Cherokee County Family Violence Battery – Georgia Criminal Defense Attorney

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history , and the possibility of trial.   All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Cherokee County. This article aims to explain the nature of the offense, punishments, and how these cases are handled within Cherokee County.

The Offense

Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “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.”

Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

Punishment

A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people.  For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.

Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program.  These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge.  In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that your attorney can negotiate all of these things.

How it Works in Cherokee

The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases).  But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.

As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.

After arrest, a case file is created with the Cherokee County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Cherokee County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case.

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” In our experience, Cherokee County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.

Cherokee County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.  Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

Contact Us

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Clayton County Family Violence Battery – Georgia Criminal Defense Attorney

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   The State of Georgia, as a whole, has taken a stand against domestic violence.  There are domestic violence task forces across the State, and specialized prosecuting units. Every day we see the impact that family violence arrests have on Georgia’s criminal justice system. Police are told across the State to make arrests for Family Violence Battery if there is any evidence it occurred. Evidence, unfortunately, can be one-sided and be the result of a false allegation.  

For those who have been arrested for family violence, there may be feelings of anxiety and stress as it relates to the potential impact the case will have. Jail time, a criminal history, and forfeiture of firearms for life are all very real concerns when facing Family Violence Battery charges in Georgia. An arrest is not a conviction, and there are options in the criminal process for your Family Violence case.

In order to be prosecuted for Family Violence Battery, the State must prove that the alleged victim falls within the statutory definition for “Household Members or Family.”

Under O.C.G.A. § 16-5-23.1, this includes 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.

            The State must also prove that there was either “substantial physical harm” OR “visible bodily harm” in a Family Violence Battery case in order to get convicted of the crime.

What happens after a Family Violence Arrest in Clayton County?

First, the person arrested for Family Violence Battery will have their booking photo and finger prints taken and then will be ordered into the Clayton County Detention Center. The booking process, through fingerprints, creates the official criminal history that is then made public. After the booking process, the person arrested for Family Violence will see a Judge in their First Appearance hearing. This is where Bond will be addressed.

In order to get out on bond in a Family Violence case, the Judge must find several factors to be true. The Judge must find that the person accused of Family Violence Battery:

(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 referred to in Georgia as the ‘Ayala Factors’ based on the criminal case that first laid out what must be proven in order to get out on bond in a criminal case. Ayala v. State, 62 Ga. 704 (1993).  Retaining an attorney immediately at arrest means having representation at what many people view as the most important step: getting out of jail as soon as possible. A skilled attorney will do an investigation into the case  and allegations and put forth the best possible argument to have their client released on pretrial bond in their Family Violence case.

In a Family Violence case, the Judge may order certain requirements in order to be allowed out on bond. For example, the Judge can order domestic violence classes, or for the accused to not have any weapons while out on bond. We see in most domestic violence cases, if the person is not represented at First Appearance, that the Judge will issue a No Contact provision and Stay Away Order. This means that once the person is released, they are not allowed in many cases return to their home, or speak to the parent of their child or their husband or wife. This is something that in most cases can be avoided through proper investigation and preparation for a bond hearing.

What is the potential punishment for Family Violence Case in Clayton County?

            The punishment for a family violence case is codified at O.C.G.A. § 16-5-23.1 and the maximum penalty is the same across the State of Georgia. On a first conviction for Family Violence Battery, there is a maximum penalty of 12 months in custody and a $1,000 fine. Keep in mind, that the maximum penalty can be greatly increased based on what the State charges via the Accusation. For example, if there is one count of Family Violence Battery, one count of Simple Assault, and one count of Disorderly Conduct, and the charges all based on different conduct, the maximum penalty in that case would be three years to serve. A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court. This is a permanent forfeiture of your ability to carry a weapon.

In addition, while the maximum includes 12 months in custody and a $1,000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Keep in mind: an arrest is NOT a conviction. Just because you have been arrested for Family Violence in Clayton County or any county in the State, does NOT mean you will be ultimately convicted, and have to face the criminal history implications and criminal punishment. As in all criminal cases, there are numerous defenses and options to resolve cases short of a guilty plea!

