HIT AND RUN

In Georgia, leaving the scene of an accident will most frequently be classified as a misdemeanor offense, and is defined as a “hit and run.” It can have serious consequences in the laws of our state, including collateral consequences, such as a suspension of the accused person’s driver’s license. According to O.C.G.A. § 40-6-270, the driver of any vehicle involved in an accident, which results in an injury/ death of a person, or damage to another vehicle, has the duty to immediately stop after the accident. A driver also has the duty to return to the scene of the accident if he/she did not immediately stop their vehicle. When the driver has returned to the scene, he/she also has the following duties:

  1. The driver must give their name, address, and registration number of their vehicle;
  2. Upon request, show proof of their driver’s license;
  3. If any person is injured in the accident, the driver has the duty to assist the injured person; and
  4. If any person is unconscious or appears deceased, the driver must call 911.

A hit and run in Georgia usually will be classified as a misdemeanor, however, if the accident is the cause of a person’s death or serious injury, the accused could be charged with a felony offense, which includes a prison sentence of 1-5 years in custody. In all other cases, a hit and run will be classified as a misdemeanor with a penalty of up to 12 months in jail and a $1000 fine.

REDUCED CHARGES

An experienced criminal defense attorney will negotiate with the prosecution to reduce a hit and run to a lesser offense. A hit and run charge will suspend an accused person’s driver’s license for a period of four months. Therefore, it is of vital importance to either be found “not guilty” of hit and run, or to reduce the hit and run to a non-suspendable offense.

The most common alternatives to a hit and run are (1) striking an unattended vehicle, or (2) duty to report. Striking an unattended vehicle, pursuant to O.C.G.A. § 40-6-271, means that a driver collides with an unattended vehicle and did not immediately stop to locate the owner of the vehicle. Duty to report, pursuant to O.C.G.A. § 40-6-273, describes a circumstance where the driver is obligated to report an accident to the local police department when there are injuries to another party.

Both alternative charges are non-suspendable offenses. This means that there will not be a license suspension attached, if convicted. Therefore, because the accused will avoid a license suspension, reduced charges tend to be more favorable, and an experienced criminal defense attorney will attempt to negotiate for that resolution in order to save their client’s license.

Due to the complexity of a hit and run charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for their client, trained at defending such allegations, and zealously advocates for their client’s constitutional rights. At the Law Offices of W. Scott Smith, we do just that. Therefore, if you or a loved one has been cited or arrested for a hit and run, please call our office today at 404-581-0999 for a free consultation.

What to do if arrested for Possession of Drugs or Possession with Intent in Fulton County

If you are arrested for any drug offense in Fulton County, do not make any statements to the police. You will be taken to the Fulton County jail at 901 Rice Street. You will be on the first appearance calendar the following morning at 11:00. It is important to have an attorney for this court appearance.

At your first appearance hearing, the Magistrate Court judge will review the facts in the warrant and your criminal history and will decide whether to issue you a bond or not. There are a few options regarding bond. The first is they may give you an unsecured judicial release and make you report to pre-trial services. This allows you to get out of jail without paying any money. The next option is to give you a regular bond where you would have to go through a bonding company to be released. The final option is that they deny your bond. In Fulton County, in most drug cases, bond is set at first appearance.

Once you are released from the Fulton County jail, please ask any person who was with you that night to write out a statement of what they remember happening the night of the arrest. This could be helpful in preparing for the motions hearing and trial in Fulton County. It is also important for you to write out a statement of anything you remember regarding the incident. Only give this statement to your attorney.

It is important that you hire an attorney quickly as there are tight deadlines on filing a Motion to Suppress which is a constitutional challenge to the drug evidence. Most drug cases are either won or lost at the Motions hearing. If you wait too long, you will be unable to file a Motion to Suppress.

Being convicted of a felony drug offense in Fulton County carries many consequences, including, but not limited to, a felony drug conviction on your record, loss of gun rights, loss of voting rights and has a detrimental impact on your securing a loan from a bank or employment.

You are welcome to call us 24/7 at 404-581-0999 and we will be there with you for your First Appearance hearing at the Fulton County jail.

