I was arrested for DUI at a roadblock/checkpoint. What do I do?

Georgia law and the United States Constitution requires that police officers possess a certain level of suspicion in order to stop a driver. Police officers must have reasonable articulable suspicion that a driver is, has, or is about to break the law in order to pull them over. However, DUI checkpoints and roadblocks are an exception to this requirement, and police do not have to have any suspicion whatsoever to stop a car passing through a checkpoint.

If you have been arrested at a checkpoint, you may be wondering how to best defend your case. The good news is that the State must show that the roadblock was conducted in such a way that complies with Georgia law. In the case of Baker v. State, 252 Ga. App. 695 (2001), the Georgia Court of Appeals articulates the six prongs which must be shown to support a stop at a checkpoint. The Court in Baker held that a roadblock is valid when:

  1. The decision to implement the checkpoint in question was made by supervisory officers and not officers in the field;
  2. The supervisors had a legitimate purpose in conducting a checkpoint;
  3. All vehicles passing through the checkpoint are stopped, not just “random” vehicles;
  4. The delay to drivers is minimal;
  5. The checkpoint operation is well identified as a police checkpoint (think flashing lights, marked vehicles, and traffic cones);
  6. The screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be administered field sobriety tests.

This test is all-or-nothing. If the prosecutors cannot show each and every one of these elements, the stop and any subsequent observations, statements, or arrests may be suppressed.

If you have been arrested at a checkpoint, you may have a valid defense in your case. Call our office for a free consultation and find out what your best options are. 404-581-0999. Written by Attorney Katherine A. Edmonds.

What Kind of Intent is Required for Assault?

According to O.C.G.A § 16-5-20, a simple assault includes any action that places another in reasonable apprehension of immediately receiving a violent injury. This statute includes an element of general intent, meaning that it doesn’t matter what the person performing the action intended to do- it only matters what the person observing the action apprehended.  In other words, there is no requirement that a person intended to create an apprehension of receiving violent injury. Technically, this means that something as simple as shaking your fist at someone (general intent because you intended to do the fist-shaking) could be charged as assault if the victim says that they apprehended a violent injury as a result- even if the accused never intended to actually harm the victim (meaning to cause the harm would be specific intent which is not an element of simple assault in Georgia).

O.C.G.A. § 16-5-21 defines aggravated assault as simple assault combined with one of three statutory aggravators: 1. intent to rob, rape or murder, 2. use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury, or 3. shooting towards people from a vehicle without justification. There are many things that can be classified as deadly weapons if they are used in an offensive manner: automobiles, firearms, metal pipes, knives, etc. That means that any time a gun is involved and a victim is in apprehension of receiving an injury, regardless of the accused’s intent to harm anyone, aggravated assault charges could result.  It is important to note that aggravated assault still does not require specific intent. Basically, it doesn’t matter what the accused intended, only what the other party perceived.

Aggravated assault carries huge penalties in Georgia and could result in up to 20 years in prison. It is important that your attorney understands the elements of the charged crime and holds the State to their burden. If you have been charged with simple assault or aggravated assault in Fulton, Dekalb, Cobb, Gwinnett, or Clayton counties, you need a lawyer. Call our office today at 404-581-0999 for a free consultation.

 

 

Gwinnett County Immunity Motion in Felony Domestic Violence Case

If a person is charged in the State of Georgia with a Felony 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 felony 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 felony domestic violence.

If you or someone you know has been arrested for a felony 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.

 

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Gwinnett County, Georgia

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Gwinnett County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and eluding in Gwinnett County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Gwinnett County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing and eluding on, or after, July 1st, 2022, the sentencing will be enhanced pursuant to this new law.

Contact Us

Due to the severity of the punishment for fleeing and eluding based on this new legislation, 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 this new law, 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 fleeing or attempting to elude in Gwinnett County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Georgia Supreme Court Clarifies Rules About Hearsay

In Georgia, the rules of evidence only allow hearsay evidence (a statement being made outside the current trial and being offered for its truth) if the hearsay meets certain exceptions. Each of the exceptions are based on the fact that if the statement meets one of the exceptions, it has a high level of reliability. Just a few of these exceptions include:

  • Present sense impression- This happens when a person is describing something as it is happening. This type of hearsay is though to be reliable because there is no time for the person making the statement to create a lie.
  • Excited utterance- This happens when a person makes a statement while they are under the stress or excitement of a situation. This type of hearsay is thought to be reliable because the person making the statement is still excited about the event they just witnessed or endured so they are truthfully saying something spontaneous.
  • Statements made for medical treatment- This happens when a person tells a person something so that they may be medically treated. This type of hearsay is though to be reliable because a person tells the truth if they need medical care.

In a Georgia criminal defense case, prosecutors will often try to have hearsay evidence admitted under what is called the Residual Exception Rule. The Residual Exception Rule says that statements that have guarantees of trustworthiness may be admitted after a judge (the “gatekeeper” in a trial) examines the totality of the circumstances under which the statement was made and any evidence corroborating the statement. Prosecutors will often try to use this catch-all rule to bring in the most damning evidence, even if it doesn’t fit into one of the many hearsay exceptions.