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.  If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Law – Family Violence Battery in Fulton County

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history, and the possibility of trial.   All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Fulton County. This article aims to explain the nature of the offense, punishments, and how these cases are handled within Fulton County.

The Offense

Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “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.”

Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

Punishment

A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people.  For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.

Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program.  These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge.  In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that your attorney can negotiate all of these things.

How it Works in Fulton

The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases).  But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.

As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.

After arrest, a case file is created with the Fulton County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Fulton County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case.

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” At this point, the case is assigned to a particular prosecutor and negotiations may begin. It is possible to resolve the case in a pre-trial diversion program. Successful completion of this program (fines, classes, counseling, community service, etc.) will result in the dismissal of the charges. Eligibility is determined by (lack of a) criminal history and the facts of the case. If the case is accused and not eligible for a diversion program, the accused must begin preparing their case for a possible trial, subject to reaching some plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, Fulton County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.

Fulton County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.  Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

Contact Us

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Georgia Criminal Defense Attorney – Elder Abuse in Georgia

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Elder abuse cases trigger intense prosecutions across the State. Many county District Attorney Offices’, including Fulton and Cobb, have a specialized unit dedicating to bringing forth elder abuse charges. It is for this reason, it is imperative to have an attorney on your team soon as the investigation begins, and especially before speaking to law enforcement. 

                  Elder abuse is broad and includes several different definitions. Georgia law has criminalized the acts of knowingly and willingly exploiting an elder person or disable adult. Exploiting means improperly using the elder or disabled person’s resources through undue influence, coercion, harassment, deception, or other similar means for one’s own profit or advantage.

Georgia law has also criminalized the acts of inflicting pin, physical injury, sexual abuse, mental anguish, or unreasonable confinement on an elder person or disabled adult. It is also illegal to willfully withhold essential services to this category of protected citizens. An elder person is a person 65 years or older. A disabled adult is a person over 18 years old who is mentally or physically incapacitated or has Alzheimer’s or dementia.

What is the punishment for Elder Abuse in Georgia?

If convicted, it is treated as a felony punishable from 1 to 20 years imprisonment, and/or a fine of up to $50,000. If you are charged with threatening or intimidating an elder who is the subject of a report made, or any other person cooperating with law enforcement on the matter, it will be charged as a high and aggravated misdemeanor with the maximum sentence of 12 months in jail and/or a fine of up to $1,000.

If you are charged with Elder Abuse anywhere in Georgia, please
do the following:

1.     Call an attorney who has the specialized expertise to handle an Elder Abuse
case.

2.     Do not talk to the police without an attorney
present.

3.     Do not talk to any of the witnesses or victim.

4.     Let your attorney handle any interviews.

5.     Do not in anyway obstruct or impede the police
investigation. 

6.     Make a list of any witnesses who may help your
case and turn that list over to your attorney. 

If you are charged with Elder Abuse anywhere in the State of Georgia, it is
imperative that you get an attorney immediately. We will be glad to sit down
with you anytime for a free consultation. Call our office 24/7 at 404-581-0999.

Georgia Criminal Law – I Lied to the Police, What Happens Now?

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Being questioned by the police is unpleasant. This is true whether the person being questioned is a suspect, a witness, or an alleged victim in a criminal case. But, however discomforting it may be, police questioning is a critical part of the policing process and administration of justice. Therefore, there are several criminal laws against the providing of false information to the police. This article serves to explore the laws of giving a false name, making a false police report, and making a false statement to the police, what the punishment is, and practical guidance on what to do if you have done one of these things.

False Statement to Police & Penalty

Georgia law, O.C.G.A. § 16-10-20 provides, a person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be guilty of a felony, punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

False Report of a Crime in Georgia & Penalty

Pursuant to Georgia law, O.C.G.A. § 16-10-26, a person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor. Misdemeanor charges are punishable by a penalty of a $1,000 fine, one year in jail, or both.

Giving a False Name in Georgia & Penalty

Under Georgia law, O.C.G.A. § 16-10-25, a person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birth date is guilty of a misdemeanor. Misdemeanor charges are punished as a $1,000 fine, one year in jail, or both.