Being charged with Rape in Newton County

Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Newton County, for rape, 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 rape. The Newton County District Attorney’s office zealously prosecutes these cases and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on the calendar the following morning for First Appearance. At this hearing, the Newton 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 rape case. You will then need to file a motion for a formal bond hearing in Newton Superior Court and a preliminary hearing in magistrate court. These hearings take place at the Newton County Courthouse in downtown Covington, Georgia. It is crucial to get an attorney retained to be at the First Appearance hearing at the Newton County jail.

O.C.G.A. § 16-6-1 defines rape as follows:

When someone has carnal knowledge of (1) a female forcibly and against her will, or (2) a female who is less than 10 years of age. Carnal knowledge is any penetration of the female sex organ by the male sex organ. Against her ill means without consent. Forcibly means acts of physical force, threats of death or bodily harm, or mental coercion such as intimidation.

The elements that Newton County District Attorney’s office must prove to convict you are 1) penetration, 2) force, and 3) against her will. Physical injury is not an element.

The Newton County Superior Court has 5 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Chief Judge John Ott, Judge Chevada McCamy, Judge Layla Zon, Judge Jeffrey Foster and Judge Kendall Wynne.

It is imperative that you do not walk into court on a rape charge in Newton County either without a lawyer or with a lawyer who does not handle sex crimes. Rape cases are very difficult to defend and require someone with the knowledge and experience to defend them.

The punishment for rape is a mandatory 25 years to life in prison. You need to put everything you have into the trial to win. Do not rely on an appeal to be successful. You must win your rape trial to avoid spending the rest of your life in prison.

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.

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.

Rape in Henry County

Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Henry County, for rape, 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 rape. The Henry County District Attorney’s office zealously prosecutes these cases and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on the calendar the following morning for First Appearance. At this hearing, the Henry 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 rape case. You will then need to file a motion for a formal bond hearing in Superior Court and a preliminary hearing in magistrate court. These hearings take place at the Henry County Courthouse in downtown McDonough, Georgia. It is crucial to get an attorney retained to be at the First Appearance hearing at the Henry County jail.

O.C.G.A. § 16-6-1 defines rape as follows:

When someone has carnal knowledge of (1) a female forcibly and against her will, or (2) a female who is less than 10 years of age. Carnal knowledge is any penetration of the female sex organ by the male sex organ. Against her ill means without consent. Forcibly means acts of physical force, threats of death or bodily harm, or mental coercion such as intimidation.

The elements that District Attorney must prove to convict you are 1) penetration, 2) force, and 3) against her will. Physical injury is not an element.

The Henry County Superior Court has 3 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Judge Brian Amero, Judge Holly Veal and Judge Pandora Palmer.

It is imperative that you do not walk into court on a rape charge in Henry County either without a lawyer or with a lawyer who does not handle sex crimes. Rape cases are very difficult to defend and require someone with the knowledge and experience to defend them.

The punishment for rape is a mandatory 25 years to life in prison. You need to put everything you have into the trial to win. Do not rely on an appeal to be successful. You must win your rape trial to avoid spending the rest of your life in prison.

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.

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.

Possession of Drugs in Clayton County – Atlanta Drug Possession Lawyer

The legal system in Clayton County treats drug crimes seriously. If you have been arrested for the possession of drugs in Clayton County, you could be facing jail, fines, and probation. In order for the State to prove drug possession, it must be shown that the contraband was lawfully seized. If there was an illegal search, or an illegal seizure, the evidence must be suppressed, and the case dismissed.

If you have been arrested in Clayton County, the Clayton County District Attorney’s Office will prosecute the case. The Clayton County Superior Court is located at 9151 Tara Boulevard in Jonesboro, Georgia.  The first step following an arrest, is the First Appearance hearing. This is where the Judge will notify you of your charges and rights and then make a determination for bond. In Georgia, there are five factors Judges use to determine whether or not to release someone on bond. These are known as the Ayala factors (Ayala v. State, 262 Ga. 704 (1993)). Judges may issue a bond upon a finding of the following factors:

  • The person poses no significant risk of fleeing or failing to appear in court when required
  • The person poses no significant risk or danger to a person, property, or community
  • The person poses no significant risk of committing a felony while out on bond
  • The person poses no significant risk of intimidating witnesses or otherwise obstructing justice

Under the Georgia Controlled Substance Act, drugs are classified into 5 schedules based on their potential for abuse, tendency for addiction, and their recognized medical uses. Schedule I is considered to have the highest risk of physical and psychological dependency and are considered to have no medical use, while Schedule V is recognized to have lower risk of dependency and legitimate medical use. The following are common examples of drugs that the lawyers of W. Scott Smith P.C. have defended in the past.