A new Georgia Supreme Court case, The State v. Kenney, tightens the reigns on the use of the Residual Exception Rule. In Kenny, the State attempted to have a hearsay statement admitted under the Residual Exception Rule. After the Court had examined the statement and found that it lacked exceptional guarantees of trustworthiness and thus was inadmissible, the State attempted to have the statement admitted under the present sense exception or excited utterance exception. The Supreme Court ruled that once the State attempts to have a hearsay statement admitted under the Residual Exception Rule, they have waived the right to try to have the statement admitted under any of the other hearsay exceptions.  The Supreme Court guides that things such as the closeness of the relationship between the witness testifying in trial and the person making the statement and the level of intoxication of the person making the statement should be considered when determining if a hearsay statement has an exceptional guarantee of trustworthiness.

As you can see, the rules of evidence in a Georgia criminal defense case, particularly the ones surrounding hearsay evidence, are complex. But, even if incriminating statements have been made about you, there are ways to prevent the jury from hearing about them. It is important to hire an attorney who is comfortable with these rules and will fight to keep unfair evidence out of your trial. The attorneys at W. Scott Smith are educated in the hearsay rules and will work with you to make sure your case is as strong as possible when it is presented to a jury. If you are charged with a crime and would like to be represented by seasoned trial attorneys, call our office today at 404-581-0999.

 

Big Win for DUI Defense and What it Means for You

In November, the Supreme Court of Georgia issued a ruling which marks a major victory for the United States and Georgia Constitutions, as well as folks charged with driving under the influence. In Ammons v. State, the Court held that suspects have the right to refuse an officer’s request to perform a preliminary breath test and field sobriety tests. What is more, is that the Court stated that refusal to take the tests is inadmissible under Georgia law.

The Constitution of Georgia protects citizens rights against self-incrimination. In Georgia, the government, including police and prosecutors cannot force you to speak or act in ways that could result in criminal consequences. Before the Georgia Supreme Court issued its decision in Ammons, however, the prosecution could introduce evidence that a suspect declined to take part in field sobriety tests at the request of an officer. The purpose of introducing refusals of field sobriety tests was to indicate to the jury or judge that the suspect refused to perform fields because they guilty. This is an improper purpose, and because of the Ammons decision, the State cannot try to convince the jury of your guilt based on your refusal because it is a constitutional right to refuse to offer incriminating evidence against yourself.

So what does this mean for you? This means that if you are stopped by police and asked to perform field sobriety tests, it may be in your best interests to refuse to do so, particularly if you have been drinking or have a history of DUI arrests.

Of course, if you are reading this blog, you may have already been charged with DUI and wondering what your options are. If you have been charged with DUI and refused field sobriety tests, that refusal is not admissible. However, there may be other evidence in your case that could be admitted if gone unchallenged. You should consider hiring an experienced DUI attorney to protect your interests and ensure that the State is not able to admit evidence which was improperly or illegally obtained. If you want to learn more about your options, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

The Statute of Limitations in Georgia

The statute of limitations means how long the State has to bring charges against an individual after a crime has been committed (not how long the state has to actually try the case). In Georgia, there are several categories of crimes that determine the length of the statute of limitations:

  • Murder- none
  • Other felonies punishable by death or life imprisonment- 7 years
  • Forcible rape- 15 years
  • Offenses of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery when DNA evidence is used to establish the ID of the accused – none
  • Trafficking a person for sexual servitude, cruelty to children in the first degree, rape, aggravated sodomy, child molestation or aggravated child molestation, enticing a child for indecent purposes, or incest against children less than 16 years old committed on and after July 1, 2012- none
  • Other felonies- 4 years
  • Felonies committed against victims less than 18 years old- 7 years
  • Misdemeanors- 2 years

The statute of limitations is “tolled” (or suspended) until the crime becomes known. This means that the clock does not start running until the crime is known. The state often argues that the crime becomes “known” when the state becomes aware of the charges (i.e. a victim reports the crime to authorities). However, a recent Georgia Supreme Court decision, State v. Jones (case cite: S22A0425), clarifies this issue. The Georgia Supreme Court held in Jones held that a crime becomes known, and thus the statute of limitations begins running, when the crime is known to the victim. This means that if a victim waits until the statute of limitations has run out, charges may not be brought. The Court cites their earlier decision in Harper v. State saying that ““the actual knowledge of a crime victim about the crime is imputed to the State for purposes of applying the tolling provision”, and that “the correct date to apply in analyzing the statute of limitation is the date that the crime became known to the victim of the crime.”  Another decision, Womack v. State clearly says that “it seems to be well settled that . . . the knowledge of the victim is the knowledge of the State . . . .”

