DeKalb County – Aggravated Assault by Strangulation

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We see it happening more and more often in DeKalb County: Battery-Family Violence charges being upgraded to Aggravated Assault-Strangulation. This means that the person originally arrested for a misdemeanor, can now be facing not only the misdemeanor of Battery-Family Violence, but also the serious felony offense of Aggravated Assault by Strangulation.

Why was my Battery Family Violence case transferred to the DeKalb County District Attorney’s Office?

Officers initially make the arrest decision, but prosecutors have the ability to draft up indictments to present to a grand jury based on the facts within the officer’s original report. If there is any mention that the person placed their hands on the victim’s neck, it is possible and probable that the case will be upgraded to a felony offense of Aggravated Assault-Strangulation. Given the fact that it is a felony, the case will be sent to be prosecuted in felony court also known as DeKalb County Superior Court, by attorneys who prosecute felony cases.

What is Aggravated Assault Strangulation?

Georgia law states that a person commits the offense of Aggravated Assault by Strangulation when he or she assaults with any object, device, or instrument, which when used offensively against a person, is likely to or actually does result in strangulation. There are defenses in these cases as Georgia no longer defines what Strangulation means. The Georgia statute used to say that “Strangulation” is defined as impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person. Without that definition on the books anymore, it is very fact specific on whether or not the State can actually prove strangulation. In most cases, where there has been no loss of conscious, it will be difficult for the State to prove actual strangulation. Therefore, when the facts state that someone’s hands were placed on another’s neck, then arguably the person has committed a misdemeanor battery instead of the serious felony offense of Aggravated Assault by Strangulation.

What does it mean for my DeKalb County criminal case if I am now facing Aggravated Assault by Strangulation?

Having the case upgraded to Aggravated Assault-Strangulation can lead to much harsher sentence if you are found guilty.  The crime itself carries 1-20 years in prison, which can be stacked with the other crimes originally charged and can result in a lengthy prison sentence. If you are charged with Aggravated Assault by Strangulation in DeKalb County, you will be prosecuted by the DeKalb County District Attorney’s office in DeKalb County Superior Court and the stakes are certainly higher. Given the harsher penalties associated with violent felonies, it is imperative to seek a Georgia criminal defense attorney early on who can evaluate the case and immediately begin building the defense. Being proactive by speaking to a lawyer immediately after an arrest is the best way to ensure a strong defense when your case goes to court. Call us today for a FREE CONSULTATION about your Aggravated Assault by Strangulation in DeKalb at 404-581-0999

Statements to the Police While in Custody

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According to Miranda v. Arizona, a suspect must be given warning of their rights at the outset of the interrogation process. If a suspect states that he does not wish to speak with police, the police have a duty to halt the interrogation process.

A new ruling by the Georgia Supreme Court (State v. Burton) further affirms that the State holds the burden of proving that any statements made by a person suspected of a crime are made knowingly and voluntarily in light of a person’s right not to speak. If police ask a suspect if they want to speak and the suspect responds in an unambiguous way that they don’t, any statement that a suspect gives cannot be used against them in court. In fact, the interrogation should end immediately. Even if a suspect responds in a way that could be interpreted to be an agreement to speak, the totality of the circumstances should be examined to determine if the suspect actually knowingly and voluntarily agrees to speak with police

In the case of juvenile suspects, courts look at nine factors to determine whether a suspect knowingly and voluntarily waived his rights not to speak with police: (1) the age of the accused; (2) the education of the accused; (3) the knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) the methods used in interrogation; (7) the length of interrogations; (8) whether the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

If you believe that you have been questioned by police after you have invoked your right not to speak, it is important that those statements are not used against you. It doesn’t matter how serious the charges, you have a right to have those statements suppressed. Contact our office today at 404-581-0999 so that we may help protect your constitutional rights.

 

Prior False Allegations Are Admissible in a Sex Offense Case

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You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

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

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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

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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

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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?

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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?

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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

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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

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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.