DeKalb County Obstruction

DeKalb County Obstruction Attorney

Obstruction of a law enforcement officer can be either a misdemeanor or a felony depending on the facts of the case. If the case is prosecuted as a misdemeanor in DeKalb County, the Solicitor’s Office will prosecute the case, whereby if it is a felony charge, it will be sent to the District Attorney’s Office. The biggest difference between a misdemeanor obstruction case and the felony obstruction case is the maximum punishment if convicted.

DeKalb Misdemeanor Obstruction

Misdemeanor obstruction is when one knowingly and willingly obstructs or hinders a law enforcement officer in the discharge of his or her lawful duties. This includes police officers, but also probation officers,  jailers, or game wardens.

There are a few ways one can “obstruct” an officer under Georgia law. First, you can prevent an officer from discharging their official duties by running away, arguing, lying, or doing something that makes it more difficult or completely prevents them from doing their job. This would be classified as misdemeanor obstruction in Georgia and is punishable by up to twelve months in jail and/or a fine of up to $1,000. You don’t have to make any physical contact with the officer to be charged with misdemeanor obstruction. Felony obstruction, on the other hand, typically does involve physical contact with an officer, or a threat of violence.

DeKalb Felony Obstruction

Felony Obstruction is more serious under Georgia law.  If you make violent contact with an officer in the process of he or she discharging their legal duties, or you threaten violence on an officer, you may be charged with felony obstruction of justice. Felony obstruction, both in DeKalb and across the State, carries a mandatory one-to-five year sentence for a first offense. It is a mandatory 2 to 10 years on a second offense, and 3 to 15 years on a third.

Both felony and misdemeanor Obstruction cases are taken seriously in the DeKalb County justice system and throughout the State. There are, however, defenses. For example, it is not against the law to obstruct a police officer during an unlawful arrest. Obstruction of justice is a fact-based inquiry under Georgia law. If you have been charged with obstruction, call us today at 404-581-0999 so we can get you into the office for a free consultation.

Rape in Cobb County

Rape is a serious crime in the State of Georgia. If you are arrested or under investigation, in Cobb County, for rape, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of rape. The Cobb County District Attorney’s has a division of prosecutors who prosecute sex crimes zealously and they are very prepared. Many allegations of rape are false. Even if you know the allegation of rape against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, your case will be put down for a first appearance hearing in Cobb Magistrate Court before Judge Brendan Murphy.  At this hearing, the Cobb County Magistrate Judge will read the warrants to you. You will then be given a bond hearing date and a probable cause hearing date. It is crucial that you move forward with the probable cause hearing. The purpose of the probable cause hearing in Cobb Magistrate Court is to put the lead Detective under oath and lock in his testimony and understand all of the evidence that exists in your case.

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

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

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

The Cobb County Superior Court has 11 judges. All are very fair and will give you a fair trial. The Superior Court Judges are Judge Robert Leonard, Judge Mary Staley Clark, Judge Robert Flournoy, Judge LaTain Kell, Judge Gregory Poole, Judge Ann Harris, Judge Kimberly Childs, Judge Kellie Hill, Judge Angela Brown, Judge Jason Marbutt and Judge Henry Thompson.

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

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

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

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

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

HIT AND RUN

In Georgia, leaving the scene of an accident will most frequently be classified as a misdemeanor offense, and is defined as a “hit and run.” It can have serious consequences in the laws of our state, including collateral consequences, such as a suspension of the accused person’s driver’s license. According to O.C.G.A. § 40-6-270, the driver of any vehicle involved in an accident, which results in an injury/ death of a person, or damage to another vehicle, has the duty to immediately stop after the accident. A driver also has the duty to return to the scene of the accident if he/she did not immediately stop their vehicle. When the driver has returned to the scene, he/she also has the following duties:

  1. The driver must give their name, address, and registration number of their vehicle;
  2. Upon request, show proof of their driver’s license;
  3. If any person is injured in the accident, the driver has the duty to assist the injured person; and
  4. If any person is unconscious or appears deceased, the driver must call 911.

A hit and run in Georgia usually will be classified as a misdemeanor, however, if the accident is the cause of a person’s death or serious injury, the accused could be charged with a felony offense, which includes a prison sentence of 1-5 years in custody. In all other cases, a hit and run will be classified as a misdemeanor with a penalty of up to 12 months in jail and a $1000 fine.

REDUCED CHARGES

An experienced criminal defense attorney will negotiate with the prosecution to reduce a hit and run to a lesser offense. A hit and run charge will suspend an accused person’s driver’s license for a period of four months. Therefore, it is of vital importance to either be found “not guilty” of hit and run, or to reduce the hit and run to a non-suspendable offense.

