Driving while License Suspended or Revoked in Georgia

In Georgia, if a person is driving on a suspended license, he/she may face jail time, probation, as well as monetary fines. If the accused is found guilty of driving while his/her license is suspended, the accused will be charged with a misdemeanor, as long as it is his/her first offense within the last 5 years.

According to O.C.G.A. § 40-5-121, any person who drives a motor vehicle on any public highway of this state without being licensed or while his/her privilege to drive in the State of Georgia is suspended, disqualified, or revoked may be found guilty of the offense of driving while license is suspended. Under Georgia law, there are numerous violations that can lead to a driver’s license being suspended or revoked. Some include, but certainly are not limited to:

  • Conviction of driving under the influence of drugs or alcohol (DUI);
  • After a DUI arrest, failure to consent to a blood, breath, or urine test following the reading of Georgia’s implied consent law;
  • Conviction of driving without insurance;
  • Conviction of vehicular homicide;
  • Failure to pay Georgia’s Super Speeder fine within its required deadline; OR
  • For accumulating 15 traffic points within a 24-month period.

Penalties

As stated above, the offense of driving while license is suspended/ revoked will be characterized as a misdemeanor if it is the driver’s first offense within the previous 5-year period. If the accused is convicted of a misdemeanor, he/she may be sentenced anywhere between 2 days and 12 months in jail and/or a fine of $500-$1,000. However, if the accused has had a prior conviction or two prior convictions, within the last 5 years, for driving while license is suspended, he/she may be charged with a “high and aggravated misdemeanor.” This means that the sentence may involve anywhere between 10 days and 12 months in jail and/or a fine of $1,000-$2,500. Finally, if the accused has had four or more convictions of driving while license is suspended within the last 5 years, the charge will be classified as a felony. A person convicted of a felony may be sentenced to 1-5 years in prison with a fine of $2,500-$5,000.

Upon receiving the accused person’s record of conviction for driving while license is suspended, the Georgia Department of Driver’s Services will impose an additional suspension or disqualification of 6 months. Once the additional 6 months has expired, the driver is eligible to reinstate his/her driver’s license.

Contact Us

Due to the severity of the penalties for driving on a suspended license, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, we are skilled at defending such charges. Therefore, if you or a loved one has been arrested for driving while license is suspended, please call our office today at 404-581-0999 for a free consultation.

The Georgia First Offender Act

The First Offender Act is a progressive statute implemented by the State of Georgia where a person who has never been convicted of a prior felony offense can be sentenced on a pending charge, but subsequently, have those charges sealed by the court if he/she successfully completes their First Offender sentence.

According to O.C.G.A. § 42-8-60, the accused may be eligible under the First Offender Act if the following statements are true:

  • The accused has never been convicted of a felony;
  • The accused have never been previously sentenced under the First Offender Act;
  • The offense charged is not a serious crime committed against a law enforcement officer engaged in his/her duties;
  • The offense charged is not Driving Under the Influence (O.C.G.A. § 40-6-391);
  • The offense charged is not a serious violent felony (O.C.G.A. § 17-10-6.1);
  • The offense charged is not a serious sexual offense (O.C.G.A. § 17-10-6.2);
  • The offense charged is not related to child pornography (O.C.G.A. § 17-10-100.2);
  • The offense charged is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. § 17-10-100);
  • The offense charged is not trafficking of persons for labor or sexual servitude (O.C.G.A. § 16-5-46); and
  • The offense charged is not neglecting disabled adults or elderly people (O.C.G.A. § 16-5-101).

HOW IT WORKS

Trial counsel for the accused must ask the judge to sentence him/her under the First Offender Act. Then, the judge will consider whether to sentence the accused to First Offender after he/she hears arguments from both the prosecution and the defense. If the judge sentences the accused under First Offender, his/her official criminal history will describe the disposition of the crime charged as “First Offender” until the sentencing term is successfully completed. If the accused violates any conditions placed on him/her during their term of sentence, including committing another crime, the judge has the discretion to revoke the First Offender status. This means that the accused will be sentenced and convicted, which will be shown on his/her official criminal history. In revoking one’s status, the judge does have discretion to sentence the accused to the maximum penalty for the crime charged. However, if the term of sentence is successfully completed, the clerk of court will seal the offense charged from his/her official criminal history.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a criminal conviction on one’s record, as well as all possible options for our clients dealing with pending allegations. Therefore, if you have been recently arrested on a criminal charge or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Pointing a Pistol at Another

Responsible gun ownership requires education and care. In 2020, there were 98 unintentional gun related deaths in Georgia, 33 more than the previous year.[1] In an effort to eliminate these unintentional deaths and protect the public, the Georgia legislature enacted O.C.G.A. § 16-11-102.