I’ve Made a False Statement, What Do I Do?

If you made a false statement as a suspect in a criminal case, then you should absolutely obtain a criminal defense attorney to represent you. A trained and experienced attorney can assist you in raising legal defenses, challenges, and mitigating evidence.

If you have made a false statement as an alleged victim, you should consider the following courses of action:

  • Contact the Prosecuting Office: before you contact the prosecuting office (District Attorney for felonies and Solicitor General for misdemeanors), you should know exactly who it is you will be speaking to. You may be directed to the actual prosecuting attorney who is handling the case, a Victim Witness Assistant who generally oversees witness communication, or a legal assistant.
  • Explain the False Statement: when a person makes a false police report or statement to police about an alleged crime committed by an innocent person, they are impacting the freedom of the accused person. It is imperative the false statement be corrected so the innocent person may be exonerated. This comes with the understanding that taking responsibility of the false statement could cause the prosecuting attorney to charge you with one or more of the above offenses.
  • If You Are Ultimately Charged: you should contact a criminal defense lawyer who can assist you in raising defenses, challenges, and mitigating evidence.

Contact Us

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

Georgia Criminal Law – Fulton Orders Stay-at-Home or Face Criminal Sanction

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On Tuesday, March 31, 2020, Dr. S. Elizabeth Ford, district health director of the Fulton County Board of Health signed an order requiring all residents of Fulton County to stay in their residence. Individuals are “permitted to leave their places of residence only to provide or receive certain essential services or engage in certain essential activities and work for essential businesses and governmental functions.”

A violation of this order constitutes a misdemeanor offense which carries a maximum punishment of up to 12 months in jail and a $1,000 fine, or both.

According to the order, residents may leave their home for “essential activities” to ensure the health and safety of themselves, their families, or their pets. Outdoor activity like walking or running is allowed so long as social distancing is maintained (six feet apart from each other).

“Essential businesses” in Fulton County include:

  • Healthcare operations
  • Grocery stores
  • Farming, livestock, fishing
  • Businesses that provide food, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals
  • Newspapers, television, radio, and other media services
  • Gas stations, auto-supply, auto repair
  • Banks
  • Hardware stores
  • Hotels, motels, conference centers – but only to provide shelter not for gatherings
  • Plumbers, electricians, exterminators
  • Businesses providing mailing and shipping services, including post office boxes
  • Educational institutions for the purpose of facilitating distance learning
  • Laundromats, dry cleaners
  • Restaurants for drive-thru, deliver or carry-out
  • Cafeterias in hospitals, nursing homes, or similar facilities
  • Businesses that supply products for people to work from home
  • Home-based care, and residential facilities for seniors, adults or children
  • Legal or accounting services
  • Veterinary care facilities, animal shelters or animal care
  • Bike shops
  • Childcare facilities
  • Janitorial services
  • Funeral homes, crematories and cemeteries, while maintaining social distancing
  • Utility, water, sewer, gas, electrical, oil refining, roads and highways, railroad, public transportation, ride share, solid waste collection, internet services

All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes above. Nothing in the order prevents the gathering of members of a household or living unit. This order will remain in place until rescinded.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for afree case evaluation. You’ll find a local Attorney ready to aggressively fight on your behalf.

How Will the Corona Virus Affect My Criminal Case?

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            COVID-19 continues to have worldwide impact on everyday life. The new normal is unlike anything anyone in our lifetime has experienced. Terms of “Shelter in Place” and “Stay at Home Orders” are on every news station and radio broadcast. You may be wondering legally what it all means – and how it will affect your criminal case in Georgia.

            If you have a criminal case pending, your case is likely being impacted. On March 14, 2020, Chief Supreme Court Justice Harold D. Melton issued an order declaring a statewide Judicial Emergency.  (YOU CAN LINK THE ORDER HERE: https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-Melton-amended-Statewide-Jud-Emergency-order.pdf)  The current order is in effect for 30 days, or until April 13, 2020 at 11:59pm, unless it is further extended. In that order, Justice Melton suspended all judicial operations for non-essential functions. This means that regular calendar calls, jury trials, status hearings, and plea dates will not be occurring as scheduled. No grand jurors or trial jurors will be empaneled to try a criminal case during this time. 