Schedule I

Heroin, THC, LSD, and MDMA (ecstasy).

Schedule II

Cocaine, Codein, Hydrocodone, Morphine, Methadone, Amphetamine, Methamphetamine, Oxycontin, Percocet

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Fulton County

The penalties in Clayton County and in Georgia can be harsh following a conviction.  Possession of drugs in Georgia is a felony, except for marijuana if it less than an ounce. If it is your first offense and you are found guilty of a Schedule I or II drug, you are looking at 2-15 years in prison, intense probation, and high fines.

On second or subsequent offenses of Schedule I or II drugs, you are looking at at least 5 years in prison, and up to 30, with the possibility of similar probation and high fines as the first.

If you are found with Schedule III, IV, or V drugs, the penalty will be 1 to 5 years in prison. If it is your second or subsequent offense, you are facing 1 to 10 years prison time.

Additionally, if you are found guilty and a car was used during the felony, your driver’s license will be suspended.

How the State Proves Possession

The drugs do not have to be found on your person for you to be guilty of drug possession. Driving a car in which drugs are found is sufficient for the law to determine that you are in violation of the Controlled Substance Act. Even if the drugs are found thrown out or hidden, the State will still try to prove you were in possession. Depending on where the drugs were found, two people or more can be considered to have possession of the same drugs. Important facts for both the state and defense are whether or not paraphernalia or residue in plain view was found, and also whether you attempted to flee.

Additionally, drug crimes almost always implicate Fourth Amendment a analysis which can serve as a basis for suppression of the drugs. This means that if the State unlawfully searched or seized the drugs, the drugs are thrown out of evidence, and the case dismissed.

Talk to an Attorney

Because a conviction of drug possession carries lifelong consequences, it is important you speak with an attorney who is knowledgeable about drug possession laws in Georgia. Pleading guilty to any drug possession offense will have harsh penalties that we want you to avoid. Know your legal options and challenge the evidence so that you can move on from this arrest in the best way possible. Call us for a FREE CONSULTATION today at 404-581-0999 and mention this blog.

Marijuana Edibles and THC Cartridge Charges in Georgia

If you have been charged in Georgia with marijuana edibles or a THC cartridge here is what you need to know to prepare yourself for court.

 

Edible forms of cannabis, including THC ladened gummies (i.e. gummy bears), cookies, brownies, honey sticks, Rice Krispy treats, chocolate bars, sodas, lozenges, and capsules, are all illegal in Georgia. All marijuana edibles contain a significant amount of tetrahydrocannabinol (THC). THC edibles in Georgia, even those consumed for recreational and medical purposes, are illegal. Similarly, all electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or weed pen with a THC vapor cartridge is illegal under Georgia law.

 

Under Georgia law, extracting marijuana oil out of the plant-based material makes the crime of possession a felony offense. The punishment you can face for possessing marijuana edibles or a THC vape pen are described at the bottom of this article.

THC is the psychopharmacologically active component of the cannabis plant. Most THC exists in the form of an isomer known as delta-9-THC, but somewhat less than ten percent of naturally occurring THC is of the delta-8 isomer. Both delta-8-THC and delta-9-THC produce a psychological effect. They are found in all cannabis plants, and they are not known to exist elsewhere in nature. Concentrations of THC can be produced in two ways, either by chemically extracting it from the cannabis plant or by synthesizing it in the laboratory. A simple procedure, using organic solvents to remove the THC from cannabis, can produce an oily substance variously known as “hash oil,” “marijuana oil,” or “liquid marijuana.” THC thus extracted “is not marijuana; it is tetrahydrocannabinol. It is the extract, the pure compound from the drug.