The Offense

O.C.G.A. § 16-11-102 makes it a criminal offense to “intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.”

Proving the element of intent is key in prosecuting this offense. The accidental or unintentional pointing of a weapon at another is not an offense. Parsons v. State, 16 Ga. App. 212 (1915). To aim a weapon at another is to point it intentionally. Livingston v. State, 6 Ga. App. 805 (1909). Intent may be inferred from the circumstances surrounding the pointing. Hawkins v. State, 8 Ga. App. 705 (1911).

This offense is distinguished from the offense of aggravated assault in that if the pointing of a firearm places the victim in reasonable apprehension of immediate violent injury, then the felony of aggravated assault, rather than the misdemeanor of pointing a gun, has occurred.  Overton v. State, 305 Ga. 597 (2019); Savage v. State, 274 Ga. 692 (2002). But, simple assault and pointing a gun or pistol at another are both misdemeanors and included in greater crime of aggravated assault with a deadly weapon. Morrison v. State, 147 Ga. App. 410 (1978).

Punishment

A conviction under O.C.G.A. § 16-11-102 results in a misdemeanor. The maximum punishment is 12 months in jail and up to a $1,000 fine or both. The sentencing judge also has the authority to impose additional terms and conditions such as community service, firearms safety course, etc.

 

Contact Us

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

 

[1] https://www.gunviolencearchive.org/congress/ga

Theft by Conversion Arrest in Georgia

In Georgia, like other theft offenses, a theft by conversion charge can be prosecuted as a misdemeanor or a felony, depending on the value of the property converted. According to § O.C.G.A. 16-8-4, theft by conversion occurs when a person lawfully obtains another individual’s funds or property and then unlawfully converts such property to his/her own use.

In order to convict an accused for theft by conversion, the elements of the offense must be proven by the prosecution beyond a reasonable doubt:

  • The accused lawfully obtained funds or property of another;
  • The funds or property were obtained by an agreement between the accused and the owner;
  • The agreement required that the accused used the funds/property for a particular purpose;
  • However, instead, the accused knowingly converted the property for his/her own use.

Value of Property

In determining whether the theft by conversion charge will be characterized as a misdemeanor or a felony depends on the value of the property converted. In Georgia, funds or property valued at less than $500 are generally charged as misdemeanors. Alternatively, if the property in question is valued at a price greater than $500, the prosecution may file felony charges against the accused.

In these types of cases, the value of the property is determined by properly measuring the fair cash market value either at the time and place of the alleged theft or any stage during the receipt or concealment of the property in question.

Defenses

An experienced criminal defense attorney can assert affirmative defenses to either request a reduction in the penalties of a theft by conversion conviction or receive a dismissal of all charges. Thus, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations.

Such affirmative defenses include, but are not limited to:

  • Lack of intent;
  • Consent;
  • Accused used the property as intended;
  • Innocence;
  • Intoxication, if it negates intent;
  • Charges should be reduced, because the property value was less than the prosecution alleged.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by conversion, as well as all possible options for an accused dealing with such a serious offense. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by conversion, please call our office today at 404-581-0999 for a free consultation.

Theft by Deception Arrest in Georgia

According to § O.C.G.A. 16-8-3, theft by deception occurs when a person obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property. However, deceitful means does not include statements of exaggeration that are unlikely to deceive the rightful owner or false statements as to matters that have little to no financial significance.

Some examples of theft by deception include, but are not limited to:

  • Billing someone for a job that an accused did not complete;
  • Making false statements to persuade the rightful owner to let the accused take their property;
  • Selling property when the accused knew that there was a lien/ some other loan attached to it.

