Following Too Closely – Traffic Lawyer

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Fender benders happen all over Georgia every day. If you were involved in a car accident where your vehicle struck a vehicle in front of you, the police officer likely issued you a citation for Following too Closely, and gave you a court date to attend.

Georgia law states that drivers shall not follow another vehicle “more closely than is reasonable and prudent.” This means that causing a fender bender accident, or hitting the vehicle in front of you, is a violation of the Following too Closely law. On the other hand, an officer can issue a citation for Following too Closely even if there was no car accident. This occurs where a police officer observes you travelling too closely “than is reasonable and prudent” to the vehicle in front of you. Even with no accident, following another vehicle too closely is a sufficient legal basis for an officer to stop and investigate you and the vehicle.

Do I have to go to Court for a Following too Closely ticket?

In most courts in Georgia, a court appearance is required. In some cases, an attorney can appear on behalf of someone charged under this law.

What happens if I am charged or convicted with Following too Closely?

Following too Closely is a misdemeanor in Georgia. This means the maximum penalty is 12 months in jail and/or $1,000 fine plus court costs and fees. Additionally, if you plead guilty to Following too Closely, it will be reported to your Motor Vehicle Report and three (3) points will be assessed, and insurance can be notified. If a driver gets 15 points in a 2 year period, your Georgia driver’s license will be suspended. A Following too Closely citation can raise insurance rates.

What are the defenses in a Following too Closely case?

It is a jury question whether or not you followed the other vehicle “more closely than is reasonable and prudent.” An experienced lawyer can use this statute in negotiations with the prosecutors. Plea negotiations can occur where the Following too Closely charge gets reduced to a different violation that does not carry points, or get reported to your insurance. A jury trial, or a bench trial in front of the Judge, are options in a Following too Closely case in Georgia.

If you have been cited for Following too Closely and issued a citation, call us today for a FREE CONSULTATION at 404-581-0999.

Affray Law – Fulton County Criminal Defense Lawyer

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Fighting by two or more people in a public place to the disturbance of the public tranquility is a misdemeanor offense in Georgia known as affray. All misdemeanor offenses carry a maximum penalty of 12 months in jail and/or a fine of $1,000.

Affray requires an intent to fight, so it is a highly defensible case if you simply were a victim of the fight and had no intent to engage in the fight. The State must prove you were a willing participant. With that being said, self-defense is defense that can be explored and used in Affray cases. Even if you did engage in the fighting, but you did so in self-defense, this would be a full legal defense to the charge of Affray. Interestingly, automatic reflexes which including pushing back will also not rise to intent to fight.

Other defenses of Affray include focusing on where the fight occurred. Affray in Georgia requires it to have happened in a public place. Georgia law has held that jails and prisons are not public places for purposes of this statute. Likewise, fights at homes and other private property would not be unlawful under the Affray statute.

Affray, being a finger-printable offense, is one that remains on one’s criminal history forever. Paying a fine or pleading guilty will result in a lifetime criminal conviction. Given the various defenses that come into play with Affray charges, it is important to consult with a skilled criminal defense lawyer who can advocate for you. Call us today for a FREE CONSULTATION at 404-581-0999 if you or a loved one has been charged with Affray in Fulton County or anywhere in Georgia.

Why is my child charged as an adult?

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There are two reasons why a minor might be charged as an adult. The first is they’re 17. Even though you’re not considered an adult until your 18th birthday for most things – i.e. voting, buying tobacco or a weapon – in the Georgia criminal justice system you are an adult at your 17th birthday.

The other reason is the crime the child is charged with. Under OCGA § 15-11-560 a child that is at least 13 will be charged as an adult in Superior Court if they are alleged to have committed certain crimes. These crimes include murder, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, and aggravated assault or battery against a police officer. However, there are circumstances that allow these types of cases to be sent back to Juvenile Court.

Every case is different and if your child has been charged as an adult it is imperative to seek out an experienced attorney. Give us a call for a free case consultation.

How do I get out of Fulton County Jail?

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I’ve Been Arrested…

You are in handcuffs and headed to the Fulton County Jail. You want to get out as soon as possible. Your loved ones are in a panic to find a lawyer to help get a bond set. Rice Street is not a good place to be.

What do I do?

First, do not make any statements to the police while you are being transported to the Fulton County Jail.

