HGN and Head Trauma

If you have been pulled over in Georgia on suspicion of DUI, the investigating officer will probably ask you to perform a battery of standardized field sobriety tests. This request may take the form of any number of questions, such as “can we just check to see if you are safe to drive?” or “we want to perform some tests before we let you on your way, is that alright?”. These tests are not required, and declining to perform these tests cannot be used against you in a prosecution of DUI. For this reason, it is better to decline to perform any tests, no matter how much reassurance the police officer gives you that they are “just to make sure you are safe on the roads.”

Still, many people opt to perform the tests, either because they don’t see the harm, they wish to be congenial with the officer, or because they don’t know that they can decline to perform the tests. If you choose to perform the tests, the officer may ask you if he can “take a look at your eyes.” This is an indication that he is about to perform the first of three standardized field sobriety tests, the horizontal gaze nystagmus.

This test is considered to be a “scientific” test, and because of this, it is important that the officer comply with his training as exactly as possible. The test must begin with a number of questions designed to medically qualify the participant. The officer is trained that he must ask you whether or not you have recently had any head, neck, or brain injuries, as these kinds of trauma can affect whether someone exhibits nystagmus, even if not under the influence of alcohol. It is common practice to ask whether or not the subject has “any eye problems” or vision issues, but this is not enough. The officer must also determine that it is appropriate to use this test. If the subject has been in a recent accident, suffering from whiplash, a concussion, vertigo, or some other balance and coordination related condition, the HGN test may not be accurate or reliable.

If you have been in an accident at the time of your DUI investigation, the officer may have overlooked potential head trauma before administering this test. As a result, the “clues” of the test may be unreliable, and could be subject to suppression before trial.

It is important to understand your rights and protections when you are charged with DUI. If you want an attorney that is knowledgeable about DUI police training and procedure, call our office for a free consultation at 404-581-0999. Written by Attorney Katherine A. Edmonds.

Public Indecency in Fulton County

Public Indecency is a serious crime in Georgia. It is imperative that you retain a qualified attorney immediately if you have been charged with public indecency.

O.C.G.A. § 16-6-8(a) defines public indecency as follows:

A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

  1. An act of sexual intercourse
  2. A lewd exposure of the sexual organs
  3. A lewd exposure in a state of partial or complete nudity; or
  4. A lewd caress or indecent fondling of the body of another person.

A public place means any place where the conduct involved may be reasonably be expected to be viewed by people other than members of the accused’s family or household.

Under O.C.G.A. 16-1-3(15), a public place is any place where the conduct involved may reasonably be expected to be viewed by someone other than immediately family members. In fact, the residence of the accused may be considered a public place if the person performs the lewd act in front of a window or someplace where he intends the public to see it.

Lewd has been defined as any gross indecency so notorious as to tend to corrupt community morals. The act is one in which it represents a moving away from some form of community morality norms towards amorality, immorality or obscenity which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination. The statute does not require that some person be embarrassed, offended or otherwise outraged by the lewd act.

The intent of the accused is relevant in a prosecution for public indecency.

The offense of public indecency is not a crime against the person. The person viewing the lewd act is a witness and not a victim of the crime.

The United States Supreme Court has held that the First Amendment’s guarantee of freedom of expression does not prevent the State of Georgia from enforcing its public indecency laws.

The punishment for public indecency is up to 1 year in prison. If it is a 3rd or subsequent violation, then the punishment is 1 to 5 years imprisonment. Also, the accused may be required to register as a sex offender under O.C.G.A. §42-1-12.

It is imperative that you do not talk to the police if you are accused of public indecency. Only speak to a qualified attorney so that you can properly defend yourself.

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.

Prostitution, Pimping and Pandering in Fulton County

Prostitution is when a person performs or offers or consents to perform a sexual act for money or other items of value. O.C.G.A. §16-6-9.

The statute is not about sexual activity per se but is solely concerned with commercial transactions involving sexual activity. The harm is done to society and not to the individual. Therefore, the State is not required to name the person solicited for prostitution.

Both males and females are prohibited from selling sexual acts. Prostitution is only concerned with the seller. The buyer’s activities are not prostitution.

Prostitution is a misdemeanor and is punished up to 1 year imprisonment. In addition, a person may be fined up to $ 2,500 for prostitution if the offense was committed within 1,000 feet of any school building, school grounds, public place of worship, or playground or recreation center which is primarily used of people under the age of 17.

