What Is Arraignment?

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WHAT IS ARRAIGNMENT?

“What is arraignment?”

That’s the first question every client asks us when they receive their first court date, and it’s a great one.   Most of our clients have either received a court date prior to meeting with us or they were told when they leave the jail that they will receive an arraignment date in the near future.  So, what is arraignment?

In Georgia, every person is entitled to due process of law under the Georgia Constitution and the United States Constitution.  A citizen’s due process rights include the right to be placed on notice of any charges the State intends to seek.   The State files charges through either a formal indictment or accusation. These documents are ultimately the framework of how the case will proceed.  As such, arraignment is the first opportunity for the court to inform the accused of the charges against them.  Under Georgia law, every person accused of a crime has the right to be arraigned.  Formal arraignment is when the court reads the charges in open court and an accused has an opportunity to enter a plea of either guilty or not guilty. courtroomdoorfrombench1 (1)

So what actually happens in court at the arraignment hearing?  From a practical stand-point three things happen at arraignment.   First, one of our lawyers will likely inform the court that we are waiving formal arraignment (reading of the charges in open court) because we have received the actual charging document and we would prefer, for the sake of privacy, for our clients charges not to be read in front of hundreds of people.  Second, we enter a plea of not guilty.  At this juncture the State has not provided the evidence they intend to use at trial and we would essentially be accepting guilt without evaluating the case.  Thus, it makes sense to plead not guilty, collect evidence, and then proceed accordingly.  Finally, we inform the court that we will be filing legal motions and ask the court for ten-days to file.  Legal motions cover many issues including asking the Judge to force the State to provide evidence, suppress evidence, hold a hearing on legal issues, and many other topics.

If you have been charged with a crime then your case will eventually be set for an arraignment hearing.  Please contact our office today at 404-581-0999 for a free consultation at either our downtown location or our Marietta location to discuss arraignment and how we can help with your case.

NEW YEARS EVE DUI CHECKPOINT

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NEW YEARS EVE DUI CHECKPOINT:

Every year, thousands of Georgians celebrate the dawning of a New Year by enjoying the several New Year’s parties around town.  As we all know, those parties often include music, food, and alcohol.  According to the Insurance Institute for Highway Safety, New Year’s Day is the second most deadly day for drivers with an average of 140 deaths related to alcohol.  Because of this, law enforcement agencies throughout the State set up DUI checkpoints to prevent drunk drivers from getting into accidents.   We certainly advise that you find a safe ride home on New Year’s Day.  But if you find yourself at a DUI checkpoint, it’s important to know your rights before the Officer mistakes you for a dangerous driver.

STAGE 1:

DUI checkpoints are often set up in two stages.   The first stage is an initial screening stage.   Here, a DUI trained officer will check for some of the common physical manifestations of a person who is driving under the influence.  Often, we see police reports that include the initial screening officer smelling the odor of alcohol coupled with bloodshot and watery eyes.  The DUI officer is also looking for the driver’s behavior.  Particularly, the DUI Officer is looking to see if the person is being belligerent or combative.

It’s important to remember to always be polite in these situations.  If the DUI Officer becomes agitated with the way you respond to his questions, then you’ll likely find yourself at the DUI checkpoint much longer than you would expect.   The Officer will likely ask you how much you’ve had to drink.  If you’ve only had one beer then it’s ok to let the Officer know that.   In Georgia, it is not illegal to consume alcohol and drive.  However, it is illegal to consume alcohol the extent you become a less safe driver.  So, the fact that you have had one beer does not automatically mean you’ve broken the law.

STAGE 2:

The DUI Officers are trained to instruct drivers to the second stage of the checkpoint if they feel there is enough evidence to continue a DUI investigation.  The second stage will often include a second DUI Officer who will almost certainly request the driver to perform field sobriety testing.  As we’ve discussed in the past, field sobriety testing is weighed heavily against the driver.  For example, the walk and turn evaluation is one of the three standardized field sobriety tests.  The evaluation includes a series of clues the Officer is trained to look for.  There are seventy-six opportunities for the driver to display a clue.  If the driver shows two of the seventy-six clues then that is enough for the Officer to establish someone are impaired.   More concerning is the initial studies on this examination showed only a 65% accuracy rate in optimal conditions.

Because of the unreliability of field sobriety testing, we always suggest to our client to refuse any field sobriety testing.  The chances of the Officer making a mistake are extremely high and the consequences to the driver can be drastic.   Finally, if the DUI Officer feels there is enough evidence obtained from all of the interactions then he or she will make an arrest.

