Statutory Rape in Fulton County

/in , , , , , , , , , /by

Statutory rape is defined in § 16-6-3 of the Georgia criminal code. The statute says that “a person commits statutory rape when he or she engages in sexual intercourse with any person who is under the age of 16 years and not his or her spouse”.

Many people wrongly believe that there is a defense to statutory rape if the victim is untruthful about their age and the accused believes that the victim older than 16. However, statutory rape is a strict liability offense, meaning that the belief of the accused does not matter. The only real defense is that sexual intercourse did not actually occur.

It is important to note that unsupported testimony of the victim is not enough to support a conviction for statutory rape. This means that a victim simply saying that they had sexual intercourse with the accused is not enough. There must be some other evidence proving that sexual intercourse actually occurred. This is where the defense may be found!

The punishments you could face if you are convicted of statutory rape range depending on the age of the accused and the victim. If the accused is over 21, they face 10-20 years in prison. If the victim is between 14 and 16 years old, and the accused is not yet 18 (and not more than 4 years older than the victim), a conviction would only result in a misdemeanor.

If you have been accused of statutory rape in Fulton County, it is important that you hire an attorney with experience in fighting these cases. Call the Law Office of Scott Smith today for a free consultation.

DUI Roadblocks

/in , , , , , , , , , , , , , , , , , , , /by

Believe it or not, roadblocks are not an end-all be-all scenario for impaired drivers. In fact, roadblocks must pass legal muster in order to be legally compliant.

Stopping All Vehicles: During a DUI roadblock, all vehicles passing through a checkpoint location must be stopped. This includes both cars and motorcycles.

Minimal Delay: The duration of each stop should be minimized to reduce inconvenience to motorists. Officers cannot unduly prolong the stop.

Identification of Law Enforcement: Officers must be clearly identifiable as law enforcement personnel, typically through uniforms and marked vehicles.

Reasonable Articulable Suspicion: Although DUI roadblocks involve stopping all vehicles, an officer can only detain a driver further if they have reasonable articulable suspicion that the driver is impaired or has committed another crime.

 

Defenses Against Unlawful Stops

Improper Planning or Authorization: If the roadblock was not authorized by supervisory personnel or was conducted in a manner that deviated from established guidelines, it could be challenged as unlawful.

Lack of Reasonable Suspicion: If an officer lacks reasonable suspicion to detain a driver beyond the initial stop, any evidence obtained thereafter may be suppressed.

If you’ve been charged with a DUI or other traffic offense in Georgia because of a roadblock, it’s important to know your rights. Give us a call TODAY.

Look Ma, No Hands- Georgia’s Hands-Free Law

/in , , , , , , , , , , , , , /by

Beginning July 1, 2018, Georgia implemented its Hands-Free law which aims to reduce distracted driving incidents by restricting cellphone use while driving. Drivers are prohibited from holding a cellphone or any stand-alone electronic device (iPad, etc.) with any part of their body. However, drivers are permitted to use hands-free technology like Bluetooth and earpieces for phone calls and navigation. The law does allow for exceptions like if you’re calling an emergency service.

If you’re caught using your phone or texting while driving, the first offense is a $50 fine and one point on your record. If you attend a court-approved distracted deriving program, the judge can decide to waive the fine. Additionally, many municipalities will give you a warning for a first offense. A second offense would result in a fine of $100 and two points on your record. For your third offense and every offense thereafter, you can expect a fine of $150 and three points on your record. Keep in mind that if you accumulate 15 points within 24 months on your record, your license will be suspended. These penalties can be fairly straight forward, but violating the Hands-Free law can be deemed “distracted driving.” If you are violating the Hands-Free law and cause serious injury or death of another person, you will likely be facing felony charges with enhanced fines.

If you get pulled over for using your phone while driving, do not hesitate! Give us a call NOW.

Child Cruelty in Fulton County

/in , , , , , , , /by

In Georgia, there are three types of child cruelty- 1st, 2nd, and 3rd degree.

