Family Violence Battery in Cobb County, Georgia

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history , and the possibility of trial.   All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Cobb County. This jurisdiction has specifically allocated money and resources in aggressively prosecuting domestic violence charges.  This article aims to explain the nature of the offense, punishments, and how these cases are handled within Cobb County.

 

The Offense

 

Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”

 

Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:

 

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

 

Punishment

 

A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1,000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.  O.C.G.A. § 16-5-23.1

 

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people.  For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.

 

Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program.  These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge.  In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that your attorney can negotiate all of these things.

 

How it Works in Cobb

 

The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases).  But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.

 

As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.

 

After arrest, a case file is created with the Cobb County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Cobb County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. 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. An experienced attorney should periodically check to see whether the case has been accused prior to arraignment.

 

It is possible to resolve a Family Violence Battery 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 Cobb County Domestic Violence Pre-Trial Intervention Program. If the accused successfully completes the DVPTI 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 DVPTI, 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, Cobb County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.

 

Cobb County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.  Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

 

Contact Us

 

Being charged with Family Violence Battery 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 Family Violence Battery 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 Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

Understanding Computer Trespass Crimes in Georgia

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By Mary Agramonte

 

In response to a growing number of computer-related crimes in both the government and private sectors, the State of Georgia enacted the Georgia Computer Systems Protection Act, O.C.G.A. §16-9-90 et. seq. The Act establishes four criminal offenses, all felonies, for violations of the Act: Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Forgery.

 

Computer Trespass is defined at O.C.G.A. § 16-9-93 as when any person who uses a computer or network with knowledge that such use is without authority and with the intention of (1) deleting or removing any program or data; (2) obstructing or interfering with the use of a computer program or data; or (3) altering, damaging, or causing the malfunction of a computer, computer network, or program.

 

The State of Georgia can still prosecute the felony case even if the removing of data is temporary, or if the damage to the computer is minimal or eventually restored. However, Georgia Courts have required that data must actually be hindered or interfered with. For example, in Kinslow v. State, an employee altered a network to get his supervisor’s e-mail rerouted to his own personal e-mail. The supervisor continued receiving his e-mails normally. The Supreme Court of Georgia in June of 2021 held that this was insufficient evidence of Criminal Trespass as the action never blocked or hindered the flow of data. Instead, the e-mails were going to the correct supervisor e-mail as well as being copying to the suspect’s private e-mail and thus he could not be found guilty of the felony crime of Criminal Trespass.

 

The State of Georgia will continue to vigorously prosecute computer crimes. If someone is found guilty of Computer Trespass, the maximum penalty is a $50,000 fine or 15 years in prison, or both. In some situations, if someone is charged with Computer Trespass, there may be enough facts to also charge them with the other computer crimes like computer theft and computer forgery, which can increase the sentencing if convicted. There is also a civil component to the Act, which allows for monetary damages for those who claim they have been victim to a computer crime in Georgia.

 

If you or a loved one has been charged with a computer crime in Georgia, call the Law Office of W. Scott Smith for a free consultation at 404-581-0999. An aggressive criminal defense team can investigate and raise numerous defenses in Computer Crime and Computer Trespass cases, and can protect you through the criminal justice system.

Homicide, Murder, and Manslaughter Charges in Georgia

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In our criminal justice system “homicide” is a broad umbrella term which encompasses different types of specific crimes. Homicide is generally defined as the killing of another person without justification or defense. This blog article aims to explore the different types of homicides under Georgia law.

 

Murder

 

O.C.G.A. § 16-5-1 sets out the ways a person can commit the offense of murder and second-degree murder.

 

  • A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

 

Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

 

  • A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

 

This is also referred to as “felony murder.”

 

  • A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

 

Punishment if Convicted

 

A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.

 

Manslaughter

 

In Georgia, manslaughter can be either voluntary or involuntary.

 

Under O.C.G.A. § 16-5-2, a person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

 

Essentially, the law recognizes that a person can become so inflamed by passion or provoked to a certain degree that it negates the mental state of “malice” found in murder charges. Because there is no malice, a jury is authorized to convict a person on the lesser offense of voluntary manslaughter.