Second, do not make any statements about the facts of your case to anyone at the Fulton County Jail. This is not the time to plead your innocence. Your sole focus should be on getting out on bond.

Do NOT talk on the jail phones about the case. All calls at Rice Street are being recorded. Just focus on getting someone to help get you out of jail.

When is my court date?

If you are arrested on a misdemeanor, you will go in front of a Magistrate Judge the following morning at 9am.

If you are arrested on a felony, you will go in front of a Magistrate Judge the following morning at 11am.

Your loved ones should plan on going to the Fulton County jail about 30 minutes prior to court starting. The Fulton County jail is located at 901 Rice Street, Atlanta, Georgia 30318.

Can I get a bond?

The Fulton County Judge is required to consider four factors when setting a bond.

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

Some crimes must go before a Superior Court judge in order to have a bond set. If you are charged with any of these specific crimes in Fulton County then the Magistrate Judge cannot set a bond at your initial court appearance. All that will happen at this appearance, is the judge will read the warrants to you and reset your case.

The crimes that are only bondable by a Superior Court judge are as follows:

  1. Treason
  2. Murder
  3. Rape
  4. Aggravated Sodomy
  5. Armed Robbery
  6. Aircraft hijacking and hijacking a motor vehicle
  7. Aggravated Child Molestation
  8. Aggravated Sexual Battery
  9. Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule 1 or under Code Section 16-13-26 as Schedule II
  10. Violating Code Section 16-13-31 or 16-13-31.1
  11. Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had been previously convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed above.
  12. Aggravated Stalking

For any of these crimes that are bondable only by a Fulton County Superior Court judge, you will get a court date that will be in Courtroom 8C of the Fulton County Courthouse. The Fulton County Courthouse is located at 185 Central Avenue, Atlanta, Georgia 30303. These court dates start at 9:30am.

What are the types of bonds?

There are several types of bonds available for your case.

  1. Released to Pretrial Services: Fulton County will sometimes release people on their own recognizance which means that you do not have to put up any money. You will be monitored by Fulton County Pretrial Services. You will have to report to Pretrial Services until your case gets resolved in court.
  2. Cash Bond: Another option in Fulton County is to pay a cash bond. This means that you pay the entire bond yourself. The benefit to this bond is that it is refundable to you once you resolve your case.
  3. Property Bond: Another option in Fulton County is to post a property bond. In order to post a property bond, you would need to speak to the Fulton Sheriff’s office. They generally will require a warranty deed, a current tax statement showing the property’s fair market value as well as a statement showing all taxes are current. You generally need double the bond amount in equity.
  4. Bail Bondsman: The final option is to call a bonding company. You will pay between 10% – 15% of the total bond to the bonding company. The bonding company will then post the entire bond and you will be released. This 10% – 15% is non-refundable. The Fulton County jail will provide you with a list of approved bonding companies.

If you or your loved one is arrested and taken to the Fulton County jail, please contact us any time and we can assist you in helping get a bond set.

Our office is located in downtown Atlanta at 100 Peachtree Street, Suite 2060, Atlanta, Georgia 30303. Feel free to call us at 404-581-0999 anytime day or night. Also, please go to our website at www.peachstatelawyer.com

Call us anytime 24/7. We will have an attorney at your bond hearing the following morning.

 

 

Georgia’s Move Over Law

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Georgia law requires drivers to move over or slow down for certain emergency or towing vehicles. This is commonly referred to as the “Move Over Law” or “Spencer Pass Law”. O.C.G.A. 40-6-16 states that:

 

The operator of a motor vehicle approaching a stationary authorized emergency vehicle that is displaying flashing yellow, amber, white, red, or blue lights shall approach the authorized emergency vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:

Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or

If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

The operator of a motor vehicle approaching a stationary towing or recovery vehicle, a stationary highway maintenance vehicle, or a stationary utility service vehicle that is utilizing traffic cones or displaying flashing yellow, amber, white, or red lights shall approach the vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:

Make a lane change into a lane not adjacent to the towing, recovery, highway maintenance, or utility service vehicle if possible in the existing safety and traffic conditions; or

If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

 

What this means is that drivers must use caution when passing emergency vehicles, and should move over for police officers, ambulances, tow trucks, and utility vehicles when practicable. Of course, many of us live in Atlanta, where traffic is 24/7. The law instructs drivers to move to another lane not adjacent to the emergency vehicle, unless it is unsafe to do so. In such instances, drivers are instructed to slow down to below the posted speed limit and be prepared to stop.