As I mentioned earlier, the easiest way to avoid a DUI is call a cab or have a sober driver.  Personally, I’ve found the car service Uber to be fantastic.  But, sometimes we find ourselves in difficult circumstances.

If you or a friend ends up getting charged with DUI on New Year’s Day please contact the office immediately at 404-581-0999.   Our lawyers will be on call and available to for a free consultation.

FTA (Failure To Appear) Status

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FTA (Failure to Appear) Status: What Can Happen and What to Do About It

As a rule of thumb, when you are summoned to court for ANY felony, misdemeanor or traffic charge, you MUST appear in court.

This is because, at your court date, the judge will go through the calendar (the list of people who are scheduled to appear before the court) like attendance at school. If your name is called and you (or your attorney) are not there to make an announcement to the court, the prosecutor will ask the judge to issue a bench warrant and an order forfeiting your bond. Most times, the judge will do just that—issue the bench warrant and sign a bond forfeiture order.

A bench warrant is a warrant for your arrest. While it won’t get you on America’s Most Wanted List, it will mean that your name will be entered into a nationwide police database and available to law enforcement until it is resolved.

So, if you interact with police thereafter and they run your name through their database, they will see the warrant for your arrest and you will be taken into custody (and transported to the jurisdiction where the warrant was issued).200274144-001

A bond forfeiture order is only issued when a person was released from jail on bail and has failed to appear at a subsequent court date. In this situation, the bondsmen are ordered to put up the outstanding bond amount and all of that money is forfeited to the property of the jurisdiction overseeing the case.

If that isn’t bad enough… when you miss a court date and the judge issues a bench warrant for you, DDS will IMMEDIATELY suspend your license and notify you at the address listed on your license. So, make sure you update your address with DDS!

If you are living on the wild side and driving on your suspended license, you run the risk of being stopped by police for a new traffic offense. If that happens, you will be arrested on the bench warrant, cited for the new traffic offense, and also charged with Driving with a Suspended License. Driving with a suspended license is a charge that is punishable by a maximum of 12 months in custody, $1000 fine, and an additional license suspension.

Because bench warrants can cause a variety of unanticipated legal trouble, it is wise to consult with one of our attorneys to understand your options.

But, in the meantime, here is my advice to you:

1. If you know you missed a court date and have not been arrested yet…

I suggest you immediately call the clerk of court in the jurisdiction where you missed court and ask them how you can lift the bench warrant. Some courts will allow you to pay a fee to lift the bench warrant and get a new court date.  Other courts will require you to appear before judge on a special “failure to appear” calendar, at which time you will either have to 1) Plead guilty to charges and take whatever deal the State is offering or 2) Get taken into custody on the bench warrant be booked in (mugshot again) and have to bail out again, and then fight the charges later on.

2. If you are worried that your license may be suspended…

Check the status online at: https://online.dds.ga.gov/dlstatus/default.aspx

3. If you have changed your address since your case was bound over from a municipality like Sandy Springs or City of Atlanta, YOU MUST UPDATE YOUR ADDRESS WITH THE FULTON COUNTY STATE COURT CLERK!!!

If you do not update your address, they will send notice to the address provided at the time the case was in the municipality. The State Court Clerk is located in Room J-150 of the 160 Pryor Building of the Fulton County Courthouse.

Finally, if you are unable to get the warrant lifted then it is important to turn yourself in as soon as possible.  Outstanding warrants can only be resolved by the Judge withdrawing the warrant OR by execution of the warrant (turning yourself in).

Our lawyers are trained to handle difficult criminal procedure questions.  At WSSPC our goal is to zealously represent each and every one of our clients.  If you have found yourself with a bench warrant please contact our office immediately at 404-581-0999 or visit our website at www.peachstatelawyer.com for more information.

Labor Day: Traffic Stop Tips

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LABOR DAY WEEKEND EDITION: What Do You Need To Know During A Police Traffic Stop?

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Most people share a general sense of anxiety when they see blue lights flashing in their rear-view mirror.  If you’re like me, when the blue lights come on your heart starts beating 100 mph, you start sweating, and your mind is racing.   Here are some helpful pointers on how to interact with a police officer during a traffic stop.

WHEN YOU SEE THE “BLUE LIGHTS”

1)   Slow down and pull over as quickly as possible.  You never want to give the officer the impression that you’re attempting to get away.  Also, you don’t want to slam on the brakes immediately.  Find a safe location (parking lot, driveway, open area on the side of the road, etc..) and pull over.

