Georgia Criminal Law – Mobs: Inciting a Riot and Unlawful Assembly

The State of Georgia has a legitimate interest in protecting the public and preventing disturbances of the peace. As a result, the Georgia legislature has enacted several criminal statutes to protect its citizenry. The criminal offenses include inciting a riot and unlawful assembly.

This article serves to explore the differences between these offenses and possible punishment if convicted.

Inciting a Riot

O.C.G.A. § 16-11-31 states, “the offense of inciting to riot occurs when a person who with intent to riot does an act or engages in conduct which urges, counsels, or advises others to riot, at a time and place and under circumstances which produce a clear and present danger of a riot.

To sustain a conviction for this offense, the prosecution must prove beyond a reasonable doubt that the person:

  • Engaging in conduct which urges, counsels, or advises others to riot
  • With intent to riot, and
  • At a time and place and under circumstances which produce a clear and present danger of a riot.

Punishment if Convicted

A person convicted of inciting a riot is guilty of a misdemeanor. Misdemeanors are punishable by up to one year in jail and $1,000 in fines, or both.

Unlawful Assembly

Under Georgia law O.C.G.A. §16-11-33, a person commits the crime of unlawful assembly when:

  • The assembly of two or more persons for the purpose of committing an unlawful act and the failure to withdraw from the assembly on being lawfully commanded to do so by a peace officer and before any member of the assembly has inflicted injury to the person or property of another; or
  • The assembly of two or more persons, without authority of law, for the purpose of doing violence to the person or property of one supposed by the accused to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person by violence.

Punishment if Convicted

A person convicted of unlawful assembly will be punished as a misdemeanor. Misdemeanors carry the up to one year in jail or up to $1,000 in fines, or both.

Contact Us

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

Drug Possession in Atlanta, Fulton County Georgia

The legal system in Fulton County treats drug crimes very seriously. If you have been arrested for the possession of drugs in Fulton County, you could be facing prison time.

If you have been arrested in Fulton County, the Fulton County District Attorney’s Office will prosecute the case. The Fulton County Superior Court is located at 136 Pryor Street in Atlanta, Georgia. Shortly after arrest, you will have a First Appearance hearing where the Judge will notify you of your charges and rights and then make a determination for bond. In Georgia, there are five factors Judges use to determine whether or not to release someone on bond. These are known as the Ayala factors (Ayala v. State, 262 Ga. 704 (1993)). Judges may issue a bond upon a finding of the following factors:

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

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

Schedule I

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

Schedule II

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

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Fulton County

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

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

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

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

How the State Proves Possession

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

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

Talk to an Attorney

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

Armed Robbery in Atlanta/Fulton County, Georgia

By: Mary Agramonte

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in Fulton County.

            The first thing that happens after someone is arrested for Armed Robbery in Fulton County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant., and it occurs at the Fulton County Jail at 901 Rice Street in Atlanta. At the First Appearance hearing, a Fulton County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in Fulton County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the Fulton County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed on. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the Fulton County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in Fulton County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in Fulton County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in Fulton County and throughout the State. 404-581-0999

How to Post a Cash Bond at the Fulton County Jail

If your loved one is in the Fulton County Jail with a bond posted, here is how you can post a cash bond to get them released. 

  1. Go to the jail with your UNEXPIRED license/identification card (must be over the age of 18) and the amount required on the posted bond in EXACT CHANGE. To get the exact amount with all the additional fees included, you can call the jail beforehand with the inmate’s name and date of birth. You can also check the bond amount at
  • Once the jail has verified your identity and the payment has been received, the jail will start the release process. This process can take from a couple minutes to a couple hours because the process depends on a lot of factors such as their workload and checking for any holds. 
  • As long as there are no holds on the inmate, the payment will secure the release of the inmate. 
  • The bond amount paid will not be returned to you until the entire court case for the defendant is over.

Link to the Fulton Bonding Website:

Criminal Law Attorney – Drug Trafficking in Fulton County Georgia

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Fulton County, Georgia. Why Fulton County? Fulton County is a hotbed for drug trafficking as it encompasses all of downtown Atlanta and extends as far north as Alpharetta. Because of the large geographical area and population density, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, deliver, or bring into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams of cocaine (minimum purity of 10% or more). If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

For methamphetamine and/or amphetamine, any person who sells, delivers, or brings into this state or who possesses 28 grams or more is guilty of trafficking. If the quantity is greater than 28 grams but less than 200 grams the person shall be sentenced to a mandatory minimum prison sentence of 10 years and pay a fine of $200,000. For quantities greater than 200 grams but less than 400 grams, it is a 15 year mandatory minimum prison sentence plus a $300,000 fine. If the quantity is greater than 400 grams, the mandatory minimum prison sentence is 25 years plus a $1,000,000 fine.

