Rape Shield in Georgia

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

If you are charged with Rape in the State of Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

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

The statute of limitation for a prosecution of rape is 15 years.

License Consequences for DUI Convictions in the Municipal Court of Atlanta

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

By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of a DUI in the Municipal Court of Atlanta, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation, and recommended treatment, and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of defending a DUI, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with DUI in Atlanta, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

Georgia DUI

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

When you are pulled over for suspicion of a DUI, the officer will conduct a test called “horizontal gaze nystagmus” or HGN for short. This is the test where an officer will ask you to follow either their finger or a pen to see if the eyes involuntarily jerk or twitch as your eyes move laterally.

The test must be done correctly. The officer must place the stimulus (usually a pen or their finger) 12 to 15 inches away from your nose and slightly above eye level. Then the officer must move the stimulus in a stage consisting of 14 passes. The first stage of passes has the officer moving the stimulus from left to right to center for at least two seconds to check or equal tracking of the pupils.

The second stage has the officer place the stimulus from the center position to your left and back to the center. They will repeat this for the right eye. The stimulus should be moved at a speed that takes at least two seconds from the center position to the side position.

The third stage of passes is designed to determine whether the person has distinct nystagmus at the point in which your eye is fully moved to one side and cannot move any further. The stimulus moves from center to the side taking at least two seconds, holding at the side for at least four seconds, and then moved back to the center in at least two seconds.

The final stage is a set of four passes designed to determine if the onset nystagmus occurs before your eye moves to a 45-degree deviation. It must take at least four seconds to move the stimulus from your center to a spot around your shoulder. The stimulus must be held long enough to confirm the onset nystagmus. Each of the passes in this phase must take at least eight seconds, with a three second count out, a two second count hold, and a three second count back.

 

It is vital to note that the entirety of the HGN test must take AT LEAST 82 seconds- usually around 90 seconds. If the officer is well under that time, then they employed the test incorrectly and the HGN test can be excluded from any evidence that could indicate potential impairment. The stimulus must also remain in the 12 to 15 inch range from your nose and its path cannot loop or curve. If it does, then the officer did not administer the test properly. If you’re pulled over for a DUI, make sure you know the process for HGN evaluation and call our office today.

The Crucial Role of Hiring a Lawyer If You’ve Been Arrested in Atlanta

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

Facing arrest can be a harrowing experience, particularly in a bustling city like Atlanta, where legal procedures can be complex and consequences severe. In such situations, hiring a criminal defense lawyer is not just advisable; it’s imperative. Here’s why:

 

  1. **Legal Expertise**: Attorneys specializing in criminal defense possess extensive knowledge of the law, including local ordinances and courtroom procedures specific to Atlanta. They understand the nuances of the legal system, enabling them to build a robust defense strategy tailored to your case.

 

  1. **Protection of Rights**: When arrested, individuals are entitled to certain rights, such as the right to remain silent and the right to legal representation. A skilled lawyer ensures that your rights are upheld throughout the legal process, safeguarding you from potential abuses of power or procedural errors.

 

  1. **Strategic Counsel**: Lawyers analyze the details of your case, identifying strengths, weaknesses, and potential legal options. They provide strategic counsel on how to navigate the complexities of the legal system, including whether to plead guilty, negotiate a plea bargain, or proceed to trial.

 

  1. **Mitigation of Penalties**: In the event of conviction, attorneys work tirelessly to mitigate penalties and minimize the long-term consequences of criminal charges. This may involve negotiating reduced charges, advocating for alternative sentencing options, or pursuing avenues for rehabilitation and community service.

 

  1. **Evidence Examination**: Lawyers have the expertise to scrutinize evidence presented by the prosecution, identifying inconsistencies, inaccuracies, or violations of due process. They may uncover mitigating factors or exculpatory evidence that could strengthen your defense or lead to the dismissal of charges.

 

  1. **Emotional Support**: Being arrested can be emotionally taxing, causing stress, anxiety, and uncertainty about the future. A compassionate lawyer not only provides legal guidance but also offers emotional support, reassuring you and your loved ones during this challenging time.

 

  1. **Familiarity with Court System**: Local attorneys in Atlanta have established relationships with judges, prosecutors, and court personnel. This familiarity with the local court system can be advantageous, as it facilitates smoother communication, negotiation, and advocacy on behalf of their clients.

 

  1. **Preservation of Reputation**: A criminal record can have far-reaching implications, affecting employment opportunities, housing options, and personal relationships. By vigorously defending your case, lawyers strive to protect your reputation and minimize the stigma associated with criminal charges.

 

  1. **Cost-Effective in the Long Run**: While hiring a lawyer may incur upfront costs, the investment can save you money in the long run. Skilled legal representation increases the likelihood of a favorable outcome, potentially avoiding costly fines, lengthy imprisonment, or other financial repercussions associated with criminal convictions.

 

  1. **Peace of Mind**: Ultimately, hiring a lawyer provides peace of mind knowing that you have a knowledgeable advocate fighting for your rights and best interests. Whether navigating pre-trial negotiations, challenging evidence in court, or representing you at trial, a competent attorney can significantly impact the outcome of your case.

 

In conclusion, if you find yourself facing arrest in Atlanta, don’t underestimate the importance of hiring a qualified lawyer.  I have over 24 years of criminal experience. In our firm we have over 100 years of legal experience.  From protecting your rights to providing strategic counsel and emotional support, legal representation is indispensable in navigating the complexities of the criminal justice system and securing a brighter future.