Value of Property

In determining whether the theft by deception charge will be characterized as a misdemeanor or a felony depends on the value of the property stolen. In Georgia, goods or property valued at less than $500 are generally charged as misdemeanors. Alternatively, if the property or goods in question are valued at a price greater than $500, the prosecution may file felony charges against the accused.

Defenses

An experienced criminal defense attorney can assert affirmative defenses to either request a reduction in the penalties of a theft by deception conviction or receive a dismissal of all charges. Thus, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations.

Some affirmative defenses to theft by deception include, but are not limited to:

  • Actual innocence;
  • Lack of intent;
  • Future payment: In Elliott v. State, 149 Ga. App. 579 (1979), the court found that the accused could not be convicted for theft by deception when he arranged to pay for the goods in question by making a promise to the rightful owner of future payment. The court found that there was no theft by deception, because there was no false representation made, the accused made a good faith promise of future payment;
  • Charges should be reduced, because the property value was less than the prosecution alleged;
  • Continuous criminal act: if the prosecution alleges that multiple items were stolen; an experienced criminal defense attorney could instead argue that the string of thefts constituted only one continuous crime. This would reduce the number of counts of theft that the State of Georgia has brought forward against the accused, and likely, will reduce the sentencing of such a charge.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by deception, as well as all possible options for an accused dealing with such a serious offense. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by deception, please call our office today at 404-581-0999 for a free consultation.

Theft by Taking Arrest in Georgia

In Georgia, a theft charge can encompass either misdemeanor or felony penalties, depending on the value of the goods or property in question. If you have been arrested for theft, you could be charged with any of the following: theft by taking, theft by deception, theft by conversion, theft by shoplifting, and so on. However, the most commonly charged theft that appears in Georgia is theft by taking. According to O.C.G.A. § 16-8-2, theft by taking occurs when a person unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which property is taken or appropriated. Typically, this occurs when the property is taken without the knowledge of the victim at the time of the alleged offense.

Value of Goods

In determining whether the theft by taking charge will be characterized as a misdemeanor or a felony depends on the value of the goods/property, which were allegedly stolen, taken, and/or appropriated. Property or goods valued at less than $500 are generally charged as misdemeanors. Alternatively, if the goods in question are valued at a price greater than $500, the State of Georgia could charge you with a felony offense.

Penalties

In misdemeanor theft by taking cases, a conviction could result in no more than a year in jail and a $1,000 fine. However, following a felony theft by taking conviction, a judge could sentence you between 1-10 years in prison.

Due to the severity of the punishment for a theft by taking conviction, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. An experienced criminal defense attorney can defend these allegations by either getting the charges dismissed by bringing forth defenses to such allegations or requesting a reduction in the penalty of such charges.

Defenses

Here are some common defenses for theft by taking cases in Georgia:

  • There was no theft;
  • Acted under an honest claim of right or ownership of property;
  • Charge should be reduced depending on the value of the goods and amount taken;
  • There was no intent to steal;
  • The accused was unaware that the property was of another;
  • The intention was to borrow the item, not to steal it;
  • Intoxication, if it negates the intent element.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by taking, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by taking, please call our office today at 404-581-0999 for a free consultation.

Theft by Shoplifting Arrest in Georgia

In Georgia, a theft by shoplifting charge can be prosecuted in municipal court, state court, or even superior court. The State of Georgia may allege that the accused violated a city municipal ordinance, a law in which the offense is charged as a misdemeanor, or in more serious cases, a felony.

According to O.C.G.A. § 16-8-14, theft by shoplifting occurs when a person, working alone or with others, takes merchandise without paying for it and with the intent to either deprive the owner of any part of the value of the item or to appropriate the item for their own use.

When committing the offense of theft by shoplifting, it can occur in many different forms:

  • Concealing the goods;
  • Altering the price tag;
  • Transferring the item from one container to another;
  • Switching the price tag from another item to the item in question; or
  • Wrongfully causing the price to be less than the original price stated.

Value of Goods/ Property

In determining whether the theft by shoplifting charge will be characterized as a misdemeanor or a felony depends on the value of the stolen goods. In Georgia, property or goods valued at less than $500 are generally charged as misdemeanors. Alternatively, if the goods in question are valued at a price greater than $500, the prosecution may file felony charges against the accused.

