After my DUI arrest, the officer took my license. How can I get to work?

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If you have been arrested for a DUI in Georgia and an officer took your license, you may be wondering how you can get to work, school, or even your court date without the risk of getting into trouble. If this is you, then take a look at the citation you were given when you were arrested and take a deep breath. At the bottom of the citation, you should see something that says “temporary driving permit.” Georgia law requires an officer who is arresting you for DUI to seize your license. The citation you receive acts as a temporary driving permit for a period of 45 days from the date you were arrested or while your ALS hearing is pending. For information on filing an ALS petition, please check out this blog post: https://www.peachstatelawyer.com/georgia-administrative-license-suspension-als-hearings-during-the-pandemic/

If your license was valid at the time of arrest, the officer MUST give you this permit. If you did not receive the permit and your license was valid, let us know so that we can contact DDS on your behalf.

This permit, unlike a restricted license or a limited permit, is functionally the same as your regular license. You can travel for work or leisure without restriction on this permit. Additionally, you can find your drivers license number on your citation and visit DDS.georgia.gov and select “check license status” to actually view whether or not your license is valid. So long as the website says your license is valid and you have the 1205 form, you should not have to worry about getting pulled over and not having your license on you. However, be sure to bring the 1205 form with you when you drive in case you are stopped.

If your license has been taken because of a DUI arrest, DO NOT WAIT. Call us today. You have 30 days from the date of the arrest to try to save your license, and on the 46th day after the arrest, the 1205 permit expires. We can help.

Call us at (404)-581-0999!

Being charged with Rape in Newton County

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Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Newton County, for rape, 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 rape. The Newton County District Attorney’s office zealously prosecutes these cases and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape 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 calendar the following morning for First Appearance. At this hearing, the Newton 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 rape case. You will then need to file a motion for a formal bond hearing in Newton Superior Court and a preliminary hearing in magistrate court. These hearings take place at the Newton County Courthouse in downtown Covington, Georgia. It is crucial to get an attorney retained to be at the First Appearance hearing at the Newton County jail.

O.C.G.A. § 16-6-1 defines rape as follows:

When someone has carnal knowledge of (1) a female forcibly and against her will, or (2) a female who is less than 10 years of age. Carnal knowledge is any penetration of the female sex organ by the male sex organ. Against her ill means without consent. Forcibly means acts of physical force, threats of death or bodily harm, or mental coercion such as intimidation.

The elements that Newton County District Attorney’s office must prove to convict you are 1) penetration, 2) force, and 3) against her will. Physical injury is not an element.

The Newton County Superior Court has 5 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Chief Judge John Ott, Judge Chevada McCamy, Judge Layla Zon, Judge Jeffrey Foster and Judge Kendall Wynne.

It is imperative that you do not walk into court on a rape charge in Newton County either without a lawyer or with a lawyer who does not handle sex crimes. Rape cases are very difficult to defend and require someone with the knowledge and experience to defend them.

The punishment for rape is a mandatory 25 years to life in prison. You need to put everything you have into the trial to win. Do not rely on an appeal to be successful. You must win your rape trial to avoid spending the rest of your life in prison.

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 downtown Atlanta.

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.

Rape in Henry County

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Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Henry County, for rape, 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 rape. The Henry County District Attorney’s office zealously prosecutes these cases and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape 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 calendar the following morning for First Appearance. At this hearing, the Henry 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 rape case. You will then need to file a motion for a formal bond hearing in Superior Court and a preliminary hearing in magistrate court. These hearings take place at the Henry County Courthouse in downtown McDonough, Georgia. It is crucial to get an attorney retained to be at the First Appearance hearing at the Henry County jail.

O.C.G.A. § 16-6-1 defines rape as follows:

When someone has carnal knowledge of (1) a female forcibly and against her will, or (2) a female who is less than 10 years of age. Carnal knowledge is any penetration of the female sex organ by the male sex organ. Against her ill means without consent. Forcibly means acts of physical force, threats of death or bodily harm, or mental coercion such as intimidation.

The elements that District Attorney must prove to convict you are 1) penetration, 2) force, and 3) against her will. Physical injury is not an element.

The Henry County Superior Court has 3 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Judge Brian Amero, Judge Holly Veal and Judge Pandora Palmer.

It is imperative that you do not walk into court on a rape charge in Henry County either without a lawyer or with a lawyer who does not handle sex crimes. Rape cases are very difficult to defend and require someone with the knowledge and experience to defend them.

The punishment for rape is a mandatory 25 years to life in prison. You need to put everything you have into the trial to win. Do not rely on an appeal to be successful. You must win your rape trial to avoid spending the rest of your life in prison.

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 downtown Atlanta.

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.

