I was arrested without a warrant, and they did not bring me to court, what do I do?

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If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Racing on Highways – DeKalb County Lawyer

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Street racing is considered a major traffic violation in Georgia. Since 2020, there have been a significant increase in Street Racing and Laying Drag tickets and arrests in DeKalb County, and the Atlanta Area. In response, police in DeKalb County have implemented a substantial effort to reduce street racing and laying drag on highways. This blog will explain in detail the law on Racing in Georgia.

Racing on Highways or Streets, defined by O.C.G.A. § 40-6-186, means the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes. Georgia law prohibits any vehicle on a highway or street to engage in any race, or speed competition. It is considered a misdemeanor criminal offense. Officers in Georgia can either issue a citation or make an arrest for Racing. After citation or arrest, there will be an arraignment hearing where you will be asked to enter a guilty or not guilty plea. During the course of the criminal case, there may be plea negotiations, a bench trial, or a jury trial.

What is the punishment of Racing in Georgia?

Since it is a misdemeanor offense, the maximum penalty is 12 months in jail for this charge.  In addition to Racing, the officer may also cite you with Speeding and Reckless driving, which each can carry another 12 month sentence consecutive. In addition to probation or jail, and high fines, there will be insurance premium increases, and a mandatory license suspension. If you are convicted of Racing in Georgia, the license suspension is a minimum 120 days. A limited permit is an option that can be explored.

However, the driver’s license suspension could be much longer depending on any previous tickets on your motor vehicle report. This is because Racing is a contributing offense towards Habitual Violator status. For example, if in the past five years you were convicted of Suspended Registration, DUI, and Racing, it would be a five-year habitual violator suspension. A skilled defense lawyer will evaluate your motor vehicle report to help advise you on license consequences as well as negotiate favorable resolutions where license suspension, points, and jail are always avoided where possible. Lastly, bench and jury trials are also an option in Racing and other traffic cases in DeKalb County.

If you or a loved one has been cited or arrested for Racing in Atlanta, give us a call for a FREE CONSULTATION at 404-581-0999. With increased focus throughout DeKalb County and Atlanta, on these types of charges, it is imperative to have an advocate in court if you are charged with Racing or Laying Drag in Georgia.

Marijuana Trafficking at the Atlanta Airport

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News reports of airline travel being back to 90 percent of pre-covid flying will lead to more scrutiny at the airport for passengers flying into Atlanta’ s airport.  Atlanta has the world’s largest airport: Jackson-Hartsfield International Airport.  In a discussion I had with a DEA agent, he told me on every flight from California, Arizona, and Colorado there will be a passenger on the flight with a large amount of trafficking marijuana.  Even though Marijuana is legal in some states, it is still illegal in Georgia.  If you get stopped by Clayton County, Drug Enforcement Agents or Atlanta Police, and you are found to be carrying greater than ten pounds of marijuana in your luggage you will be arrested for Marijuana Trafficking and taken to the Clayton County Jail.  In all cases, the first appearance judge will deny you a bond.  On every case our firm has been hired to assist couriers charged with marijuana trafficking in Atlanta, we have been able to get the client a bond in Clayton County.  In order to get a bond, you need to acquire copies of the warrants and incident reports.  The state’s prosecutor in Clayton County will want to run the subject’s criminal history.  Once those items are acquired, you can get a consent bond and bond out of jail.  It is also helpful if the person traveling has money (shows they are a courier and not seller), they fly very infrequently and they were cooperative to law enforcement.  However, people flying should never consent to a search of their luggage, as consent is voluntary and nobody should be subject to search of their person or personal effects such as luggage without a warrant.  If you or a loved one gets charged with marijuana trafficking at the Atlanta Airport, please do not hesitate to call our law office so we can assist with representation.  Our phone number is 404-581-0999.

DUI Probation in Cobb County

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If you are entering a plea to a DUI in Cobb County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Cobb County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Cobb County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Cobb County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Cobb County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

Written by Attorney Katherine Edmonds

Stalking in Butts County

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If you have been arrested for stalking in Butts County, it is imperative that you fight your case. It is a serious crime in Georgia.

Stalking is when you follow, place under surveillance, or contact another person at or about a place without the consent of the other person for the purpose of harassing and intimidating the other person; OR if you are violation of a bond, order of the court, or condition of pretrial release, probation, or parole that prohibits the harassment or intimidation of another person, broadcasts or publishes without the person’s consent in such a manner that causes other persons to harass or intimidate that person and the person making the broadcast or publication knew or had reason to know that such act would cause the person to be harassed or intimidated by others. O.C.G.A. 16-5-90(a).

