Georgia Criminal Law – Incest

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In major sex offenses, the person charged faces an uphill battle. These types of offenses are inflammatory in our society and many people rush to judgment, deeming the person guilty from the onset. The truth is there are people who are wrongly accused of committing these types of offenses. This article serves to explore the nature of the laws against incest, what the penalties are, and applicable defenses.

The Offense

Under O.C.G.A. § 16-6-22, a person commits the offense of incest when such person engages in sexual intercourse or sodomy, with a person he or she knows he or she is related to by blood or by marriage as follows:

  • Mother and child or stepchild;
  • Father and child or stepchild;
  • Siblings of the whole blood or half blood;
  • Grandparent and grandchild of the whole blood or half blood;
  • Aunt and niece or nephew of the whole blood or half blood; or
  • Uncle and niece or nephew of the whole blood or half blood

The Penalty

Incest is a felony and a conviction will result in between ten and thirty year’s imprisonment. If the victim was under the age of fourteen, the prison term is between twenty-five and fifty years. Furthermore, a person convicted of incest will be required to register as a sex offender.

Defenses

Before we discuss applicable defenses, it is important to know what is not a valid defense to a charge of incest. It is not a defense that the intercourse was consented to by the victim. Consent is invalid where the victim is under the age of fourteen because that child is mentally incapable of giving consent.

One applicable defense to a charge of incest is that no sexual intercourse or sodomy occurred. But how does someone prove something didn’t happen? Evidence tending to establish issues with the victim’s credibility, bias, motives, or perception are beneficial to the defense. Also, one should consider obtaining an expert witness to analyze the case. An expert can assist in performing or rebutting forensic examinations of the alleged victim.

Another possible defense is that the parties involved simply do not meet the relationship required by law. The law is very strict as to which relationships apply and if the relationship falls outside of those stated under the law, a charge of incest will not stand.

Finally, the State has to prove beyond a reasonable doubt that the defendant knows he or she is related to the other person. The law requires proof the defendant knew or should have known they are engaging in intercourse with someone who meets the relationship requirements. However, one cannot simply ignore such a relationship when, under the circumstances, the defendant should reasonably know of such as relationship.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf.

Georgia Criminal Law – Possession of Tools

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

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

What is the sentence for Possession of Tools in Georgia?

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

What are Possible Defenses to Possession of Tools in Georgia?

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

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

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

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

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

Georgia Criminal Law – Possession of Firearm by Convicted Felon

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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.

Georgia DUI Law: How a DUI Becomes a Felony

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The vast majority of DUI arrests are charged as misdemeanors in Georgia. There are certain circumstances, however, that will cause the DUI charge to be elevated from a misdemeanor to a felony. This article serves to explain the three major ways a driver in Georgia could obtain a felony DUI charge.

Multiple Prior DUI Convictions

A fourth DUI arrest within a ten year period[1] that results in a conviction is punishable as a felony. A first, second, or third DUI conviction in a ten year period will be treated as a misdemeanor, although the third conviction will be a high and aggravated misdemeanor.

If convicted of a fourth offense within a ten year period, the judge has the authority to impose a prison sentence between one and five years (all of which may be on probation except 90 days).

Causing Serious Injury or Death

You can be charged with a felony if you seriously injure another person while driving under the influence. Under O.C.G.A. 40-6-394(b), “[a]ny person who, without malice aforethought, causes an accident that results in bodily harm while violating Code Section 40-6-390 or 40-6-391 commits the crime of serious injury by vehicle. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.” Bodily harm is defined as, “an injury to another person which deprives him or her of a member of his or her body, renders a member of his or her body useless, seriously disfigures his or her body or a member thereof, or causes organic brain damage which renders his or her body or any member thereof useless.”

Similarly, “[a]ny person who, without malice aforethought, causes the death of another person . . . [while driving under the influence] shall be punished by imprisonment for not less than three years nor more than 15 years. O.C.G.A 40-6-393.

High Risk Operator

The law recognizes people who are convicted of DUI should be punished more severely because they are transporting children at the time of impaired driving. This occurs in two ways.

A third conviction of DUI child endangerment will result in a felony charge. This offense is punishable by one to five years imprisonment and a fine of $1,000 to $5,000.