Possession of Drugs in Clayton County – Atlanta Drug Possession Lawyer

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The legal system in Clayton County treats drug crimes seriously. If you have been arrested for the possession of drugs in Clayton County, you could be facing jail, fines, and probation. In order for the State to prove drug possession, it must be shown that the contraband was lawfully seized. If there was an illegal search, or an illegal seizure, the evidence must be suppressed, and the case dismissed.

If you have been arrested in Clayton County, the Clayton County District Attorney’s Office will prosecute the case. The Clayton County Superior Court is located at 9151 Tara Boulevard in Jonesboro, Georgia.  The first step following an arrest, is the First Appearance hearing. This is where the Judge will notify you of your charges and rights and then make a determination for bond. In Georgia, there are five factors Judges use to determine whether or not to release someone on bond. These are known as the Ayala factors (Ayala v. State, 262 Ga. 704 (1993)). Judges may issue a bond upon a finding of the following factors:

  • The person poses no significant risk of fleeing or failing to appear in court when required
  • The person poses no significant risk or danger to a person, property, or community
  • The person poses no significant risk of committing a felony while out on bond
  • The person poses no significant risk of intimidating witnesses or otherwise obstructing justice

Under the Georgia Controlled Substance Act, drugs are classified into 5 schedules based on their potential for abuse, tendency for addiction, and their recognized medical uses. Schedule I is considered to have the highest risk of physical and psychological dependency and are considered to have no medical use, while Schedule V is recognized to have lower risk of dependency and legitimate medical use. The following are common examples of drugs that the lawyers of W. Scott Smith P.C. have defended in the past.

Schedule I

Heroin, THC, LSD, and MDMA (ecstasy).

Schedule II

Cocaine, Codein, Hydrocodone, Morphine, Methadone, Amphetamine, Methamphetamine, Oxycontin, Percocet

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Fulton County

The penalties in Clayton County and in Georgia can be harsh following a conviction.  Possession of drugs in Georgia is a felony, except for marijuana if it less than an ounce. If it is your first offense and you are found guilty of a Schedule I or II drug, you are looking at 2-15 years in prison, intense probation, and high fines.

On second or subsequent offenses of Schedule I or II drugs, you are looking at at least 5 years in prison, and up to 30, with the possibility of similar probation and high fines as the first.

If you are found with Schedule III, IV, or V drugs, the penalty will be 1 to 5 years in prison. If it is your second or subsequent offense, you are facing 1 to 10 years prison time.

Additionally, if you are found guilty and a car was used during the felony, your driver’s license will be suspended.

How the State Proves Possession

The drugs do not have to be found on your person for you to be guilty of drug possession. Driving a car in which drugs are found is sufficient for the law to determine that you are in violation of the Controlled Substance Act. Even if the drugs are found thrown out or hidden, the State will still try to prove you were in possession. Depending on where the drugs were found, two people or more can be considered to have possession of the same drugs. Important facts for both the state and defense are whether or not paraphernalia or residue in plain view was found, and also whether you attempted to flee.

Additionally, drug crimes almost always implicate Fourth Amendment a analysis which can serve as a basis for suppression of the drugs. This means that if the State unlawfully searched or seized the drugs, the drugs are thrown out of evidence, and the case dismissed.

Talk to an Attorney

Because a conviction of drug possession carries lifelong consequences, it is important you speak with an attorney who is knowledgeable about drug possession laws in Georgia. Pleading guilty to any drug possession offense will have harsh penalties that we want you to avoid. Know your legal options and challenge the evidence so that you can move on from this arrest in the best way possible. Call us for a FREE CONSULTATION today at 404-581-0999 and mention this blog.

I have a stay away/no contact provision in my bond, but I live with the victim. What do I do?

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“Stay Away” and “No Contact” bond conditions are common conditions attached to bond orders when someone is charged with battery. These conditions mean just what they say: that the defendant is to stay away from the alleged victim in the case, and is to have no contact with them under any circumstances. While this is normally an easy condition to abide by, what do you do if the alleged victim is a spouse, child, or someone else who lives in your home?

If you have been arrested and charged with battery or battery-family violence against someone who lives with you and there is a no contact provision to your bond, continuing to reside in the home with that person is a violation of your bond condition, and puts you at serious risk of having your bond revoked. This is true even if the alleged victim in your case expresses a desire to have the charges dropped, they want to continue to live with you, or it was all a misunderstanding. If there is a no contact condition, any contact, even if friendly, could result in a bond revocation. So what should you do?

If you have charges of battery or battery-family violence and you want to continue to live with or see the victim in the case, you must first obtain an order modifying your bond conditions. You must do this before you continue to live with or communicate with the victim. You should contact an attorney to request that they file a motion for bond modification with the Court. Your attorney will then file the motion on your behalf, and the Court may grant the motion or may decide to have a hearing on the motion. If the Court schedules a hearing, your attorney will appear and advocate on your behalf, arguing that you should be permitted to have contact with the alleged victim.