 

Edibles, most commonly cannabidiol or CBD, with very little THC are illegal in Georgia.  Under Georgia’s strict laws regarding the use or possession of any product that has THC extracted from the plant (or where no plant fibers are present) is a serious charge.  The lone exception is for prescribed THC oil where you have a Georgia prescription.  Once you obtain a Georgia THC card, Georgia allows you to possess 20 fluid ounces of low THC oil within the state of Georgia.  However, the law requires that the low THC oil be “in a pharmaceutical container labeled by the manufacturer indicating the percentage of tetrahydrocannabinol therein,” be less than 5 percent tetrahydrocannabinol by weight, and that the amount of oil in the container – or containers – not exceed 20 fluid ounces total.  Ironically, the “standard dose” in recreational THC use is considered 10 mg over a five-hour period.

 

The crimes relating to the possession or sale of marijuana are set forth in the Georgia Controlled Substances Act Title 16 Chapter 13.  Under OCGA § 16-13-21(16) marijuana is specifically defined as:

 

all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.

 

OCGA §16-13-30:(3)(P), was changed by the Georgia legislature to provide:

 

Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products.

 

Penalties for Weed Edibles is located in OCGA § 16-13-30:

There are three basic tiers of punishment and they are all determined by the total weight of the substance.  Note there is a difference between the weight of a solid substance (gummy) and the weight of a liquid (vape cartridge).

Tier 1:

  • Less than one gram of solid substance.
  • Less than one milliliter of liquid substance.
  • Placed into a secondary medium with a combined weight of less than one gram.
  • Range of punishment is one to three years.

Tier 2:

  • At least one gram, but less than four grams of solid substance.
  • At least one milliliter of liquid substance, but less than four milliliters.
  • Placed into a secondary medium with the combined weight of more than one gram, but less than four grams.
  • Range of punishment is one to eight years.

Tier 3:

  • At least four grams, but less than twenty-eight grams of solid substance.
  • At least four milliliters of liquid substance, but less than twenty-eight milliliters.
  • Placed into a secondary medium with the combined weight of more than four grams, but less than twenty-eight grams.
  • Range of punishment is one to fifteen 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. Our office is in downtown Atlanta.

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.

Child Molestation in Clayton County

Child Molestation is a serious crime in the State of Georgia. If you are arrested in Clayton 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 Clayton County District Attorney’s office zealously prosecutes 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 the calendar the following morning for First Appearance. At this hearing, the Clayton 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 Clayton County Courthouse. It is crucial to get an attorney retained to be at the First Appearance hearing at the Clayton County jail.

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 Clayton 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.

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.

Trafficking Marijuana through the Atlanta Airport

When a person traveling to Atlanta is charged with trafficking marijuana at the Atlanta airport the first concern is going to be how to get a bond to get the person charged with trafficking marijuana at the Atlanta airport out of jail as soon as possible.  Another question is, how much will my bond be for trafficking marijuana?  At our law firm we have handled a number of bond hearings and received consent bonds in Clayton County on trafficking marijuana at the Atlanta airport.  We believe we have a recipe for success that you can follow in order to get a bond on a trafficking marijuana case.  A bond hearing is where a judge will decide if the person trafficking in marijuana at the Atlanta airport is a good candidate for bond.  The factors a judge will consider on trafficking cases generally include, criminal record or lack of a criminal record, flight risk or whether the person will appear in court when directed, and/or likelihood of committing a new felony offense while out on bond.  Since people who are charged with trafficking in marijuana are generally transient or they generally have out of Georgia ties, the court will be concerned they will not appear in court when the case comes up for additional court dates.  You must be in a position to allay the court’s fears the person charged with trafficking marijuana will in fact appear in court when directed to do so.  A consent bond is where the State’s prosecutor agrees to a bond amount and the defense accepts because the person arrested for trafficking marijuana at the Atlanta airport feels they can afford the bond amount.

