I was arrested without a warrant, and they did not bring me to court in Clayton County, what do I do?

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody. 

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991). 

If you or someone you know has been arrested in Clayton County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Vehicular Homicide

If you have been charged with vehicular homicide in Georgia and you were under the influence of prescription medication when you were driving you do have a unique defense available to you that many lawyers in Georgia will sometimes overlook.  For starters, Georgia law does not punish you for mistake or an accident.  Meaning, if you are prescribed prescription medicine and drive after you took prescription medication you may be excused in your conduct through excusable ignorance.  There are several factors the jury will consider, but in my experience, you have to meet several criteria to have a more robust defense.  First, you have to be taking the drugs pursuant to a lawful prescription.  Second, you will need to be within therapeutic limits – meaning taking the drug as prescribed.  It doesn’t do good if you are prescribed 5 mg of a drug and you are taking three times the amount.  Third, your doctor or pharmacist told you not to drive after taking the medication.  Similarly, if your prescription bottle displays a warning of ‘do not drive under this prescription’ then you should not drive and your defense of accident or mistake is seriously weakened.  Fourth, it should be a newer prescription.  Why is this important?  It means you are unfamiliar with the reaction your body and/or mind has when taking the prescription medicine.

As mentioned, once you have been charged with Vehicular Homicide in Georgia and you are taking a medication as prescribed and the jury believes you did so through not knowing any better you can be excused from the criminal act.  Yes, nobody likes excuses – especially a jury – but if you truly did not have the intent to become impaired or did not know the effects of consuming a prescription medicine, Georgia law protects you.  It is important to understand the difference between justification and excuse.  Justification means you intended the act and consequences that stem from the act but you were justified.  An example may be self-defense where you shot and killed someone trying to kill you.  Excuse is where it is not justified, but excusable because of what is transpiring in your mind.  A top highly experienced Georgia criminal defense lawyer can explain this to a jury.

Child Molestation in Cobb County

Child Molestation is a serious crime in the State of Georgia. If you are arrested in Cobb County  for child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Cobb County District Attorney’s Office has a unit called the Crimes Against Women and Children Unit and they zealously prosecute these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on a calendar the next day for First Appearance. At this hearing, the Cobb County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Cobb County Magistrate Court on the Marietta Square.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Cobb County Magistrate Court.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Cobb County, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

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. Our office is in downtown Atlanta. We also have a second office near the Cobb County courthouse.

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

I was arrested without a warrant, and they did not bring me to court in Cobb County, what do I do?

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested in Cobb County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I was arrested without a warrant, and they did not bring me to court, what do I do?

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Civil Asset Forfeiture- Coweta Drug Cases

Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Homicide, Murder, and Manslaughter Charges in Georgia

In our criminal justice system “homicide” is a broad umbrella term which encompasses different types of specific crimes. Homicide is generally defined as the killing of another person without justification or defense. This blog article aims to explore the different types of homicides under Georgia law.

 

Murder

 

O.C.G.A. § 16-5-1 sets out the ways a person can commit the offense of murder and second-degree murder.

 

  • A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

 

Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

 

  • A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

 

This is also referred to as “felony murder.”

 

  • A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

 

Punishment if Convicted

 

A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.

 

Manslaughter

 

In Georgia, manslaughter can be either voluntary or involuntary.

 

Under O.C.G.A. § 16-5-2, a person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

 

Essentially, the law recognizes that a person can become so inflamed by passion or provoked to a certain degree that it negates the mental state of “malice” found in murder charges. Because there is no malice, a jury is authorized to convict a person on the lesser offense of voluntary manslaughter.

 

Examples of sufficient provocation or irresistible passion have been held to include adultery (Raines v. State, 247 Ga. 504 (1981)) and battered person syndrome (Paslay v. State, 285 Ga. 616 (2009)). Evidence of anger alone is not sufficient to set aside malice. It is also important to note there can not be a “cooling off” period between the provoking act and the killing.

 

A person who commits the offense of voluntary manslaughter, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

 

Pursuant to O.C.G.A. § 16-5-3, A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.

 

In the situation of an unlawful act, upon conviction thereof, the person shall be convicted of a felony and punished by imprisonment for not less than one year nor more than ten years.

