How Battery-Family Violence becomes a Felony under Georgia Law

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.

Aggravated Battery Charges in Georgia

In Georgia, there are multiple types of battery offenses such as simple battery, battery, family violence battery, and aggravated battery. This blog will solely focus on aggravated battery.

According to O.C.G.A. § 16-5-24, a person commits the offense of aggravated battery when he/she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by seriously disfiguring his/her body or a member thereof. The crime of aggravated battery does not require that the victim’s disfigurement be permanent, however, the injury must be more severe than a superficial wound. Some examples of aggravated battery include, but are not limited to:

  • Striking a person with a weapon or dangerous object;
  • Inflicting an injury upon a person in which causes them to have blurred vision, broken bones, severe bruising, memory lapse, or permanent nerve damage;
  • Shooting a person with a firearm;
  • Inflicting an injury upon a person in which causes them to suffer temporary or permanent disfigurement;
  • A battery against a particular group of people that are protected such as police officers, healthcare providers, social services workers, the elderly, and the developmentally disabled.

A conviction of aggravated battery requires the jury to find that an accused person acted with intent. Thus, an experienced criminal defense attorney may defend these allegations by arguing that the accused did not have the requisite state of mind to commit an aggravated battery. Another example of an affirmative defense that may be raised in a case like this is self-defense.


An aggravated battery charge is a serious offense and is characterized as a felony. A person convicted of this offense can be punished anywhere between 1-20 years in prison. However, the punishment is enhanced when the victim of an aggravated battery is part of a particular class of persons. If the victim is a police officer engaged in his/her official duties then the accused, if convicted, may be sentenced to a prison term of at least 10 years, but no more than 20 years. Furthermore, if the victim is a person over the age of 65 years old, the accused may be punished anywhere between 5-20 years in prison. Additionally, if the victim is a teacher or other school personnel, and the offense occurred within a school safety zone, the penalty upon conviction is at least 5 years, but no more than 20 years in prison. Finally, if the aggravated battery is considered to have been committed against a person who has a familial relationship with the accused, he/she could be sentenced anywhere between 3-20 years in prison.

Due to the severity of the penalties for an aggravated battery charge, 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, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated battery, please call our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Disorderly Conduct

Disorderly conduct is an offense that occurs very frequently in today’s climate, especially during this past summer where protests over racial injustice and police brutality in Atlanta filled the streets. Even with the frequency of this charge, a conviction for disorderly conduct can have grave consequences. For some clients, this is their first interaction with police and their concerns include: jail time, a permanent criminal record, and possibility of trial. All these concerns are very real when facing a disorderly conduct arrest and/or conviction and it is strongly recommended to speak to a criminal defense attorney when one is facing such charges.

The Offense

In Georgia, disorderly conduct is a misdemeanor. Georgia Criminal Code § 16-11-39 states that an individual commits disorderly conduct when they act in a violent or tumultuous manner toward another person, which causes that person to fear for their safety. It can also occur where the individual acts violently toward another’s property, placing that property in danger of being damaged or destroyed. It can even occur where an individual uses provoking language or “fighting words” in which could create a violent encounter with another or by threatening a “breach of the peace.”

“Fighting Words”

An individual can be convicted of disorderly conduct solely based on the utterance of “fighting words.” Fighting words are known as abusive words or phrases that are directed at another and by their very utterance inflict injury or provoke a violent reaction. The focus is primarily on the nature of the words and the circumstances in which they are spoken rather than on the response to those words. This type of language is not protected under our constitutional right to freedom of speech under the First Amendment. “Fights words” can be the sole cause for a conviction of disorderly conduct.

“Breach of the Peace”

“Breach of the peace” generally covers conduct that disturbs the public peace and quiet of the community. An individual who uses “fighting words” or abusive language, without being provoked by another, in which by its very nature could create a public disturbance, can be arrested and/or convicted of disorderly conduct.


Many municipalities have their own disorderly conduct ordinances, one of which is the City of Atlanta. This means that, in those cities, a person may be charged with either a violation of state law or municipal law. The penalties can be different for each, but in general, a first conviction of disorderly conduct carries a maximum penalty of one year in jail and a $1,000 fine. Disorderly conduct charges are subjective in nature and can be worked out with the prosecution, as well as dismissed at trial.

