Possession of Schedule 1 Controlled Substances – VGCSA – Georgia

Possession of Schedule 1 drugs are classified as felonies in the State of Georgia. According to the laws of our state, criminal charges associated with the possession of these drugs are in accordance with the Georgia Controlled Substances Act. The following controlled substances are examples of drugs classified as Schedule 1:

  • Heroin
  • LSD
  • Morphine
  • Ecstasy

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act, include the charge of possessing Schedule I drugs. The Georgia Controlled Substances Act is laid out in the following statutes: O.C.G.A. § 16-13-20 through § 16-13-30. A list of all of the controlled substances considered to be Schedule I are referenced in O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, which does encompass any Schedule I drug.

SENTENCING

If an accused is prosecuted under the Georgia Controlled Substances Act for possessing a Schedule I controlled substance, the charge will be classified as a felony. If the accused is later convicted of these charges, the following punishments may occur:

  1. If the aggregate weight is less than one gram of a solid substance or less than one milliliter of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-3 years;
  2. If the aggregate weight is at least one gram but less than four grams of a solid substance or at least one milliliter but less than four milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-8 years;
  3. If the aggregate weight is at least four grams but less than 28 grams of a solid substance or at least four milliliters but less than 28 milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-15 years.

Because of the severity of the punishment for possessing a Schedule I controlled substance, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all possible options of an accused arrested and charged with V.G.C.S.A., we understand and assert all potential defenses for such a charge, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of a Schedule I controlled substance, please call our office today at 404-581-0999 for a free consultation.

Georgia’s New Street Racing Law

Street racing and laying drag (https://www.peachstatelawyer.com/laying-drag-arrests-and-citations-in-atlanta-georgia/)  has long been illegal in the State of Georgia. However, in response to increased street racing incidents across the city of Atlanta, Governor Kemp recently signed new legislation creating even more harsh penalties for those who continue to engage in street racing.

 

First, the bill now criminalizes an act, that before, was not against the law: promoting or organizing an exhibiting of illegal drag racing.  The State of Georgia is now cracking down on Instagram and other social media accounts who promote meetups for illegal street racing events. Anyone charged and convicted under this new law, found at O.C.G.A § 16-11-43.1, will be guilty of a high and aggravated misdemeanor.

 

Second, the Georgia law adds a completely new code section titled Reckless Stunt Driving, at O.C.G.A. § 40-6-390.1. Under Georgia law, it is now specifically illegal to drag race in reckless disregard for safety of persons. The law includes drag racing both on public roads, as well as on private property. The punishment for Reckless Stunt Driving includes a mandatory ten days in jail, up to 6 months for this charge alone, along with a minimum fine of $300.00.  It is considered a misdemeanor of a high and aggravated nature. A second conviction within ten years increases the jail time to 90 days to 12 months, and a third conviction has a mandatory 120 days to 12 months in jail, and the base fines can go up to $5000.00. A fourth conviction of Reckless Stunt Driving in a ten year period becomes a felony and a mandatory one year in prison.

 

Historically, a conviction for reckless driving did not suspend a Georgia driver’s license. This has now changed, drastically. Under Georgia’s New Street Racing Law, if you are convicted of reckless stunt driving in violation of O.C.G.A. § 40-6-390.1, your license will be suspended for up to 12 months, however you can apply for early reinstatement after 120 days. On a second conviction, it is a mandatory 3 year license suspension, but you may be able to reinstate your license after finishing an 18 months hard license suspension. A third conviction in five years will lead to a Habitual Violator status, whereby the license suspension will be five years, with a potential probationary license after two years.

 

The new law even allows for forfeiture after being declared a habitual violator. This means that the State of Georgia can confiscate your car, forever, if you have been convicted three times of reckless stunt driving in five years.

 

Street racing, laying drag, and reckless stunt driving are being taken more seriously in Georgia than ever before. If you or a loved one has been arrested or charged with street racing in Atlanta, call the Law Office of W. Scott Smith PC at 404-581-0999 for a free consultation. A criminal conviction is forever, so engage an experienced lawyer to assist in avoiding the harsh consequences of jail-time, and license suspension, that come with Georgia’s New Street Racing Law.

