Rape in Butts County

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

  • 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.

If you are charged with rape in Butts County, do not speak to the police. Do not make statements to a Butts County Detective. You will be taken to the Butts County jail. You cannot get a bond at first appearance from a Butts County Magistrate judge. Rape is only bondable by a Butts County Superior Court judge. You will need to apply for this bond hearing. You will go in front of either Judge Fears or Judge Wilson to get a bond.

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 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 Butts  County 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.

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.

I was arrested without a warrant, and they did not bring me to court in Clayton County, what do I do?

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody. 

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991). 

If you or someone you know has been arrested in Clayton County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Vehicular Homicide

If you have been charged with vehicular homicide in Georgia and you were under the influence of prescription medication when you were driving you do have a unique defense available to you that many lawyers in Georgia will sometimes overlook.  For starters, Georgia law does not punish you for mistake or an accident.  Meaning, if you are prescribed prescription medicine and drive after you took prescription medication you may be excused in your conduct through excusable ignorance.  There are several factors the jury will consider, but in my experience, you have to meet several criteria to have a more robust defense.  First, you have to be taking the drugs pursuant to a lawful prescription.  Second, you will need to be within therapeutic limits – meaning taking the drug as prescribed.  It doesn’t do good if you are prescribed 5 mg of a drug and you are taking three times the amount.  Third, your doctor or pharmacist told you not to drive after taking the medication.  Similarly, if your prescription bottle displays a warning of ‘do not drive under this prescription’ then you should not drive and your defense of accident or mistake is seriously weakened.  Fourth, it should be a newer prescription.  Why is this important?  It means you are unfamiliar with the reaction your body and/or mind has when taking the prescription medicine.

As mentioned, once you have been charged with Vehicular Homicide in Georgia and you are taking a medication as prescribed and the jury believes you did so through not knowing any better you can be excused from the criminal act.  Yes, nobody likes excuses – especially a jury – but if you truly did not have the intent to become impaired or did not know the effects of consuming a prescription medicine, Georgia law protects you.  It is important to understand the difference between justification and excuse.  Justification means you intended the act and consequences that stem from the act but you were justified.  An example may be self-defense where you shot and killed someone trying to kill you.  Excuse is where it is not justified, but excusable because of what is transpiring in your mind.  A top highly experienced Georgia criminal defense lawyer can explain this to a jury.

I was arrested without a warrant, and they did not bring me to court in Cobb County, what do I do?

If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested in Cobb County for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Cruelty to Children in Dekalb County

By: Attorney Erin Dohnalek

In Georgia, the offense of cruelty to children is broken down into three different degrees, depending on the severity of the alleged abuse. Because of the consequences of such a serious crime, it is vitally important to understand the offense, as well as your individual rights when dealing with such allegations.

According to O.C.G.A. § 16-5-70, first-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, under the age of eighteen, willfully deprives the child of necessaries to the extent that the child’s well-being is jeopardized. Additionally, conduct in which such person causes a minor child cruel or excessive physical or mental pain is considered first-degree child cruelty.

Second-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, with criminal negligence, causes a child, under the age of eighteen, cruel or excessive physical or mental pain. Additionally, third-degree cruelty to children occurs when a parent, guardian, or other person supervising a minor child acts in one of the following ways:

  • Such person acts as the primary aggressor and intentionally allows a minor child to witness the commission of a forcible felony, battery, or family violence battery; or
  • Such person, who is acting as the primary aggressor, knows that the minor child is present or knows that the child can either hear or see the act, commits the act of forcible felony, battery, or family violence battery.

Penalties

The penalty for being convicted of first-degree cruelty to children in Dekalb County, Georgia is a prison sentence between 5-20 years. For second-degree cruelty to children, the prison term is anywhere between 1-10 years. Alternatively, if a person is convicted of third-degree cruelty to children, he/she may be sentenced to a misdemeanor penalty, depending on his/her past criminal history. If the person has never been convicted of third-degree cruelty to children or has only been convicted once in the past, he/she may be sentenced to a misdemeanor penalty. However, if such person has been convicted in the past more than twice for the same offense then he/she will be sentenced to a felony prison term between 1-3 years and/or a fine of no less than $1,000, but no more than $5,000.

Defenses

Due to the severity of the punishment, as well as the collateral consequences for a charge of cruelty to children, it is vitally important to hire an experienced criminal defense attorney to defend you against such allegations and who also understands all the possible defenses to such a charge. Some defenses to cruelty to children include, but are not limited to:

  • Accident, if it did not result from the person’s recklessness or criminal negligence;
  • Parent’s right to discipline, if reasonable; and
  • Actual innocence or false allegations.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of cruelty to children, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for cruelty to children in Dekalb County, please call our office today at 404-581-0999 for a free consultation.

I was arrested with a warrant, and they did not bring me to court in Cobb County, what do I do?

If you have been arrested, booked into the County Jail, and there is a warrant, you must be brought before a Judge within 72 hours. If you are not brought before a judge within 72 hours, you must be released from custody. Having an experienced attorney file the correct motion and argue before the court can make that happen.

Under O.C.G.A. § 17-4-26, it requires the law enforcement officer to “exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial office within 72 hours of arrest.” Further, “[a]n arrested person who is not notified before the hearing of the time and place of commitment hearing, shall be released.” Chisholm v. State, 231 Ga. App. 835, 840 (1998)

If you or someone you know has been arrested for a charge with a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Super Speeder- Gwinnett

If you are driving 85 MPH or more on any road or highway OR driving 75mph or more on any two-lane road or highway in Georgia, you are deemed to be a ‘super speeder.’ What does that mean? It means that in addition to the local fines and fees you pay to resolve your ticket you will also have to pay an additional $200 super speeder fee to DDS. You have 90 days from the date of conviction (i.e paying ticket or entering a plea) to submit the payment to DDS. If you fail to pay the $200 fee within 90 days your license will be suspended.  If you or someone you know has been arrested with a super speeder ticket, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

What to expect during a DUI stop in Canton, GA

By: Attorney Alex Henson

If you are suspected of driving under the influence of alcohol in Canton, GA you might be pulled over and investigated by police. What can you expect during a DUI stop?

First, the officer might ask you if you’ve had anything to drink. You have the right to remain silent and refuse to answer the question, but always be polite and respectful. Any statements you make could be used against you later in court.

Next, the officer might ask you to perform certain exercises to see if you are safe to drive. These exercises are called Standardized Field Sobriety Tests and your performance could be used against you in court later. The most common of these tests are the horizontal gaze nystagmus (HGN), the one leg stand, and the walk and turn. It is voluntary to participate in field sobriety tests. Refusing to participate cannot be used against you in court later.

The officer may decide that you are under the influence and less safe to drive. If the officer decides to arrest you, he or she may read you Georgia’s implied consent statement and request chemical testing of your breath or blood. These tests are voluntary, but refusal can result in your license being suspended.

If you are arrested for DUI in Canton, GA for DUI, your case will be sent to Canton Municipal Court. In the Canton Municipal Court, you will have the opportunity to resolve your case. However, if you decide you want a jury trial, your case will be transferred to the State Court of Cherokee County.

If you have been arrested for DUI in Canton, GA and would like a free consultation, call us at (404) 581-0999.

Civil Asset Forfeiture- DeKalb Drug Cases

Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Rape Shield Statute

If you are charged with Rape in Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

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.

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.

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.