If you are currently in contact with the alleged victim in your case and there is a no contact provision, notify your attorney immediately, and remove yourself from the residence or location where the victim is staying. Do not continue to speak to or reside with the victim until your bond can be modified.

CONTACT US

At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations, we are knowledgeable about all the potential defenses of such a charge, and we have experience at trial advocating for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for battery-family violence in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Marijuana Edibles and THC Cartridge Charges in Georgia

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If you have been charged in Georgia with marijuana edibles or a THC cartridge here is what you need to know to prepare yourself for court.

 

Edible forms of cannabis, including THC ladened gummies (i.e. gummy bears), cookies, brownies, honey sticks, Rice Krispy treats, chocolate bars, sodas, lozenges, and capsules, are all illegal in Georgia. All marijuana edibles contain a significant amount of tetrahydrocannabinol (THC). THC edibles in Georgia, even those consumed for recreational and medical purposes, are illegal. Similarly, all electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or weed pen with a THC vapor cartridge is illegal under Georgia law.

 

Under Georgia law, extracting marijuana oil out of the plant-based material makes the crime of possession a felony offense. The punishment you can face for possessing marijuana edibles or a THC vape pen are described at the bottom of this article.

THC is the psychopharmacologically active component of the cannabis plant. Most THC exists in the form of an isomer known as delta-9-THC, but somewhat less than ten percent of naturally occurring THC is of the delta-8 isomer. Both delta-8-THC and delta-9-THC produce a psychological effect. They are found in all cannabis plants, and they are not known to exist elsewhere in nature. Concentrations of THC can be produced in two ways, either by chemically extracting it from the cannabis plant or by synthesizing it in the laboratory. A simple procedure, using organic solvents to remove the THC from cannabis, can produce an oily substance variously known as “hash oil,” “marijuana oil,” or “liquid marijuana.” THC thus extracted “is not marijuana; it is tetrahydrocannabinol. It is the extract, the pure compound from the drug.

 

Edibles, most commonly cannabidiol or CBD, with very little THC are illegal in Georgia.  Under Georgia’s strict laws regarding the use or possession of any product that has THC extracted from the plant (or where no plant fibers are present) is a serious charge.  The lone exception is for prescribed THC oil where you have a Georgia prescription.  Once you obtain a Georgia THC card, Georgia allows you to possess 20 fluid ounces of low THC oil within the state of Georgia.  However, the law requires that the low THC oil be “in a pharmaceutical container labeled by the manufacturer indicating the percentage of tetrahydrocannabinol therein,” be less than 5 percent tetrahydrocannabinol by weight, and that the amount of oil in the container – or containers – not exceed 20 fluid ounces total.  Ironically, the “standard dose” in recreational THC use is considered 10 mg over a five-hour period.

 

The crimes relating to the possession or sale of marijuana are set forth in the Georgia Controlled Substances Act Title 16 Chapter 13.  Under OCGA § 16-13-21(16) marijuana is specifically defined as:

 

all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.

 

OCGA §16-13-30:(3)(P), was changed by the Georgia legislature to provide:

 

Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products.

 

Penalties for Weed Edibles is located in OCGA § 16-13-30:

There are three basic tiers of punishment and they are all determined by the total weight of the substance.  Note there is a difference between the weight of a solid substance (gummy) and the weight of a liquid (vape cartridge).

Tier 1:

  • Less than one gram of solid substance.
  • Less than one milliliter of liquid substance.
  • Placed into a secondary medium with a combined weight of less than one gram.
  • Range of punishment is one to three years.

Tier 2:

  • At least one gram, but less than four grams of solid substance.
  • At least one milliliter of liquid substance, but less than four milliliters.
  • Placed into a secondary medium with the combined weight of more than one gram, but less than four grams.
  • Range of punishment is one to eight years.

Tier 3:

  • At least four grams, but less than twenty-eight grams of solid substance.
  • At least four milliliters of liquid substance, but less than twenty-eight milliliters.
  • Placed into a secondary medium with the combined weight of more than four grams, but less than twenty-eight grams.
  • Range of punishment is one to fifteen years.

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 downtown Atlanta.

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.

BATTERY- FAMILY VIOLENCE IN FULTON COUNTY

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In Georgia, battery-family violence is the identical charge of battery except that the alleged victim in the case has some sort of familial connection to the accused. The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges.

According to O.C.G.A. § 16-5-23.1, a person commits “battery” when he/she intentionally causes substantial physical or visible bodily harm to another. However, in order for a person to be charged with battery- family violence, the crime must have occurred between the following people:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

PENALTIES

Battery- family violence can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. Major consequences of battery-family violence are the loss of gun rights, serving time on probation, or potentially in custody, and any future conviction of the same crime may be transferred to the Futon County District Attorney’s Office to prosecute as a felony.