2)  Roll down your window, turn off your car, place the keys on the dashboard, and have your driver’s license ready to hand to the Officer.   Obviously, if a police officer pulls you over he/she is going to want to speak with you.  It’s always a good idea to go ahead and roll your window down as soon as possible.  You wouldn’t want the officer to think that you’re having difficulty with the simple task of rolling your window down.  So go ahead and do that first.

Placing your keys on the dashboard will put the officer at ease that you’re not going to take off.  A calm Officer can sometimes be the difference in going to jail and going home.

In addition, the Officers are trained to see if you have difficulty locating your driver’s license.  To many officers, the fact that you are nervous and may not be able to find your license right away is not normal and instead is an indication you’re drunk.  So go ahead and eliminate that assumption immediately.

3)   Let the Officer speak first.   The Officer is trained to get you to admit to the crime he/she thinks you’ve committed.  So a common question an Officer will ask is: “do you know why I pulled you over?”   A lot of people will say: “Yes, I was (insert traffic offense).”   If the Officer is recording your conversation, then there is a strong possibility that statement will be used against in court.  So go ahead and answer the question with an affirmative “no.”   It’s the Officers burden to prove you guilty of the alleged offense and not your burden to proof yourself innocent.

4)  BE POLITE!  This is the key to any interaction with a police officer.  If you are a jerk to the Officer the chances of you getting a ticket and/or getting arrested go up significantly.   Sometimes a police officer can say things that are rude or inconsiderate.   Take the high road.   Remember, on the road he feels like he is in charge and has the ability to really mess up your day.  You’ll have the final say if the case goes to court.  So don’t make it easier for the Officer.  Just be polite and your behavior won’t be used against you at a later date.

If you end up with blue lights in your rear view mirror, try some of the tips listed above.       We hope that no one ends up getting ticketed or, even worse, arrested.

Labor Day weekend is a great chance to relax and enjoy time with friends and family.  With so many people on the road, you can almost guarantee that the police will be out in force.  So be careful and have a great weekend.

GEORGIA LEGISLATURE CHANGES MUGSHOT LAWS

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A few months ago  we talked about the legality of having your mugshot posted all over the internet (see: Georgia Mugshot Websites). Recently, the Georgia General Assembly took another hard stance against companies who prey on those who are booked through Georgia jails.  Our legislature made some drastic changes to the Georgia mugshot laws.

Georgia law now requires that law enforcement agencies refrain from posting booking photographs on their jail inmate website.  The General Assembly went on to limit access to any booking photographs by restricting access to those who are (1) not using the photo for purposes for written publication or website publication; and (2) the person trying to obtain the photograph is not asking for removal or deletion of the booking photograph in exchange for money.  Law Enforcement agencies now can only release photographs to individuals who sign a statement affirming that the use of the photograph will NOT be for purposes of mugshot websites.

The General Assembly obviously recognized there was a serious problem with websites extorting those who have been booked through the criminal process.  Already, the Cobb County Sheriff’s Department has taken steps to remove all photographs from their jail website in accordance with the new law. Hopefully, these steps will put an end to for profit mugshot websites.

Please contact our office today at 404-581-0999 if you have been arrested in Georgia and you need help getting your mugshot removed.

They found my gun at the airport! What happens now?

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Bringing Your Gun to the Hartsfield-Jackson Airport in Atlanta, GA

In addition to being the nation’s busiest airport, Atlanta’s Hartsfield-Jackson International Airport is also known for confiscating more firearms during security screening than any other airport in the country.

Historically, at Hartsfield-Jackson, when a TSA officer would find a traveler’s firearm during security screening, they would detain the traveler, confiscate the firearm, and immediately notify local law enforcement.  This would happen regardless of whether the traveler had a permit to carry the firearm because Georgia law strictly prohibited the possession of all firearms in its airports.

So, before July 1, 2014, the traveler would be arrested by the Clayton County Police Department and taken to jail. Travel plans would obviously be ruined and a criminal charges would be brought against the traveler. Then, if the prosecuting authority determined that the traveler had no criminal history and there were no aggravating circumstances surrounding the firearm confiscation, they would invite the traveler to participate in their pre-trial diversion program. By successfully completing the program, which involves community service, a gun safety class, and often, drug testing, the traveler would avoid a conviction on their criminal history.

While Clayton County would go forward with their criminal case, TSA would be assessing a federal civil penalty for the firearm violation. Upon determining the fine amount, the traveler would receive a letter via U.S. mail notifying them as to the amount they owe TSA. The penalty would range anywhere from $500 to $10,000 and depend on a variety of circumstances including the traveler’s intentions, level of cooperation, prior history,  risk to the community, and negotiation skills.