Georgia Criminal Law – Drug Paraphernalia and Drug Related Objects

Not only does Georgia law prohibit the possession of controlled substances, it also makes it unlawful to possess the tools or equipment used in the drug trade or use of drugs. These tools are commonly referred to as paraphernalia. Items such as pipes, needles, grinders, or bongs often come to mind. In and of themselves, these items may be perfectly legal to possess, but when discovered adjacent to a controlled substance, or when the items contain the residue of a controlled substance, that’s when you could be charged with “Drug Related Objects.”

 

The Offense

O.C.G.A. § 16-13-32.2 makes it unlawful to possess or use drug related objects. “It shall be unlawful for any person to use, or possess with the intent to use, any object or materials of any kind for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.”

 

It is important to note that any object or material of any kind can constitute a drug related object. However, Georgia Senate Bill No. 164 would amend and revise the above law by making it inapplicable hypodermic needles or syringes.

 

Defenses

No possession: The State has to prove the person was in knowing possession (actual or constructive) in order to sustain a conviction.

 

In Wright v. State, 355 Ga.App. 417 (2020), the evidence was insufficient to demonstrate that probationer possessed methamphetamine pipe found in truck parked outside residence where probationer was being arrested on unrelated charge, and thus revocation of probation was precluded based on possession of pipe; there was no admissible evidence showing that probationer possessed pipe, and no non-hearsay evidence showed that probationer owned truck.

 

Lawful Purpose / No Intent: The State has to prove the items were possessed with the intent to be used with an illegal purpose. A bong, in and of itself, with no marijuana residue and without any evidence of drug possession or use would not be sufficient to convict for drug related objects.

 

In Holloway v. State, 297 Ga.App. 81 (2009), the evidence was sufficient to show that defendant had joint possession of two crack-pipe filters found in a vehicle that he was driving and in which a passenger was riding, so as to support a conviction for possessing a drug-related object; as the driver, defendant was presumed to have possession of contraband in the vehicle, and the state presented evidence that defendant and the passenger were involved in the crack-cocaine drug trade.

 

Punishment

Possession of a drug related object is a misdemeanor and can carry up to 12 months in jail and/or a $1,000 fine.

 

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

 

 

 

 

 

 

Drug Trafficking Arrests in Gilmer County Georgia

Drug trafficking charges are different from other drug crimes, such as possession, possession with intent to distribute, drug distribution, and drug manufacturing. The key difference between drug trafficking and these other drug charges is quantity. Because of the large amount of drugs involved in trafficking charges, the punishment is significantly higher and may result in the imposition of a mandatory minimum prison sentence.

This blog serves to explain the drug trafficking laws and how these cases are handled in Gilmer County, Georgia. Why Gilmer County? Gilmer County is a highly populated county adjacent to Fulton that sees a high number of drug trafficking cases on an annual basis. Therefore, it is important to know what to expect from the prosecutors (District Attorney’s Office) and the Court itself when facing these charges.

The Law

O.C.G.A. § 16-13-31, makes it a criminal offense to sell, manufacture, delivers, or brings into the State, cocaine, illegal drugs, and marijuana is guilty of drug trafficking. The code section separates the law by drug and by quantity.

Trafficking cocaine is defined as any person who sells, manufactures, delivers, or brings into this state or knowingly possesses 28 or more grams[1] of cocaine. If the quantity of cocaine is between 28 grams and 200 grams, the person shall be sentenced to a mandatory minimum prison sentence of 10 years and shall pay a fine of $200,000. If the quantity of cocaine is between 200 grams and 400 grams, the person shall be sentenced to a mandatory minimum prison sentence of 15 years and shall pay a $300,000 fine. Lastly, if the quantity of cocaine is 400 grams or more, the person shall be sentenced to a mandatory prison sentence of 25 years and shall pay a fine of $1,000,000.

For morphine and opium (including heroin), a person is guilty of trafficking if they sell, manufacture, deliver, bring into this state, or possess 4 grams or more of the substance. If the quantity involved is between 4 and 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment for 5 years and shall pay a fine of $50,000. For between 14 grams and 28 grams, the sentence is at least 10 years in prison and a fine of $100,000

Trafficking marijuana is defined as selling, manufacturing, growing, delivering, or possessing more than 10 pounds or marijuana. If the amount of marijuana is greater than 10 pounds but less than 2,000 pounds, the law requires a mandatory minimum 5 year prison sentence plus a $100,000 fine. If the quantity involved is greater than 2,000 pounds but less than 10,000 pounds, there is a 7 year mandatory minimum prison sentence plus a $250,000 fine. Finally, if the quantity of marijuana is greater than 10,000 pounds, the person shall be sentenced to a mandatory minimum prison sentence of at least 15 years as well as a fine of $1,000,000.

