Know Your Rights: What Police Can and Can’t Do in Searching an Automobile

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Oftentimes, we get clients who have been pulled over by the police and ask to search their car. It’s important to know your rights and circumstances in which police can or cannot search your car.

  1. Probable Cause: Generally, police officers need probable cause to conduct a search of a vehicle without a warrant. Probable cause means that there is enough evidence to reasonably believe that a crime has been committed or that evidence of a crime can be found in the vehicle.
  2. Consent: If a police officer asks for consent to search a vehicle and the individual gives consent voluntarily, the officer can conduct the search without needing probable cause or a warrant. It’s important to note that you can not only refuse consent to the search, but you can also tell the officer which area(s) of the vehicle can and cannot be searched.
  3. Search Incident to Arrest: If a person is lawfully arrested, the police may search the area within the arrestee’s immediate control. In the case of a vehicle stop, this may include the passenger compartment of the vehicle, but not the trunk.
  4. Plain View: If a police officer sees evidence in the vehicle and it is immediately apparent that the evidence is something illegal, like narcotics, police can search and seize the evidence.
  5. Inventory Searches: If a vehicle is lawfully impounded, the police may conduct an inventory search of the vehicle’s contents.

If you’re pulled over call us immediately. Know your rights!

Theft by Deception in Fulton County

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Theft by deception is a charge that is defined in O.C.G.A. 16-8-3. Theft by deception occurs when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property”. The statute goes on to explain that a person deceives if he intentionally:

  • Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false
  • Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed
  • Prevents another from acquiring information pertinent to the disposition of the property involved
  • Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record
  • Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this statute.

The potential punishment following a conviction for theft by deception depends on the value of the property that was the subject of the theft. If the value of the property was more than $24,999.99, the possible punishment is 2 to 20 years in prison. If the value of the property is $5,000.00 to $24,999.99, the possible punishment is 1 to 10 years in prison. If the value of the property was $1,500.01 to $5,000.00, the possible punishment is 1 to 5 years in prison. If a person is convicted of a third offense of theft by deception, an individual is automatically convicted of a felony and may face 1 to 5 years in custody.

As you can see, the potential punishment for theft by deception is serious. However, there are defenses!  For example, if the state cannot prove that there was intent to deceive another person, an individual cannot be convicted of theft by deception. If you are charged with theft by deception in Fulton County, it is very important that you are represented by a lawyer experienced in handling cases like these. The lawyers at W. Scott Smith work tirelessly to zealously defend their clients. Call our office today at 404-581-0999 for a free consultation.

Failure to Maintain Lane: A Cop’s Most Used Weapon in DUI’s

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In the State of Georgia, police officers can use the offense of “failure to maintain lane” as a tool to initiate a traffic stop and potentially investigate a driver for suspicion of driving under the influence (DUI). This offense occurs when a driver fails to stay within their lane while driving on the road.

When a police officer observes a vehicle crossing lane lines, or exhibiting other signs of erratic driving that may indicate impairment, they can use this as reasonable suspicion to pull the driver over. O.C.G.A. § 40-6-48 states that “a vehicle shall be driven as nearly as practicable entirely within a single lane.” It prohibits drivers from leaving their lane until they have determined that a lane change can be made safely. NOTE: weaving within your lane is NOT a failure to maintain lane- the vehicle must cross or touch lane lines. Once the vehicle is stopped, the officer may then proceed with further investigation, which could include administering field sobriety tests or breathalyzer tests to determine if the driver is under the influence of alcohol or drugs.

It’s important to note that while failure to maintain lane can be a legitimate reason for a traffic stop, officers must still follow proper procedures and have reasonable suspicion of DUI to detain and arrest a driver. This means they must observe additional signs of impairment beyond just the lane deviation. It is usually accompanied by “bloodshot eyes”, or “odor of alcohol.” If you get pulled over for a DUI, call us immediately.

 

Theft by Receiving Stolen Property in Fulton County

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A person commits the offense of theft by receiving stolen property when s/he receives, disposes of, or retains stolen property which s/he knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.  OCGA § 16-8-7. Guns and cars are the most common property associated with theft by receiving stolen property charges.

In order to sustain a conviction for theft by receiving the state is required to prove beyond a reasonable doubt that the accused KNEW the property was stolen. That knowledge can be inferred (i.e. should have known) by circumstances that would be suspicious to an ordinary prudent person. For example, if you buy a brand-new Mercedes G Wagon for $5,000 and it turns out to be stolen, a jury is authorized to believe you knew it was stolen. It would be unreasonable to the average person that a brand-new car that normally costs upwards of $200,000 would be sold for $5,000. Now if we are talking about a Nissan Ultima, that $5,000 price cannot show knowledge that it was stolen because the price is reasonable. Certain damage to a vehicle, like a broken steering column or the locks being punched out, can also imply the necessary knowledge. It is much more difficult for the state to prove knowledge of a stolen gun. The Georgia appellate courts have found that purchasing a gun on the street at a reduced price or the gun being labeled “for law enforcement use” is not enough but it can be shown if the serial number has been filed off.

If you or a loved one has been charged with theft by receiving stolen property, give us a call for a free consultation.

What Does It Mean If I Have Been Charged With “DUI Less Safe”?

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It is commonly known that driving with a BAC above 0.08 is considered driving under the influence in Georgia. But, the police may still charge you with DUI if your BAC is below 0.08 if they feel that you are less safe to drive than you would have been if you had not consumed alcohol.

O.C.G.A. § 40-6-391 (a)(1) states that “a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive”. This simply means that you may still be charged, and convicted of, DUI even if your BAC registers at a level below 0.08.