 

Examples of sufficient provocation or irresistible passion have been held to include adultery (Raines v. State, 247 Ga. 504 (1981)) and battered person syndrome (Paslay v. State, 285 Ga. 616 (2009)). Evidence of anger alone is not sufficient to set aside malice. It is also important to note there can not be a “cooling off” period between the provoking act and the killing.

 

A person who commits the offense of voluntary manslaughter, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

 

Pursuant to O.C.G.A. § 16-5-3, A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.

 

In the situation of an unlawful act, upon conviction thereof, the person shall be convicted of a felony and punished by imprisonment for not less than one year nor more than ten years.

 

A person also commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

 

Here, during the commission of a lawful act in an unlawful manner, upon conviction thereof, the person shall be punished as a misdemeanor.

 

Contact Us

 

Homicides are investigated aggressively by law enforcement. These crimes are extremely serious. If you or someone you know has been charged with a crime involving the death or another, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Mobs: Inciting a Riot and Unlawful Assembly

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The State of Georgia has a legitimate interest in protecting the public and preventing disturbances of the peace. As a result, the Georgia legislature has enacted several criminal statutes to protect its citizenry. The criminal offenses include inciting a riot and unlawful assembly.

This article serves to explore the differences between these offenses and possible punishment if convicted.

Inciting a Riot

O.C.G.A. § 16-11-31 states, “the offense of inciting to riot occurs when a person who with intent to riot does an act or engages in conduct which urges, counsels, or advises others to riot, at a time and place and under circumstances which produce a clear and present danger of a riot.

To sustain a conviction for this offense, the prosecution must prove beyond a reasonable doubt that the person:

  • Engaging in conduct which urges, counsels, or advises others to riot
  • With intent to riot, and
  • At a time and place and under circumstances which produce a clear and present danger of a riot.

Punishment if Convicted

A person convicted of inciting a riot is guilty of a misdemeanor. Misdemeanors are punishable by up to one year in jail and $1,000 in fines, or both.

Unlawful Assembly

Under Georgia law O.C.G.A. §16-11-33, a person commits the crime of unlawful assembly when:

  • The assembly of two or more persons for the purpose of committing an unlawful act and the failure to withdraw from the assembly on being lawfully commanded to do so by a peace officer and before any member of the assembly has inflicted injury to the person or property of another; or
  • The assembly of two or more persons, without authority of law, for the purpose of doing violence to the person or property of one supposed by the accused to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person by violence.

Punishment if Convicted

A person convicted of unlawful assembly will be punished as a misdemeanor. Misdemeanors carry the up to one year in jail or up to $1,000 in fines, or both.

Contact Us

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Drug Schedules for Controlled Substances

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Georgia and Federal law provide for the “scheduling” of different controlled substances. Controlled substances are divided into different categories based on potential for abuse and medicinal use, if any. Violating state or federal controlled substances laws can result in misdemeanor or felony punishment depending on the type of substance and quantity involved.

Schedule I: These substances have a high potential for abuse and no accepted medical use. Schedule I drugs include Heroin, LSD, Psilocybin (mushrooms), and MDMA (Ecstacy). Although marijuana is considered Schedule I under federal law, Georgia treats marijuana possession differently. In Georgia, simple possession of less than one ounce of marijuana is punishable as a misdemeanor. However, if marijuana is chemically altered to another state (thc oil or wax), it can be charged as a felony.

Schedule II: These substances have a high potential for abuse but have at least some accepted medical use. Schedule II drugs include Cocaine, Amphetamine, Opium, Morphine, Codeine, Hydrocodone, Oxycodone, Ketamine, and Fentanyl.

Schedule III: These substances have less potential for abuse than Schedule I and II as they have some accepted medical use but may lead to moderate or low physical dependence if abused. Schedule III drugs include Central Nervous System (CNS) depressants, CNS stimulants, anabolic steroids, certain barbiturates, and substances or mixtures containing limited amounts of narcotics.