[1] With a minimum purity of 10% or more of cocaine as described in Schedule II

Driving while License Suspended or Revoked in Georgia

In Georgia, if a person is driving on a suspended license, he/she may face jail time, probation, as well as monetary fines. If the accused is found guilty of driving while his/her license is suspended, the accused will be charged with a misdemeanor, as long as it is his/her first offense within the last 5 years.

According to O.C.G.A. § 40-5-121, any person who drives a motor vehicle on any public highway of this state without being licensed or while his/her privilege to drive in the State of Georgia is suspended, disqualified, or revoked may be found guilty of the offense of driving while license is suspended. Under Georgia law, there are numerous violations that can lead to a driver’s license being suspended or revoked. Some include, but certainly are not limited to:

  • Conviction of driving under the influence of drugs or alcohol (DUI);
  • After a DUI arrest, failure to consent to a blood, breath, or urine test following the reading of Georgia’s implied consent law;
  • Conviction of driving without insurance;
  • Conviction of vehicular homicide;
  • Failure to pay Georgia’s Super Speeder fine within its required deadline; OR
  • For accumulating 15 traffic points within a 24-month period.

Penalties

As stated above, the offense of driving while license is suspended/ revoked will be characterized as a misdemeanor if it is the driver’s first offense within the previous 5-year period. If the accused is convicted of a misdemeanor, he/she may be sentenced anywhere between 2 days and 12 months in jail and/or a fine of $500-$1,000. However, if the accused has had a prior conviction or two prior convictions, within the last 5 years, for driving while license is suspended, he/she may be charged with a “high and aggravated misdemeanor.” This means that the sentence may involve anywhere between 10 days and 12 months in jail and/or a fine of $1,000-$2,500. Finally, if the accused has had four or more convictions of driving while license is suspended within the last 5 years, the charge will be classified as a felony. A person convicted of a felony may be sentenced to 1-5 years in prison with a fine of $2,500-$5,000.

Upon receiving the accused person’s record of conviction for driving while license is suspended, the Georgia Department of Driver’s Services will impose an additional suspension or disqualification of 6 months. Once the additional 6 months has expired, the driver is eligible to reinstate his/her driver’s license.

Contact Us

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

Driving without a License or with a Suspended License in Georgia

Georgia, like most states, makes it a crime to drive a vehicle without a license or with a suspended license. This blog article will discuss the laws surrounding this type of offense and the possible punishment if convicted.

Driving Without a License

As you might expect, every person driving a motor vehicle on a road or highway must have, and display upon request, a valid driver’s license. There are two laws dealing with not being in possession of a valid license.

No License on Person: O.C.G.A. § 40-5-29 requires drivers in Georgia to carry their license in their immediate possession while driving. A driver must also produce a copy of their license at the request of a law enforcement officer. Failure to do so may result in a misdemeanor conviction where the maximum penalty is 12 months in jail and up to $1,000 fine. If the driver can later produce a valid license that was valid at the time of arrest or citation, the maximum fine is $10.

Driving Without a Valid License: O.C.G.A. § 40-5-20 prohibits and punishes unlicensed driving. This offense is more serious than the above No License on Person, but is still charged as a misdemeanor.

Driving With a Suspended License

O.C.G.A. § 40-5-121 prohibits a person from operating a motor vehicle on a suspended, disqualified, or revoked license. If convicted, the person can expect to face a fine, jail time, probation, and a license suspension. The license suspension would be added to the time left remaining on the current suspension. The below table describes penalties for repeat offenses:

  Jail Fine License Suspension
1st Offense 2 days – 12 months $500-$1,000 6 months
2nd Offense 10 days – 12 months $1,000 – $2,000 6 months
3rd Offense 10 days – 12 months $1,000 – $2,000 6 months
4th Offense (Felony) 1 – 5 years prison $2,500 – $5,000 6 months – lifetime

 

Contact Us

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

 

 

 

 

Felony Murder in Georgia

In Georgia a person will be convicted of felony murder in this State “when, in the commission of a felony, he causes the death of another human being irrespective of malice.”  In determining whether a felony meets that definition, the Court will tell the jury to consider the circumstances under which the felony was committed.  Further, there must be some connection between the felony and the homicide.