The most common alternatives to a hit and run are (1) striking an unattended vehicle, or (2) duty to report. Striking an unattended vehicle, pursuant to O.C.G.A. § 40-6-271, means that a driver collides with an unattended vehicle and did not immediately stop to locate the owner of the vehicle. Duty to report, pursuant to O.C.G.A. § 40-6-273, describes a circumstance where the driver is obligated to report an accident to the local police department when there are injuries to another party.

Both alternative charges are non-suspendable offenses. This means that there will not be a license suspension attached, if convicted. Therefore, because the accused will avoid a license suspension, reduced charges tend to be more favorable, and an experienced criminal defense attorney will attempt to negotiate for that resolution in order to save their client’s license.

Due to the complexity of a hit and run charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for their client, trained at defending such allegations, and zealously advocates for their client’s constitutional rights. At the Law Offices of W. Scott Smith, we do just that. Therefore, if you or a loved one has been cited or arrested for a hit and run, please call our office today at 404-581-0999 for a free consultation.

Marijuana Edibles and THC Cartridge Charges in Georgia

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

Tier 1:

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

Tier 2:

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

Tier 3:

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

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

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

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

BATTERY- FAMILY VIOLENCE IN FULTON COUNTY

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

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

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

PENALTIES

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

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

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

CONTACT US

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

Georgia DUI: How many points in a DUI?

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

 

Ways a driver can reinstate their license after six months:

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

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

 

Contact Us

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

Laying Drag

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

There are two exceptions to this law:

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

 

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

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

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

 

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

Penalties

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

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

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

Contact Us

Due to the severity of the penalties for laying drag, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, we are skilled at defending such charges. Therefore, if you or a loved one has been cited or arrested for laying drag, please call our office today at 404-581-0999 for a free consultation.

Trafficking Marijuana through the Atlanta Airport

When a person traveling to Atlanta is charged with trafficking marijuana at the Atlanta airport the first concern is going to be how to get a bond to get the person charged with trafficking marijuana at the Atlanta airport out of jail as soon as possible.  Another question is, how much will my bond be for trafficking marijuana?  At our law firm we have handled a number of bond hearings and received consent bonds in Clayton County on trafficking marijuana at the Atlanta airport.  We believe we have a recipe for success that you can follow in order to get a bond on a trafficking marijuana case.  A bond hearing is where a judge will decide if the person trafficking in marijuana at the Atlanta airport is a good candidate for bond.  The factors a judge will consider on trafficking cases generally include, criminal record or lack of a criminal record, flight risk or whether the person will appear in court when directed, and/or likelihood of committing a new felony offense while out on bond.  Since people who are charged with trafficking in marijuana are generally transient or they generally have out of Georgia ties, the court will be concerned they will not appear in court when the case comes up for additional court dates.  You must be in a position to allay the court’s fears the person charged with trafficking marijuana will in fact appear in court when directed to do so.  A consent bond is where the State’s prosecutor agrees to a bond amount and the defense accepts because the person arrested for trafficking marijuana at the Atlanta airport feels they can afford the bond amount.

First question for consideration is how much did the Marijuana in the person traveling with marijuana in their suitcase at the Atlanta airport weigh.  If it is less that twenty pounds your chances of getting a lower bond in Clayton County are greater.  Second, did the person traveling have more that $1000 cash on them.  If they did, they are likely a mule.  A mule is someone who is generally destitute or poor and they are so desperate for money that they agree to transport a suitcase or luggage without knowing its contents.  If the person is poor and you can show the prosecutor this evidence and they had a large sum of money (which is consistent with the mule’s fee) the prosecutor is more likely to grant a bond.  Third, do the flight records show a first-time travel for that person on the same flight origination?  If so, this is likely the first time the person traveling with the large amounts of marijuana is flying with marijuana.  If you can show no pattern of travel the State is more likely to consent to a low bond.  The State’s prosecutor and Court will want to know the criminal history of client.  Things of major importance will be does the person have any felonies on their record?  Has the person ever failed to appear in court – even for traffic violations?  Does the person have any violations of probation or parole?  Furthermore, it is important to have a local address in which the person charged with trafficking marijuana will live at while the case is pending.

If you are an attorney trying to acquire a consent bond for trafficking marijuana in Clayton County at the Atlanta Jackson-Hartsfield Airport, here is what you need to do.  Go through the criminal history to have a good handle on what the criminal history provides.  If any discrepancies come up on the persons charged GCIC or NCIC be in a position to pull the official court record to confirm the inaccuracies in the official record.  In our experience this happens way too often.  Second, pull a copy of the incident report.  You will need to make a copy of the incident report and provide a copy to the State’s prosecutor in order to get a quick bond offer.  If client has a passport, obtain the passport and be willing to turn the passport in to law enforcement to hold pending the case’s outcome.  If client is poor, have client provide you access to his or her bank account to show how little amount she has in the account.  If client lives in an apartment or humble residence, have someone take photos of the residence to show the State’s prosecutor client’s simple living arrangements.  If client does not have a local address to live at see if client’s family can acquire a local address.  Lastly, do not have client snitch or become a state witness.  In my experience it serves no purpose as it does not assist in getting a bond.