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Being arrested for disorderly conduct can be a stressful event in anyone’s life and it is always recommended to speak to an attorney as soon as possible. At the Law Offices of W. Scott Smith, our lawyers are trained to know all your possible options when facing this type of charge. We are also experienced in all other misdemeanor offenses and strive to protect our clients’ rights throughout this process. If you or a loved one has been arrested or charged with disorderly conduct, please call our office today at 404-581-0999 for a free consultation.

Georgia’s New Second Chance Law – Misdemeanor Record Restriction (Expungement)

By: Mary Agramonte

A new expungement law is on the way, which will come as great news to the millions of Georgians who have a criminal history. Governor Kemp recently signed SB 288 into law after state leaders unanimously approved the bill. Georgia’s new “Second Chance Law” will become effective on January 1, 2021 providing Georgians with an opportunity to expunge certain misdemeanor cases, both a victory and a first in Georgia.

Georgia historically has not had favorable expungement laws on the books. Under current Georgia law, criminal convictions stay on a person’s record forever. Convictions never ‘age off’ no matter the time that has elapsed, or the strides made for rehabilitation. This places a staggering number of Georgians at a disadvantage for employment, housing, higher education, and other opportunities.

Georgia’s current law disallowing expungement has been troublesome for the hundreds of thousands of people who get caught up in our justice system each year. In fact, Georgia leads the nation, by far, in placing people on probation following conviction.  The United States Bureau of Justice Statistics reported that 433,200 people in Georgia were on probation at the end of 2018. According to Second Chance for Georgia , 4.3 million people have a criminal record in Georgia. This means that an astounding 40% of Georgia’s adult population carry a criminal history through life, resulting in more than 1/3 of the State’s population having barriers to advancement in careers and other opportunities.

This new change in Georgia law will allow individuals to petition the court to have certain misdemeanor convictions restricted and sealed off their record after living a crime free life for four years. This is a process sometimes referred to as “expungement,” but is called “record restriction” in Georgia.  So long as a person has completed the terms of their sentence and has had no new convictions for at least four years, then SB 288 allows the individual to petition the Court to restrict the misdemeanor off their record.

Upon petition and a request for a hearing, the Court will conduct a balancing test to determine whether to restrict the misdemeanors off the criminal history. The hearing must take place within 90 days of the request. Under the new SB 288 law, the Court must grant the petition to restrict the criminal history records if it determines that the harm resulting to the individual clearly outweighs the public’s interest in the criminal history being publicly available. Factors such as the nature of crime, the loss of career opportunities, time elapsed since conviction, and proven rehabilitation will all become relevant inquiries for the Court.

Under SB 288, certain crimes will continue to be ineligible for record restriction in Georgia. This means that the following crimes cannot be expunged following a conviction:

  • Family Violence Assault and Battery
  • Family Violence Stalking
  • Hindering 911 call
  • Child Molestation or Enticing a child for indecent purposes
  • Public indecency
  • Pimping and pandering
  • Sexual Battery
  • Theft by Taking, Theft by Deception, Theft by Conversion
  • Serious Traffic Offenses (Reckless Driving, DUI, Homicide by Vehicle, Serious Injury by Vehicle, Fleeing or Attempting to Elude, and Aggressive Driving)

Crimes that will be eligible under the new law for potential record restriction include but are not limited to:

  • Possession of Marijuana
  • Possession of Drug Related Objects
  • Shoplifting
  • Non-Domestic Battery and Assault
  • Minor in Possession of Alcohol
  • Giving False Name, False Report, or False Statement
  • Criminal Trespass
  • Loitering
  • Terroristic Threats
  • Disorderly Conduct
  • Driving with a Suspended License


Some felonies are included in this expansion as well. For example, if someone has been convicted of a felony charge, but were issued a pardon, they too can petition a Judge to restrict and seal the charge off their record under the new law.

Who is eligible to petition the court for record restriction or expungement?

Anyone who was convicted of a misdemeanor crime, (other than the crimes explicitly exempt under the statute), and have had no new convictions in the past four years.

How many cases can I ask to be restricted?

Individuals will be allowed to petition the court for record restriction on two misdemeanor cases (a case can include multiple misdemeanor offenses under one accusation).

What happens if the Judge denies the request for record restriction?