Aggravated Stalking is when in violation of a bond, order of the court, condition of pretrial release, probation, or parole in effect prohibiting the behavior described herein, follows, places under surveillance, or contacts another person at or about a place without the consent of the person for the purpose of harassing and intimidating the other person.

What are the elements of Aggravated Stalking:

  1. The defendant violated an order.
  2. This order prohibited contact with the victim.
  3. It was done without the victim’s consent
  4. The purpose was to harass or intimidate.

If # 4 is not met, then it is criminal contempt under O.C.G.A. 15-6-8(5).

Keep in mind, that proof of a written no contact order is not required. But there needs to be proof that the instruction was given and received by the defendant.

How do you define “contact” with the victim?

Contact is any communication, whether in person, by phone, by text, email , social media etc….

Where does the Stalking take place?

It includes any public or private property occupied by the victim, excluding the defendant’s residence, where the communication is received.

What is meant by Harassing and Intimidating Contact?

  1. A knowing and willful course of conduct directed specifically at the victim.
  2. The victim suffers emotional distress by placing such person in reasonable fear of their safety
  3. Establish a pattern of harassing and intimidating behavior. (There has to be more than 1 contact)
  4. There is no legitimate purpose to this contact.

What does the Court look for in determining whether the contact is harassing and intimidating?

  1. The prior history between the defendant and victim.
  2. Whether the contact is overly confrontational
  3. Any attempts by the defendant to contact, communicate, or control the victim through another party.

The behavior of the defendant does not have to include threats of death or bodily harm. The defendant does not even have to make overt threats to the victim in a Stalking case.

What is NOT Stalking?

Georgia law does not prohibit a person from contacting or communicating with another person without consent, if the contact is not done with a harassing or intimidating purpose.

What am I facing if I am convicted of Stalking or Aggravated Stalking?

  1. Stalking:
    1. The first conviction for stalking is a Misdemeanor and is punishable by up to 1 year in prison and a $1,000 fine
    2. A second conviction for Stalking is a felony and carries up to 1 to 10 years in prison.
  2. Aggravated Stalking
    1. Aggravated Stalking carries up to 10 years in prison and a $10,000 fine.

If you are charged with Stalking or Aggravated Stalking in Butts County, it is important to get a lawyer as there are defenses to your case. A Stalking conviction on your record can carry many collateral consequences in addition to the punishment imposed by the court.

The courthouse is downtown Jackson, Georgia. We would be happy to assist you with your case in Butts County.

Call us at 404-581-0999 or visit us at www.peachstatelawyer.com for a free consultation.

 

RECIDIVIST STATUTE IN GEORGIA

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By: Attorney Erin Dohnalek

In Georgia, repeat offenders are punished more severely, regardless of the nature of the crime charged. The theory behind it is to ensure that the prosecution deters people from continuing to commit crimes, which has caused the Georgia legislature to implement the Recidivist statute.

RECIDIVIST PROVISION

The Recidivist statute is set out in O.C.G.A. § 17-10-7(a). It states that if a criminal defendant has one prior felony conviction, and he/she is subsequently convicted of a second felony, the judge must sentence the offender to the maximum term of imprisonment as set out in the statute. However, the judge does have the discretion to allow probation if he/she wishes to do so, but that choice is completely up to the presiding judge.

Furthermore, if a criminal defendant has one prior “serious violent felony” conviction, the second conviction of similar violent nature would require the judge to sentence the accused to life in prison without parole, and the judge has no discretion, and cannot probate or suspend the sentence. The offender must serve the maximum sentence while in custody.

THREE STRIKES RULE

There is also a second provision of the Recidivist statute that comes into play with repeat offenders. It is known as the Three Strikes rule, pursuant to O.C.G.A. § 17-10-7(c). This law states that if a criminal defendant has previously been convicted of three felonies, and he/she is convicted of a subsequent felony offense, which would be a fourth felony conviction, then the offender must serve the maximum term of imprisonment for that charge and will not be eligible for parole until that time has been served.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a felony conviction, especially for individuals who have been convicted of felony crimes in the past. We also understand all possible options for our clients dealing with pending allegations and will zealously advocate on their behalf. Therefore, if you have been recently arrested for a felony offense or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Civil Asset Forfeiture- Coweta Drug Cases

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Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

What to expect during a DUI stop in Chamblee, GA

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By: Attorney Alex Henson

If you are suspected of driving under the influence of alcohol in Chamblee, GA you might be pulled over and investigated by police. What can you expect during a DUI stop?

First, the officer might ask you if you’ve had anything to drink. You have the right to remain silent and refuse to answer the question, but always be polite and respectful. Any statements you make could be used against you later in court.

Next, the officer might ask you to perform certain exercises to see if you are safe to drive. These exercises are called Standardized Field Sobriety Tests and your performance could be used against you in court later. The most common of these tests are the horizontal gaze nystagmus (HGN), the one leg stand, and the walk and turn. It is voluntary to participate in field sobriety tests. Refusing to participate cannot be used against you in court later.

