Child Molestation in Butts County

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

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

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

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

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

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

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

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

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

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

DUI IN BROOKHAVEN MUNICIPAL COURT

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By: Erin Dohnalek

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

1. After the accused has been arrested, an officer on scene from the Brookhaven Police Department read him/her the correct “Implied Consent” notice and he/she refused to comply with either a blood, breath, or urine test in order to determine his/her blood alcohol content, OR

2. The accused consented to a blood, breath, or urine test and the results showed that the blood alcohol content of the accused was above the legal limit.

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

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

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

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

· The accused may plead guilty to DUI, which, for a first DUI conviction, usually will result in 12 months of probation, which requires completion of a Risk Reduction course and at least 40 hours of community service;

· The accused may plead not guilty to DUI and seek a bench trial with the municipal court judge;

· The accused may plead not guilty to DUI and seek a jury trial. This will result in the case being binded over to the Dekalb County State Court, OR

· At arraignment, the accused has the option to speak to the Brookhaven City Solicitor in a pretrial conference to discuss other possible options, such as a reduction from the original DUI charge.

Due to the complexity of a driving under the influence criminal case, as well as the related license suspension proceeding, it is of great importance to hire an experienced criminal defense attorney who is skilled at defending such allegations. At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about all possible options for our clients and have vast experience

defending such charges. Therefore, if you have been arrested for driving under the influence, please call our office today at 404-581-0999 for a free consultation.

Alive at 25

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As a minor or someone under 21, you are subject to greater penalties for getting moving violations. If you are between the ages of 15 and 24 and have received a speeding ticket, you may consider enrolling in a driver education course, such as Alive at 25.

Alive at 25 is a 4 hour driver’s awareness program, which is designed to educate young people on driving hazards and the importance of driver’s safety. Students gather in the classroom to learn about speeding, driving while impaired, and safe driving habits. Sometimes, if you are a young person who has gotten a speeding ticket or a super speeder, the Solicitor or the Court may require you to complete this class. Doing so soon after you get a ticket can help give you some leverage in negotiating a reduction or dismissal with the solicitor at your first Court date.

The course cost varies depending on your location, but it typically runs around $115. While this may seem like a hefty price tag for a 4 hour course, completion may help you get a reduction or dismissal in your criminal case, reducing the overall fine for the ticket, and it may reduce the cost of your monthly insurance payments. Note that this is not a “behind the wheel” course. Success only requires that you attend and participate. For more information about the Alive at 25 driver’s awareness program, visit https://www.atlantaga.gov/Home/ShowDocument?id=1455 or call us at 404-581-0999. We have experienced attorneys eager to work with you to help you enroll in the course, attend court, and challenge your ticket.

Written by Attorney Katherine A. Edmonds

Possession of Tools – Fulton County Criminal Defense Attorney

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in Fulton County for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The Fulton County Judge will notify the person of the charges, as well as set bond at this stage.

If arrested in Fulton County for Possession of Tools, the case will be prosecuted by the Fulton County District Attorney’s Office. The next court date will be the Arraignment and takes place at the Fulton County Superior Court.

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

What is the sentence for Possession of Tools in Fulton County?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

What are Possible Defenses to Possession of Tools in Fulton County?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in the Fulton County, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Driving with a Suspended License is Serious Business in Georgia

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By: Attorney Alex Henson

 

In Georgia, driving with a suspended license can result in an arrest and conviction for a misdemeanor. If you are found guilty of driving on a suspended license you will face no less than two days in jail and a fine of $500 to $1,000. You could also be placed on probation. Pleading guilty to driving on a suspended license will also result in a new suspension of your Georgia driver license for six months. You can avoid a new suspension by pleading nolo contendre (no contest), but this option is only available once every five years.

 

A second or third conviction of driving on a suspended license in a five-year period will result in no less than 10 days jail and a fine of $1,000 to $2,500. You can also face additional penalties such as probation. A fourth conviction in a five-year period will be considered a felony and is punishable by 1 to 5 years in prison as well as fines and probation. If you are arrested or cited for driving with a suspended license, having a lawyer fight your case can result in a better outcome. Call us at (404)  581-0999 for a free consultation.

Enticing A Child for Indecent Purposes in Cobb County

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Enticing a child for indecent purposes is a serious crime in Cobb County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The State must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Cobb County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Cobb County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

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

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

Second DUI arrest in Fulton County, Georgia

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By: Erin Dohnalek

In Georgia, sentencing and license consequences get more severe with each new DUI arrest and subsequent conviction. There are mandatory minimum sentences that judges must abide by, and there are required consequences for an accused person’s driving privileges mandated by the Georgia Department of Driver’s Services.

The Offense:

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 an illegal controlled substance present in the accused person’s blood or urine.

The mandatory minimum sentencing for a second DUI conviction, if the first was committed in the 10 years preceding the second arrest for DUI, is at least three days in custody. In Fulton County, that means three days must be served at the Fulton County Jail. There also is a requirement that the accused must complete 240 hours of community service, a substance abuse evaluation plus recommended treatment, DUI school, and a Victim Impact Panel. This is all mandated by Georgia law.