Schedule IV: These substances have low potential for abuse compared to Schedule III, having some accepted medical use, but may lead to limited physical and psychological dependence if abused. Schedule IV drugs include Alprazolam (Xanax), Clonazapam (Klonopin), Diazepam (Valium), and Zolpidem (Ambien).

Schedule V: These substances have low potential for abuse compared to Schedule IV, having some accepted medical use, but can also lead to limited physical and psychological dependence if abused. Schedule V drugs include substances or mixtures containing limited amounts of narcotics and must be lawfully prescribed.

A person accused of unlawful possession or the sale/distribution of any of the above controlled substances is facing serious criminal charges. A skilled and experienced attorney is necessary to navigate the law and successfully defend criminal charges.

Contact Us

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Possession of THC Oil under Georgia Law

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Generally, possession of a personal amount of marijuana is considered a misdemeanor, pursuant to O.C.G.A. § 16-13-2(b). However, possession of other forms of THC, such as oil, resin, or wax, which are extracted from the plant, can be charged as a Schedule I felony in accordance with the Georgia Controlled Substances Act.

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act,” include criminal charges relating to the possession of THC oil. According to O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act, THC oil is considered a Schedule I controlled substance. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, this includes non-medicinal THC oil, which is categorized as a Schedule I felony in the State of Georgia.

LOW THC OIL

However, an experienced criminal defense attorney could negotiate for a felony charge to be reduced down to a misdemeanor under O.C.G.A. § 16-12-191. This statute governs the possession of “low THC oil.” Pursuant to this statute, it is unlawful for any person to possess, purchase, or have under his control, 20 fluid ounces or less of low THC oil. If convicted under this statute, the accused will be sentenced to misdemeanor punishment.

In order for it to be considered “low THC,” the prosecution must prove that the oil was less than a 5% concentration of THC. Thus, the GBI crime lab must provide to the State, as well as to the defense, an analysis of THC concentration, which does not always happen in every case. If this is not provided, the prosecution will have difficulty proving that the oil is above a 5% concentration of THC, and therefore, an experienced criminal defense attorney could negotiate for a felony possession of THC oil charge to be reduced down to a misdemeanor.

CONTACT US

Due to the complexity of the charge of possession of THC oil, as well as the severity of the punishment, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know the possible options of an accused arrested and charged with possession of THC oil, we are experienced and skilled at defending such allegations, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of THC oil, please call our office today at 404-581-0999 for a free consultation.

What to Do if you are Arrested for Child Molestation in Bibb County, Georgia

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If you or a loved one is arrested for child molestation in Macon, Georgia (Bibb County), it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Bibb County District Attorney is the Honorable Anita Howard. Her office has a dedicated division called the Crimes Against Women and Children Unit. The Bibb County DA’s will vigorously prosecute you if you are charged with child molestation.

Your case will be presided over by one of the four elected Superior Court judges.

  1. Judge Philip T. Raymond, III
  2. Judge Connie L. Williford
  3. Judge David L. Mincey
  4. Chief Judge Howard Z. Simms

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Bibb County and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle child molestation cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

Here is what you should do if arrested for child molestation in Bibb County.

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for child molestation in Bibb County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

If you are arrested for child molestation or any sex offense in Bibb County, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Child Molestation Charges in Fulton County, Georgia

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Fulton County or the City of Atlanta for child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Fulton County Crimes Against Women and Children Unit zealously prosecutes these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on the 11am calendar the following morning for First Appearance. At this hearing, the Fulton County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Fulton County Courthouse. It is crucial to get an attorney retained to be at the First Appearance hearing at the Fulton County jail.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Fulton County or the City of Atlanta, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations. Our office is in Fulton County.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Forsyth County Family Violence Battery – Cumming Criminal Defense Lawyer

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   The State of Georgia, as a whole, has taken a stand against domestic violence.  There are domestic violence task forces across the State, and specialized prosecuting units. Every day we see the impact that family violence arrests have on Georgia’s criminal justice system. Police are told across the State to make arrests for Family Violence Battery if there is any evidence it occurred. Evidence, unfortunately, can be one-sided and be the result of a false allegation.