Furthermore, the State of Georgia can prosecute an accused for a felony offense if he/she allegedly stole items from three different stores in the same county, within seven days of each other, if the cumulative value of the goods stolen exceeds $500. Additionally, an accused’s criminal history of past theft may impact his/her sentencing or punishment.

Penalties

In misdemeanor theft by shoplifting cases, a conviction may result in no more than a year in jail and a $1,000 fine. However, following a felony theft by shoplifting conviction, a judge could sentence you between 1-10 years in prison. As stated above, past criminal history plays a role in penalties following a conviction for theft by shoplifting.

Due to the severity of the punishment, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. An experienced criminal defense attorney can defend these charges by either getting them dismissed by bringing forth affirmative defenses to such allegations or requesting for a reduction in the penalty of such charges.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by shoplifting, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by shoplifting, please call our office today at 404-581-0999 for a free consultation.

Theft by Shoplifting Charges in Rockdale County, Georgia

A shoplifting conviction is no small matter. It will negatively impact your ability to gain employment, apply for housing, and it will permanently remain on your criminal record. It is critical you contact an experienced attorney to investigate the facts, prepare legal challenges and defenses, and mitigate possible punishment. Our firm routinely handles shoplifting cases in Rockdale County State Court. This article means to explain the nature of shoplifting under Georgia law, the possible punishment, and how these matters are specifically handled in Rockdale County, Georgia.

 

The Offense

 

Under O.C.G.A § 16-8-14, the offense of theft by shoplifting occurs when a person has the intent to either appropriate merchandise without paying for it or deprive the owner of possession of the merchandise or of its value AND:

 

  • Takes possession of or conceals the goods or merchandise of a store or retail establishment;
  • Alters the price marked on the goods or merchandise of a store or retail establishment;
  • Transfers the goods or merchandise of a store or retail establishment from its original box or container to another one;
  • Switches the price tag or label from one merchandise item with the price tag or label from another merchandise item; or
  • Wrongfully causes the amount paid for an item to be less than the merchant’s state price for the item

 

Arrest, formal criminal charges, and aggressive prosecution are all possibilities if you engage in the above conduct.

 

Punishment

 

The penalties for shoplifting in Rockdale County depend on the “value” of the property taken. A first shoplifting conviction involving the theft of merchandise valued at $500 or less is a misdemeanor. This is punishable by a fine up to $1,000 and incarceration for up to 12 months in jail, or both. Shoplifting offenses involving the theft of merchandise worth more than $500 are deemed felonies and can be punished by imprisonment for as long as ten years, depending on the total value of merchandise stolen.

 

It is important to note that a fourth or subsequent conviction for shoplifting is punished as a felony even though the prior convictions were all for misdemeanor shoplifting. Fourth or subsequent convictions are punishable by a prison sentence of one to ten years.

 

 

In addition to jail time and a fine, punishment may also include a psychological evaluation and treatment at their own expense, shoplifting seminars, community service, and restitution for the value of the property taken (if not returned).

 

How it Works in Rockdale

 

After arrest, a case file is created with the Rockdale County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Rockdale County by filing an “accusation.” An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case.

 

It is possible to resolve a theft by shoplifting charge prior to the filing of an accusation. Attorneys should contact the Solicitor General’s Office to see if they are eligible to be admitted into the Rockdale County Pre-Trial Diversion Program. If the accused successfully completes the diversion program, their charges will be dismissed with their records restricted.

 

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” If accused and not eligible for diversion, the accused must begin preparing their case for a possible trial, subject to reaching a plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, Rockdale County prosecutors are largely unwilling to outright dismiss shoplifting charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to shoplifting or proceed to trial.

 

Contact Us

 

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

 

 

 

Driving without a License or with a Suspended License in Georgia

Georgia, like most states, makes it a crime to drive a vehicle without a license or with a suspended license. This blog article will discuss the laws surrounding this type of offense and the possible punishment if convicted.

Driving Without a License

As you might expect, every person driving a motor vehicle on a road or highway must have, and display upon request, a valid driver’s license. There are two laws dealing with not being in possession of a valid license.