The officer may decide that you are under the influence and less safe to drive. If the officer decides to arrest you, he or she may read you Georgia’s implied consent statement and request chemical testing of your breath or blood. These tests are voluntary, but refusal can result in your license being suspended.

If you are arrested for DUI in Chamblee, GA for DUI, your case will be sent to Chamblee Municipal Court. In the Chamblee Municipal Court, you will have the opportunity to resolve your case. However, if you decide you want a jury trial, your case will be transferred to the State Court of DeKalb County.

If you have been arrested for DUI in Chamblee, GA and would like a free consultation, call us at (404) 581-0999.

What is an arraignment and what happens after?

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If you have been charged with a crime in Georgia, you will likely receive a court date in the mail, informing you that your case has been scheduled for an arraignment. An arraignment is an opportunity to have your charges read aloud in open Court, and for you to enter a plea of guilty, not guilty, or nolo. If your case is in Dekalb, Cobb, Fulton, Douglas, Clayton, or another State Court, then you are able to waive this arraignment by filing a waiver of arraignment with the Court. Many attorneys typically waive arraignment on behalf of their clients as a matter of course. This is because State Court arraignments are typically formalities, and not really necessary if you have retained an attorney (you are pleading not guilty! That’s why you hired an attorney!).

If your case is located in Municipal Court, your court dates will likely all say “arraignment.” This is because many Municipal Courts hold arraignment calendars every day. Arraignment in Municipal Court, unlike in State Courts, cannot be waived, even if it is your first court date. If this is the case, you must be present at your first court date.

Some time after your arraignment date, if you or your attorney has filed a motion requesting discovery, the Prosecutor will send discovery. Discovery is the evidence that the prosecutor has which they plan on using in your case. If it has been several weeks since your arraignment and you have not received discovery after you have requested it, you should reach out to an attorney or to the Court to tell them that you have not received it.

The criminal legal process can be confusing and scary. You are not alone. We have an experienced team of attorneys who can guide you through the process from arraignment through trial. Reach out to our office today for a free consultation. Call us at 404-581-0999. Written by Attorney Katherine Edmonds.

DUI IN LOVEJOY MUNICIPAL COURT

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By: Erin Dohnalek

After an accused has been arrested for a DUI, if one of the following occurred, an accused MUST send the 30-day appeal letter to attempt to save his/her driver’s license:

  1. After the accused has been arrested, an officer on scene from the Lovejoy Police Department read him/her the correct “Implied Consent” notice and he/she refused to comply with either a blood, breath, or urine test in order to determine his/her blood alcohol content, OR
  2. The accused consented to a blood, breath, or urine test and the results showed that the blood alcohol content of the accused was above the legal limit.

If one of the following occurred, it is of vital importance to send the 30-day appeal of the license suspension letter prior to the deadline or risk the suspension of the accused person’s driver’s license. The suspension could last as long as 1 year.

After sending the 30-day letter, the accused must also be ready to defend his/her criminal allegations. The penalties for a DUI conviction are serious, thus, it is of great importance to hire an experienced criminal defense attorney who understands all of the elements of the offense, the affirmative defenses to such a charge, and all possible options for the accused.

According to O.C.G.A. § 40-6-391, a person commits driving under the influence of alcohol or drugs when it renders them less safe to drive, the person’s alcohol concentration is .08 or more at any time within 3 hours after such driving occurred, or there is any amount of marijuana or other controlled substances present in the accused person’s blood, breath, or urine.

Once the Lovejoy Police Department transfers the criminal charge to the Lovejoy Solicitor’s Office, the criminal case will begin at a proceeding known as an arraignment. There are a few options when the case has landed here at the Lovejoy Municipal Court. Such options include:

  • The accused may plead guilty to DUI, which, for a first DUI conviction, usually will result in 12 months of probation, which requires completion of a Risk Reduction course and at least 40 hours of community service;
  • The accused may plead not guilty to DUI and seek a bench trial with the municipal court judge;
  • The accused may plead not guilty to DUI and seek a jury trial. This will result in the case being bound over to the Clayton County State Court, OR
  • At arraignment, the accused has the option to speak to the Lovejoy City Solicitor in a pretrial conference to discuss other possible options, such as a reduction from the original DUI charge.

Due to the complexity of a driving under the influence criminal case, as well as the related license suspension proceeding, it is of great importance to hire an experienced criminal defense attorney who is skilled at defending such allegations. At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about all possible options for our clients and have vast experience defending such charges. Therefore, if you have been arrested for driving under the influence, please call our office today at 404-581-0999 for a free consultation.