Georgia Criminal Law – Drug Weight

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

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

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

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.

Georgia DUI Law: Calendar Call

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

There are several court dates in the life of a DUI case. The first court date is arraignment. This is where the court formally notifies the defendant of the charges and asks the defendant whether they plead guilty or not guilty. After arraignment, the case is then scheduled for a “calendar call,” court date.

What is Calendar Call?

The purpose of calendar call is for the parties to appear in court and “announce” to the judge the status of the case. This way, the judge will know whether the case is going to be a trial, a plea, or if the case needs to be continued due to an outstanding issue (missing evidence, witness unavailability, accountability court applications, scheduling conflicts, etc.). Calendar calls promote judicial efficiency.

Who Must Appear?                                                             

Unrepresented defendants must appear at calendar call. Failure to appear will cause a bench warrant to be issued for your arrest and forfeiture of your bond. At calendar call, an unrepresented defendant who does not desire to hire an attorney may announce “pre-trial” at calendar call. This announcement signals to the judge that the defendant wishes to have a brief conversation with the prosecuting attorney about the case in an effort to reach a resolution. In this “pre-trial” conference, the defendant should ask the State what their offer is on the case. If acceptable, then accept. If the offer is unacceptable, or confusing, or seems fishy, the defendant should hire a lawyer. It is important to remember any statements the unrepresented defendant makes to the prosecutor can be used against the defendant at trial.

Represented defendants may have to appear at calendar call, depending on the judge. Most judges will allow the attorney to appear and make an announcement on the defendant’s behalf. Therefore, it is critically important attorneys know the judge’s preferences in advance of court as to avoid a possible bench warrant. If a judge is particular about represented defendants appearing in court, the attorney may still be able to excuse the defendant by filing a “waiver of presence,” with the court. This is simply a notarized document signed by defendant stating they waive the right to be present. Furthermore, some judges will allow attorneys to make their calendar call announcements via email in advance of court. This saves the attorney and possibly the defendant a trip to court.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Georgia DUI Law – What a Georgia DUI Costs

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

In 2018, there were 21,784 DUI convictions in Georgia. A DUI arrest and conviction has serious consequences. Among those consequences, you can expect to pay a significant amount of money in defending the case. This article serves to provide a general idea of what it costs to be arrested and convicted of DUI.

  1. Bail/Bond: $150 – $2,500. Cost of bail in a DUI arrest depends on a variety of factors including but not limited to prior criminal history, case facts, and ties to the community.
  2. Towing: $50 – $200. The cost of towing and impounding a car can increase daily.
  3. Insurance Increase: $4,500 or more. Depending on your insurance carrier and driving history, your rates could double, triple or even quadruple over a period of three to five years.
  4. Legal Fees: $2,000- $25,000.
  5. Fines: $300 – $5000. These base fines vary depending on the nature of your offense and any prior DUI’s. These base fines do not include statutory court costs which can increase the base fine by 50% or more. 
  6. Alcohol Evaluation: $95 – $300. The law requires completion of an alcohol and drug evaluation and treatment if recommended by the evaluator.
  7. Classes: $500 – $4,000. As part of a DUI conviction you will be required to complete a Risk Reduction class (also referred to as “DUI School”). This class costs $350. You are also required to complete a Victim Impact Panel which costs roughly $100.
  8. License reinstatement fees: $210 – $410. License reinstatement generally costs $210. However, depending on your history, you could be required to install an ignition interlock device on your vehicle in order to reinstate your license. You would have to pay for the installation of the device plus daily maintenance costs.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

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

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

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

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

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

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

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

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

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

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

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

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

Fulton County Rice Street Jail Bond – What You Need to Know

/in , , , /by

If you have been arrested in Fulton County by one of the county’s municipalities you may be transported to the Fulton County jail for a bond hearing.  These municipalities include the following: Alpharetta, Atlanta, Chattahoochee Hills, College Park, East point, Fairburn, Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell, Sandy Springs, South Fulton, and Union City. This is a brief informational to explain what to expect.

First Thing to Know

To be on the calendar for bond consideration the day after your arrest you must finished being booked into the Fulton County Jail no later than 2 a.m.  So, for clients turning themselves in we recommend you turn yourself in directly to the jail no later than 6 pm in order to make the calendar the following day.  The court runs six days a week; no court on Sunday.

If you are charged with a misdemeanor you will have court at 9:00 a.m.

If you are charged with a felony you will have court at 11:00 a.m.