 

A person also commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

 

Here, during the commission of a lawful act in an unlawful manner, upon conviction thereof, the person shall be punished as a misdemeanor.

 

Contact Us

 

Homicides are investigated aggressively by law enforcement. These crimes are extremely serious. If you or someone you know has been charged with a crime involving the death or another, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Drug Weight

In Georgia, there are many different kinds of drug charges that differ in a multitude of things such as the penalty. A misdemeanor drug charge can result in up to a $1000 fine excluding surcharges and up to one year in jail. A felony drug charge can result in 1 to 15 years, and even up to 30 years or life in prison depending on the charge and/or quantity of drugs. 

The quantity of drugs you’re charged with makes an enormous difference in the penalty and how the case proceeds. For example, you can be charged with trafficking marijuana if you possess more than 10 pounds of marijuana. If you possess somewhere between 10 pounds and 2,000 pounds, the minimum sentence is 5 years. If you possess somewhere between 2,000 pounds and 10,000 pounds, the minimum sentence is 7 years. And lastly, if you possess 10,000 pounds or more, the minimum sentence is 15 years. Therefore, the amount/weight of drugs you are found to possess is crucial to the defense of your case.

A multitude of things can work against you and your case. One very important factor can be the excess water weight found in drugs. Excess water can be found in drugs such as cannabis and can lose around two thirds of its weight when dried out. This factor can negatively impact your Georgia case because the excess water weight can push the weight from a non-trafficking amount to a trafficking amount or from a small drug trafficking charge to a higher charge. 

Another factor that can work against your case is the scale used to measure the drugs. I’ve had the opportunity to observe a scale used at the jail. A vital thing to remember is that a large portion of large scales are not correctly calibrated. This is important for your defense because you can attack the validity of the scale to work in favor of your case. Further, there can be times where the scale is not properly cleaned, leaving residue from other cases on the scale, which can potentially increase the amount of drugs you are charged with. 

Although there can be a lot of factors working against you in a simple drug charge and/or a drug trafficking charge, there are a lot of defense strategies that can reduce the sentence or even get your case dismissed. For example, we can file a motion under the authority of Williams v. State Ga. 749, 312 S.E.2d 40 (1983) to inspect and examine everything that was found and hire our own expert to examine the contents (sample of our motion down below). 

Should you have a trafficking cocaine or trafficking drugs case please inquire of your legal counsel about the weight of the marijuana or weight of the cocaine.  If you have a drug trafficking warrant or a loved one in custody on a drug trafficking charge and they are unrepresented in Fulton County, Cobb County, Dekalb County, Gwinnett County, Cherokee County, or Forsyth County please call us.

The experienced lawyers at our PeachStateLawyer firm have been winning serious and big drug cases for over twenty years. Call us today at 404-581-0999 for a free consultation to see how we can help you win your case. 

Georgia Criminal Law – Possession of Firearm by Convicted Felon

A felony conviction has serious consequences. It remains on your criminal record permanently, making jobs and housing extremely difficult to obtain. Aside from incarceration, probation, fines, counseling, and other conditions the sentencing judge may impose, a felony conviction also strips away certain constitutional rights. One of these rights is the right to possess a firearm. In enacting the below statute prohibiting the possession of a firearm by a convicted felon, the General Assembly has sought to keep guns out of the hands of those individuals who by their prior conduct have demonstrated they may not possess a firearm without being a threat to society. This article will explain the three key components of the criminal offense, the punishment, and defenses.

The Offense

It is illegal for any person who has been convicted of a felony to possess a firearm. O.C.G.A. § 16-11-131.

Felony convictions include: any person who is on felony first offender probation, felony conditional discharge probation, or has been convicted of a felony in Georgia or any other state (also includes U.S. territories and courts of foreign nations).

A “firearm,” includes any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge. Therefore, toys or non-functioning replicas do not qualify as weapons. However, it is important to note that even disassembled firearms or even projectiles by themselves constitute “firearms” under the statute.