No License on Person: O.C.G.A. § 40-5-29 requires drivers in Georgia to carry their license in their immediate possession while driving. A driver must also produce a copy of their license at the request of a law enforcement officer. Failure to do so may result in a misdemeanor conviction where the maximum penalty is 12 months in jail and up to $1,000 fine. If the driver can later produce a valid license that was valid at the time of arrest or citation, the maximum fine is $10.

Driving Without a Valid License: O.C.G.A. § 40-5-20 prohibits and punishes unlicensed driving. This offense is more serious than the above No License on Person, but is still charged as a misdemeanor.

Driving With a Suspended License

O.C.G.A. § 40-5-121 prohibits a person from operating a motor vehicle on a suspended, disqualified, or revoked license. If convicted, the person can expect to face a fine, jail time, probation, and a license suspension. The license suspension would be added to the time left remaining on the current suspension. The below table describes penalties for repeat offenses:

  Jail Fine License Suspension
1st Offense 2 days – 12 months $500-$1,000 6 months
2nd Offense 10 days – 12 months $1,000 – $2,000 6 months
3rd Offense 10 days – 12 months $1,000 – $2,000 6 months
4th Offense (Felony) 1 – 5 years prison $2,500 – $5,000 6 months – lifetime

 

Contact Us

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

 

 

 

 

Interference with the Custody of a Minor in Georgia Criminal Law

An “interference with custody” criminal charge in Georgia usually arises in the context of a family law dispute where one parent retains custody of a child longer than they are allowed to under a custody agreement. The purpose of statute criminalizing interference with custody is to protect custody interests of child’s lawful custodian from interference by another person. Thompson v. State, 245 Ga.App. 396 (2000). This article will explore the nature of the offense, case law interpretation of the charge, and the possible punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-45: a person commits the offense of interference with custody when without lawful authority to do so, the person:

  • Knowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person;
  • Knowingly harbors any child or committed person who has absconded; provided, however, that this subparagraph shall not apply to a service provider that notifies the child’s parent, guardian, or legal custodian of the child’s location and general state of well being as soon as possible but not later than 72 hours after the child’s acceptance of services; provided, further, that such notification shall not be required if:
    • The service provider has reasonable cause to believe that the minor has been abused or neglected and makes a child abuse report pursuant to Code Section 19-7-5;
    • The child will not disclose the name of the child’s parent, guardian, or legal custodian, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child’s acceptance of services; or
    • The child’s parent, guardian, or legal custodian cannot be reached, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child’s acceptance of services; or
  • Intentionally and willfully retains possession within this state of the child or committed person upon the expiration of a lawful period of visitation with the child or committed person.

A person commits the offense of interstate interference with custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor or committed person away from the individual who has lawful custody of such minor or committed person and in so doing brings such minor or committed person into this state or removes such minor or committed person from this state.

Case Law

Defendant could not be convicted of interference with custody of a minor based on his conduct in picking up the victim and her friend after they left school in the middle of the school day, or for his conduct in having the victim at his house when she was supposed to be in school; the plain language of the statute required defendant to entice the child away from an individual having custody, and the school was not the lawful custodian of the victim or her friend. Owens v. State, 353 Ga.App. 848 (2020).

Defendant could not be convicted of interference with custody based on his act of taking a truant 15-year-old female to his apartment, in absence of evidence that female’s mother desired to exercise custody over female at that time but, because of defendant’s actions, was unable to do so. Thompson v. State, 245 Ga.App. 396 (2000).

Penalty if Convicted

On conviction of for a first offense, the defendant shall be guilty of a misdemeanor and shall be fined not less than $200.00 and no more than $500.00 or shall be imprisoned for not less than one month nor more than five months, or both. A second conviction is punished as a misdemeanor and shall be fined not less than $400.00 and no more than $1,000.00 or shall be imprisoned for not less than three months nor more than 12 months, or both. Upon a third or subsequent conviction, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one and no more than five years.

A person convicted of the offense of interstate interference with custody shall be guilty of a felony and shall be imprisoned for not less than one year and no more than five years.

Contact Us

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