  • 1st degree child cruelty occurs when a parent, guardian, or other person supervising a child willfully deprives a child of necessary sustenance to the point that the child’s health or well-being is jeopardized OR when a person maliciously causes a child under 18 cruel or excessive mental or physical pain. 1st degree child cruelty is a felony and, if you are found guilty, you will be punished by 5 to 20 years in prison.
  • 2nd degree child cruelty occurs when a person acts or fails to act in a way that demonstrates a willful and wanton disregard for the safety of others and that act or failure to act causes cruel or excessive mental or physical pain to a child under 18 years old. 2nd degree child cruelty is also a felony and, if you are found guilty, you will be punished by 1 to 10 years in prison.
  • 3rd degree child cruelty occurs when a person is the primary aggressor intentionally allows a child under the age of 18 to witness the commission of a forcible felony or family violence battery OR when a person knows that a child under the age of 18 is present and sees or hears the person commit a forcible felony or family violence battery. A person convicted of 3rd degree child cruelty is guilty of a misdemeanor.

As you can see, the punishment for child cruelty can be severe. It is important that you hire a lawyer experienced in defending child cruelty cases. The lawyers at W. Scott Smith will zealously defend you against child cruelty allegations. If you find yourself accused of child cruelty, call our office at 404-581-0999 today for a free consultation.

I Got Caught Speeding. Now What?

/in , , , , , , , , , , , , , , /by

If you’ve spent any time driving in Atlanta, I’m sure you’ve either witnessed another driver speeding or sped yourself. Ramifications from a speeding ticket vary based on your speed:

  • 15-18 mph over: 2 points
  • 19-23 mph: 3 points
  • 24-33 mph: 4 points
  • 34+: 6 points

In Georgia, if you accumulate 15 points in a 24 month period, your license will be suspended. If you are looking to reduce the number of points on your license, we always recommend taking a DDS-approved Defensive Driving course. A certificate of completion from one of these driving courses can reduce the number of points on your license by seven within a five year period.

The fine amount will depend on your exact speed but can range anywhere between $25-$1,000 or more. It is important to note that if you are traveling 75 mph+ on a 2-lane highway or 85+ on a 4-lane highway, you will be subject to a super speeder fine. In Georgia, this means that there is an additional $200 fine. You must pay the super speeder fine within 120 days or you will face a license suspension.

If you’re caught speeding, give our office a call IMMEDIATELY. Know your rights!

DUI Less Safe: What is It?

/in , , , , , , , , , , , , , , , , , , /by

If you’ve been pulled over for a DUI you may have seen a charge on the citation saying “DUI Less Safe.” There’s a lot of confusion about what this actually means. What people most commonly think of is “DUI Per Se” meaning that the authorities have a numerical reading of your blood alcohol content through blood, breath, or urine. If you’re over 21 years old, that means your BAC was above a .08.

On the other hand, “DUI Less Safe” essentially means that the driver is considered less safe to operate a vehicle due to alcohol or drug impairment, regardless of whether they meet the specific BAC threshold for DUI Per Se. DUI Less Safe is common in two scenarios, the first being a refusal of tests that may indicate impairment due to a BAC reading. If a police officer sees certain driving and/or physical manifestations that could indicate alcohol impairment and the driver refuses to perform any sobriety tests, they will usually issue a citation with DUI Less Safe because they do not have the BAC reading to issue DUI Per Se. The second scenario when DUI Less Safe is used is when your blood, breath, or urine shows that there is alcohol in your system, but the BAC is less than .08. Although it may seem strange to receive a DUI when your BAC is under the legal threshold for DUI Per Se, it does happen because the officer has deemed the driver “less safe” to operate a vehicle due to impairment.

If you or a loved one has gotten pulled over for a DUI in Georgia don’t hesitate! Call our office TODAY.

Child Hearsay in Georgia

/in , , , , , , , , , /by

If you are charged with child molestation, cruelty to children, or any crime, in Georgia, where a child is the alleged victim, the State will fie a Motion to Admit Child Hearsay testimony.

This is pursuant to O.C.G.A. 24-8-820. This status is the Georgia Child Hearsay Statute.

O.C.G.A. 24-8-820 reads as follows:

(a) A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at trial, unless the adverse party forfeits or waives such child’s testimony as provide in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

All that is required is:

  1. Notice to the defendant of the State’s intention to use such statements.
  2. The child testifying at trial, unless the defendant waives it.
  3. The person to whom the statements were made is subject to cross-examination.

