RECIDIVIST STATUTE IN GEORGIA

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By: Attorney Erin Dohnalek

In Georgia, repeat offenders are punished more severely, regardless of the nature of the crime charged. The theory behind it is to ensure that the prosecution deters people from continuing to commit crimes, which has caused the Georgia legislature to implement the Recidivist statute.

RECIDIVIST PROVISION

The Recidivist statute is set out in O.C.G.A. § 17-10-7(a). It states that if a criminal defendant has one prior felony conviction, and he/she is subsequently convicted of a second felony, the judge must sentence the offender to the maximum term of imprisonment as set out in the statute. However, the judge does have the discretion to allow probation if he/she wishes to do so, but that choice is completely up to the presiding judge.

Furthermore, if a criminal defendant has one prior “serious violent felony” conviction, the second conviction of similar violent nature would require the judge to sentence the accused to life in prison without parole, and the judge has no discretion, and cannot probate or suspend the sentence. The offender must serve the maximum sentence while in custody.

THREE STRIKES RULE

There is also a second provision of the Recidivist statute that comes into play with repeat offenders. It is known as the Three Strikes rule, pursuant to O.C.G.A. § 17-10-7(c). This law states that if a criminal defendant has previously been convicted of three felonies, and he/she is convicted of a subsequent felony offense, which would be a fourth felony conviction, then the offender must serve the maximum term of imprisonment for that charge and will not be eligible for parole until that time has been served.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a felony conviction, especially for individuals who have been convicted of felony crimes in the past. We also understand all possible options for our clients dealing with pending allegations and will zealously advocate on their behalf. Therefore, if you have been recently arrested for a felony offense or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Civil Asset Forfeiture- Coweta Drug Cases

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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.

Georgia Immunity Motions in Domestic Violence Cases

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If a person is charged in the State of Georgia with Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with domestic violence.

If you or someone you know has been arrested for a domestic violence charge, 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 in Gwinnett County

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Rape is a serious crime in Gwinnett County. 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.

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

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 Gwinnett 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.

Municipal Court of Atlanta – Atlanta Move Over Attorney

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Georgia’s “move over” law is designed to keep officers, emergency workers, and first responders safer when they are stopped on the side of the road with their emergency lights flashing. It was passed in 2003 to reduce the number of police officer and HERO fatalities that were occurring due to traffic crash responses. The law saves lives and makes sense, but unfortunately, too many Georgia motorists are unaware that it exists until they are slapped with a $500 fine.

If you have been issued a citation for violating the Move Over law in Atlanta either by Atlanta Police Department or Georgia State Patrol, your citation will be prosecuted by the City of Atlanta Solicitor. Your court date will be set at the Municipal Court of Atlanta at 150 Garnett Street in Atlanta, Georgia. In many instances, attorneys can appear on behalf of their clients for move over violation citations.

Under O.C.G.A. § 40-6-16, Georgia law requires drivers to move over to the next lane if safely possible when passing a stationary emergency vehicle, towing vehicle, or recovery vehicle when their lights are flashing. If moving over is absolutely impossible, the law requires you to slow down to below the speed limit but to be prepared to stop your car. Violations can result in a fine of $500 for the first offense. Once you factor in the court costs, however, this can put you well above $500, even if this was your first offense, and even if you had never heard of the law. Paying the fine on your citation means you are admitting you are guilty to the offense which raises a number of consequences.

A violation of this statute could cost you much more than the fine itself. A conviction for this traffic offense will also add 3 points to your driving record. A driver with 15 points in a 24 month period will have their license suspended. Points on your record also subject you to higher car insurance rates because your insurer believes you are more likely to file a claim than someone with lower points on their record. Getting just one traffic ticket can boost an average person’s auto insurance premiums by as much as 22 percent.

Additionally, violating Georgia’s move over law can be a basis for an officer to stop your vehicle which can lead to even more serious charges. Under both the Georgia and the United States Constitutions, an officer needs “reasonable articulable suspicion” to justify pulling your vehicle over for an investigative stop. Violating this statute gives the officers that power to stop you and investigate you, which ultimately can lead to a DUI arrest or the investigation of other potential and more serious crimes.

To avoid these repercussions of violating Georgia’s move over law, always drive attentively and don’t risk being pulled over or injuring the emergency workers on the side of road. If you see lights ahead, do all that you can to safely move over. If moving over safely is impossible, remember to slow down below the speed limit when passing emergency lights, and be prepared to stop. It can save lives, and it can save you money and the hassle.

If you have been cited with a violation of Georgia’s move over law, call our office and we can help you navigate the system. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed. Our firm can handle your traffic ticket case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

Alive at 25

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As a minor or someone under 21, you are subject to greater penalties for getting moving violations. If you are between the ages of 15 and 24 and have received a speeding ticket, you may consider enrolling in a driver education course, such as Alive at 25.

Alive at 25 is a 4 hour driver’s awareness program, which is designed to educate young people on driving hazards and the importance of driver’s safety. Students gather in the classroom to learn about speeding, driving while impaired, and safe driving habits. Sometimes, if you are a young person who has gotten a speeding ticket or a super speeder, the Solicitor or the Court may require you to complete this class. Doing so soon after you get a ticket can help give you some leverage in negotiating a reduction or dismissal with the solicitor at your first Court date.

