First Offender in Fulton County

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc. and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

License Consequences for DUI Convictions in Georgia

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By: Attorney Erin Dohnalek

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

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

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

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

Contact Us

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

Reckless Conduct in Fulton County

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The Fulton County Solicitor General prosecutes crimes of reckless conduct. Under O.C.G.A. 16-5-60, reckless conduct is when you causes bodily harm to or endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Reckless Conduct involves an act of criminal negligence, not an intentional act.

What does criminal negligence mean in the contact of Reckless Conduct. Criminal negligence implies, not only knowledge of a likely consequence which may result from the act, but also willful or wanton disregard of the probable effects upon others likely to be affected.

Criminal negligence is more than ordinary negligence. Criminal negligence is the reckless disregard of any consequences, or an indifference to the safety of others.

If you are charged with reckless conduct in Fulton County, you face 1 year in jail and a $ 1,000 fine.

If you are charged in Fulton County with reckless conduct,  please call us at 404-581-0999. You need to zealously defend yourself against these allegations.

Aggravated Stalking in Hall County, Georgia

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By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim, without his/her consent, for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact, there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally, a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime in Hall County will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

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

How Your Defense Attorney Can Use Georgia Rules of Evidence Rule 403 to Keep Out Prejudicial Evidence

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When a person is charged with a crime, the State will often try to present evidence of other bad acts performed by the defendant or evidence that is intended to inflame the passions of the jury. When wielded correctly, Rule 403 gives your defense attorney a weapon to fight back with.

Rule 403 states that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” This simply means that a judge may decide that certain evidence may not be presented to the jury if it is likely to prejudice the jury against the defendant, is a waste of time, or is unnecessarily cumulative (an example of unnecessarily cumulative evidence would be prosecutors showing a music video where the defendant points guns and claiming it is being shown for identification purposes when other witnesses had already identified the defendant in surveillance footage from the incident) . A 2020 Georgia Supreme Court case says it perfectly: “the major function of rule governing exclusion of relevant evidence due to prejudice, confusion, or waste of time is to exclude matters of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Jernigan v. State, 357 Ga.App. 415.

A recent example of Rule 403 being used effectively was in the Ross Harris case from 2016. Ross Harris was charged with intentionally leaving his son in the hot car where he ultimately died. The State presented evidence of text messages Harris had sent to underage girls as well as large amounts of evidence of Harris’ infidelity. Although Harris was convicted of sex crimes and murder, his attorneys used Rule 403 at his appeal to show that the two crimes (sexual texts with underage girls and murder) should have been tried separately. While the text messages proved he was guilty of the sex crimes, they did nothing to prove Harris’ intent when he walked away from his car and were highly prejudicial when the jury considered the murder charge.

If you find yourself facing serious charges, it is important that you hire a lawyer that understands the rules of evidence and will use every tool available to prevent the jury from hearing prejudicial evidence. The lawyers at W. Scott Smith will explore every aspect of your case and fight for you in the courtroom to give you the best chance of hearing “Not Guilty”. If you face serious charges like rape, murder, child molestation, drug trafficking, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Douglas, Rockdale, or Barrow counties, call our office at 404-581-0999 for a free consultation.

Teen and Young Adult Traffic Tickets in Alpharetta Municipal Court

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If you are a high school or college aged student with a traffic ticket pending in Alpharetta Municipal Court, it is important to note that young drivers have much different penalties in Georgia traffic court than adult drivers. There are several traffic citations in Georgia that can have harsh consequences to those convicted if under the age of 21.

The following offenses will suspend a driver’s license if the driver is under the age of 21 at the time of the conviction:

  • Speeding 24-mph or more over the limit
  • Hit and Run
  • Racing
  • Fleeing or Attempting to Elude
  • Reckless Driving
  • Improper Passing on a Hill or a Curve
  • Unlawful Passing of a School Bus
  • Driving under the Influence
  • Aggressive Driving

In addition to the offenses listed above, if the driver is under the age of 18, accumulating 4 or more points in any 12-month period will also suspend driving privileges. This can occur by being cited in two separate incidents. For example, if a driver is first convicted of Following too Closely at one point, and within the year, a minor speeding ticket, this would put the teen driver over four points, thereby suspending his or her license.

Simply paying the ticket and not attending court is considered a conviction and will count towards the points accumulation.

In the above scenarios, there is no limited permit available for driving privileges. The State will issue a minimum 6-month license suspension. There is one exception to that rule: if the driver is convicted of driving 24-mph over the speeding ticket, and they are between the ages of 18 and 21, the sentencing judge may issue a limited permit in their discretion.

In addition to the license suspension, penalties for under 21 teen and young adult drivers may include probation, driving classes, community service, and fines (and jail, in some scenarios like hit and run, fleeing and attempting to elude, reckless driving, DUI, and more).

If your child is charged with a traffic ticket in Alpharetta Municipal Court, the court appearance will take place at 3690 Highway 9. Building B. Milton, GA 30004. In all traffic and misdemeanor cases, you are entitled to a jury trial. Since Alpharetta Municipal Court does not have jury trials, the jury trial would take place at Fulton County State Court at a later date.

Due to the consequences of traffic tickets on teen and young adult drivers, it is highly beneficial to consult with an experienced traffic defense lawyer who practices in Alpharetta Municipal Court. A skilled criminal defense lawyer knows the repercussions of traffic tickets on under 21 drivers, and can potentially negotiate amended charges and reduced penalties as well as have a jury trial on the charges. This will not only protect young drivers from license suspensions, but can also avoid points being assessed and reported to insurance companies, thereby avoiding rate increases.