 

Call our office for a free consultation 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.

Tests and Refusals: Know Your Rights

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

When someone is pulled over for suspicion of DUI in Georgia, they will be asked to perform a series of tasks that could indicate potential impairment to the arresting police officer. It is important to note that these tests are entirely voluntary. If you choose not to perform the tests, your refusal statement cannot be used against you in trial in any attempt to generate incriminating evidence. This is because mandating field sobriety tests would violate the right of self-incrimination. The same can be said when the police officer asks for your consent to any blood testing or breath testing. Although the officer can obtain a search warrant, you do not have to submit to chemical testing on the spot. Do not be misled into believing that if you refuse these chemical tests, your statement of refusal will be used against you at trial.  If you’ve been pulled over for a DUI, contact us today.

Recidivist Statute

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

A felony conviction has serious consequences. Punishment for a felony offense typically includes prison time, probation, fines, loss of constitutional rights and privileges, and a lifelong blemish on the person’s criminal record. Not only does a felony conviction impact the person’s ability to obtain employment and housing, but, under O.C.G.A. § 17-10-7, a prior felony conviction can be used to enhance a sentence on a new felony conviction. This article serves to explore the “Repeat Offenders” statute dealing with recidivist sentencing and Georgia’s ‘three strikes’ rule.

O.C.G.A. § 17-10-7 (a) – Recidivist Provision

If someone has one prior felony conviction and they are convicted of a felony a second time, the judge must to sentence the offender to the maximum term of imprisonment as set out in the statute they’ve been convicted of. However, the judge does have the discretion to probate or suspend that maximum sentence. Furthermore, in order to obtain a recidivist sentence under 17-10-7, the State must give the defendant clear notice before trial of its intention to seek such a sentence; the State must also prove that the prior conviction was for a crime which, if committed within Georgia, would be a felony.  Wheeler v. State, 270 Ga.App. 363 (2004).

O.C.G.A. § 17-10-7 (c) – Three Strikes Rule  

Any person who has been convicted of three felonies and commits a felony within Georgia shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided for the sentence. The judge will not be able to reduce the sentence, the offender will not be eligible for parole until the maximum sentence has been served, and early release is unavailable. A person sentenced under the Three Strikes Rule will have to serve every day of the imposed sentence.

 

I take prescription medication. Can I drive?

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

The short answer is “it depends.” Most people correlate DUI conviction with alcohol. However, you can still be convicted of a DUI without having any alcohol in your system. Generally speaking, any sort of prescription medication that impairs and affects your driving could be the reason of a police officer stopping you. Typical prescription drugs that could lead to a DUI arrest are Xanax, certain antihistamines, sleep aids, and antidepressants. However, it is the burden of the State and the prosecutor to show that someone who takes prescription medicine is incapable of driving without being impaired.  If you are prescribed prescription medicine, consult with your doctor to determine if it would impair your driving and never take more than the prescribed dose.

Georgia Peeping Tom Lawyer

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

Georgia Peeping Tom Lawyer

Georgia law defines a Peeping Tom as someone who peeps through windows or doors on the premises of another for the purpose of spying or invading the privacy of the other person. O.C.G.A. § 16-11-61.

Interestingly, the State is not required to show that the spying was successful, meaning whether or not the person to be spied upon was actually in view.

 

Is Peeping Tom a misdemeanor or felony in Georgia?

 

In Georgia, Peeping Tom is a felony offense. Under O.C.G.A. § 16-11-69, the sentence for a conviction for Peeping Tom is punishment of 1-5 years imprisonment or a maximum fine of $10,000 or both.

If you or a loved one has been charged with Peeping Tom in Georgia, please call the attorneys at W. Scott Smith PC for a FREE CONSULTATION at 404-581-0999.

Have you been charged with attempted murder in Georgia and do not know why?

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

Georgia law provides that a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. Implied malice is a term which has been defined to mean conduct exhibiting a reckless disregard for human life. Specifically, the Supreme Court of Georgia has held that extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others – though unaccompanied by any intent to kill or do serious bodily injury – and which actually causes the death of another, may constitute murder. Reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence that the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill. So, when does the charge become attempt? A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Intentionally shooting someone can be a substantial step toward the commission of the crime of murder.

For attempted murder, the court will look to your prior intentional acts of violence against the alleged victim. Similarly, if you do not have prior difficulties with the alleged victim, this lack of evidence may support a claim the act was not intentional.

In a Georgia case of Mills v. State, the Supreme Court held in 2010 the evidence supported a finding of both express and implied malice. The defendant had threatened to kill the victim in the past if he caught her cheating on him and had cut her while holding a knife to her throat. The defendant again threatened to kill the victim just hours before the shooting. Later, while high and drunk, the defendant complained that the victim had another man coming to their residence too frequently, and, to show he was serious, the defendant climbed into bed with the victim holding a loaded 9mm handgun with his finger on the trigger, pointed the gun at her, and shot her in the head while her two-year-old son was on the bed next to her. He then failed to seek medical aid and instead sought to dispose of the murder weapon. This evidence was sufficient to show from the external circumstances that the defendant caused the victim’s death with deliberate intention, thereby establishing express malice. In addition, there was no “considerable provocation” for the shooting even under the defendant’s own version of events, and a rational jury could find that the circumstances surrounding the killing showed that the defendant had an abandoned and malignant heart, thereby establishing implied malice.

Have you been charged with attempted murder in Georgia please call our office 24/7 at 404-581-0999. 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.