Visitor Rules

The Court does allow for visitors.  However, there are certain rules to abide by.  You are not allowed to bring electronics into the jail, including cell phones.  No smart watches are allowed either.  The Fulton County jail does not permit you to wear open toed shoes or bring in a purse or handbag, so leave it in your car.  You must bring with you a valid Georgia ID, and note that the jail will sometimes run your criminal record for warrants while going to first appearance.  If you are a victim in the criminal case the judge will acknowledge your presence.

Will I get a bond?

Factors the judge will consider in whether to grant a bond include:  

(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.

The trial court must explain its reasons for denying bond to assist appellate review. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion.

How Much Will It Cost?

When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused’s ability to pay, the seriousness of the offense, and the accused’s character and reputation.

If a lawyer is at your bond hearing, your chances of getting a bond are significantly increased. That’s why, when you or a loved one is in custody at Fulton county jail, contact a lawyer as soon as possible. Don’t miss your chance at bonding out.

Call us at (404) 581-0999 to speak with our experienced defense lawyers and get a lawyer at a bond hearing as early as today.

Prior False Allegations & Your Case

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

You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

State v. Burns Example

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute & Allegations

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

Your Rights for a Defense

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

Call us Today!

If you are charged with child molestation, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court. If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999 or mike@peachstatelawyer.com for a free consultation

Violation of Georgia Gang Act

/in , , , , , /by

Are you or is someone you love facing gang related charges in the State of Georgia?  If so, it’s important to know the law and how you will be prosecuted. A good starting place is simply to read what the State must prove in order to charge you with these crimes.

What is the Law?

To prove you violated the Georgia Street Gang Act the State is required to show four things:

  1. The State must prove the existence of a criminal gang.  Georgia defines “criminal street gang” as “any organization, association, or group of three or more persons that engages in criminal gang activity.” “Criminal gang activity” includes the commission or attempted commission of certain offenses, including any crime“that involves violence, possession of a weapon, or use of a weapon;”
  2. you were, in fact, a member of the“criminal gang;”
  3. you committed a predicate act of“criminal gang activity,” examples of a predicate act include Murder, armed robbery, robbery, aggravated assault, aggravated battery, battery, and simple battery, Georgia law makes it unlawful to participate in criminal gang activity through the commission of any of the following offenses: racketeering,stalking, rape, aggravated sodomy, possessing or distributing dangerous instrumentalities such as knives and guns, posting gang-related graffiti, or committing any criminal offense involving violence or the possession or use of a weapon, among other things;
  4. the commission of the predicate act was intended to further the interests of the “criminal gang.” Simply being a gang member and committing the offense is not enough.

Assuming you are guilty beyond a reasonable doubt of the predicate act, the battle lines are twofold.  One, that you are a member of the gang that engages in criminal activity. Two, that the act was to further the interests of the criminal gang. 

What’s My Defense?

In my experience, the second battle line is where we generally focus the majority of our efforts. Most of the evidence presented by the state that your conduct is furthering the interests of the gang comes from expert testimony – law enforcement mainly regurgitate what they are told from their training and unreliable statements of former arrestees.

 The defense is at a disadvantage to combat the state’s expert.  First, the defense needs to hire their own expert to combat what is said, but defense experts on gang activity are often scarce and expensive. Secondly, it is near impossible to get a current or former gang member to come to court to testify as to what the interest of the gang may be.  I cannot imagine a situation where a current gang member is going to testify in open court as to his experience. 

Call Us Today

This being said, we have a team of attorneys that are fully prepared to handle your case, and have done so Atlanta and surrounding counties. If you find that you are being prosecuted for gang activity, please call our office at 404-581-0999 for your free consultation.

by Scott Smith 

Georgia Court Dates

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

Months ago, you had one of your worst days ever: you were arrested. The time it took to bond out seemed like an eternity. But you’re finally out of jail, and you swear you’ll never be back. Weeks pass, and it all seems like a bad dream. Until one day you check your mail and find a letter from a superior, state or municipal court. The letter is about your arrest. It says you have to be in court on specific days for arraignment, motions, and calendar call. The letter also says if you don’t appear as instructed, you may be issued a bench warrant. But what do these terms mean?

Arraignments

Then and Now

Let’s start with arraignment. Arraignment is a word from British common law adapted into the U.S. Criminal Justice System. Literacy was at an all-time low during the olden days of England. Arraignment was created by their judicial system to tell illiterate defendants their pending charges. Prosecutors would do this by reading defendants’ charges to them in open court, since they couldn’t read the law themselves. Defendants would then be given the opportunity to enter a plea of guilty or not guilty.

