Georgia DUI Law: Challenging the Stop, Improper Turn

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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

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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

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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

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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

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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

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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!

Search Warrants and Social Media in Georgia Criminal Cases

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by Mary Agramonte

Social media has become, for many of us, a central part of our lives. We use Facebook to share and view photos of friends and family, and even to catch up on daily news. We use Snapchat to send live photos or short clips and videos to those in our circle. Instagram exists to view photos of friends and strangers, and even to gain inspiration for food, travel, and lifestyle.

These social networking sites are used and enjoyed by people in all walks of life. Consequently, as the use by the general population increases, so does use for those engaged in drug dealing, gang activity, and other criminal acts. For this reason, social media and apps once thought to be private are becoming the key pieces of evidence as law enforcement is obtaining this information through search warrants. Search warrant allow police to conduct searches of people and their belongings for evidence of a crime and they are now being used to gain entry into your Facebook, Snapchat, and other sites.

Snapchat has recently come out to say that 350 million Snaps are sent every single day. Before these fleeting photos are opened, they exist on Snapchat’s server awaiting for the person on the other end to open it.  Some unopened Snaps, they’ve admitted, have been handed over to law enforcement through search warrants.

Facebook is no different and law enforcement is using the site regularly to investigate crimes. While a law enforcement agency is free to look at your public site, they are even able to obtain a search warrant even for the private aspects of your account. A recent case in the 11th Circuit, United States v. Blake, involved search warrants for email and Facebook accounts.  Law enforcement in Blake sought essentially every piece of data on the person’s Facebook account. The court stated that the search warrants were overly broad and stated they must still be specific and limited in scope. The data was still fair evidence despite this, as the officers relied on the good faith exception to the exclusionary rule, and the State was allowed to use the evidence from their Facebook account against them.

There tends to be a false sense of privacy for those engaged in sending Snaps, Facebooking, or Instagramming. These ‘private’ sites and photos can and do become to subject of search warrants in law enforcement investigations, and the biggest piece of evidence in a case might just end up being something you posted  or sent with the belief it would remain private.

Statutory Rape Crimes in Georgia

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by Mike Jacobs

Statutory Rape is a serious crime in Georgia. O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Georgia can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Georgia for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

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

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

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

Sodomy Crimes in Georgia

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by Mike Jacobs

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

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

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

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

Sexual Assault and Rape Crimes in Georgia

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by Mike Jacobs

Rape is a serious crime in Georgia. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

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

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

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