That was before July 1…

Now, as of July 1, 2014, Georgia residents with licenses to carry firearms are permitted to carry their firearm in many public places, including the entrance and waiting area in the Hartsfield-Jackson airport. Obviously, this permission does NOT extend to the airport’s terminals due to federal law but TSA officers at security screening will no longer call Clayton County Police Department if the traveler can show proof of their permit to carry.

Instead of calling the police, TSA will give the traveler the following options: 1) check the firearm as luggage (if properly secured in a hard case), 2) return the firearm to their vehicle (if they parked it at the airport), 3) hand the firearm to an individual who is licensed to carry in Georgia and not traveling via the airport, or, in the event that no other option works out, 4) forfeit the firearm permanently to TSA.

Whether the traveler has a license to carry a firearm or not, TSA will still pursue a civil case against them. Like before, TSA will investigate the circumstances of the case and assess a civil penalty ranging from $500 to $10,000. TSA may also temporarily suspend a traveler’s “TSA Pre-Check.”

It is important to remember that Georgia’s new gun laws only affect Georgia residents with valid licenses to carry their firearm(s). All other travelers carrying guns in the Hartsfield-Jackson airport remain out of luck when it comes to TSA calling Clayton County Police Department. Those individuals will be arrested and charged like all gun-carrying travelers were charged prior to July 1, 2014.

If you were charged with bringing a firearm to the Hartsfield-Jackson airport or have any questions about the subject, do not hesitate to contact our firm for a free consultation. You can trust that our firm will work hard to protect your rights and secure the best possible outcome.

How do I get a bond?

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If you or a loved one has recently been arrested, the first thing on your mind is getting out of jail.  Unfortunately, the process of bonding out is more complicated than expected.  So, what do you need to know to get out of jail as quickly as possible?

1)      Will I get a bond?  If so, when?

In Georgia, the rules are organized according to whether the arrest offense is a felony or a misdemeanor.  If it is a misdemeanor, then you are entitled to a bond by law.  If the charge is a felony, then it is in the judge’s discretion whether to grant bail.  There are certain serious offenses for which only a superior court judge can grant bail.  In that case, the superior court will be notified of your arrest within 48 hours.  The superior court is then required to set a bond hearing within 30 days after receiving the notice.  However, if you file a petition for a bond, then the hearing must be held within 10 days after receiving the petition.

2)      What does the court consider when determining whether to grant bond and when determining high the bond should be? 

Judges consider four factors when determining whether to grant bond, and when determining how much the bond should be: (1) Are you a risk to run away and not come back to court?; (2) Do you pose a threat or danger to people or property in the local community?; (3) Is it likely that you will commit a felony before your case is resolved?; and (4) Are you likely to intimidate witnesses against you?

3)      Once I get a bond, what are my options for covering the amount? 

Cash bond – This requires you to put up the entire bond amount in cash or by money order.  Most people cannot afford the entire amount, and that is where bondsmen come in.  As long as you are able to pay 13-15% of the bond, then a bondsman will put up the money for you and require that you pay a fee.

*The money that you pay to bond out will be refunded at the close of the case as long as it is not forfeited by your failure to appear in court.  The fee to the bonding company will not be refunded. 

Property bond – You may be able to put up real property (house or land) as a way to guarantee your appearance in court.  Generally, you must have enough equity in the home or property to cover the amount of the bond.  In some places, you have to have twice the amount of the bond in equity.  Most bondsmen will still help you bond out of jail, and they may accept more than just real property.  For example, some will allow you to put up the title to your car as a guarantee that you will return to court.  Remember, if you use property to bond out and you fail to appear in court, then you are at risk of losing that property!

If you or a loved one have recently been arrested and want help bonding out, do not hesitate to contact us at 404-581-0999. You can trust that our firm will do everything possible to get you or your loved one out of jail and to make the process as simple and painless as possible.

Do I Have A Criminal History?

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“I’ve been arrested.  Does that mean I have a criminal history?”

Many of our clients have two primary goals when they come in the office for a free consultation: 1) stay out of jail and 2) keep their record clean.    Often people are amazed to hear that even though they have not yet been convicted of anything, they STILL have a criminal history!  How could this be?

The short answer: in Georgia, your criminal history is tracked by your finger prints.  Your criminal history begins when the Officer placed you under arrest and took you to the jail.  Most jails in Georgia have an electronic fingerprinting system.  The jailer takes your fingerprints and those images are transmitted to the Georgia Crime Information Center (GCIC).  GCIC then creates a profile for each person who has been fingerprinted.  The profile includes your name, your height, weight, eye color, and any distinguishing marks that you may have.   Your profile will list what the police officer charged you with,  what the State’s attorney intends to charge you with in court, and ultimately the final result of your case.