First question for consideration is how much did the Marijuana in the person traveling with marijuana in their suitcase at the Atlanta airport weigh.  If it is less that twenty pounds your chances of getting a lower bond in Clayton County are greater.  Second, did the person traveling have more that $1000 cash on them.  If they did, they are likely a mule.  A mule is someone who is generally destitute or poor and they are so desperate for money that they agree to transport a suitcase or luggage without knowing its contents.  If the person is poor and you can show the prosecutor this evidence and they had a large sum of money (which is consistent with the mule’s fee) the prosecutor is more likely to grant a bond.  Third, do the flight records show a first-time travel for that person on the same flight origination?  If so, this is likely the first time the person traveling with the large amounts of marijuana is flying with marijuana.  If you can show no pattern of travel the State is more likely to consent to a low bond.  The State’s prosecutor and Court will want to know the criminal history of client.  Things of major importance will be does the person have any felonies on their record?  Has the person ever failed to appear in court – even for traffic violations?  Does the person have any violations of probation or parole?  Furthermore, it is important to have a local address in which the person charged with trafficking marijuana will live at while the case is pending.

If you are an attorney trying to acquire a consent bond for trafficking marijuana in Clayton County at the Atlanta Jackson-Hartsfield Airport, here is what you need to do.  Go through the criminal history to have a good handle on what the criminal history provides.  If any discrepancies come up on the persons charged GCIC or NCIC be in a position to pull the official court record to confirm the inaccuracies in the official record.  In our experience this happens way too often.  Second, pull a copy of the incident report.  You will need to make a copy of the incident report and provide a copy to the State’s prosecutor in order to get a quick bond offer.  If client has a passport, obtain the passport and be willing to turn the passport in to law enforcement to hold pending the case’s outcome.  If client is poor, have client provide you access to his or her bank account to show how little amount she has in the account.  If client lives in an apartment or humble residence, have someone take photos of the residence to show the State’s prosecutor client’s simple living arrangements.  If client does not have a local address to live at see if client’s family can acquire a local address.  Lastly, do not have client snitch or become a state witness.  In my experience it serves no purpose as it does not assist in getting a bond.

Rape Charges in DeKalb County, Georgia

Rape is a serious crime in Dekalb County. 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.

If you are charged with Rape in Dekalb County, you will be brought over before a Magistrate Judge within the first 72 hours of your arrest. This judge will not set a bond on Rape. You will need to have a bond motion filed before a Dekalb County Superior Court judge.

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.

Initial (First) Appearance in Georgia Criminal Cases

An “initial appearance” is an accused’s first face-to-face encounter with a judge after arrest. The purpose of an initial appearance is to inform the accused of the nature of the charges and advise him/her of their basic rights.

The initial appearance may also serve as a probable cause hearing if the person was arrested without a warrant and no arrest warrant is secured prior to the initial appearance. However, getting an arrest warrant within 48 hours after a warrantless arrest satisfies this probable cause requirement.

Police making an arrest without a warrant shall bring the arrested person in front of a judge within 48 hours after the arrest. O.C.G.A. § 17-4-62.

Police making an arrest with a warrant shall bring the arrested person in front of a judge within 72 hours after the arrest. O.C.G.A. § 17-4-26. These time limitations include weekends and holidays.

Failure to meet these time requirements may result in the release of the arrested person through a writ of habeus corpus under O.C.G.A. § 17-4-62. The failure to provide a timely first appearance, however, will not prevent the State from prosecuting the case.

At the initial appearance the judge shall:

  • Inform the accused of the charges
  • Inform the accused of their Miranda rights
  • Determine whether the accused wants a court appointed attorney and how to obtain one
  • Inform the accused of their right to a committal (probable cause) hearing, unless waived by getting bond
  • In the case of a warrantless arrest, make a probable cause determination
  • Inform accused of right to grand jury indictment or accusation
  • Inform accused of when grand jury will next convene
  • Inform accused of right to jury trial
  • Inform accused of right to waive rights and plead guilty
  • Set bail unless offense is only bailable by superior court judge

Importantly, a defendant’s volunteered statements at the initial appearance may be admissible against the accused at trial. The accused person is NOT entitled to an attorney at the initial appearance because the initial appearance is not considered a “critical stage” in the criminal justice process. Gerstein v. Pugh, 420 U.S. 103 (1975).

Contact Us

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.