You will need to be prepared to challenge the credibility and the underlying facts of any witness who takes the stand against you and claims that the child made statements to them about the sexual contact or physical abuse. Do not waive the child’s presence at trial. Make the child testify.

In cases of child molestation, there is rarely physical evidence. The entire case comes down to credibility. It is the defendant’s credibility vs. the child’s and the child’s witness’s credibility. Do not forfeit the right to a thorough cross-examination of the child and their witnesses.

These child hearsay witnesses can include testimony of physicians, investigators, parents, other family members, forensic interviewers and any other person who spoke to the child about the allegations.

You must be prepared to challenge each of these statements.

Child Molestation and Cruelty to Children carry severe penalties in Georgia. Do not make statements to the police about the allegations. You must hire a qualified attorney and be prepared to vigorously fight your case at trial.

Please call us at 404-581-0999 if you are charged with any crime involving a child in Georgia.

Help! I Failed to Appear in Fulton State Traffic Court!

/in , , , , /by

If you miss court for a traffic ticket in Fulton State Court,  you are likely in FTA status. This means that you failed to appear for your court date, and it is probable that your driver’s license has been suspended. The tricky thing about FTAs is that you likely don’t even know that you missed court until you are pulled over and an officer tells you that your license is suspended.

The court will not lift your FTA suspension until you deal with the underlying traffic charge. This could mean just paying a fine, but it may also require an in court appearance. An experienced lawyer can help you navigate the process quickly and effectively and get you on the road to reinstating your license.

The lawyers at W. Scott Smith are experienced at helping clients resolve FTAs and guiding clients in the best way to resolve the underlying traffic charge. Call us today at 404-581-0999 for a free consultation on how to move forward, resolve the FTA, and have your driver’s license reinstated.

First Offender Probation Revocation

/in , , , , , , , , , , , /by

If you are alleged to have violated your first offender probation, it is extremely important to have a knowledgeable attorney with you. The consequences can be severe. The judge has the right to bring you back, adjudicate you guilty and resentence you to the maximum punishment with credit for the time you were on probation.

Adjudicating you guilty means that it turns into a real conviction and it will no longer be taken off your record when you complete your sentence.  To give you an example, let’s say your sentence is 5 years, the max for the offense is 10 years and you violate your probation after 2 years. The judge can increase your sentence from 5 years to 10 years, but you would get credit for the 2 years. That would leave you with 8 years left and you would be a convicted felon.

It is important to remember that just because you violate your probation the judge will automatically do that. It really comes down to what the violation is. If it is a technical violation, i.e. not paying the probation fees, failure to report, it is unlikely that a judge will revoke your fist offender status and resentence. However, if you pick up new charges or violate a special condition, the chances are higher that your first offender status is in danger.

If you are alleged to have violated your first offender probation, give us a call for a free consultation.

Georgia’s Weed Laws: What’s Legal and What’s Not

/in , , , , , , , , , , , , , , , , , /by

 

In the recent past, marijuana laws have begun to enter a grey area in regards to legality. While it is still illegal Federally, many states have either relaxed or completely legalized marijuana use. Here is where Georgia stands:

  1. Medical Marijuana: Georgia’s stance on medical marijuana use is limited. Qualified patients with specific conditions like those suffering from severe seizures, certain forms of cancer, and terminal illness may possess cannabis oil with no more than 5% THC (the psychoactive ingredient in marijuana) if they have a valid registration card.
  2. Recreational Use: Recreational marijuana is still illegal in the state of Georgia.
  3. Cultivation and Distribution: cultivation, sale, and distribution of marijuana is all illegal for not only recreational purposes but also for medical purposes.
  4. CBD Products: CBD derived from hemp is actually legal at the federal level, and CBD products with very low THC content (less than 0.3%) are legal.
  5. Delta 8, etc: Delta-8 and Delta-9 are popular cannabinoids that do not contain THC, although many users report quasi-high effects similar to marijuana. As of now, these cannabinoids and their derivatives are legal under Georgia law.
  6. Penalties: Penalties for possession of marijuana vary based on the amount in possession as well as whether it is a first offense. Marijuana more than an ounce is considered a felony, whereas anything less than an ounce is a misdemeanor. Because of the variance, penalties can range from a simple citation to jail time and hefty fines.

If you’ve been arrested or cited for possession of marijuana, give our office a call TODAY.