 

Here is a breakdown of the felony murder statute and the elements the state must prove beyond a reasonable doubt:

 

  1. In the commission of a felony

 

The homicide must have been done in carrying out the unlawful act and not collateral (accompanying but secondary) to it. It is not enough that the homicide occurred before or after the felony was attempted or committed.

 

The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life.

 

For a felony to be considered inherently dangerous, it must be “dangerous per se” or it must “by its circumstances create a foreseeable risk of death.”

 

The reason for the felony murder rule is to furnish an added deterrent to the perpetration of felonies, which create a foreseeable risk of death. This function is not served by application of the rule to felonies not foreseeably dangerous.

 

Some common crimes that qualify for felony murder include:

 

  • Aggravated assault
  • Armed robbery
  • Arson
  • Burglary
  • Firearms offenses; in some cases possession of a firearm by a convicted felon.
  • Kidnapping
  • Narcotics offenses or VGCSA – including sale of drugs
  • Party to a crime
  • Sexual assault

 

 

  1. Causes the death of another person.

 

The person charged must directly cause the death of the victim to be convicted of felony murder.  For example, a defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if the defendant directly causes the death of the victim while in the commission of the felony.

 

  1. You do not need malice.  

 

There are two types of Malice.  A specific intent to kill is “express malice,” whereas an intent to commit acts with such a reckless disregard for human life as to show an abandoned and malignant heart amounts to “implied malice.”

Malice is where the actor acted deliberately knowing his conduct was dangerous or reckless and he was not concerned as to whether anyone was harmed or not.  So what is less than malice?   Can the action be as low as gross negligence or even less than negligence?

Georgia Criminal Law – Perjury

Perjury is a serious offense that causes immeasurable harm to the functioning and integrity of our legal system and to private individuals. As such, a conviction of perjury can have serious consequences on the accused. This article aims to explore the nature of perjury, possible punishment, and available defenses.

The Offense

O.C.G.A. § 16-10-70 provides, “a person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.”

Thus, the essential elements of perjury are: (1) knowingly and willfully making a false statement, (2) material to the issue or point in question, (3) while under oath in a judicial proceeding. Sneiderman v. State, 336 Ga.App. 153 (2016). Perjury is different from the offense of “false swearing” in that perjury requires both the intent to testify falsely and the act of false testimony, as opposed to swearing rashly or inconsiderately, according to belief (false swearing). Gates v. State, 252 Ga.App. 20 (2001).

The test of “materiality” is whether false testimony is capable of influencing tribunal on issue before it. U. S. v. Cosby, 601 F.2d 754 (1979).

Possible Punishment

A person convicted of perjury can be punished by a fine of up to $1,000.00 or by imprisonment for between one and ten years, or both. If the person convicted of perjury was the cause of another person being imprisoned will be sentenced to a term of imprisonment no greater than the sentence for which the other person was convicted. Further, if a person convicted of perjury was a cause of another person being punished by death, the perjurer shall be punished by life imprisonment.

Defenses

  • Defendant was not under oath at the time the statement was made.
  • The false statements were not “material.”
  • The false statements were not knowingly or willfully made.
  • Defendant’s belief that his testimony was truthful constitutes absolute defense to charge of perjury regardless of whether the testimony is actually false. Richards v. State, 131 Ga.App. 362 (1974).

Contact Us

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

Identification of Suspects in Georgia Criminal Law

Under Georgia law, the testimony of a single witness is sufficient to sustain a conviction (assuming the jury believes that witness). But, prosecutions based entirely or primarily on the testimony of a single eyewitness are said to be the most common cause of wrongful convictions.

This article will discuss the different types of identification procedures, factors that influence the precision of eyewitness identifications, case law dictating how and when a judge should filter out inherently suggestive procedures, and constitutional considerations regarding suppression of unduly suggestive identifications.

Types of Identification Techniques

O.C.G.A. § 17-20-2 provides that any law enforcement agency that conducts lineups shall adopt written policies for using such lineups.