            Courts will remain open to address issues that are “necessary to protect health, safety and liberty of individuals.” Hearings involving motion for bond are still occurring. This means that if you or a loved one is arrested during the judicial emergency, a first appearance and bond hearing will still occur. More and more jurisdictions are allowing these hearings to take place via video conferencing. In fact, Justice Melton, through the order, encouraged Courts to handle court functions via videoconferencing when possible in order to continue the essential business of the Court while protecting citizens, judges, and lawyers from exposure to the coronavirus.

            Temporary protective orders (TPOs), commonly known as restraining orders will also continue to be addressed as normal given that these hearings are deemed necessary to protect safety of individuals in that they involve domestic violence. Juvenile detention hearings, as well as mental commitment hearings, will continue to operate normally pursuant to the judicial emergency order. Hearings for the applications for criminal search warrants and arrest warrants will also continue to occur normally which means that law enforcement are still investigating and arresting individuals accused of crimes.

            Other ways that your criminal case will be affected are that many deadlines commonly practiced in criminal cases are suspended. For example, the statute of limitations for the State of Georgia to bring formal charges against you is tolled. Typically, the State is required to file formal accusation or indictment within two years of arrest for misdemeanors, and four years of arrest for most felonies. Due to the judicial emergency it is possible that the State will bring charges after the typical statute of limitation has run.

            Additionally, if someone with a current criminal case has a pending speedy trial demand filed, the deadline at which the State must try the case will also be suspended pursuant to the Judicial Emergency Order. Typically, when a speedy trial demand is filed, the case must be tried by the following term of court. This deadline has been suspended in Georgia and thus speedy trials will take longer to occur than normally.

            Once the coronavirus is contained and courts re-opened, you will receive your next court date, and your case should proceed through the justice system at that point, albeit with certain delays. For now, in order to protect individuals and those who work in the justice system, business is not as usual. However, we at the Law Office of W. Scott Smith continue to work around the clock on behalf of their clients and are prepared to hit the ground running where our cases were left off and will work tirelessly to assist in the release of people in custody. If you or a loved one has any questions about their criminal cause during the coronavirus, call us today for a FREE CONSULTATION at 404-581-0999.

Georgia Statewide Shelter in Place Order

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By: Mary Agramonte           

A Statewide shelter-in-place order will go in place today, Friday April 3, 2020 at 6:00p.m. The order is to stay in effect until April 13, 2020 at 11:59pm. It is an Executive Order requiring everyone to remain home unless conducting Essential Services, Minimum Basic Operations, or Critical Infrastructure.

You may be wondering what this all means. What is considered essential? And what if I am out doing non-critical infrastructure work? Will police be making arrests for this? Will I be prosecuted?

Essential Services

            During the Shelter in Place Order, you may leave the home to conduct Essential Services. This includes getting food and medication for you and your family, although pick up and delivery should take preference according to the Order. You may continue to exercise outside so long as there is six feet between other people. You can seek medical, behavioral health, and emergency services during the Shelter in Place Order.

            Minimum Basic Operations

            The second category mentioned in the Order that allows travel outside the home is “Minimum Basic Operations.” This part is extremely limited. Unless your business is defined as Critical Infrastructure, discussed later in this article, the minimum basic operations only allow you to leave the home for minimum necessary activities to maintain value of the business. This means process payroll and facilitating employees to work from home. Companies with employees who work outdoors can continue working including delivery, contractors, landscapers, and agriculture. If a business is conducting Minimum Basic Operations, the order requires screening of employee health, required time off if sick, providing protective equipment as available, implementing staggered shifts, and prohibiting workers gathering.