If you have been charged with DUI less safe, it is important that you hire an experienced DUI attorney to fight to protect your driver’s license and to prevent the long-term consequences that come with a DUI conviction. The lawyers at W. Scott Smith are experienced with the nuances associated with a DUI case and will work to protect you and resolve your case with the best possible outcome. Call our office at 404-581-0999 for a free consultation.

Child Molestation in Fulton County

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Fulton County or the City of Atlanta 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 Fulton County Crimes Against Women and Children Unit 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 12pm calendar the following morning for First Appearance. At this hearing, the Fulton 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 Fulton County Courthouse. It is crucial to get an attorney retained to be at the First Appearance hearing at the Fulton 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 Fulton County or the City of Atlanta, 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 Fulton County.

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.

Pre-trial Diversion: What Is It?

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Pre-trial diversion programs aim to provide individuals with an opportunity to address underlying issues that may have contributed to their involvement in a certain crime. It’s essentially an alternative pathway that allows for charges to be dismissed upon the completion of the program.

 

  • Eligibility: Not everyone is eligible. Pre-trial diversion programs are reserved for people in more minor offense crimes without an extensive criminal history.
  • Participation: If accepted, clients agree to participate in activities that include community service, drug and/or alcohol counseling, and educational programs like anger management classes or victim impact panels.
  • Supervision: Generally, participants are supervised by a case manager. If you are enrolled in a pre-trial diversion program, it is important to keep your case manager updated on any classes you’ve completed, or community service hours completed.
  • Consequences of failure: failure to comply with the program or committing another offense can result in reinstatement of the criminal charge and further prosecution.
  • Benefits: the main benefit of pre-trial diversion is to avoid criminal conviction. If you complete the program, your case and all the charges associated with the case are generally dismissed by the court. The program also provides an opportunity to rehabilitate behavior that could lead to further criminal convictions related to the original, underlying crime.

 

In general, pre-trial diversion programs offer a viable and attractive option for individuals who do not want a case to go to trial but want the charges dismissed by the court.

HGN: A scientifically reliable indicator?

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Horizontal gaze nystagmus (HGN) is a condition where the eyes involuntarily jerk or twitch as they move laterally, typically observed when an individual’s gaze is directed to the side. During a DUI stop, an officer may conduct the HGN test by moving an object (such as a pen or finger) horizontally across the person’s field of vision while observing the eyes for any signs of nystagmus.

While HGN can indicate impairment, its reliability as a sole indicator is questioned for several reasons:

  1. **Subjectivity**: Interpretation of nystagmus can vary between officers, leading to inconsistent results. Factors such as lighting conditions, the officer’s experience, and the subject’s eye characteristics can influence the observations.
  2. **False Positives**: Nystagmus can be influenced by various factors other than alcohol or drug consumption, such as fatigue, certain medical conditions, prescription medications, or even environmental stimuli like flashing lights.
  3. **Lack of Specificity**: HGN is not specific to alcohol impairment and cannot distinguish between alcohol and drug impairment. Different substances affect the body differently, and HGN alone cannot pinpoint the specific substance causing impairment.

Therefore, while HGN can be a useful tool in conjunction with other field sobriety tests and evidence, its limitations make it unreliable as a standalone indicator of impairment in DUI cases.

Behavioral Incentive Dates

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In Georgia, a person who is convicted of a felony for the first time and sentenced to straight probation, or less than 12 months imprisonment followed by probation, is entitled to receive a Behavioral Incentive Date (also known as a BID). A BID is a date that the court sets for the probation to end early, provided that the individual has successfully completed their probation and not violated any terms of their probation.

When a person is convicted of a felony for the first time or is charged with a felony and enters a plea under the First Offender Act or conditional discharge, Georgia law says that the judge must include a BID that is no more than 3 years from the date that the sentence is imposed. (O.C.G.A. § 17-10-1 (a)(1)(B)(i)). A brand-new Georgia Court of Appeals case clarifies that even when a person is convicted of their first felony and chooses not to use their First Offender, the judge must include a BID. (Smalley v. State).

What does this mean for a person facing felony charges?  This means that if you are facing felony charges and sentenced to probation, the court MUST include a BID and that BID may not be more than 3 years from the date you are sentenced. So, for example, if you are sentenced to 10 years probation for your first ever felony, the judge must include a BID date and, if you successfully complete the terms of your probation and don’t have any probation violations, your probation will end on that BID.

It is important to have an attorney who understands things like Behavioral Incentive Dates when they are negotiating with prosecutors. The lawyers at W. Scott Smith are experienced at fighting to protect their clients and ensure that clients receive the best possible outcome for their case. If you are charged with a felony in Dekalb, Fulton, Gwinnett, Clayton, Rockdale, Henry, Cobb, or Cherokee County, call the Law Office of Scott Smith today for a free consultation and to find out how you can leverage the law regarding Behavioral Incentive Dates to your advantage.

I’m being charged as an accomplice but I didn’t do anything

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Georgia law allows someone who did not directly commit a crime to be charged with the substantive offense. Most states call it being an accomplice, Georgia calls it party to a crime. However, merely being present when a crime is being committed is not enough to sustain a conviction.  To convict someone as a party to a crime, the state must prove beyond a reasonable doubt that the person 1) intentionally causes another person to commit a crime under circumstances where that person would not be guilty in fact or because of legal incapacity; 2) Intentionally aids or abets in the commission of a crime; or 3) intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

All of that means that you actually have to do something to assist with the crime. For example, if you take a friend to the bank and while they are inside, they rob the bank. After the robbery, they get back into your car and tell you they robbed the bank. If you drive them away from the scene, you can be charged and convicted of the robbery even though you never stepped foot in the bank.

If you have been charged as a party to a crime, you need an experienced criminal defense attorney to fight for you. Give us a call at 404-581-0999 for a free case consultation.