Although the above sentences are described as “mandatory minimum prison” sentences, there are a few limited ways in which someone convicted of trafficking may be sentenced to less prison time than what is required by the mandatory minimums:

  • If the defendant provides “substantial assistance” to the government in identifying, arresting, and/or convicting other people involved in the drug conspiracy, the prosecutor may move the court to reduce or suspend part or all of the defendant’s sentence;
  • by agreement of the parties through a “negotiated plea”; or
  • if certain mitigating factors exist (no prior felonies, no firearm used, defendant not head of conspiracy, nobody was injured as a result of criminal conduct, or if the interests of justice would not be served by imposing a mandatory minimum sentence).

Fulton County

If you have been arrested in Fulton County for drug trafficking, the first and most important step is getting a bond. Only a superior court judge may set bail on a trafficking charge. When considering whether to grant a bond the judge analyzes four factors, whether the defendant is a significant risk of:

  • Fleeing from the jurisdiction of the court
  • Posing a threat or danger to any person
  • Committing a felony while on pre-trial release
  • Intimidating witnesses

An experienced attorney may be able to get the prosecutor to consent to a bond in the case if you have ties to the community and meet the above factors. In Fulton County, bonds for trafficking range from $65,000 up to $125,000. The judge may also impose non-monetary restrictions (house arrest, no contact provisions, GPS ankle monitor, curfew, etc.). There is always the possibility, however, that a judge will deny setting a bond in the case, even if the bond was consented to. If the prosecutor will not agree to a bond, then the defendant will have to go before the judge and offer evidence of defendant’s ties to the communities (length of residence, family ties, employment status and history, history of responding to legal process – failure to appears or probation violations, lack of criminal history). The judge will normally set a “surety bond” where the defendant is only responsible for posting 10% of the overall bond amount and a bond company pays the rest (percentage varies depending on bond company).

If a bond is granted, the next step is fighting the case. Once all the evidence is gathered through the discovery process and our firm’s own independent investigation, we then communicate with the Fulton County District Attorney’s Office in an attempt to discuss a resolution. If these preliminary discussions are to no avail, we then proceed to file a “motion to suppress” illegally obtained evidence. If granted, the prosecution would not be able to proceed with the case. If denied, and the prosecutor is unwilling to dismiss or reduce the charges then we would be fully prepared to try the case before a jury.


There are several defenses available to someone charged with drug trafficking:

  • Insufficient Drug Quantity (a motion to inspect evidence could reveal the weight of the substance does not meet the quantity as required in order to charge trafficking)
  • No Possession  – Actual or Constructive (this defense asserts the defendant did not knowingly possess the substance in question, directly or indirectly)
  • Equal Access to Drugs (this defense relates to other individuals having access to the container or area in which the drugs were found, thereby raising doubt that the defendant knowingly possessed the drugs)
  • Illegally Obtained Evidence (this is the basis of a successful motion to suppress)

Contact Us

If you or someone you know has been arrested for drug trafficking, 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.

Georgia Criminal Law – Family Violence Battery in Fulton County

A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history, and the possibility of trial.   All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Fulton County. This article aims to explain the nature of the offense, punishments, and how these cases are handled within Fulton County.

The Offense

Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”

Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)


A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people.  For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.

Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program.  These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge.  In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that your attorney can negotiate all of these things.

How it Works in Fulton

The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases).  But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.

As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.

After arrest, a case file is created with the Fulton County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Fulton County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case.

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” At this point, the case is assigned to a particular prosecutor and negotiations may begin. It is possible to resolve the case in a pre-trial diversion program. Successful completion of this program (fines, classes, counseling, community service, etc.) will result in the dismissal of the charges. Eligibility is determined by (lack of a) criminal history and the facts of the case. If the case is accused and not eligible for a diversion program, the accused must begin preparing their case for a possible trial, subject to reaching some plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, Fulton County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.

Fulton County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.  Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

Contact Us

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Fulton Orders Stay-at-Home or Face Criminal Sanction

On Tuesday, March 31, 2020, Dr. S. Elizabeth Ford, district health director of the Fulton County Board of Health signed an order requiring all residents of Fulton County to stay in their residence. Individuals are “permitted to leave their places of residence only to provide or receive certain essential services or engage in certain essential activities and work for essential businesses and governmental functions.”

A violation of this order constitutes a misdemeanor offense which carries a maximum punishment of up to 12 months in jail and a $1,000 fine, or both.

According to the order, residents may leave their home for “essential activities” to ensure the health and safety of themselves, their families, or their pets. Outdoor activity like walking or running is allowed so long as social distancing is maintained (six feet apart from each other).