If you have bee charged with a move-over violation, where and when you were stopped may be important. Were you stopped for failing to move over during 5:00 rush-hour traffic in downtown Atlanta? If so, there is an argument to be made that it was unsafe for you to move over. These are questions an attorney can help you with. Call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

Corporal Punishment in Georgia: Can I Spank My Child?

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There is no statute in Georgia that makes it illegal to spank your child. In fact, O.C.G.A. § 16-5-23(f) states that “corporal punishment administered by a parent or guardian to a child” and “reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention” are exceptions to the simple battery and family violence statutes.  However, if the punishment is not justified, an individual could face criminal charges for cruelty to children, family violence battery, or even family violence aggravated assault.

In a 2021 Georgia Court of Appeals decision, Espinosa-Herrera v. State (361 Ga.App 99), the court found that a mother’s punishment of her child was not justified corporal punishment because the force that she used was not reasonable. In this case, a mother hit and kicked her son after he had missed the bus and did not fold the blanket on his bed. The Court of Appeals cited another decision (Tabb v. State, 313 Ga.App. 852 (2012)) saying that “although a parent may apply some force to a child as a disciplinary measure without violating the law, the application of such force must be reasonable”.

So, how do we determine what force is reasonable in punishing a child?  A 1989 Georgia Court of Appeals case (LaPann v. State, 191 Ga. App. 499) tells us that “whether the force as applied was an act of reasonable exercise of discipline is a question particularly within the province of the trier of fact”. This means that a jury gets to decide if the punishment used was reasonable, thus meaning that no crime was committed.

Because a jury ultimately decides what is reasonable when it comes to how a parent punishes a child, it is important to have an experienced attorney by your side to tell your story to the jury. The lawyers at W. Scott Smith are trained in pinpointing justification defenses and working with our clients to use the truth to prove our clients innocent. If you have used corporal punishment on your child and find yourself charged with a crime, call our office at 404-581-0999 today for a free consultation.

Not Guilty by Reason of Insanity in Georgia

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Georgia law provides certain protections for people who are mentally ill and charged with crimes. O.C.G.A. § 16-3-2 says that a person charged with a crime can be found not guilty by reason of insanity if, at the time of the crime, the person did not have the mental capacity to distinguish between right and wrong. Georgia case law clarifies that this does not mean that any mental illness or psychosis will allow a person to be found not guilty by reason of insanity, but only if the defendant is suffering from a delusion that overpowered their will to resist committing the crime. Additionally, the act the defendant committed must have been justified under Georgia law if the delusion the defendant was suffering from was true.

What does this mean?  Let’s say that a person was suffering from a delusion that their neighbor was trying to kill them. If the neighbor really were trying to kill them, the person would be justified under Georgia law in defending themselves. So, if the person who believed the neighbor was trying to kill them attacked the neighbor, they could be found not guilty by reason of insanity.

This is a distinct issue from whether an individual is competent to stand trial. In order to be found competent to stand trial a person must understand the proceedings going on against him and be capable of helping their attorney prepare their defense. In short, a person could be found competent to stand trial but still found not guilty by reason of insanity.

If you or a loved one are charged with a serious crime like murder or aggravated assault and believe you were suffering from a delusional compulsion at the time of the crime, it is crucial that you hire an experienced attorney to protect you. Not guilty by reason of insanity defenses are tricky but the lawyers at W. Scott Smith are dedicated to helping our clients navigate the justice system so that they can get the help they need. If you are charged in Fulton, Gwinnett, Rockdale, Henry, Dekalb, Clayton, Cobb, or Newton County and have questions about pleading not guilty by reason of insanity, call our office today at 404-581-0999 for a free consultation.

A Recent Georgia Supreme Court Decision on Withdrawing Guilty Pleas

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A Georgia Supreme Court case that was recently decided sheds light on what circumstances would allow a guilty plea to be withdrawn and highlights the importance of hiring an experienced criminal defense lawyer early in the process of defending yourself against serious criminal charges.

