Pre-trial Diversion: What Is It?

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Pre-trial diversion programs aim to provide individuals with an opportunity to address underlying issues that may have contributed to their involvement in a certain crime. It’s essentially an alternative pathway that allows for charges to be dismissed upon the completion of the program.

 

  • Eligibility: Not everyone is eligible. Pre-trial diversion programs are reserved for people in more minor offense crimes without an extensive criminal history.
  • Participation: If accepted, clients agree to participate in activities that include community service, drug and/or alcohol counseling, and educational programs like anger management classes or victim impact panels.
  • Supervision: Generally, participants are supervised by a case manager. If you are enrolled in a pre-trial diversion program, it is important to keep your case manager updated on any classes you’ve completed, or community service hours completed.
  • Consequences of failure: failure to comply with the program or committing another offense can result in reinstatement of the criminal charge and further prosecution.
  • Benefits: the main benefit of pre-trial diversion is to avoid criminal conviction. If you complete the program, your case and all the charges associated with the case are generally dismissed by the court. The program also provides an opportunity to rehabilitate behavior that could lead to further criminal convictions related to the original, underlying crime.

 

In general, pre-trial diversion programs offer a viable and attractive option for individuals who do not want a case to go to trial but want the charges dismissed by the court.

HGN: A scientifically reliable indicator?

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Horizontal gaze nystagmus (HGN) is a condition where the eyes involuntarily jerk or twitch as they move laterally, typically observed when an individual’s gaze is directed to the side. During a DUI stop, an officer may conduct the HGN test by moving an object (such as a pen or finger) horizontally across the person’s field of vision while observing the eyes for any signs of nystagmus.

While HGN can indicate impairment, its reliability as a sole indicator is questioned for several reasons:

  1. **Subjectivity**: Interpretation of nystagmus can vary between officers, leading to inconsistent results. Factors such as lighting conditions, the officer’s experience, and the subject’s eye characteristics can influence the observations.
  2. **False Positives**: Nystagmus can be influenced by various factors other than alcohol or drug consumption, such as fatigue, certain medical conditions, prescription medications, or even environmental stimuli like flashing lights.
  3. **Lack of Specificity**: HGN is not specific to alcohol impairment and cannot distinguish between alcohol and drug impairment. Different substances affect the body differently, and HGN alone cannot pinpoint the specific substance causing impairment.

Therefore, while HGN can be a useful tool in conjunction with other field sobriety tests and evidence, its limitations make it unreliable as a standalone indicator of impairment in DUI cases.

Behavioral Incentive Dates

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In Georgia, a person who is convicted of a felony for the first time and sentenced to straight probation, or less than 12 months imprisonment followed by probation, is entitled to receive a Behavioral Incentive Date (also known as a BID). A BID is a date that the court sets for the probation to end early, provided that the individual has successfully completed their probation and not violated any terms of their probation.

When a person is convicted of a felony for the first time or is charged with a felony and enters a plea under the First Offender Act or conditional discharge, Georgia law says that the judge must include a BID that is no more than 3 years from the date that the sentence is imposed. (O.C.G.A. § 17-10-1 (a)(1)(B)(i)). A brand-new Georgia Court of Appeals case clarifies that even when a person is convicted of their first felony and chooses not to use their First Offender, the judge must include a BID. (Smalley v. State).

What does this mean for a person facing felony charges?  This means that if you are facing felony charges and sentenced to probation, the court MUST include a BID and that BID may not be more than 3 years from the date you are sentenced. So, for example, if you are sentenced to 10 years probation for your first ever felony, the judge must include a BID date and, if you successfully complete the terms of your probation and don’t have any probation violations, your probation will end on that BID.

It is important to have an attorney who understands things like Behavioral Incentive Dates when they are negotiating with prosecutors. The lawyers at W. Scott Smith are experienced at fighting to protect their clients and ensure that clients receive the best possible outcome for their case. If you are charged with a felony in Dekalb, Fulton, Gwinnett, Clayton, Rockdale, Henry, Cobb, or Cherokee County, call the Law Office of Scott Smith today for a free consultation and to find out how you can leverage the law regarding Behavioral Incentive Dates to your advantage.

Sexual Battery in Cobb County

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If you are arrested for Sexual Battery in Cobb County, please do not make any statements to the police. You will be brought over to court the following day after your arrest and a Cobb Magistrate Court judge will consider bond.

Family members can attend the bond hearing at the Visitors Center at the Cobb County Adult Detention Center. The hearings take place at either 9am or 9pm depending on when the person is booked into the jail.

A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

If you are arrested for Sexual Battery in Cobb County, please give us a call at 404-581-0999.

License Consequences for DUI Convictions in the Municipal Court of Marietta

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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 an 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 an 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 an 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 was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was 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 a DUI in the Municipal Court of Marietta, 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 120 days.
    • During that 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 license suspension, the accused will be eligible to get their permanent license back if he/she has 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 permanent 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 license suspension, 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, if caught driving, 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 in Marietta, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

I’m being charged as an accomplice but I didn’t do anything

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Georgia law allows someone who did not directly commit a crime to be charged with the substantive offense. Most states call it being an accomplice, Georgia calls it party to a crime. However, merely being present when a crime is being committed is not enough to sustain a conviction.  To convict someone as a party to a crime, the state must prove beyond a reasonable doubt that the person 1) intentionally causes another person to commit a crime under circumstances where that person would not be guilty in fact or because of legal incapacity; 2) Intentionally aids or abets in the commission of a crime; or 3) intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

All of that means that you actually have to do something to assist with the crime. For example, if you take a friend to the bank and while they are inside, they rob the bank. After the robbery, they get back into your car and tell you they robbed the bank. If you drive them away from the scene, you can be charged and convicted of the robbery even though you never stepped foot in the bank.

If you have been charged as a party to a crime, you need an experienced criminal defense attorney to fight for you. Give us a call at 404-581-0999 for a free case consultation.

Gwinnett County Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Gwinnett County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Rape Shield in Georgia

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If you are charged with Rape in the State of 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.

Henry County Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Henry County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

License Consequences for DUI Convictions in the Municipal Court of Atlanta

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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 an 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 an 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 an 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 was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was 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 a DUI in the Municipal Court of Atlanta, 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 120 days.
    • During that 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 license suspension, the accused will be eligible to get their permanent license back if he/she has 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 permanent 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 license suspension, 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, if caught driving, 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 in Atlanta, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.