Similarly, modern arraignment is the court date at which defendants enter a plea of guilty or not guilty. Should you choose Peachstate Lawyer as your legal representation, we will file the appropriate paperwork to ensure you do not have to be in court for arraignment. That paperwork is called a “waiver” of formal arraignment. The waiver we file enables you to enter a plea of not guilty without having to go in front of a judge. The waiver also preserves your attorney’s right to file motions in your case and receive discovery (i.e. evidence) from the state about your case.

Motions

That brings us to the next most important court date in your case: motions. Depending on the county, you may or may not have to be in court for motions. But rest assured that Peachstate Lawyer will file appropriate motions in your case. Motions are important pre-trial steps to contest the state’s evidence against you. Sometimes motions can get a case thrown out all-together. So, it is very important that you have legal defense, like us, who know which motions to file, and ultimately argue, on your behalf.

Calendar Call

Finally, the last court date referenced in the judicial notice you received is for calendar call. My rule of thumb is to instruct all of my clients to be present at calendar call. Most counties in Georgia issue bench warrants for those who do not appear as instructed. And while that is something our firm can take care of, it is in your best interest to avoid having a bench warrant issued for you. (After all, you swore you’d never go back to jail after bonding out months ago.)

Calendar Call is the date at which your attorney tells the Judge how you plan to resolve your case. Even though you initially entered a plea of not guilty, you may decide to resolve you case by guilty plea if don’t want to have a jury trial & your attorney secured a plea offer that you want to accept. Alternatively, your attorney may also announce ready for trial and your case will be added to the Judge’s next trial calendar.

If you’ve received judicial notice in the mail and do not know what to do next, contact our office today for a free consultation.

by Sarah Armstrong

Atlanta DUI Lawyer

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

by Mary Agramonte

If you or a loved one has been charged with an Atlanta DUI, picking the right criminal defense attorney can be challenging. You need to look to the credentials, success rate, and reputation of the attorney in the field. Even if you believe you are guilty of the DUI, it is still important to contact an attorney experienced in complex area of DUI law as having a knowledgeable DUI attorney can be the difference in saving and losing your driver’s license. There are some DUIs that if you plead guilty, your license is suspended without a limited permit. The license repercussions of a DUI conviction are one of many reasons to contact a DUI attorney.

Call our firm to speak with experienced DUI attorneys on how to best defend your case. Experienced Atlanta lawyers in our firm are available any time, including nights and weekends, to provide you with the best possible outcome and advice. We can be contacted 24/7 at 404-581-0999 and provide free consultations.

Our firm consists of six highly trained Atlanta and Fulton County attorneys. We have an office near the Municipal Court of Atlanta – and have successfully defended against hundreds of Atlanta DUIs. W. Scott Smith has 18 years of DUI under his belt. He is active The National College of DUI Defense, Georgia Association for Criminal Defense Lawyers, The Lawyer Club of Atlanta, the Cobb County Bar Association and the Sandy Springs Bar Association.

The address of the Atlanta Municipal Court is 150 Garnett Street. This court handles all cases where defendants are charged with traffic misdemeanors and local ordinances within the City of Atlanta in Fulton County. Atlanta has its own police department, and so if you are arrested for a DUI in Fulton County by an Atlanta Police Officer, your case will begin in the Atlanta Municipal Court. Additionally, if you are pulled over and arrested by a Trooper with the Georgia State Patrol within the City of Atlanta, your case will also begin in the Atlanta Municipal Court. DUI Court is currently held by Judge Bey at 1pm and 3pm daily. If you’ve been arrested and are in custody, Atlanta Muncipal Court Judges hold bond hearings Sunday through Friday, daily. The Atlanta Municipal Court does not always hold bond hearings Saturdays, so if you were arrested late Friday night or early Saturday morning you may not see a Judge until Sunday.

If you have been arrested with a DUI in Atlanta or in Fulton County, our lawyers are ready to fight to avoid a DUI conviction. We are a group of knowledgeable attorneys prepared to defend against your Atlanta DUI in order to best protect your freedom and your license. If you have been charged with Driving under the Influence and your case is in the Atlanta Municipal Court, call a law firm with the experience necessary to achieve the most favorable result for you.  We are available 24/7 to speak with you about your Atlanta DUI at 404-581-0999.