You can request the record restriction again after waiting two years from the Judge’s denial.

How do I obtain record restriction under SB 288?

The new law requires you file a motion into the court you were convicted requesting the misdemeanor be restricted and expunged. A court order is required in order for your criminal history to be expunged under the new law.

Keep in mind that record restriction is not limited to misdemeanor convictions discussed in this blog under the new SB288 law and can be, at times, automatic. For example, if you were arrested after July 1, 2013, and the case against you was dismissed, or you were fully acquitted at trial, the charge will be automatically restricted when the clerk enters that disposition into the GCIC system. Arrests prior to July 1, 2013 that resulted in dismissal require a request and separate process for restrictions, but are eligible.

The best way to know what is on your criminal history is to request a copy of your GCIC under Purpose Code “E” from a local police department or sheriff’s office.  If you or a loved one is one of the millions of people carrying a criminal history through life in Georgia, the Second Chance law may come as a reprieve. The attorneys at W. Scott Smith are versed on all aspects of Georgia’s expungement and record restriction laws and are available for a FREE CONSULTATION by calling 404-581-0999.

Georgia Criminal Law – Party to a Crime

This blog serves to explore this fundamental question: Who can be charged with a criminal offense?

The Offense

O.C.G.A. § 16-2-20(a) provides, every person “concerned in the commission of a crime” is a party thereto and may be charged with and convicted of commission of the crime.

What does it mean to be “concerned in the commission of a crime”?

O.C.G.A. § 16-2-20(b) states a person is concerned in the commission of a crime only if he:

(1) Directly commits the crime;

(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;

(3) Intentionally aids or abets in the commission of the crime; or

(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

Therefore, under Georgia law, a person may be convicted of a crime even if he or she does not directly commit the crime, but is instead a party to the crime. Demps v. State, 337 Ga.App. 657 (2016). To be convicted as a party to a crime, there must be proof, beyond a reasonable doubt, that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. Lonon v. State, 348 Ga.App. 527 (2019).

Importantly, all of the participants in a plan to commit a crime are criminally responsible for the acts of each other, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan. Cisneros v. State, 299 Ga. 841, (2016). For example, if Bob, Joe, and Rob all agree to rob a bank, and during the robbery Rob spontaneously kills a bank teller, both Bob and Joe could be convicted of murder because they are a party to the crime.

Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime. Harper v. State, 298 Ga. 158 (2015). Other examples include:

  • Serving as the getaway driver in an armed robbery.
  • Turning off the alarm system of a store in where you work, knowing that it will be robbed later that day.
  • Providing a firearm to someone who you know is planning to commit a crime.
  • Directing a vehicle to a location where you know an armed carjacker is waiting.

But, mere presence at the scene of a crime and mere approval of the criminal act are not sufficient evidence to establish that the defendant was a party to the crime.  Garcia v. State, 290 Ga.App. 164 (2008).

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If you or someone you know is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

Armed Robbery in DeKalb County, Georgia

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in DeKalb County.

            The first thing that happens after someone is arrested for Armed Robbery in DeKalb County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant. The First Appearance occurs at the DeKalb County Jail at 4424 Memorial Drive in Decatur. At the First Appearance hearing, a DeKalb County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in DeKalb County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the DeKalb County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(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 known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the DeKalb County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in DeKalb County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in DeKalb County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in DeKalb County and throughout the State. 404-581-0999

Yes, Criminal Cases are Still Moving Forward in Georgia during COVID-19

You may have received a traffic citation, or a citation for misdemeanor possession of marijuana or theft by shoplifting. The officer may have released you on citation instead of taking you to a local detention facility for arrest. This doesn’t mean your case should be ignored, or is not a big deal, now. Cases are being heard in most municipal courts in the State. In fact, many municipalities and counties may ask you to come in and provide fingerprints at a later date when conditions are more safe.

In the past week, our firm has been present for shoplifting, DUI, and marijuana cases in Roswell, Marietta, Acworth, Kennesaw, Douglasville, Sandy Springs, Jonesboro, Forest Park, and many other municipal courts across the state.

Having an attorney represent you at this time can prevent you from having to appear and potentially risk your health. An attorney can also work with the prosecutor to try and get you the best possible outcomes during this time, working on lowering fines, reducing community service, and preventing other activities that may put you at risk for coronavirus exposure.