Fulton County has strict policies in place for offenses related to family violence. If the accused is previously convicted of battery-family violence, and they are subsequently arrested for the same charge, the Fulton County Solicitor-General’s Office will often transfer it to the District Attorney’s Office in order to indict as a felony.

Furthermore, the prosecutors in the Fulton County Solicitor-General’s Office do not have much discretion when it comes to these types of cases. Their policy is generally to not allow prosecutors in their office to reduce family violence charges to a lesser-included offense without the authorization from a supervisor. Thus, it is of vital importance to hire a seasoned criminal defense attorney with trial experience to defend allegations such as these due to the policies put in place by the Fulton County Solicitor-General’s Office. In many cases, going to trial might be a client’s best option to avoid a conviction, save their gun rights, and protect their freedom.

CONTACT US

At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations, we are knowledgeable about all the potential defenses of such a charge, and we have experience at trial advocating for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for battery-family violence in Fulton County, please call our office today at 404-581-0999 for a free consultation.

DUI IN GWINNETT RECORDER’S COURT

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After the accused has been arrested for a DUI, if one of the following occurred, the 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 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 0.08 grams or more.

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 imperative to hire an experienced criminal defense attorney who understands all 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 0.08 grams 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 Gwinnett County Police Department or the Georgia State Patrol, depending on the department that arrested the accused, transfers the criminal charge to the Gwinnett County Recorder’s Court, the criminal case will begin at a proceeding known as an arraignment. There are a few options when the case has landed on an arraignment calendar. Such options include:

  • The accused may plead guilty to DUI, which for a first DUI conviction usually will result in 12 months of probation, as well as completion of a Risk Reduction course, at least 40 hours of community service, and a substance abuse evaluation.
  • The accused may plead not guilty to DUI and seek a bench trial with the Gwinnett County Recorder’s 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 Gwinnett County State Court; OR
  • At arraignment, the accused has the option to speak to the Gwinnett County 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 in Gwinnett County, please call our office today at 404-581-0999 for a free consultation.

Georgia DUI: How many points in a DUI?

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In Georgia, a driver’s license will be automatically suspended if engaged in serious traffic violations. Therefore, a DUI does not accumulate any points on your driving record, also called a Motor Vehicle Report (MVR) but carries immediate consequences. For a first DUI conviction (for drivers over the age of 21), your license will be suspended for 12 months by DDS (Georgia Department of Driver Services).

 

Ways a driver can reinstate their license after six months:

  • Your license has already been suspended for 120 days;
  • Completion of a state-approved Risk Reduction Program; and
  • Submit a $210 fine for license reinstatement fees.

Note that this reinstatement will depend on your driving history and will permit you to drive to and from work and school and other permissible places.

 

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf.

Laying Drag

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According to O.C.G.A. § 40-6-251, laying drag is defined as operating a vehicle “in such a manner as to create a danger to persons or property by intentionally and unnecessarily causing the vehicle to move in a zigzag or circular course or to gyrate or spin around.”

There are two exceptions to this law:

(1) If the driver lays drag as a necessary maneuver to avoid a collision, injury, or damage to their vehicle or person, they will not be prosecuted under this statute.

 

(2) If the driver is operating the vehicle in or on any raceway, drag strip, or similar place customarily and lawfully used for such purposes, it will not be construed as laying drag in accordance with O.C.G.A. § 40-6-251.

The State of Georgia has ample case law detailing how laying drag is made, and further, whether certain evidence of laying drag can constitute criminal conduct pursuant to O.C.G.A. § 40-6-251. For example, the following circumstances are not sufficient evidence to cite a driver for laying drag:

(1) It is not unlawful for a driver’s vehicle tires to cause smoke while he/she is making a turn, and it would not be sufficient evidence to prosecute a driver for laying drag.

 

(2) There also will not be enough evidence to prosecute a driver for laying drag if the only evidence of laying drag is the sound of an engine coupled with screeching tires. There must be additional evidence in order to prosecute a driver for laying drag.

Penalties

The offense of laying drag will be characterized as a misdemeanor The maximum penalty for a misdemeanor in the State of Georgia is 12 months in custody, and a $1,000 fine.

In Georgia, laying drag also includes assessing three points on an accused person’s driver’s license. If he/she has assessed 15 or more points in any 24-month period, he/she will be at risk of a suspension of his/her driving privileges.

However, if the accused person is under the age of 18 these general rules are different. Drivers under the age of 18 will have their driver’s license suspended if they have accessed four or more points in any 12-month period. Thus, laying drag for a driver under the age of 18 can have much more serious consequences than drivers older than the age of 18.

Contact Us

Due to the severity of the penalties for laying drag, 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 cited or arrested for laying drag, please call our office today at 404-581-0999 for a free consultation.