The course cost varies depending on your location, but it typically runs around $115. While this may seem like a hefty price tag for a 4 hour course, completion may help you get a reduction or dismissal in your criminal case, reducing the overall fine for the ticket, and it may reduce the cost of your monthly insurance payments. Note that this is not a “behind the wheel” course. Success only requires that you attend and participate. For more information about the Alive at 25 driver’s awareness program, visit https://www.atlantaga.gov/Home/ShowDocument?id=1455 or call us at 404-581-0999. We have experienced attorneys eager to work with you to help you enroll in the course, attend court, and challenge your ticket.

Written by Attorney Katherine A. Edmonds

Possession of Tools – Fulton County Criminal Defense Attorney

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in Fulton County for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The Fulton County Judge will notify the person of the charges, as well as set bond at this stage.

If arrested in Fulton County for Possession of Tools, the case will be prosecuted by the Fulton County District Attorney’s Office. The next court date will be the Arraignment and takes place at the Fulton County Superior Court.

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

What is the sentence for Possession of Tools in Fulton County?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

What are Possible Defenses to Possession of Tools in Fulton County?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in the Fulton County, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Driving with a Suspended License is Serious Business in Georgia

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By: Attorney Alex Henson

 

In Georgia, driving with a suspended license can result in an arrest and conviction for a misdemeanor. If you are found guilty of driving on a suspended license you will face no less than two days in jail and a fine of $500 to $1,000. You could also be placed on probation. Pleading guilty to driving on a suspended license will also result in a new suspension of your Georgia driver license for six months. You can avoid a new suspension by pleading nolo contendre (no contest), but this option is only available once every five years.

 

A second or third conviction of driving on a suspended license in a five-year period will result in no less than 10 days jail and a fine of $1,000 to $2,500. You can also face additional penalties such as probation. A fourth conviction in a five-year period will be considered a felony and is punishable by 1 to 5 years in prison as well as fines and probation. If you are arrested or cited for driving with a suspended license, having a lawyer fight your case can result in a better outcome. Call us at (404)  581-0999 for a free consultation.

What to do if arrested for Possession of Drugs or Possession with Intent in Gwinnett County

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If you are arrested for any drug offense in Gwinnett County, do not make any statements to the police. You will be taken to the Gwinnett County Jail at 2900 University Parkway, Lawrenceville, Georgia. You will be on the first appearance calendar the following day. It is important to have an attorney for this court appearance. The courtroom for the first appearance and bond hearing is in the Gwinnett County on the 2nd floor.

At your first appearance hearing, the Gwinnett County Magistrate Court judge will review the facts in the warrant and your criminal history and will decide whether to issue you a bond or not. The Chief Magistrate Judge is Kristina Blum. Either Judge Blum or one of the other Magistrate Judges will preside over your initial hearing. There are a few options regarding bond. The first is they may give you an unsecured judicial release. This allows you to get out of jail without paying any money. The next option is to give you a regular bond where you would have to go through a bonding company to be released. The final option is that they deny your bond. In Gwinnett County, in most drug cases, bond is set at first appearance.

Once you are released from the Gwinnett County jail, please ask any person who was with you that night to write out a statement of what they remember happening the night of the arrest. This could be helpful in preparing for the motions hearing and trial in Gwinnett County Superior Court. It is also important for you to write out a statement of anything you remember regarding the incident. Only give this statement to your attorney.

It is important that you hire an attorney quickly as there are tight deadlines on filing a Motion to Suppress which is a constitutional challenge to the drug evidence. Most drug cases are either won or lost at the Motions hearing. If you wait too long, you will be unable to file a Motion to Suppress.

Being convicted of a felony drug offense in Gwinnett County carries many consequences, including, but not limited to, a felony drug conviction on your record, loss of gun rights, loss of voting rights and has a detrimental impact on your securing a loan from a bank or employment.

You are welcome to call us 24/7 at 404-581-0999 and we will be there with you for your First Appearance hearing at the Gwinnett County jail.

After my DUI arrest, the officer took my license. How can I get to work?

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If you have been arrested for a DUI in Georgia and an officer took your license, you may be wondering how you can get to work, school, or even your court date without the risk of getting into trouble. If this is you, then take a look at the citation you were given when you were arrested and take a deep breath. At the bottom of the citation, you should see something that says “temporary driving permit.” Georgia law requires an officer who is arresting you for DUI to seize your license. The citation you receive acts as a temporary driving permit for a period of 45 days from the date you were arrested or while your ALS hearing is pending. For information on filing an ALS petition, please check out this blog post: https://www.peachstatelawyer.com/georgia-administrative-license-suspension-als-hearings-during-the-pandemic/

If your license was valid at the time of arrest, the officer MUST give you this permit. If you did not receive the permit and your license was valid, let us know so that we can contact DDS on your behalf.

This permit, unlike a restricted license or a limited permit, is functionally the same as your regular license. You can travel for work or leisure without restriction on this permit. Additionally, you can find your drivers license number on your citation and visit DDS.georgia.gov and select “check license status” to actually view whether or not your license is valid. So long as the website says your license is valid and you have the 1205 form, you should not have to worry about getting pulled over and not having your license on you. However, be sure to bring the 1205 form with you when you drive in case you are stopped.

If your license has been taken because of a DUI arrest, DO NOT WAIT. Call us today. You have 30 days from the date of the arrest to try to save your license, and on the 46th day after the arrest, the 1205 permit expires. We can help.

Call us at (404)-581-0999!