Pimping is when a person performs any of the following acts:

  1. Offers or agrees to procure a prostitute for another;
  2. Offers or agrees to arrange a meeting of persons for the purposes of prostitution
  3. Directs or transports another person to a place when he or she knows or should know that the direction or transportation is for the purpose of prostitution;
  4. Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or
  5. Aids or abets, counsels, or commands another in the commission of prostitution or aids of assists in prostitutions where the proceeds or profits derived therefrom are to be divided on a pro rata basis.

An indictment for pimping does not need to name the prostitute or the person solicited because the focus is on the harm done to society.

Pimping in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pimping involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

Pandering in Fulton County is when a person solicits another person to perform an act of prostitution in his or her own behalf of on behalf of a third person or when he or she knowingly assembles persons at a fixed place for the purpose of being solicited by others to perform an act of prostitution.

Pandering in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pandering involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

The Fulton County clerk of court must cause to be published a notice of conviction for that person in the legal organ of the county in which the person resides or, if a nonresident, in the legal organ of the county in which the person was convicted of pandering.

It is imperative that you do not talk to the police if you are accused of prostitution, pimping or pandering in Fulton County. Only speak to a qualified attorney so that you can properly defend yourself.

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.

Statutory Rape

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

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

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

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

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

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

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

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

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

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

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

Using Cell Phone Data in Defense of Murder in Fulton, Dekalb, and Clayton Counties

Cell phone data is becoming more and more popular as a tool that the State uses to try to place a defendant at the scene of a murder in Fulton, Dekalb, and Clayton Counties. The State often applies for, and is given, a search warrant for a suspect’s cell phone and performs a data dump of the phone to acquire all of the location data associated with calls and text messages around a given time. Fortunately, it is also a valuable tool that defense attorneys can use to prove that a defendant was not at the scene of a murder.

Utilizing cell phone data efficiently requires a basic understanding of how location data works. Each time a call or text message is sent or received, the phone pings off the nearest tower. Each tower is then divided into 3 sectors, or azimuths, comprising 120 degrees. Each azimuth then projects a “cone”, and the cone determines which direction the phone is (or is not) located. Thus, although the State will try to convince a jury that they can pinpoint the exact location of a defendant’s call phone, they can only show that the phone was located within one of the 120-degree cones and not at a specific location.

Cell phone data is more appropriately used by a defense attorney to prove that a defendant’s cell phone was not located at or near the scene of a murder. For example, if a murder occurred in the 120-degree cone of a certain cell tower pointing northwest, but the defendant’s cell phone is pinging off the cone pointing southeast from the same tower, the defendant’s phone may be excluded from being near the scene of the murder (if there were call or text messages being sent or received at or near the time of the murder).

The State will likely call an expert witness to present the cell phone data and try to place a defendant at the scene of a murder or other serious crime. Having an attorney that is familiar with how cell phone data works is important because they can cross-examine the witness and show why their analysis is incorrect. The defense attorney may then call an expert of their own to teach the jury about how to use cell phone data to show that the defendant’s cell phone was, in fact, not present at the scene.

The attorneys at W. Scott Smith have a proven track record of using cell phone data to exonerate their clients. If you are charged with a serious crime in Fulton, Dekalb, or Clayton Counties and feel that your cell phone data would show that you were not near the scene of the crime, call our office at 404-581-0999 for a free consultation.

Aggravated Assault in Fulton County

In Fulton County, Georgia, there are two types of assault offenses that an accused person may be convicted of, they are simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in Fulton County, in one of the above-mentioned manners, the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the incident:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits such an assault against the elderly may be sentenced to at least 3 years, but no more than 20 years in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If such an assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years in prison; AND
  • Lastly, any person who commits such an assault with the intent to rape a child under the age of 14 years old, may be punished by a prison sentence of anywhere between 25-50 years.

 CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated assault in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Statements to the Police While in Custody

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.

 

Sodomy

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

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

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

No corroboration is required in a sodomy case.

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

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

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

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

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

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

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

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

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

Fulton County – Aggravated Assault by Strangulation

We see it happening more and more often in Fulton 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 Fulton 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 Fulton County Superior Court, by attorneys who prosecute more serious 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 Fulton 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 Fulton County, you will be prosecuted by the Fulton County District Attorney’s office in Fulton 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 case at 404-581-0999

Enticing A Child for Indecent Purposes

Enticing a child for indecent purposes is a serious crime in the State of Georgia. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The State must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

Do not wait until the State actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these 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.

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.