Trafficking at Airport

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Trafficking marijuana or cocaine at the Atlanta airport is a serious offense.  Our law firm has successfully handled hundreds of these cases in Clayton County.  The first step in successfully handling these cases is knowing the law.

Let’s take a hypothetical situation that we see often in our drug trafficking cases from the Atlanta airport.  Hypothetically speaking, John Passenger arrived in the Atlanta airport on  a flight from the Dominican Republic. After disembarking, he did not follow the other passengers but began wandering aimlessly in the seating area next to the gate. Two Clayton County police officers, Officer Slammer and Officer Book’em, had been informed that John Passenger would be on the flight. The officers were dressed in plain clothes, with no weapons visible. They approached John Passenger from behind, and one officer said, “Excuse me, sir, I’m a police officer. Can I talk to you for a minute?” John Passenger turned and responded, “Yes,” in English, but when the officers asked him if he spoke English, he smiled and responded in English that he did not. John Passenger told the officers, through an interpreter, that he was in Atlanta for personal reasons and that he was employed as a construction worker. Officer Slammer asked to see the palms of John Passenger’s hands, and he saw that they were smooth and free of calluses. At this point, John Passenger began to appear very nervous; his hands shook and he began to sweat.

Officer Slammer explained to John Passenger that he was a narcotics officer; he asked permission to search John Passenger and his luggage, but John Passenger agreed to a search of his person only and not of his luggage. When asked why he was hesitant to allow his luggage to be searched, John Passenger replied that it contained X-rated material and women’s lingerie and that he would be embarrassed by a search. Agent Officer Book’em asked if John Passenger would rather have a drug sniffing dog check the luggage for narcotics, and John Passenger said that he would rather have a dog check the luggage. They proceeded to baggage claim, where the defendant’s bag was located.

Agent Officer Slammer called for a dog from the Tri-City Narcotics Unit. He also told John Passenger he was not under arrest. The K-9 unit arrived less than 15 minutes later, and the agents arranged for the dog, named K-9 Drug Dog, to check a line of four bags, including John Passenger’s luggage.  K-9 Drug Dog alerted to John Passenger’s bag. The officers again asked John Passenger if he would agree to a search of the bag. John Passenger responded that he would agree only if he could do the search himself, but the officers did not agree to this proposal. Officer Slammer then ordered John Passenger detained. The officers took him and the bag to the narcotics office, where Agent Espana, who spoke Spanish, informed John Passenger of his Miranda rights. The officers obtained a search warrant for the bag. Inside, they found five kilos of cocaine.

This hypothetical was taken from a real case.  Clearly, John Passenger did not adequately protect his rights in that he agreed to allow a k-9 dog at the Atlanta airport to do a free air sniff around his bag.  Second, he agreed to go with officers to allow the K-9 to sniff his luggage.  Lastly, he agreed to allow officers to search his bag without a warrant.  Obviously, even if you are not trafficking drugs at the airport, you should always protect your rights and never consent to a search unless it is requested by TSA for security purposes in order for you to fly.  Secondly, you should always be polite and respectful of law enforcement when you decline to permit them to search your luggage or walk with them to a location you do not want to go.  If they tell you you are under arrest then obviously comply with their commands.

One hopes a bad thing will not happen to you as you are travelling through Atlanta’s International Airport, but sometimes bad things happen to unassuming innocent people.  If you find that law enforcement has charged you with Trafficking Cocaine or Trafficking Marijuana at the Atlanta airport by searching your luggage and finding drugs, it is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at our law office are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

License Consequences for DUI Convictions in Clayton County, Georgia

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of a DUI in Clayton County, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI School, and paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation, and recommended treatment, and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of defending a DUI, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with DUI in Clayton County, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

Prior False Allegations Are Admissible in a Child Molestation

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You are accused with child molestation and your accuser has previously falsely accused another person of child molestation. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a child molestation prosecution may bring up evidence that the alleged victim has previously made false accusations of child molestation. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

Fraud in Obtaining Public Assistance, Food Stamps or Medicaid – O.C.G.A. § 49-4-15

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In Georgia, it is a crime to make a false statement, fail to disclose information, impersonate another, or engage in other fraudulent activities in obtaining public assistance such as food stamps and Medicaid.