Our office is available right now to discuss your case with you. Call us at 404-581-0999 for a free consultation. We understand you may be feeling nervous or scared during these uncertain times, and we are here to help.  

Georgia Criminal Law – Criminal Damage to Property

There are several laws in Georgia intended to protect property in the interest of human life and safety. This blog article serves to explore the nature of these offenses and discuss the possible punishment if convicted.  

Criminal Damage to Property in the First Degree

O.C.G.A. § 16-7-22 defines the offense as when a person:

(1) Knowingly and without authority interferes with any property in a manner so as to endanger human life; or

(2) Knowingly and without authority and by force or violence interferes with the operation of any system of public communication, public transportation, sewerage, drainage, water supply, gas, power, or other public utility service or with any constituent property thereof.

Criminal damage to property in the first degree is a crime against the State involving the unauthorized interference with property in a manner that endangers human life. The phrase requiring defendant’s interference with the property be done “in a manner so as to endanger human life” means reckless endangerment rather than actual endangerment. As a result, successful prosecution of this offense does not require proof that the person actually injured the owner of the property. Furthermore, the State does not have to prove value or legal title of the property. It is enough the prosecution prove the person had a legal right to possess or occupy the property that was damaged. Some examples of this offense includes: firing gunshots into an apartment, dwelling, or vehicle, setting fire to a building, and throwing a rock at vehicle from overpass. It is important to note that this offense may serve as the basis for felony murder.

Any person convicted of this offense is guilty of a felony and may be imprisoned between 1 and 10 years.

Criminal Damage to Property in the Second Degree

O.C.G.A. § 16-7-23 provides, [a] person commits the offense of criminal damage to property in the second degree when he:

(1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00; or

(2) Recklessly or intentionally, by means of fire or explosive, damages property of another person.

Criminal damage to property in second degree is a general intent crime, which requires only a general intent to do the act, i.e., damaging another person’s property. Under section (1), the value of property is required to be proven and the value has to be greater than $500. In assessing value, the focus is on the value of the tangible item itself, not the total expenses of the owner in connection with property damage. Value does not have to be proven, however, if charged under section (2).

A person convicted of criminal damage to property in the second degree is guilty of a felony and may be imprisoned for 1 to 5 years.

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If you or a loved one are facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling Criminal Damage to Property cases in multiple jurisdictions across Georgia.

Georgia Criminal Law – Auto Theft Offenses

Georgia has several laws dealing with the theft of motor vehicles. This article serves to explain the nature of the offenses, possible punishment if convicted, and defenses to such charges.


Under O.C.G.A. § 16-5-44.1, a person commits the offense of vehicle hijacking when they take a car from another person by force and violence or intimidation, while in the possession of a firearm or weapon.

A person convicted of motor vehicle hijacking faces a 10 to 20 years imprisonment, and a fine ranging from $10,000 to $100,000. For a second conviction for carjacking, the new conviction results in a life in prison sentence plus a fine ranging from $100,000 to $500,000. It is not necessary that the defendant committed the prior carjacking in Georgia in order to receive a life sentence.

Motor Vehicle Theft

Unlike the above carjacking statute, there is no specific offense related to the nonviolent theft of an automobile. Rather, an individual who commits a nonviolent auto theft may be charged with “theft by taking” which O.C.G.A. 16-8-2, which makes it a crime for a person to “unlawfully take or, being in lawful possession thereof, unlawfully appropriate any property of another with the intention of depriving the owner of the property, regardless of the manner in which the property is taken or appropriated.”

As we can see, a person may be charged with theft by taking regardless of whether they took the property with or without permission of the owner, so long as the person takes the property with the intent to deprive the owner of the property. A common example of the former is when a person takes a vehicle with the permission of the owner, but then fails to return the vehicle to the owner.

This situation is also similar to the offense of “theft by conversion” which occurs when, being in legal possession of another’s property pursuant to an agreement (such as a lease or other rental agreement), converts the property to the person’s own use, in violation of the agreement. This is not a breach of contract issue but rather the punishment of depriving the owner of their property.

Punishment for Motor Vehicle Theft

O.C.G.A. § 16-8-12 provides sentencing guidelines for a defendant convicted of nonviolent motor vehicle theft, regardless of whether the defendant has been convicted of theft by taking or theft by conversion. The law creates different levels of punishment based upon the type of vehicle stolen.