“Essential businesses” in Fulton County include:

  • Healthcare operations
  • Grocery stores
  • Farming, livestock, fishing
  • Businesses that provide food, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals
  • Newspapers, television, radio, and other media services
  • Gas stations, auto-supply, auto repair
  • Banks
  • Hardware stores
  • Hotels, motels, conference centers – but only to provide shelter not for gatherings
  • Plumbers, electricians, exterminators
  • Businesses providing mailing and shipping services, including post office boxes
  • Educational institutions for the purpose of facilitating distance learning
  • Laundromats, dry cleaners
  • Restaurants for drive-thru, deliver or carry-out
  • Cafeterias in hospitals, nursing homes, or similar facilities
  • Businesses that supply products for people to work from home
  • Home-based care, and residential facilities for seniors, adults or children
  • Legal or accounting services
  • Veterinary care facilities, animal shelters or animal care
  • Bike shops
  • Childcare facilities
  • Janitorial services
  • Funeral homes, crematories and cemeteries, while maintaining social distancing
  • Utility, water, sewer, gas, electrical, oil refining, roads and highways, railroad, public transportation, ride share, solid waste collection, internet services

All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes above. Nothing in the order prevents the gathering of members of a household or living unit. This order will remain in place until rescinded.

Contact Us

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

Georgia Criminal Law – Pre-Trial Intervention in Fulton County Non-Complex Cases

Since December 12, 2007, Fulton County has designated certain non-violent felony cases to be processed expeditiously through a 9-week case management process within their “non-complex division.” In the non-complex division, “cases are monitored through timely indictment, opportunity for plea and arraignment, motions and trial. This handling of the felony non-complex calendar directly impacts the jail population, reducing length of jail stay and allowing those non-violent charges quicker resolutions, while allowing Superior Court judges to focus on managing and trying violent and more serious felony cases and other complex litigation.”

Because of this desire to resolve cases quickly, the State will often offer defendants plea offers at arraignment (very first court date). Generally speaking, a person accused of a felony should not enter a guilty plea at arraignment. This is because there has been no real opportunity to investigate the case, legal issues, and defenses. It is, however, highly suggested the person consider entering into Pre-Trial Intervention (PTI) Program if offered. 

What is PTI?

PTI is a diversion program, which is essentially a contract between the person accused and the State. On one end of the contract the person agrees to perform certain conditions (usually community service, counseling, classes, a program fee, clean drug screens, etc.). If the person successfully completes these conditions within the set period of time, the State then agrees to not prosecute (or dismiss) the case.

In Fulton County Non-Complex cases, the assigned District Attorney (prosecutor) makes the decision whether to offer PTI. If offered and accepted, the case then goes to a coordinator with the PTI program and is temporarily removed from the Court’s docket. All communication and performance of the program goes through the diversion coordinator.

If offered and the person does not accept, the person has to decide whether to plead guilty or go to trial. Similarly, if you accept PTI, but for whatever reason, are removed from the PTI program, your case will be then placed back on the trial calendar. The benefit here is that removal from the program will not cause a guilty plea to go into effect. As a result, entering into PTI is a low risk high reward opportunity. A person may be removed for missing meetings, failing drug screens, or failure to communicate generally.  

Your Criminal History and What to Ask For

The benefit of PTI is that your case is dismissed upon successful completion. Ideally, your record should also automatically be restricted. A record restriction will prevent the general public from seeing the dismissed case on a background check through GCIC. A non-restricted record will show an arrest for the crime and that the crime was ultimately dismissed. Therefore, if you are offered PTI in Fulton Non-Complex, you want to ensure the prosecutor and PTI coordinator understand and agree in writing to an automatic record restriction. If this is not a written part of the PTI agreement, you will have to apply for record restriction yourself after completion of the PTI program.

Contact Us

An experienced attorney can assist you in obtaining a PTI offer, explaining the terms, and successfully completing the PTI program. If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for afree case evaluation. You’ll find a local Attorney ready to aggressively fight on your behalf.

Georgia Criminal Law – Drug Weight

In Georgia, there are many different kinds of drug charges that differ in a multitude of things such as the penalty. A misdemeanor drug charge can result in up to a $1000 fine excluding surcharges and up to one year in jail. A felony drug charge can result in 1 to 15 years, and even up to 30 years or life in prison depending on the charge and/or quantity of drugs. 

The quantity of drugs you’re charged with makes an enormous difference in the penalty and how the case proceeds. For example, you can be charged with trafficking marijuana if you possess more than 10 pounds of marijuana. If you possess somewhere between 10 pounds and 2,000 pounds, the minimum sentence is 5 years. If you possess somewhere between 2,000 pounds and 10,000 pounds, the minimum sentence is 7 years. And lastly, if you possess 10,000 pounds or more, the minimum sentence is 15 years. Therefore, the amount/weight of drugs you are found to possess is crucial to the defense of your case.