This crime can be charged as either a misdemeanor or felony depending on the total amount of the value of the public assistance. If the amount of food stamps or public assistance is less than $1,500, then it will be charged as a misdemeanor. In Georgia, the maximum penalty for misdemeanors is 12 months in custody and a $1000 fine. If the value of public assistance exceeds $1500, it will be treated as a felony. Under Georgia law, individuals convicted of felony fraud in obtaining food stamps or Medicaid face a one to five-year imprisonment.

 

The statute lays out several different examples of fraudulent activity that can fall under this statute:

 

(1) Knowingly using, altering, or transferring food stamp coupons to purchase food stamp coupons in any manner not authorized by law;

(2) Knowingly possessing food stamp coupons or authorizations to purchase food stamp coupons when he or she is not authorized by law to possess them;

(3) Knowingly possessing or redeeming food stamp coupons or benefits when he or she is not authorized by law to possess or redeem them; or

(4) Knowingly using food stamp coupons or benefits in any manner or for purposes not authorized by law.

 

Apart from being susceptible to arrest under this statute, the legislation mandates that the individual is also obligated to reimburse the state.

 

If you or a loved one has been charged with Fraud in Obtaining Public Assistance, Food Stamps, or Medicaid, call the criminal defense lawyers at Law office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

My loved one has been arrested for a felony in Fulton County, what happens now?

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Everyone arrested for a felony within Fulton County will be taken to the Fulton County Jail or Rice Street to be booked in. After someone is booked, they will be scheduled for First Appearance, typically the next day. The purpose of First Appearance is to inform you of the charges and set a bond. First Appearance is heard by a Magistrate Court judge.

There are four factors that the judge will consider when setting or denying a bond. The factors are that the accused 1) is not a risk of fleeing the jurisdiction or failing to appear in court, 2) doesn’t pose a significant danger to any person or the community, 3) isn’t a risk of committing a new felony, and 4) is not a threat to intimidate witnesses or otherwise obstruct justice. The judge will also take the person’s criminal history, any history of failing to appear in court, and the nature of the allegations into account when considering bond. Bond may be denied based on the type of charge. There are certain crimes – e.g. murder, armed robbery, sex crimes, etc. – that can only be heard by a Superior Court judge.

If bond was denied and your loved one is still incarcerated, they are entitled to a preliminary or probable cause hearing. This is when the State has to bring witnesses to prove the allegations by a probable cause standard or that there is a reasonable belief that the accused committed the alleged act. It is very important to have an experienced advocate to cross-examine and challenge the State’s witnesses and evidence.

If your loved one has been arrested for a felony in Fulton County, please give us a call at 404-581-0999 for a free consultation.

License Consequences for DUI Convictions in Gwinnett County, Georgia

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of a DUI in Gwinnett County, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation, and recommended treatment, and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of defending a DUI, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with DUI in Gwinnett County, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

Clayton County Sexual Battery

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

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

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

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

Fourth Amendment Waiver

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In Georgia, can a person on probation be illegally searched by law enforcement?  The answer is yes and no.  A probationer who has executed a Fourth Amendment waiver at the time of their plea may be subject to a warrantless search if there is reasonable suspicion of criminal activity or for the purpose of monitoring the extent of the probationer’s compliance or lack of compliance with the terms of their probation.  The general rule is that the police can search a probationer, who is subject to a special condition of probation waiving her Fourth Amendment rights and agreeing to searches of her person, property, residence, and vehicle, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for the search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner such as searching to harass the probationer.

If you are challenging the illegal search under a Fourth Amendment waiver you will need to argue the search was without consent and the officer was conducting the search in bad faith or in an arbitrary manner.

If you feel as the police or law enforcement seized evidence illegally, please give us a call at our law firm at 404-581-0999 to discuss the possibility of representation.

Sexual Battery in Fulton County

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If you are arrested for Sexual Battery in Fulton County, please do not make any statements to the police. You will be brought over to court the following morning after your arrest and a Fulton Magistrate Court judge will consider bond.

A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

If you are arrested for Sexual Battery in Fulton County, please give us a call at 404-581-0999.

License Consequences for DUI Convictions in Gwinnett County, Georgia

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of a DUI in Gwinnett County, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation, and recommended treatment, and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of defending a DUI, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with a DUI in Gwinnett County, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.