In Fulton County, there are two judges who primarily preside over individuals charged with a second DUI: Judge Edlein and Judge Tailor. Both of these judges are in charge of the Fulton County DUI Court Program. A potential consequence of being charged with a second DUI in Fulton County is that DUI Court is pushed to avoid substantial jail sentences.

License Consequences:

One of the most pressing consequences of a second DUI conviction is a mandatory license suspension. If the accused has had a prior DUI conviction in the last ten years, but not in the last five years, the license suspension will be for a period of 120 days. However, a Georgia driver’s license holder will be eligible for a limited permit during that suspension to allow them to drive to essential locations.

Alternatively, if the accused has had a prior DUI conviction in the last five years, the consequences for his/her driving privileges are severe. The accused will be required to surrender their license, and he/she will have a hard license suspension for 120 days with no eligibility for a limited permit. After the 120-day license suspension is up, he/she will then be required to install an ignition interlock device in their vehicle for a period of 12 months. After the 12-month period has expired, the accused must continue to drive on a limited permit for two additional months before they will be able to reinstate their permanent driver’s license.

Contact Us:

Due to the severity of the consequences following a second DUI arrest, it is imperative to hire an experienced criminal defense attorney to explain all the possible options for an individual charged with a second DUI, to challenge that arrest in order to avoid some of the direct and collateral consequences of a second DUI conviction, and to advocate for their client’s constitutional rights. Therefore, if you have been arrested for a second DUI in Fulton County, please call our office today at 404-581-0999 for a free consultation.

I have an FTA in Municipal Court of Atlanta. What do I do?

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If you missed your Court date, you may be concerned about whether or not there are warrants out against you. What you may not know is that an FTA in Municipal Court of Atlanta (hereafter, “MCOA”,) can also result in a license suspension. If you have missed a Court date, you should act swiftly to clear up the FTA. Failing to take action could result in your arrest. So what should you do?

To clear up an FTA in MCOA, you can go to the Courthouse and request a new Court date. The clerk will lift the warrant and place you on an “FTA Calendar.” Note that the license suspension will not be lifted until the Judge approves it at the FTA Calendar. Keep in mind that, until the warrant is lifted, if any officer finds that you have an active warrant, they would have the authority to arrest you. Although you probably do not have to worry about being arrested inside the Courthouse when you go to address your FTA, it is wise to enlist the help of an attorney to go with you or to ask the Court to lift the warrant on your behalf.

Once the warrant is lifted, you are no longer at risk of being arrested for the FTA. However, your license will remain suspended until the Judge releases the suspension. This will not happen until your Court date. In the meantime, continuing to drive on your suspended license puts you at risk. If you are stopped for a traffic offense (speeding, for example,) and the officer determines your license is suspended, not only will you get a speeding ticket, but you will also be charged with Driving on a Suspended License, a misdemeanor which can result in fines, additional jail time, and can suspend your license for six months.

Of course, it can be difficult to go about your daily life with a suspended license. We can help expedite things to get you an earlier Court date so you can get your license back and address the underlying charges. Missing a Court date can be serious, but you don’t have to address it alone. Give us a call. We are within walking distance of Municipal Court of Atlanta and we can walk down to get your FTA lifted same-day. For a free consultation with one of our attorneys, call 404581-0999. Written by Attorney Katherine A. Edmonds.

Possession of Drugs in Cobb County – Marietta Lawyers

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The legal system in Cobb County treats drug crimes very seriously. If you have been arrested for the possession of drugs in Cobb County, you could be facing jail, fines, and harsh penalties.

If you have been arrested in Cobb County, the Cobb County District Attorney’s Office will prosecute the case. The Cobb County Superior Court is located 70 Haynes St, Marietta, GA 30090 in Marietta, Georgia. Shortly after arrest, you will have a First Appearance hearing 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, Codeine, Hydrocodone, Morphine, Methadone, Amphetamine, Methamphetamine, Oxycontin, Percocet

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Cobb County

The penalties in Cobb County and in Georgia can be harsh. 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 could be looking at 2-15 years in prison, intense probation, and high fines.

On second or subsequent offenses of Schedule I or II drugs, the sentence could include 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 could 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. The Lawyers at W. Scott Smith specialize in Fourth Amendment arguments and have successfully defended hundreds of cases with these issues.

Talk to an Attorney

Because a conviction of drug possession can carry serious prison time and a criminal record, 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 lifelong consequences that we want you to avoid. We would like for you to understand what you are facing and all of your legal options 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.

Statutory Rape in Fulton County

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Statutory Rape in Fulton County is a serious crime in Georgia. O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Georgia can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

If you are arrested in Fulton County for Statutory Rape, you will see a Magistrate judge the following day at 11am. At this initial court date, the Fulton Magistrate Judge will read the warrant to you and may consider bond. If bond is not given at first appearance, you will be reset to a preliminary hearing and bond hearing date in front of another Fulton County Magistrate judge.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in  Fulton County for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

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.

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