In Moody v. State, decided on May 16, 2023, the Georgia Supreme Court explains when and why a defendant may choose to withdraw their guilty plea. In Moody, Jeremy Moody was charged with the rape and murder of a 13-year-old girl and the murder of her friend in Fulton County. The crimes occurred on April 5, 2007, Moody was indicted on April 20, 2007, and the State filed written notice that they were seeking the death penalty on May 1, 2007. Moody’s trial began on April 10, 2013, but Moody pleaded guilty to all charges shortly after trial began. The sentencing phase of Moody’s trial began on April 15 and, before a sentence was pronounced, Moody announced that he wished to withdraw his guilty plea.

In normal cases, according to O.C.G.A. § 17-7-93 (b), a defendant may withdraw their guilty plea at any time up until their sentence is pronounced. But, in cases where the State is seeking the death penalty, a defendant may only withdraw their guilty plea “to prevent a manifest injustice.” Browner v. State, 257 Ga. 321 (1987). In this case, Moody argues that his plea was not knowingly and voluntarily entered and that this creates a manifest injustice. The Court found that Moody was 35 years old, had completed his G.E.D., and was not under the influence at the time of his plea. Moody also told the judge that he understood what the plea meant and that he had sufficient time to discuss the plea with his lawyer. The Court found that Moody was not coerced into pleading guilty and that he was not doing so for any reason other than because it was what he wanted to do.

This case highlights why it is important to be represented by an experienced criminal defense lawyer. Although you may withdraw a guilty plea at any time before the sentence is pronounced in cases in which the State is not seeking the death penalty, it is very difficult to withdraw a plea after you have been sentenced by the court. The lawyers at W. Scott Smith are experienced in pre-trial negotiations and will work alongside you to determine if a plea bargain is in your best interest. If you desire a trial, the lawyers at W. Scott Smith will guarantee that you get your day in court. Call our office at 404-581-0999 today for a free consultation.

Aggravated Stalking in Fulton County, Georgia

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Aggravated Stalking in Fulton County, Georgia

By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim without his/her consent for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime in Fulton County will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

Due to the severity of the punishment for aggravated stalking, 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 this crime, 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 aggravated stalking in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Using the Alibi Defense in Georgia

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An alibi is a defense to criminal charges in Georgia where the defendant says that they weren’t at the scene when the crime occurred.

According to Georgia law, as codified in O.C.G.A. § 16-3-40, an alibi defense involves the impossibility that the person accused of a crime was at the scene of the offense when it was committed. The evidence presented must reasonably exclude the possibility that the defendant was present. IN other words, an alibi is evidence that the defendant was somewhere else when the crime was committed. The defendant doesn’t only have to show that he was somewhere else when the crime was committed but that it was reasonably impossible that he was at the scene of the crime.

For example, if you are charged with murder in Dekalb County, but you are on surveillance video over an hour away in Cherokee County at the time of the murder, you have a valid alibi defense. Additional evidence, such as receipts from establishments in Cherokee County, or people to testify that you were with them in Cherokee County at the time of the murder will strengthen your alibi defense and create the reasonable impossibility that you were at the scene of the murder as required by Georgia law. It is important to hire an experienced attorney right away to help you gather and preserve the evidence you need for this defense.

In Georgia, defendants are required to provide prosecutors notice of their intention to present an alibi defense. However, this notice has several restrictions, as spelled out in O.C.G.A. § 17-16-5. First, the prosecutor must ask for the notice within 10 days of arraignment (or at such time as the court permits). Then, the defendant must provide written notice to the prosecutor within 10 days of the prosecutor’s demand or 10 days before trial, whichever is later. Along with the notice, the defendant must also provide the specific place where they claim to have been during the commission of the crime, and the identity of the witnesses the defendant will present to establish the alibi. In return, the prosecutor must provide the identity of witnesses they will use to rebut the alibi within 5 days of the defendant’s notice or 5 days before trial.

As you can see, the rules surrounding an alibi defense are complex. It is extremely important to have an experienced attorney by your side to help navigate the rules and preserve your right to present an alibi defense. The attorneys at W. Scott Smith possess a wealth of experience defending serious crimes like rape, murder, armed robbery, and aggravated assault, all of which may be defeated with an alibi defense. If you have been charged with one of these serious crimes in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Henry County, call our office at 404-581-0999 for a free consultation.