Finally, under O.C.G.A. 40-6-391.3, a school bus driver convicted of DUI while driving a school bus is punishable as a felony. The school bus driver will face a one to five year prison sentence and a fine between $1,000 and $5,000.

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.

[1] Measured from the dates of arrest (but only since July 1, 2008). Arrests resulting in convictions prior to this date do not apply towards the total number of arrests for this purpose.

What do you do if you are arrested for possession with intent or trafficking in drugs in Georgia?

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If you or a loved one is arrested for Possession with Intent to Distribute or Trafficking in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The District Attorney has a dedicated division to prosecute cases involving Possession with Intent to Distribute or Trafficking. They will vigorously prosecute you if you are charged with a crime involving selling cocaine, heroin, methamphetamines, marijuana or other illegal drugs.   

Do not think that just because you are innocent that the charges will be dismissed. Drug charges are aggressively prosecuted all over the State of Georgia.

Make sure your attorney has had felony jury trials and has won these cases. Do not let an attorney handle your case who does not specifically handle drug cases. Many drug cases are won at a motions hearing. It is imperative that you get body cams, dash cams, search warrants and take witness statements of anyone involved in the search and seizure of the drugs.  

The law may say you are presumed innocent but in drug cases, you have to prove your innocence.

Here is what you should do if arrested for Possession with Intent to Distribute or Trafficking.

  1. Hire an attorney – Make sure that attorney actually handles and tries drug cases. Most criminal defense attorneys do not handle these cases. Make sure the attorney you talk to does regularly handles drug cases in Georgia
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for possession with intent to distribute or trafficking, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession.
    1. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    1. Witnesses – Immediately make a list of any person who you think might have information about this accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for possession with intent to distribute or trafficking in Georgia.

  1. Never talk to law enforcement or the prosecutor without an attorney.

If you are arrested for possession with intent to distribute or trafficking in cocaine, heroin, marijuana, methamphetamine or any other illegal drug, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Possession of Edibles in Georgia

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In the past ten years, thanks to the decriminalization and legalization in other states, the possession and consumption of marijuana has changed drastically. Beyond just your typical green leafy marijuana, there are chocolates, gummy bears, hard candies, drinks, waxes, resins, oils, creams, and other substances used to intake THC into your body. 

Misdemeanor or Felony?

In Georgia, possession of green leafy marijuana  is a misdemeanor if you possess under an ounce. Possession of over an ounce of green, leafy marijuana is a felony. But what most people do not know is that possession of any other product that has THC in it that is not green, leafy marijuana is a felony. It doesn’t matter that the edible, weed cartridge, wax or other substance was under an ounce. It doesn’t matter if it was only one brownie, or gummy bear, or cartridge. It’s a felony in violation of the Georgia Controlled Substances Act (VGCSA). On top of that, if the THC is baked into a brownie, or in a beverage, officers use the entire weight of the substance to determine weight, and not just the part of it that has THC in it. These substances are heavy and can hit Possession with Intent and Trafficking levels quickly.

It’s important that you know the laws in Georgia.

Officers are now trained to look for substances beyond green, leafy marijuana. They are looking for cartridges. They are looking for edibles. They are looking for distinct smells given off by concentrated marijuana products. Five years ago we saw very few if any arrests for these weed products. But over the past year, we are seeing more and more clients come in and tell us, “He found my cartridges.” Or “They went looking straight for my wax.”

Our office has been on the forefront of this shift in marijuana products in Georgia. Our team of educated and knowledgeable attorneys can help you find defenses to your felony weed charges. Call us today for a free consultation at 404-581-0999.

Is DUI a Felony?

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In most instances, the crime of DUI is considered a misdemeanor in Georgia. A misdemeanor is defined as a crime that has a maximum punishment of 12 months in jail. If this is your first time being charged with a DUI and no one was hurt, you will be facing a misdemeanor DUI.  Additionally, even if this is your second or third DUI in a short period of time, your DUI will still be charged as a misdemeanor.