            Critical Infrastructure Work Force

            The third category of exemptions to the Shelter in Place Order is for Critical Infrastructure. This refers to businesses that have been defined by the United States Department of Homeland Security as “essential critical infrastructure workforce.” This includes workers in Communications, Energy, Government Facilities, Healthcare, Food Services, Nuclear Work, Legal Services, Financial Services, among others. Critical Infrastructure that continues in-person operations must implement measures to mitigate exposure and spread of COVID-19. This means enhancing sanitation of workplace, requiring hand washing, providing personal protective equipment as available, and prohibiting gatherings of workers. Video conferencing is strongly encouraged in all sectors.

            Forbidden Activities

Activities strictly forbidden by the order are in-room dining restaurants, bars, gyms and fitness studios, and live performance venues. Additionally, beauty and massage businesses must close.

During the Shelter in Place Order, visitors to the home are forbidden. This means it is against the law to have friends or family from outside the home come visit. Obviously, visitors providing medical services or supplies are allowed, as well as visitors coming by to provide necessary food and supplies, to the extent practicable without using in-person contact. Visitors can still be received during end-of-life circumstances.

Will I be Arrested or Cited for Violating the Order?

Pursuant to O.C.G.A. 38-3-7, any person who violates the Order will be guilty of a misdemeanor offense. Misdemeanors in Georgia carry a punishment of up to 12 months in jail and/or a fine of $1,000. The Order does direct law enforcement to take reasonable steps to provide notice before issuing a citation or making an arrest. Police are empowered by law to make citations and arrests, and prosecuting attorneys office will investigate and bring formal charges should they choose when courts re-open.

Read the full Statewide Shelter in Place Order Here: https://gov.georgia.gov/document/2020-executive-order/04022001/download

The Law Office of W. Scott Smith, as a legal services provider, is entitled to work during this time, and we continue to be available 24/7 for our clients and for FREE CONSULTATIONS on criminal charges. Call us today at 404-581-0999 if you or a loved one has a criminal issue during this time.

Can I get a DUI if I am under .08 in Georgia?

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            Most of us are aware that the legal limit for a DUI for a driver over 21 years old is .08. What comes as a surprise to most, however, is that you can also be charged with DUI even if you were well below the legal limit. How is this possible? You can be arrested and charged with DUI, even if you blew below the legal limit, under Georgia’s DUI Less Safe law. In practice, it is a very common way to be charged with DUI in Georgia.

            Georgia law has criminalized DUIs into a few different categories. The two most common ways to be charged with DUI are DUI Per Se and DUI Less Safe. DUI Per Se occurs when a person is arrested after being alleged to be in control of a moving vehicle with a blood alcohol concentration of .08 grams or more. This means that after he or she was arrested, law enforcement obtained a blood alcohol reading either by a breath, blood, or urine test taken typically at the jail or a hospital.

What happens if I don’t blow or take a breathalyzer?

            In this situation, you can still be charged with DUI Less Safe. DUI Less Safe in Georgia means you were in control of a moving vehicle, after having consumed alcohol, to the extent it made you a less safe driver. Evidence in this situation may not include an actual BAC number, but the State will attempt to prove DUI with other pieces of evidence. For example, the State may bring forward evidence of an odor of alcohol, bloodshot eyes, open containers, and/or poor performance on field sobriety tests.

            In some instances, if you decline or refuse the breath or blood test at the officer’s request, the police officer will take out a search warrant to take your blood over your objection. In this situation, you can be charged with both DUI Less Safe and DUI Per Se if the BAC comes back as over .08.

What happens if I blow below the legal limit?

            In Georgia, you can still be arrested and charged with DUI Less Safe. This is because a BAC greater than .08 is not a requirement in DUI Less Safe cases. If you blow a .07, a .06, or even a .05, you can and will still be prosecuted for DUI. This seems shocking to some, but we see it happen regularly. The State, in this situation, still has to prove impairment- meaning the prosecutor must still prove you were a less safe driver because of the alcohol.

