant application hearing is different than the traditional arrest process. If a citizen believes you have committed a crime against them, they can go to the Magistrate Court in the county which the alleged crime occurred and file a warrant application. You would then be required to appear in front of a judge. The Judge would hear evidence bfrom both parties regarding the alleged criminal conduct and decide if a warrant should be issued. If the Judge grants a warrant, they can either ask you to turn yourself in and post a bond (often times just a signature bond) or ask the Sheriff to take you into custody. That is the Judge’s discretion. A warrant application may or may not go on your Georgia criminal history. Again, it depends on whether or not you are fingerprinted during the process.

We hope this knowledge assists you in understanding the warrant process. Our office is here for all your Georgia criminal law needs. Please call us today at 404-581-0999.

Possession with Intent to Distribute in Georgia Law

If you have been arrested for Possession with Intent to Distribute in Georgia, it is imperative that you hire an attorney quickly. Possession with Intent to Distribute cases often are won by filing a Motion to Suppress. These motions must be filed within 10 days of arraignment. If you do not properly file them, they are waived and you will potentially lose the ability to beat your case.

It is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possession with the intent to distribute any controlled substance. O.C.G.A. 16-13-30(b).

What does the District Attorney have to prove?

The prosecutor must prove that the Defendant intended to sell or distribute the drug that is in his possession. If you are simply in possession of the drug but not intending to sell or distribute it, then you cannot be convicted of Possession with Intent.

However, even if you possess only a small amount of a drug, you can still be charged with Possession with Intent to Distribute. To prove intent to sell, the State would have to show evidence of baggies, a scale, large amount of currency or other drug paraphernalia. The State could also show it through a prior conviction for Possession with Intent to Distribute or expert testimony that the amount was consistent with someone selling it rather than just using for personal consumption.

If you are charged with Possession with Intent to Distribute, please call us at 404-581-0999 for a free consultation. We have offices in both downtown Atlanta and Marietta.

Rebel Thinking & Defense

I am going to digress from a legal analysis this month. When not practicing law, I enjoy, among other activities, walking and gardening. Both lend themselves to listening to podcasts. One of my favorite podcasts is “Hidden Brain” on NPR. The host, Shankar Vedantam, “uses science and storytelling to reveal the unconscious patterns that drive human behavior, shape our choices and direct our relationships.” You can imagine that this would be insightful to a trial attorney!

A recent episode entitled, “Rebel with a Cause” discusses the importance of being willing to break out of the norm. The old adage, “Think outside the box” has truth. The truth is that it is important to reevaluate our suppositions from time to time. Nowhere is this truer than in defending persons accused by the mighty government.

What does this have to do with me?

Recently, I was approached by a client who was represented by one of the preeminent Atlanta attorneys. The attorney had negotiated what, under nearly all circumstances, would have been a terrific plea agreement to avoid significant time in federal prison. However, the plea of guilty would result in time in federal prison, the client’s green card not being renewed, and, ultimately, deportation.

My client hired me to replace this other high-profile attorney. I looked at the case with a fresh set of eyes and found the problem. I filed a motion to dismiss the indictment. Before a United States Judge ruled on my motion, the government dismissed the charges!

Take a Fresh Look

Back to the “Rebel” podcast. There is no need to be the proverbial “bull in the china cabinet.” I have encountered those attorneys. They usually don’t last long. It is also inappropriate to be the defense attorney who is the “waterboy” for the government. Do I even have to comment on what we think of that “attorney?”

It is critical to look at every case as if it’s the first case. Bring your experience to the case. It’s invaluable to bring experience to a case. But, it’s also important to look at it and think about it as if it is the first case you have ever reviewed.

The other experienced attorney just followed the routine. He saw evidence of guilt in the form of a wiretap and phone calls. He then negotiated what would otherwise be an excellent plea disposition. However, he did not see the glaring defect in the case that would require dismissal.

In “Hidden Brain” terminology: Experience + Fresh (Rebel) Thinking = Best Chance of Success!

by John Lovell

Forgery Laws in Georgia

by Ryan Walsh

There are four degrees to the offense of Forgery in the State of Georgia.

Forgery in the first and second degree involves the making, possession or alteration of a writing other than a check in a fake name or in a manner that alleges the document was made by another person at another time without the authority of that other person. It is forgery in the first degree if that writing is used, presented , or delivered; and forgery in the second degree if it is never used, presented or delivered.

To be found guilty of forgery in the first or second degree you have to have knowledge that the writing is forged and that you have made, possessed or altered the document with the intent to defraud another party.

Forgery in the third and fourth degrees involve the same elements of forgery discussed above but the writing involved is a check.  If the check is for $1,500 or more or you have ten or more checks in your possession then you will be charged with forgery in the third degree. If the check is for less than $1,500 or you have less than ten checks in your possession then you will be charged with forgery in the fourth degree.

Forgery in the first through third degrees is a felony offense in the State of Georgia. Forgery in the fourth degree is a misdemeanor offense.

If you’ve been contacted by a law enforcement official about a potential issue at a bank it is important that you exercise your right to remain silent and call a lawyer immediately to discuss your case, your options, and potential outcomes.

Being convicted of a forgery charge can impact your ability to gain future employment or obtain professional certifications in the State of Georgia.

Our office of Georgia criminal defense attorneys have experience in defending forgery and fraud crimes. Call us today at 404-581-0999 for a free consultation.

Privacy Rights- Carpenter vs. United States

by John Lovell

Last month, the United States Supreme Court ruled in favor of the privacy rights of individuals. The Government, without a warrant or a showing of probable cause, issued an order to a cell phone company to provide Timothy Carpenter’s cell site data. The Government sought to gather the extensive records, including the location of Carpenter’s phones. The Supreme Court, in a 5-4 decision, found that Mr. Carpenter had a privacy right in his phone records. For the Government to seize these records, the Government needed to present to a magistrate a warrant based on sworn testimony establishing probable cause. The Court noted that a significant factor causing the War for Independence was Britain’s use of warrantless searches … Americans have never been fond of warrantless searches!

Do not be quick to conclude that this ruling makes it necessary for the police to obtain a warrant for all types of stored records. Your privacy could still be affected. Previously, the Court has held that a warrant is not necessary to obtain records of the numbers called by a cell phone-not the content of the calls but just the fact that the “target” phone called particular numbers at particular times. The Court has also held that other stored records such as bank records may be obtained without a warrant. A couple of years ago, the Court ruled that a warrant is required to place a GPS tracking device on a vehicle. The critical distinction that the Court has made is in information that reveals the location of the subject. We have a greater expectation of privacy in where we are than is more typical records such as numbers called and even bank records. Protect your privacy rights today and call Peachstate Lawyer for your FREE consultation!