Cruelty to Animals

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If you’ve been charged with misdemeanor cruelty to animals, then you have been charged with a crime which carries a maximum punishment of up to 1 year in jail and a fine of up to $1000.

Georgia law criminalizes causing “physical pain, suffering, or death to an animal by any unjustifiable act or omission” or “having intentionally exercised custody, control, possession, or ownership of an animal, fails to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal’s size, species, breed, age, and physical condition.” O.C.G.A. 16-12-4.

Misdemeanor cruelty to animals does not require malice. This means that you do not have to have meant to harm the animal. Simply neglecting to provide reasonable care for the animal can constitute misdemeanor cruelty to animals.

Moreover, the animals do not have to belong to you. Neither ownership of the property on which the animals are found nor ownership of the animals is a material element of the offense. Tiller v. State, 218 Ga. App. 418. If you live in a home with someone else and their animals are being neglected, you could be criminally liable for that neglect.

If you have been charged with misdemeanor cruelty to animals, you should consider hiring an attorney who can defend your case. Call our office for a free consultation at 404-581-0999.

License Consequences for DUI Convictions in Fulton County, Georgia

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI in Fulton County 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 Fulton County, 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 4 months.
    • 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 Fulton County, 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.

Atlanta Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Atlanta or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

What is the difference between malice murder, 2nd-degree murder, and felony murder?

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Malice murder in Georgia is defined in OCGA § 16-5-1(a) as causing the death of another human being with malice aforethought. Express malice is the deliberate intention to take a life unlawfully. Malice can also be implied based on the circumstances of the killing. The intent to kill (aforethought) can be formed in an instant and does not require proof of any sort of plan or motive. Malice murder in Georgia carries a punishment of life in prison with or without the possibility of parole.

Murder in the 2nd Degree in Georgia (OCGA § 16-5-1(c)) is limited. It only arises when the death of a child under 18 is caused by criminal negligence. Criminal negligence is an act or failure to act that demonstrates a willful, wonton, or reckless disregard for the safety of others who might reasonably be expected to be injured by the act or failure to act. The punishment for Murder in the 2nd Degree is a minimum of 10 years and a maximum of 30 years in prison.

Felony murder (OCGA § 16-5-1(b)) is exactly what it sounds like. It is where someone dies during the commission of a felony. For example, defendant A drives defendant B to a bank to rob it. Defendant A stays in the car while B goes into the bank. During the robbery, B shoots and kills the teller. A then drives B away from the scene. B can be charged with malice murder and felony murder based on the death of the teller during the robbery. A can be charged with felony murder because a person died during the commission of the felony of robbery. The punishment for Felony Murder is the same as malice murder. It carries a punishment of life in prison with or without parole.

If you or a loved one are charged with malice murder, murder in the 2nd degree, or felony murder give us a call for a free case consultation at 404-581-0999.

Teenager Charged as an Adult in Fulton County

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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.

First Offender in Fulton County

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc. and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

License Consequences for DUI Convictions in Georgia

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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 the 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 the 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 the 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 is .08 grams or more, or at any time within three hours after such driving, or being in actual physical control of the vehicle, ended.
  • If he/she was in actual physical control of a moving vehicle while there is 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 DUI, 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 4 months.
    • During the 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 suspension, the accused will be eligible to get their permanent license back if he/she 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 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 suspension, which will mandate no driving, 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 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, and are worried about the license consequences associated with a DUI conviction, please call our office today at 404-581-0999 for a free consultation.

Reckless Conduct in Fulton County

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The Fulton County Solicitor General prosecutes crimes of reckless conduct. Under O.C.G.A. 16-5-60, reckless conduct is when you causes bodily harm to or endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Reckless Conduct involves an act of criminal negligence, not an intentional act.

What does criminal negligence mean in the contact of Reckless Conduct. Criminal negligence implies, not only knowledge of a likely consequence which may result from the act, but also willful or wanton disregard of the probable effects upon others likely to be affected.

Criminal negligence is more than ordinary negligence. Criminal negligence is the reckless disregard of any consequences, or an indifference to the safety of others.

If you are charged with reckless conduct in Fulton County, you face 1 year in jail and a $ 1,000 fine.

If you are charged in Fulton County with reckless conduct,  please call us at 404-581-0999. You need to zealously defend yourself against these allegations.

How Your Defense Attorney Can Use Georgia Rules of Evidence Rule 403 to Keep Out Prejudicial Evidence

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When a person is charged with a crime, the State will often try to present evidence of other bad acts performed by the defendant or evidence that is intended to inflame the passions of the jury. When wielded correctly, Rule 403 gives your defense attorney a weapon to fight back with.

Rule 403 states that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” This simply means that a judge may decide that certain evidence may not be presented to the jury if it is likely to prejudice the jury against the defendant, is a waste of time, or is unnecessarily cumulative (an example of unnecessarily cumulative evidence would be prosecutors showing a music video where the defendant points guns and claiming it is being shown for identification purposes when other witnesses had already identified the defendant in surveillance footage from the incident) . A 2020 Georgia Supreme Court case says it perfectly: “the major function of rule governing exclusion of relevant evidence due to prejudice, confusion, or waste of time is to exclude matters of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Jernigan v. State, 357 Ga.App. 415.

A recent example of Rule 403 being used effectively was in the Ross Harris case from 2016. Ross Harris was charged with intentionally leaving his son in the hot car where he ultimately died. The State presented evidence of text messages Harris had sent to underage girls as well as large amounts of evidence of Harris’ infidelity. Although Harris was convicted of sex crimes and murder, his attorneys used Rule 403 at his appeal to show that the two crimes (sexual texts with underage girls and murder) should have been tried separately. While the text messages proved he was guilty of the sex crimes, they did nothing to prove Harris’ intent when he walked away from his car and were highly prejudicial when the jury considered the murder charge.

If you find yourself facing serious charges, it is important that you hire a lawyer that understands the rules of evidence and will use every tool available to prevent the jury from hearing prejudicial evidence. The lawyers at W. Scott Smith will explore every aspect of your case and fight for you in the courtroom to give you the best chance of hearing “Not Guilty”. If you face serious charges like rape, murder, child molestation, drug trafficking, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Douglas, Rockdale, or Barrow counties, call our office at 404-581-0999 for a free consultation.

Help! My teenager is charged with possessing or distributing child pornography.

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While it might be common sense that it is illegal for adults to possess or distribute child pornography, it is also illegal for teenagers. It is a misdemeanor if the teen charged is 18 or younger, the teen in the photo is at least 14, and the photo/video was taken with consent. However, if the photo/video was sent to anyone it becomes a felony with a penalty of five (5) to twenty (20) years in prison, a fine up to $100,000 and time on the sex offender registry. Being charged with possessing or distributing child pornography can have long lasting collateral consequences. If your teen has been charged with possessing or distributing child pornography it is important to contact an experienced criminal defense attorney as soon as possible. Please call us for your free consultation at 404-581-0999.