If you are arrested for ANY crime in the State of Georgia and you are fingerprinted, then you have a GCIC profile.   There are several ways a case can be resolved in a way that would restrict your profile so that future employers cannot see that you were arrested.   Our goal in every case is to find a solution that not only keeps you out of jail, but also protects your criminal history.  Your future is our priority.

Please contact our office for a free consultation if you have been arrested and fingerprinted in the State of Georgia.

Peach State Lawyers Practice in Marietta Georgia Municipal/Traffic Court

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You’ve been given a citation for a city ordinance or traffic violation within the city of Marietta. You’ve been told to report on a specified date to 240 Lemon Street, Marietta GA, 30060. And like any prudent person you google Marietta Municipal Court to see that Judge Roger Rozen is the judge on the bench there. But what else do you need to know?

 

Marietta Municipal Court is located in the same building that houses the police department. It is down a short driveway off 240 Lemon Street on your left hand side. There is a police cruiser out front that is painted half in the colors of a taxi cab and half in the colors of a police car to warn residents about the ramifications of being arrested for DUI. Free parking is limited around the courthouse building, so it is best to arrive early. When you get through the front doors, take an immediate left and you will see a security checkpoint. Make your way through security to a small waiting area. The court room is through the double wooden doors.

 

Once inside, there are many rows of pews in front of the Judge’s bench. Judge Rozen is prompt, but he takes private attorney cases first, so be prepared to spend half your day in court. Also, be mindful of Marietta Municipal Court’s rules. The Court requires you to turn off the sounds on all electronic devices, and understand that Judge Rozen or court staff could require you to turn off all electronic devices at any time. Court also adheres to a strict dress code so NO hats inside the courtroom (except those worn for religious purposes), sunglasses, t-shirts depicting violence, sexual acts, profanity, or illegal drugs, tube or halter tops/plunging necklines/midriffs, ripped or torn jeans, mini skirts or shorts, baggy pants that fall below the waist, or muscle shirts (usually worn as undergarments).

Peach State Attorneys specialize in Marietta Municipal Court.  Our law offices are right off Marietta Square at 456 Roswell Street, Marietta, GA 30060 and walking distance to the Marietta Municipal Court to help you with your Marietta Municipal Court appearances. We can be in court for you saving you time and working out a favorable outcome or dismissal on your case. Please contact us today at 404-581-0999 for a free consultation on your Marietta Municipal Court matter.

I Got Arrested for DUI, But They Never Read Me My Rights

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One of the most common DUI questions we get at W. Scott Smith, P.C. is: “Why didn’t the Officer have to read me my Miranda rights?”  What a great question!  Let me see if I can explain.

The Miranda warning stems from a famous United Supreme Court case, Miranda vs. the State of Arizona.   In that case, the Supreme Court of the United States said that IF you are placed into custody and then the Officer attempts to interrogate you, he/she has to warn you of a few rights.  We know these rights as the Miranda Rights and they go like this:

You have the right to remain silent.

Anything you say or do may be used against you in a court of law.

You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.

If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?

If the officer chooses not to read you the warning while you are in custody and still proceeds with questioning, then any statements you make may be suppressed by the court at a later date and ultimately result in your case being much stronger.

 

So Why Didn’t the Officer Read Those to Me When He Placed Me Under Arrest for DUI?

In most DUI cases, not all, the Officer is NOT required to read you the Miranda Warning.  Most Officers will wait to place a driver they suspect to be under the influence of alcohol or drugs under arrest (or in custody) to avoid having to read the Miranda Warning.  Which makes sense, right?  The Officer is trying to get you to answer questions about your consumption of alcohol and have you submit to testing that he/she plans to use against you at trial.  If he starts telling you that you have the right to have a “pesky” lawyer like me present, you’re probably not going to do anything.   In Georgia, our appellate courts have determined that when you are asked to exit the vehicle and perform field sobriety testing or answer questions about where you were or where you are going, you are NOT deemed to be in custody, and thus, not entitled to have the Miranda Warning read to you.

BUT, the question of whether or not you are in custody CAN be a sticky issue.  We encourage anyone who has been arrested for DUI in the State of Georgia to contact our office immediately for a FREE consultation (404-581-0999).   Our lawyers can use their knowledge and experience to determine whether or not the Miranda Warning should have been read in your case, which sometimes can mean the difference between your case being dismissed and a conviction for DUI.