If you are a driver under the age of 21 years old, or the parent of one, with a case pending in Alpharetta Municipal Court, reach out to the lawyers at W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

 

Rape

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Rape in Henry County is a serious crime in Georgia. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for 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 Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

Here is what you should do if arrested for rape in Henry County.

  1. Hire an attorney – Make sure that attorney actually handles and tries rape cases. Most criminal defense attorneys do not handle rape cases. Make sure the attorney you talk to does regularly handles rape cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for rape, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this rape accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for rape in  Henry County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

 

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.

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

Help! My teenager is charged with possessing or distributing child pornography.

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While it might be common sense that it is illegal for adults to possess or distribute child pornography, it is also illegal for teenagers. It is a misdemeanor if the teen charged is 18 or younger, the teen in the photo is at least 14, and the photo/video was taken with consent. However, if the photo/video was sent to anyone it becomes a felony with a penalty of five (5) to twenty (20) years in prison, a fine up to $100,000 and time on the sex offender registry. Being charged with possessing or distributing child pornography can have long lasting collateral consequences. If your teen has been charged with possessing or distributing child pornography it is important to contact an experienced criminal defense attorney as soon as possible. Please call us for your free consultation at 404-581-0999.

Trafficking Marijuana in Cobb County, Georgia

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If you are arrested for marijuana in Cobb County, your case will be prosecuted in Cobb County Superior Court. The penalties you could possibly face if convicted depend on how much marijuana you have with you at the time of your arrest.

Georgia regulates marijuana through the Georgia Controlled Substance Act and O.C.G.A. §16-13-1(a)(1) says that marijuana is a controlled substance. The Georgia codes that specifically regulate marijuana crimes are O.C.G.A. § 16-13-30(j) and O.C.G.A. § 16-13-31(c). The statutes say that “It shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana”. The penalties an individual faces for possessing marijuana depend on the quantity of marijuana and could range from a simple fine to up to 15 years in prison.

If you are caught with less than an ounce of marijuana, you will be charged with a misdemeanor and face a fine of up to $1000 and/or a year in jail. If you are caught with more than an ounce but less than 10 pounds of marijuana, you face a felony conviction and 1-10 years in prison.

However, for higher amounts of marijuana the penalties are severe. If you possess marijuana in excess of 10 pounds, you will be charged with trafficking marijuana and the penalties depend on the amount you possess:

  • If you are arrested with 10-2,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 5 years in prison and a $100,000 fine.
  • If you are arrested with 2,000-10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 7 years in prison and a $250,000 fine.
  • If you are arrested with more than 10,000 pounds of marijuana, you will be charged with felony trafficking and face a mandatory minimum of 15 years in prison and a $1 million fine.

As you can see, the penalties for trafficking marijuana are steep. It is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at W. Scott Smith are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

 

 

Teen and Young Adult Traffic Tickets in Roswell Municipal Court

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If you are a high school or college aged student with a traffic ticket pending in Roswell Municipal Court, it is important to note that young drivers have much different penalties in Georgia traffic court than adult drivers. There are several traffic citations in Georgia that can have harsh consequences to those convicted if under the age of 21.

The following offenses will suspend a driver’s license if the driver is under the age of 21 at the time of the conviction:

  • Speeding 24-mph or more over the limit
  • Hit and Run
  • Racing
  • Fleeing or Attempting to Elude
  • Reckless Driving
  • Improper Passing on a Hill or a Curve
  • Unlawful Passing of a School Bus
  • Driving under the Influence
  • Aggressive Driving

In addition to the offenses listed above, if the driver is under the age of 18, accumulating 4 or more points in any 12-month period will also suspend driving privileges. This can occur by being cited in two separate incidents. For example, if a driver is first convicted of Following too Closely at one point, and within the year, a minor speeding ticket, this would put the teen driver over four points, thereby suspending his or her license.

Simply paying the ticket and not attending court is considered a conviction and will count towards the points accumulation.

In the above scenarios, there is no limited permit available for driving privileges. The State will issue a minimum 6-month license suspension. There is one exception to that rule: if the driver is convicted of driving 24-mph over the speeding ticket, and they are between the ages of 18 and 21, the sentencing judge may issue a limited permit in their discretion.

In addition to the license suspension, penalties for under 21 teen and young adult drivers may include probation, driving classes, community service, and fines (and jail, in some scenarios like hit and run, fleeing and attempting to elude, reckless driving, DUI, and more).

If your child is charged with a traffic ticket in Roswell Municipal Court, the court appearance will take place at 38 Hill Street, Roswell, Georgia. Judge Brian Hansford is the presiding Judge of Roswell Municipal Court. In all traffic and misdemeanor cases, you are entitled to a jury trial. Since Roswell Municipal Court does not have jury trials, the jury trial would take place at Fulton County State Court at a later date.

Due to the consequences of traffic tickets on teen and young adult drivers, it is highly beneficial to consult with an experienced traffic defense lawyer who practices in Roswell Municipal Court. A skilled criminal defense lawyer knows the repercussions of traffic tickets on under 21 drivers, and can potentially negotiate amended charges and reduced penalties as well as have a jury trial on the charges. This will not only protect young drivers from license suspensions, but can also avoid points being assessed and reported to insurance companies, thereby avoiding rate increases.

If you are a driver under the age of 21 years old, or the parent of one, with a case pending in Roswell Municipal Court, reach out to the lawyers at W. Scott Smith for a FREE CONSULTATION at 404-581-0999.