A multitude of things can work against you and your case. One very important factor can be the excess water weight found in drugs. Excess water can be found in drugs such as cannabis and can lose around two thirds of its weight when dried out. This factor can negatively impact your Georgia case because the excess water weight can push the weight from a non-trafficking amount to a trafficking amount or from a small drug trafficking charge to a higher charge. 

Another factor that can work against your case is the scale used to measure the drugs. I’ve had the opportunity to observe a scale used at the jail. A vital thing to remember is that a large portion of large scales are not correctly calibrated. This is important for your defense because you can attack the validity of the scale to work in favor of your case. Further, there can be times where the scale is not properly cleaned, leaving residue from other cases on the scale, which can potentially increase the amount of drugs you are charged with. 

Although there can be a lot of factors working against you in a simple drug charge and/or a drug trafficking charge, there are a lot of defense strategies that can reduce the sentence or even get your case dismissed. For example, we can file a motion under the authority of Williams v. State Ga. 749, 312 S.E.2d 40 (1983) to inspect and examine everything that was found and hire our own expert to examine the contents (sample of our motion down below). 

Should you have a trafficking cocaine or trafficking drugs case please inquire of your legal counsel about the weight of the marijuana or weight of the cocaine.  If you have a drug trafficking warrant or a loved one in custody on a drug trafficking charge and they are unrepresented in Fulton County, Cobb County, Dekalb County, Gwinnett County, Cherokee County, or Forsyth County please call us.

The experienced lawyers at our PeachStateLawyer firm have been winning serious and big drug cases for over twenty years. Call us today at 404-581-0999 for a free consultation to see how we can help you win your case. 

Interference with Custody – Georgia Criminal Attorney

By: Mary Agramonte

            In most divorce and child custody cases, the Judge will issue an order or decree for parents to abide by as it relates to the parenting time, visitation, and responsibilities for each parent. When one parent fails to follow the order, a family law case can quickly turn criminal. In Georgia, the crime is known as Interference with Custody and is codified at O.C.G.A. § 16–5–45. A criminal arrest and prosecution can occur when one parent keeps the child past the visitation time that was ordered in the plan.

Under O.C.G.A. § 16–5–45, a person can be charged with Interference with Custody when they knowingly or recklessly take or entice the child away from the individual who has lawful custody. In this scenario, a felony Kidnapping charge can also occur. A person commits crime of kidnapping when they steal away another person without lawful authority to do so.

            However, the more common way Georgia parents find themselves being arrested for Interference of Custody is where one parent intentionally retains possession of he child past the lawful visitation time disclosed in the order. This can even happen when the parent keeps the child an extra day past their mandated week or day of visitation.

            A third way a person can be charge with Interference with Custody occurs when he or she harbors a child who has run away. This means you can be charged under this statute even if you are not the parent. If a child runs away from home and stays at your house, you can be charged for harboring the run away and be subject to criminal penalties.

The Interference with Custody statute in Georgia applies to all children under the age of 17, or children under age of 18 if they are alleged to be a ‘dependent child or child in need of services.’

What is the punishment for Interference with Custody in Georgia?

On a first conviction, the case is treated as a misdemeanor, with the penalties to include one to five months in jail, and/or a fine between $200 and $500. On a second conviction, the case is still treated as a misdemeanor but will include a minimum three months in jail, up to 12 months, as well as a higher fine in the amount of at least $400.00. The stakes get much higher on a third conviction of Interference of Custody. In this instance, the person accused of Interfering with Custody will be charged with a Felony offense. Felonies are treated more harshly in the justice system, and Judges can sentence up to five years to serve on a third conviction.

Interstate Inference with Custody has Increased Penalties

A person commits the offense of Interstate Interference of Custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor away from the individual who has lawful custody of such minor, and in so doing brings the minor into Georgia or removes the minor  from Georgia. This can apply in child custody issues where the person keeps the child longer than the period of lawful visitation.  Interstate Interference of Custody is a felony in Georgia with a punishment, if convicted of the crime, of 1 to 5 years imprisonment.

Defenses to Interference with Custody include challenging the venue where the case is brought, meaning that jurisdiction has to be the correct county to be able to prosecute the person accused of the crime. For example, when a parent lawfully removes child from state, but unlawfully retains custody out of state, the county of custodial parent, would be venue of any criminal prosecution. Oftentimes the police get involved where the child is taken, and the defense can lie in what county brings the charges. Additionally, the substance of the child custody order or decree can offer defenses. As in all cases, each and every element of the statute has to be proven beyond a reasonable doubt in order to be convicted of any crime.

The purpose of the Georgia law criminalizing interference with custody is to protect custody interests of child’s lawful custodian from interference by another person. Child custody and divorce cases are not the only types of cases where the person can be charged under this statute. A person can be charged under this statute in child abduction scenarios, as well as situations where the child is in an unlawful physical relationship with an older person.

If you or a loved one has been charged with Interference of Custody, or have any questions about the crime in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999.