To prove possession, the prosecution must establish has two requirements, a culpable mental state and the act of possessing a firearm. First, the prosecution must establish the person knowingly possessed  a firearm. Knowledge can be proven through direct evidence (person’s statement admitting possession) or through circumstantial evidence (firearm found on person’s bed side table and nobody else had access to the house). Possession can be further broken down into two categories, actual and constructive possession. Actual possession is what it sounds like. If you have a firearm in your hand (or holster, or in your waistband), you are in actual possession of a firearm. Constructive possession, however, is a situation where you have control or dominion over property without being in actual possession of it. For example, imagine you are seated in the front passenger seat of a vehicle along with the driver. The vehicle is pulled over, searched by police, and illegal drugs are found in the center console. Although neither you nor the driver was in actual possession of the drugs, you are both arguably in constructive possession of the drugs because of your mutual ability to access and control of the drugs.

Punishment

A person convicted of possession of a firearm by a convicted felon shall be sentenced to no less than one year and no more than ten years. If this is a second or subsequent conviction, the person shall be sentenced to prison for no less than five and no more than ten years. If the underlying felony was a “forcible felony” the person shall be sentenced to five years imprisonment. A forcible felony is defined as, “any felony involving the use or threat of physical force or violence against any person . . .”

Defenses

There are several defenses available to a person charged with this offense. One is to challenge the underlying conviction. If the conviction is not a felony or was a felony but was discharged under the First Offender Act or conditional discharge sentence, then there is no underlying felony. This offense also does not apply to those who have been convicted but had their convictions pardoned by the state.

The next available defense is to challenge the required mental state; that the person was “knowingly” in possession of a firearm. You cannot be in possession of something that you have no knowledge of.

The defense may also challenge whether the person was in constructive possession. In Harvey v. State, the court found insufficient evidence the defendant was in constructive possession of a firearm (by a convicted felon) even though defendant’s name appeared on documents in closet of apartment where firearm was found; the gun was found on the floor next to an unidentified individual, defendant’s name was not on the lease, and defendant had no belongings inside the apartment. 344 Ga.App. 7 (2017).

Contact Us

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

Can a Spouse of a Convicted Felon Own a Gun in Georgia?

By:  Mary Agramonte

Georgia law prohibits people convicted of felonies from possessing firearms. Similarly, people currently on first offender probation are also not allowed to carry guns. You must be discharged from probation as a first offender without an adjudication of guilt in order to lawfully possess a firearm. Felons cannot have guns unless and until their rights are restored in the State of Georgia.

But what if you are a convicted felon and someone else near you owns a gun? Or what if you are in the same vehicle as someone who has a gun? Likewise, one of the questions we are asked most often is “can my spouse or partner have a gun in the same home as me if I am a felon?”

The short answer is: it depends. The question that is going to be asked by law enforcement and the Courts is whether or not the State can prove YOU possessed the gun. You do not have to actually have it in your hand or your pocket in order to be charged and convicted with Possession of a Firearm by a Convicted Felon. In some instances, it simply has to be near you, or in a place where the circumstances point to the weapon being yours. This is because Georgia law recognizes two different kinds of ‘possession.’ The first is Actual Possession and the other kind is Constructive Possession.

Actual Possession is where you truly possess the gun: it is in your pocket or in your car, for example. With Constructive Possession, the line can be a little more blurry on whether or not you will be arrested or convicted of possession the firearm by a convicted felon. When  dealing with Constructive Possession, you can be arrested for possessing a firearm even if you never possessed it. The State can prove it through circumstantial evidence. For example, constructive possession occurs where a gun is in a shared hotel room with you and a friend, and you know the gun is there, and you tell police where it is. In that situation, the State will allege you had possession of the firearm- even if you never touched it. Another example of constructive possession would be if the gun was found in the drawer of a shared bedroom, near clothes that match your gender. Additionally, you can be charged with possession of a firearm by convicted felony if your co-defendant carried a gun in an armed robbery that you were a part of even if you never touched the gun.

So the answer to the age-old question is yes, your spouse can own a gun as long as you don’t possess it- actually or constructively, but to be wary as the distinction is not always clear. If you or a loved one has been arrested for Possession of a Firearm by a Convicted Felon, call us today for a free consultation on the case at 404-581-0999.