Live Lineups

A live lineup consists of a row of 6 people, including the suspect. The witness is then asked to identify the suspect. Typically, these live lineups are done at the jail and inmates are used to fill the lineup. Someone who does not know the identity of the suspect conducts the lineup. The administrator is supposed to instruct the witness the perpetrator may or may not be present in the lineup. The lineup should be composed so the fillers generally resemble the witness’ description of the suspect. The lineup is to consists of at least four fillers. The administrator is supposed to document the witness’ statement as to their confidence level in their identification.

A suspect in custody may be forced to participate in a lineup because showing one’s physical characteristics is not considered “testimonial” for 5th Amendment purposes. U.S. v. Wade, 388 U.S. 218 (1967). If an in-custody suspect refuses to participate, the prosecutor may comment upon this refusal at a later trial. If a suspect is not in custody, court intervention may be required (upon proof of reasonable and articulable suspicion or probable cause). Importantly, an in custody suspect does NOT have the right to the presence of counsel at a lineup as these procedures occur prior to the formal initiation of charges. Kirby v. Illinois, 406 U.S. 682 (1972).

Show-ups

A show-up is any identification procedure that provides the eyewitness with only one choice. Although a show-up identification is inherently suggestive, it is not necessarily inadmissible. So long as a show-up is reasonably and fairly conducted at or near the time of offense, it will not be deemed impermissibly suggestive. Wallace v. State, 295 Ga. App. 452 (2009). A timely show-up aids in a speedy police investigation, especially in an emergency situation.

Photo Lineups

Also called “photo arrays,” these lineups consist of 6 photographs (including the suspect’s) displayed together to the witness and are conducted prior to the arrest of the suspect. After all, if the suspect is in custody a live lineup is preferred. Some law enforcement agencies present the photos to witnesses one at a time as an added layer of protection to the suspect so the witness will not just choose the photo most resembling the suspect. In a photo lineup the administrator is not supposed to know who the suspect, or, if they do know, use photos placed in folders which are randomly shuffled so the administrator doesn’t know who the witness is looking at until the procedure is complete. The administratior should tell the witness the suspect may or may not be in the photo lineup, use a minimum of five fillers, use fillers resembling generally the witness’ description of the suspect, and document statement of witness’s confidence in identification.

Again, suspects do not have the right to presence of counsel during a photo lineup because the preservation and documentation of the photo lineup is sufficient to protect suspect’s right to challenge the procedure.

In-Court Identification

At trial, an eyewitness is typically asked to identify the defendant in the courtroom (where they are sitting and what article of clothing they are wearing). A prosecutor is not allowed to ask a witness whether anyone in the courtroom resembles the perpetrator because this causes the witness to search for similarities.

Factors Affecting Accuracy of Identification

Identifications can be influenced by “estimator” and “system” variables. Estimator variables relate to the person making the identification: witnesses perceptive abilities, memory, and environmental factors. System variables include: method of ID (live lineup, photo array, show-up), how identification procedure was administered.

Constitutional Limitations

A pre-trial identification procedure will be suppress on Due Process grounds if such procedure:

  • Is deemed to have been “impermissibly suggestive,” and
  • Posed a “very substantial likelihood of misidentification.”

Carr v. State, 289 Ga. App. 875 (2008). An identification procedure is impermissibly suggestive if it would lead an eyewitness to an all but inevitable identification of the suspect. Russell v. State, 288 Ga. 372 (2007). In determining whther a “very substantial likelihood of misidentification” is present courts look to factors articulated in Neil v. Biggers, 409 U.S. 188 (1972).

  • Opportunity of the witness to view the criminal at the time of the crime
  • The witness’ degree to attention
  • The accuracy of the witness’ prior description of the accused
  • The level of certainty demonstrated by the witness at the time of confrontation
  • The length of time between crime and confrontation

Both the eyewitness’ pre-trial identification and in-court identification are admissible unless the defendant shows the identification fails to satisfy both prongs of the due process test.

Contact Us

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

Georgia’s New Second Chance Law – Misdemeanor Record Restriction (Expungement)

By: Mary Agramonte

A new expungement law is on the way, which will come as great news to the millions of Georgians who have a criminal history. Governor Kemp recently signed SB 288 into law after state leaders unanimously approved the bill. Georgia’s new “Second Chance Law” will become effective on January 1, 2021 providing Georgians with an opportunity to expunge certain misdemeanor cases, both a victory and a first in Georgia.