Vehicles Used in Commercial Transportation of Cargo

O.C.G.A. § 16-8-12 (a)(8) provides, a person convicted of stealing a vehicle engaged in commercial transportation of cargo faces a minimum of 3 years imprisonment and a maximum of 10 years in addition to a fine of $5,000 to $50,000. A sentencing judge has the authority to place the defendant on probation or suspend the sentence in lieu of prison time. Furthermore, if the defendant has a commercial driver’s license (CDL), a conviction for commercial vehicle theft will cause a loss of their CDL.

Non-commercial Vehicles

If the vehicle at issue was not engaged in commercial transportation of cargo, the offense is punished based on the value of the vehicle. Pursuant to O.C.G.A. § 16-8-12 (a)(1), if the vehicle is valued at:

$1,500.01 to $5,000: 1-5 years in prison

$5,000 to $25,000: 1-10 years in prison, and

$25,000 or more: 2-20 years in prison

Interestingly, a sentencing judge has the ability to punish the offense as a misdemeanor, regardless of the value of the property. The maximum penalty for a misdemeanor conviction is one (1) year in jail and $1,000 fine, or both.  

Joy Riding

Georgia law prohibits joy riding under the criminal trespass statute rather then a specialized joy riding statute. Joyriding is commonly defined as the taking or driving someone else’s vehicle without their permission. Examples can include children taking their parent’s car or valets or mechanics driving the owners car without their permission. The key difference between joyriding and theft is the degree of intent. Joyriding does not require proof the person intended to deprive the owner of the vehicle permanently. Under O.C.G.A. § 16-7-21, a person commits criminal trespass by entering another person’s vehicle for an unlawful purpose or enters the vehicle of another after having been previously forbidden from doing so by the owner. Typically, joyriding is punished as a misdemeanor. It may, however, be punished as a felony if the defendant fails to return the vehicle after a significant period of time, the defendant intends to use the vehicle to commit a crime, or if the defendant damages the vehicle while joyriding.

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If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

Georgia Criminal Law Aggravated Battery Attorney

Georgia Criminal Law – Aggravated Battery

The Offense

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by disfiguring his/her body or a member thereof. O.C.G.A. § 16-5-24.


In order to sustain a conviction for aggravated battery, the State will have to prove the defendant acted with a particular mental state. Here, the mental state is “malice.” A person acts maliciously within the meaning of the aggravated-battery statute when he/she acts intentionally and without justification or serious provocation.  Hillsman v. State, 341 Ga.App. 543 (2017). The State is not required to show he/she intended the specific results of his/her conduct; rather, state is required to prove only that defendant acted maliciously when he engaged in that conduct. Bizzard v. State, 312 Ga.App. 185 (2011).  


What separates aggravated battery from the lesser-included offense of battery is the degree of injury suffered by the victim. Georgia courts have held the following injuries sufficient to constitute an aggravated battery conviction:

  • Nerve Damage
  • Memory Loss
  • Loss of Normal Brain Functioning
  • Vision Loss
  • Broken Finger, Nose, Teeth, Ears, and/or Wrist
  • Severe Bruising

The injuries do not need to be permanent (may be temporary) but must be greater than a superficial wound.


Aggravated battery is a felony offense. As a result, the minimum punishment is one-year imprisonment.  The sentencing judge, however, has the discretion to impose a higher sentence depending on many factors, but especially the person’s criminal history and the existence of aggravating circumstances. Furthermore, Georgia law creates different degrees of punishment for an aggravated battery conviction if the victim falls into a certain classification.

  • Aggravated Battery – 1 to 20 Years Imprisonment
  • Aggravated Battery Upon a Public Safety Officer (While Engaged in Their Official Duties) – 10 to 20 Years Imprisonment and $2,000 Fine
    • If Defendant is 17 Years Old, Minimum is 3 Years
  • Aggravated Battery Against Person Who is 65 or Older – 5 to 20 Years Imprisonment
  • Aggravated Battery While in a Public Transit Vehicle or Station – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Student or Teacher (or Other School Personnel) Within a School Safety Zone – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Family Member – 3 to 20 Years Imprisonment

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.