Georgia’s Law on Alcohol Content

In Georgia, you are Per Se impaired if your blood or breath test shows a result of .08 grams or more. If your BAC is more than .05 but less than .08 grams, there is no inference of impairment. This means it is up to the judge or the jury to consider whether or not you were actually a Less Safe driver or not. In Georgia, a BAC of even less than .04 can get you into court fighting for your life and freedom. In a scenario where the BAC was les than a .04, Georgia law has a presumption that you were NOT impaired. The State can rebut this inference through other evidence in a trial. A different BAC applies in cases where the driver is under 21 years old. In that situation, an under 21 DUI ‘legal limit’ is .02 grams.

We routinely see drivers with a ‘below the legal limit’ DUI have their cases prosecuted. Do not assume that the prosecuting attorney will throw the case out based on having been less than .08 grams. If you were arrested, the State will most likely bring the prosecution’s case with any other evidence they have, even if they do not have a BAC or if the BAC was below a .08 grams.

DUI cases are one of them most litigated cases in Georgia courtrooms. This is because there is so much at stake with a DUI conviction: jail time, lengthy and involved probation sentences, suspended licenses, and a criminal history that cannot be expunged. There are numerous defenses to DUI Less Safe and DUI Per Se cases, no matter what the BAC is or what county you were arrested in. If you or a loved one has been arrested for Driving under the Influence, call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Kidnapping in Georgia – Criminal Defense Attorney

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By: Mary Agramonte

Georgia law states that kidnapping occurs when someone abducts or steals away another person without lawful authority, and holds such person against their will. This is the more obvious way someone can be arrested and charged with Kidnapping. You may be surprised, however, that actions significantly less than actually stealing someone away will also constitute Kidnapping in Georgia. This is because Georgia law criminalizes ANY slight movement of another person. There is no minimum requirement for distance needed to constitute Kidnapping. This means a kidnapping can even occur when you move someone from room to room in their own house, or even when a person is moved by only a few inches.

            Compare these two scenarios.  If you push someone and they fall to the side, you have been responsible for a SLIGHT movement of another person. However, Georgia law will treat this action as “merely incidental” to the commission of a battery and this would NOT be kidnapping in Georgia.  Compare that movement to the following scenario: someone enters into the back of a restaurant to steal from a safe, and an employee stands in front of the safe to guard it. If you place your hands on them and move them to the side to gain access to the safe, then the crime of Kidnapping has occurred. This happens even if you gently move them two inches to the side to gain access to the safe. The difference lies within the Kidnapping statute, codified at O.C.G.A. § 16-5-40. A slight movement of another person is NOT merely incidental to commission of another crime, and thus constitutes Kidnapping if the movement:

1) is made to conceal or isolate the victim;

2) makes commission of another crime substantially easier;

3) lessens risk of detection; or

4) is for the purpose of avoiding detection.

What is the sentence for Kidnapping in Georgia?

            Kidnapping is one of the most serious crimes to be charged with in Georgia. Not only is it a felony offense, if there is a conviction, the sentence typically involves many years in prison. If someone is convicted of Kidnapping (of someone 14 years or older), the sentence is 10-20 years in prison. If the conviction is for Kidnapping and involves someone less than 14 years old, it is sentence of 25 years to life. The sentence is much worse if there is allegations of an injury or ransom involved.

Kidnapping with Injury

            One of the more troubling aspects of Georgia law as it relates to Kidnapping is when it involves an injury. If the person is convicted of Kidnapping with Injury, it is a mandatory life or death sentence. The injury does not have to be serious: scratches or bruises are sufficient. This means the court lacks all discretion to give a shorter sentence even for minimal injuries.Due to the mandatory life in prison sentence of Kidnapping with Injury conviction, it is imperative to have a skilled criminal defense team to defend against the charges at the onset of arrest.

Kidnapping for Ransom

            Georgia law treats Kidnapping for Ransom the same as it does Kidnapping with Injury. The sentence in this situation is mandatory life in prison, or death, if the person is convicted.

If you or a loved one has been arrested for the crime of Kidnapping in Georgia, it is imperative to have a team of criminal defense attorneys on your side to put together a robust defense at the onset of the arrest. While stakes are extremely high in these cases, W. Scott Smith has successfully defended numerous Kidnapping cases in Georgia. For a FREE CONSULTATION, call us today at 404-581-0999.