For those who have been arrested for family violence, there may be feelings of anxiety and stress as it relates to the potential impact the case will have. Jail time, a criminal history, and forfeiture of firearms for life are all very real concerns when facing Family Violence Battery charges in Georgia. An arrest is not a conviction, and there are options in the criminal process for your Family Violence case.

In order to be prosecuted for Family Violence Battery, the State must prove that the alleged victim falls within the statutory definition for “Household Members or Family.”

Under O.C.G.A. § 16-5-23.1, this includes past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

 

The State must also prove that there was either “substantial physical harm” OR “visible bodily harm” in a Family Violence Battery case in order to get convicted of the crime.

 

What happens after a Family Violence Arrest in Forsyth County?

First, the person arrested for Family Violence Battery will have their booking photo and finger prints taken and then will be ordered into the Forsyth County Detention Center. The booking process, through fingerprints, creates the official criminal history that is then made public. After the booking process, the person arrested for Family Violence will see a Judge in their First Appearance hearing. This is where Bond will be addressed.

In order to get out on bond in a Family Violence case, the Judge must find several factors to be true. The Judge must find that the person accused of Family Violence Battery:

(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; and

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

These are referred to in Georgia as the ‘Ayala Factors’ based on the criminal case that first laid out what must be proven in order to get out on bond in a criminal case. Ayala v. State, 62 Ga. 704 (1993).  Retaining an attorney immediately at arrest means having representation at what many people view as the most important step: getting out of jail as soon as possible. A skilled attorney will do an investigation into the case  and allegations and put forth the best possible argument to have their client released on pretrial bond in their Family Violence case.

 

In a Family Violence case, the Judge may order certain requirements in order to be allowed out on bond. For example, the Judge can order domestic violence classes, or for the accused to not have any weapons while out on bond. We see in most domestic violence cases, if the person is not represented at First Appearance, that the Judge will issue a No Contact provision and Stay Away Order. This means that once the person is released, they are not allowed in many cases return to their home, or speak to the parent of their child or their husband or wife. This is something that in most cases can be avoided through proper investigation and preparation for a bond hearing.

 

What is the potential punishment for Family Violence Case in Forsyth County?

The punishment for a family violence case is codified at O.C.G.A. § 16-5-23.1 and the maximum penalty is the same across the State of Georgia. On a first conviction for Family Violence Battery, there is a maximum penalty of 12 months in custody and a $1,000 fine. Keep in mind, that the maximum penalty can be greatly increased based on what the State charges via the Accusation. For example, if there is one count of Family Violence Battery, one count of Simple Assault, and one count of Disorderly Conduct, and the charges all based on different conduct, the maximum penalty in that case would be three years to serve. A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court. This is a permanent forfeiture of your ability to carry a weapon.

In addition, while the maximum includes 12 months in custody and a $1,000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Keep in mind: an arrest is NOT a conviction. Just because you have been arrested for Family Violence in Gwinnett County or any county in the State, does NOT mean you will be ultimately convicted, and have to face the criminal history implications and criminal punishment. As in all criminal cases, there are numerous defenses and options to resolve cases short of a guilty plea!

Being charged with Family Violence Battery 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 Family Violence Battery 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 Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

How Battery-Family Violence becomes a Felony under Georgia Law

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Under O.C.G.A. § 16-5-23.1, the offenses of battery and battery – family violence are punished as misdemeanors. However, the same exact offense, under three sets of circumstances can transform this misdemeanor into a felony.

Battery Against the Same Victim

A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another. A first or second offense against the same victim will result in misdemeanor punishment.

But, upon a third or subsequent conviction for battery against the same victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Battery – Family Violence

If the offense of battery is committed between household members (past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household), it shall constitute the offense of family violence battery and is punished as a misdemeanor.

However, if the defendant has previously been convicted of a forcible felony committed between household members, he or she shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Or, if a person is convicted of a second or subsequent offense of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.