Georgia historically has not had favorable expungement laws on the books. Under current Georgia law, criminal convictions stay on a person’s record forever. Convictions never ‘age off’ no matter the time that has elapsed, or the strides made for rehabilitation. This places a staggering number of Georgians at a disadvantage for employment, housing, higher education, and other opportunities.

Georgia’s current law disallowing expungement has been troublesome for the hundreds of thousands of people who get caught up in our justice system each year. In fact, Georgia leads the nation, by far, in placing people on probation following conviction.  The United States Bureau of Justice Statistics reported that 433,200 people in Georgia were on probation at the end of 2018. According to Second Chance for Georgia https://www.secondchancegeorgia.org/ , 4.3 million people have a criminal record in Georgia. This means that an astounding 40% of Georgia’s adult population carry a criminal history through life, resulting in more than 1/3 of the State’s population having barriers to advancement in careers and other opportunities.

This new change in Georgia law will allow individuals to petition the court to have certain misdemeanor convictions restricted and sealed off their record after living a crime free life for four years. This is a process sometimes referred to as “expungement,” but is called “record restriction” in Georgia.  So long as a person has completed the terms of their sentence and has had no new convictions for at least four years, then SB 288 allows the individual to petition the Court to restrict the misdemeanor off their record.

Upon petition and a request for a hearing, the Court will conduct a balancing test to determine whether to restrict the misdemeanors off the criminal history. The hearing must take place within 90 days of the request. Under the new SB 288 law, the Court must grant the petition to restrict the criminal history records if it determines that the harm resulting to the individual clearly outweighs the public’s interest in the criminal history being publicly available. Factors such as the nature of crime, the loss of career opportunities, time elapsed since conviction, and proven rehabilitation will all become relevant inquiries for the Court.

Under SB 288, certain crimes will continue to be ineligible for record restriction in Georgia. This means that the following crimes cannot be expunged following a conviction:

  • Family Violence Assault and Battery
  • Family Violence Stalking
  • Hindering 911 call
  • Child Molestation or Enticing a child for indecent purposes
  • Public indecency
  • Pimping and pandering
  • Sexual Battery
  • Theft by Taking, Theft by Deception, Theft by Conversion
  • Serious Traffic Offenses (Reckless Driving, DUI, Homicide by Vehicle, Serious Injury by Vehicle, Fleeing or Attempting to Elude, and Aggressive Driving)

Crimes that will be eligible under the new law for potential record restriction include but are not limited to:

  • Possession of Marijuana
  • Possession of Drug Related Objects
  • Shoplifting
  • Non-Domestic Battery and Assault
  • Minor in Possession of Alcohol
  • Giving False Name, False Report, or False Statement
  • Criminal Trespass
  • Loitering
  • Terroristic Threats
  • Disorderly Conduct
  • Driving with a Suspended License

 

Some felonies are included in this expansion as well. For example, if someone has been convicted of a felony charge, but were issued a pardon, they too can petition a Judge to restrict and seal the charge off their record under the new law.

Who is eligible to petition the court for record restriction or expungement?

Anyone who was convicted of a misdemeanor crime, (other than the crimes explicitly exempt under the statute), and have had no new convictions in the past four years.

How many cases can I ask to be restricted?

Individuals will be allowed to petition the court for record restriction on two misdemeanor cases (a case can include multiple misdemeanor offenses under one accusation).

What happens if the Judge denies the request for record restriction?

You can request the record restriction again after waiting two years from the Judge’s denial.

How do I obtain record restriction under SB 288?

The new law requires you file a motion into the court you were convicted requesting the misdemeanor be restricted and expunged. A court order is required in order for your criminal history to be expunged under the new law.

Keep in mind that record restriction is not limited to misdemeanor convictions discussed in this blog under the new SB288 law and can be, at times, automatic. For example, if you were arrested after July 1, 2013, and the case against you was dismissed, or you were fully acquitted at trial, the charge will be automatically restricted when the clerk enters that disposition into the GCIC system. Arrests prior to July 1, 2013 that resulted in dismissal require a request and separate process for restrictions, but are eligible.

The best way to know what is on your criminal history is to request a copy of your GCIC under Purpose Code “E” from a local police department or sheriff’s office.  If you or a loved one is one of the millions of people carrying a criminal history through life in Georgia, the Second Chance law may come as a reprieve. The attorneys at W. Scott Smith are versed on all aspects of Georgia’s expungement and record restriction laws and are available for a FREE CONSULTATION by calling 404-581-0999.