Serious Violent Felonies under Georgia Law

Georgia law provides for the most serious violent offenses known as the “Seven Deadly Sins.” These are the most heinous crimes in our society and, as such, have specialized punishment including mandatory minimum punishment and limited eligibility for parole. This article will list the serious violent felonies as proscribed by law and detail the punishment surrounding them.

Seven Deadly Sins

O.C.G.A. § 17-10-6.1(a) lists the “Serious Violent Felonies” in Georgia criminal law:

  • Murder, Felony Murder
  • Armed Robbery
  • Kidnapping
  • Rape
  • Aggravated Child Molestation
  • Aggravated Sodomy
  • Aggravated Sexual Battery

If convicted of any of these offenses, the sentencing court is required to impose no less than the statutory minimum sentences of imprisonment. O.C.G.A. § 17-10-6.1(b).

Mandatory Minimum Sentences of Imprisonment

10 years imprisonment

  • Armed Robbery
  • Kidnapping (victim 14 years or older)

25 years (followed by probation for life)

  • Kidnapping (victim under 14)
  • Rape
  • Aggravated Child Molestation
  • Aggravated Sodomy
  • Aggravated Sexual Battery

Life

  • Murder, Felony Murder

 

Eligible for Parole?

  • Defendants sentenced to 10 years confinement must serve all 10 years and is not eligible for parole
  • Defendants sentenced to 25 years confinement must serve all 25 years without possibility of parole
  • Defendants sentenced to Life is parole eligible after 30 years
  • Defendants sentenced to death whose sentences is commuted to life is parole eligible after 30 years
  • Defendants sentenced to life without parole will never receive parole

O.C.G.A. § 17-10-6.1(c)(1) – (4).

First Offender Treatment is not available to any of the Serious Violent Felonies.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

Georgia Criminal Law – Preliminary Hearings

Defendants held in custody without bond are entitled to a preliminary hearing under Georgia law. Preliminary hearings are a vital pre-trial proceeding where the defendant has an opportunity to be released from custody if the State cannot prove the existence of probable cause for the charges against the defendant. This adversarial proceeding affords the defendant the chance to cross examine the State’s witnesses and present evidence negating probable cause.

If the presiding judge determines probable cause exists for one or more charges, the case is then “bound over” to the trial court. If not, the charges have been dismissed[i]. This article will outline the laws governing preliminary hearings, the standard of proof, rules of evidence, role of the judge, and guidelines for how such hearings should be conducted.

What is a Preliminary Hearing?

Also called committal hearings, commitment hearings, or probable cause hearings, preliminary hearings are a post-arrest, pre-indictment, pre-trial hearing to determine whether sufficient evidence exists to justify detaining a defendant on the charges against him/her.

The State bears the burden of proving the existence of probable cause. The defendant has an opportunity to challenge the State’s case and argue for their release due to a lack of sufficient evidence justifying a probable cause determination. The defendant gets a sneak peek at the evidence in the case and the prosecutor has the chance to assess the strength or weakness of a given case.

Right to a Hearing

Although there is no Federal or Georgia constitutional right to such a hearing, Georgia statute O.C.G.A. § 17-7-20 provides for this right. The right to a preliminary hearing is waived, however, if the defendant posts bond on the case and is released from custody.

Preliminary hearings are conducted after a “reasonable” time is afforded to the State and defense to prepare for the hearing. If a defendant is deprived of their right to a preliminary hearing a reviewing court may grant habeus corpus relief.

Right to an Attorney

The preliminary hearing is a “critical stage” of the criminal process under the 6th Amendment and therefore defendants are entitled to the assistance of counsel. A defendant cannot be forced to proceed without an attorney if there is a reasonable probability of obtaining counsel without great delay. A defendant may testify at the preliminary hearing but should be cautious because the statement could be used against him/her at trial.

The Judge’s Role

At the preliminary hearing, the judicial officer shall:

  • Explain the purpose of the hearing
  • Inform the defendant of their rights
  • Ask the defendant if they intend to enter a plea or otherwise waive their right to the hearing
  • Make a probable cause determination for each charge
  • Maintain a record of the proceeding
  • Make rulings on objections by either party
  • Provide a record of the outcome to the appropriate court

The rules of evidence apply at a preliminary hearing with the exception of hearsay evidence. Further, the right to confront witnesses under the 6th amendment does not apply as this is a trial right.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

 

[i] Although the State may later try to indict the earlier dismissed charge via grand jury proceeding.