Misdemeanor Punishments

Even if you are facing a misdemeanor-level DUI, the State can stack punishment, and request a longer sentence by adding additional jail time to an underlying charge. For example, if you are charged with DUI and Failure to Maintain Lane, the Judge can sentence you up to 12 months on each charge, for a total of 24 months in custody. Additionally, misdemeanor DUIs do still appear on criminal histories and can require jail, probation, and a license suspension if you are convicted. The goal after a DUI arrest is to avoid a criminal conviction so you can avoid the harsh punishments associated with a conviction for DUI. 

When DUI is a Felony

There are situations where you will be facing a felony after a DUI arrest. A felony is defined as a crime that is punishable more than a year in jail. The first instance is when you are being charged with a fourth DUI within a 10 year period, measured from the dates of previous arrests. A fourth DUI within 10 years is a felony in Georgia, with considerable mandatory minimum jail time if convicted.

Another situation where a DUI is considered a felony in Georgia is if you were arrested for the crime of Serious Injury by Vehicle. This occurs when someone causes an accident resulting in bodily harm while Driving under the Influence. This felony is punished by imprisonment between 1 and 15 years. Bodily harm under Georgia law is defined as an injury to another person which deprives them of a member of their body, or renders part of the body useless, or seriously disfigures, or causes brain damage. There are certainly defenses to this serious crime including the causal connection as well as what constitutes a serious injury.

The final situation where a DUI is prosecuted as a felony offense is Homicide by Vehicle in the first degree, meaning you are arrested for DUI and someone actually dies in the accident. You can be charged with Homicide by Vehicle if it is your passenger who dies.  If convicted, the crime is punishable from 3-15 years. The law requires the State to prove a causal connection between the violation of the DUI statute and the victim’s death. However, under Georgia law, the person does not actually have to commit an unsafe act before facing this type of charge.

Call us today!

DUIs in Georgia require knowledgeable and skillful representation as the stakes are high. If you are facing a felony DUI, it is imperative to find a law firm with a track record of success, who are well-informed on the ever-changing aspects of DUI law in Georgia. If you or a loved one is facing a DUI, whether it be a misdemeanor or felony DUI, call us today for a free consultation at 404-581-0999. 

Child Molestation Charges: What To Do

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If you or a loved one is arrested for child molestation in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Georgia and prosecutors and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle these cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

The Steps

Here is what you should do if arrested for child molestation:

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    • Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    • Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    • Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

What NOT To Do when Charged with Child Molestation

Here is what you should never do if arrested for child molestation:

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

Call us TODAY

If you are arrested for child molestation or any sex offense in Georgia, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Prior False Allegations & Your 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.

State v. Burns Example

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 & Allegations

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.

Your Rights for a Defense

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.

Call us Today!

If you are charged with child molestation, 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 or mike@peachstatelawyer.com for a free consultation

Entering an Automobile: Theft and More

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Entering an Automobile in Georgia

Entering an automobile is a theft crime under Georgia law. It is defined as the entering of any automobile or other motor vehicle with the intent to commit a theft or felony.

Usually, people under indictment for this offense are accused of breaking into cars to steal property. The State does not have to prove they actually stole anything, just that they had the intent to steal property when entering into the car.

But it was my own car?

Interestingly enough, a person can be charged with entering into their own vehicle to commit a theft or felony. The State does not have to establish lack of authority to enter a car because the statute makes no distinction between authorized and unauthorized entry.

This means you, as a defendant, could be accused of Entering an Automobile if the State alleges you entered your own car with the intent to, say, steal the laptop your friend left in your car. Once again, the State would not have to prove you actually stole the laptop, only that you intended to commit steal it.

Remember the law defines Entering an Automobile as entering a car with the intent to commit a theft or felony. This would contemplate a scenario in which someone entering a car (either their own or someone else’s) to commit rape, murder, aggravated assault, etc.

What’s My Defense?

The law defines Entering by Automobile as a felony or a misdemeanor at the judge’s discretion. This is important because it means your attorney, in the context of a negotiated plea, can (and should) ask the judge for misdemeanor sentencing, thus allowing you to avoid felony conviction (or wasting your first offender on what could’ve been a misdemeanor).

If you or someone you know has been charged with entering an automobile contact our office today for a free consultation.

by Sarah Armstrong