If you believe that you have been charged with a crime outside of the statute of limitations in Fulton, Dekalb, Gwinnett, Cobb or Clayton Counties, it is important that you work with an experienced criminal defense attorney who understands the nuances of the law. At the Law Office of W. Scott Smith, our attorneys will leave no stone unturned to ensure that charges brought against our clients are legal. If you need representation for any criminal offense, call our offices at 404-581-0999.

Child Hearsay in Georgia

If you are charged with child molestation, cruelty to children, or any crime, in Georgia, where a child is the alleged victim, the State will fie a Motion to Admit Child Hearsay testimony.

This is pursuant to O.C.G.A. 24-8-820. This status is the Georgia Child Hearsay Statute.

O.C.G.A. 24-8-820 reads as follows:

(a) A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at trial, unless the adverse party forfeits or waives such child’s testimony as provide in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

All that is required is:

  1. Notice to the defendant of the State’s intention to use such statements.
  2. The child testifying at trial, unless the defendant waives it.
  3. The person to whom the statements were made is subject to cross-examination.

You will need to be prepared to challenge the credibility and the underlying facts of any witness who takes the stand against you and claims that the child made statements to them about the sexual contact or physical abuse. Do not waive the child’s presence at trial. Make the child testify.

In cases of child molestation, there is rarely physical evidence. The entire case comes down to credibility. It is the defendant’s credibility vs. the child’s and the child’s witness’s credibility. Do not forfeit the right to a thorough cross-examination of the child and their witnesses.

These child hearsay witnesses can include testimony of physicians, investigators, parents, other family members, forensic interviewers and any other person who spoke to the child about the allegations.

You must be prepared to challenge each of these statements.

Child Molestation and Cruelty to Children carry severe penalties in Georgia. Do not make statements to the police about the allegations. You must hire a qualified attorney and be prepared to vigorously fight your case at trial.

Please call us at 404-581-0999 if you are charged with any crime involving a child in Georgia.

Corporal Punishment of Children and Family Violence

I’m charged with an act of family violence… against my kids!

Georgia law forbids acts of simple battery between past or present spouses, persons who are parents of the same child, parents and children, and other parental-child relationships. This is meant to protect citizens from physical abuse by family and household members. However, reasonable corporal punishment is legal in Georgia, and corporal punishment is a defense to a charge of simple battery family violence against a minor child. The statute that prohibits acts of simple battery between parents and their children, O.C.G.A. 16-5-23, goes on to say that “in no event shall this subsection be applicable to corporal punishment administered by a parent or guardian to a child…”

This means that parents can take measures to discipline, restrain, or detain their children, and may use reasonable, physical force to do so. What does “reasonable” mean within this context? While never strictly defined, we can look to case  law to help understand how to apply the law to the facts. Case law on corporal punishment of children more often tackles the definition in its application to school discipline. In a case from 1985, the Court of Appeals determined that the paddling of a student by a school principal which resulted in “severe bruises” did not rise to a level of punishment that was “excessive, unduly severe, and administered in bad faith.” A 2003 case, Buchheit v. Stinson, looked at the 1985 case involving a teacher, and applied similar reasoning to Buchheit’s corporal punishment of her child. In Buchheit, Mary Buchheit had allegedly slapped her child across the face.

The Court in Buchheit found that “there was no evidence that Buchheit’s action of slapping her child in response to the child’s disrespectful behavior fell outside the bounds of permissible ‘reasonable discipline.’ Although we recognizes that in ertain instances, paddling or spanking could rise to the level of family violence under the statute, the circumstances of this case did not constitute this prohibited conduct.”

In Georgia, parents are free to use reasonable force to discipline their children. If you are charged with family violence against your minor child for the way in which you chose to discipline the child, you may have a valid and protected defense. Call one of our experienced attorneys to set up a free consultation. 404-581-0999.

Georgia Public Drunkenness Attorney

As holiday parties and events are in full swing, you may wonder the best way to stay clear of police encounters after a night out of drinking. The most obvious way to avoid trouble after a night out is to use a rideshare or designated driver, so as not to drive while intoxicated. But what about simply being drunk in public? Could that land you in jail for the night too?

Drinking to the point of being intoxicated is not always against the law. However, when your condition is made manifest by “boisterousness, by indecent conditions or act, or by vulgar, profaine, loud, or unbecoming language,” you can be arrested for the charge of Public Drunkenness.

Under O.C.G.A § 16-11-41 it is a misdemeanor offense to be intoxicated in a public place, or in the outskirts of a private residence other than your own, or one you are invited to be on. But it is only against the law if your intoxication  is manifested by boisterous, vulgar, loud, profane, or unbecoming language, or by indecent condition. Simply being drunk without an outward manifestation is not against the law in Georgia as mere drunkenness in a public place is not enough to be convicted.

As you can see there is a defense to the charge of Public Drunkenness in Georgia. If convicted, however, it is a misdemeanor crime that can remain on your criminal history forever. The maximum penalty in a Public Drunkenness case in Georgia is 12 months to serve in custody, and a $1,000 fine, or both.

If you have been arrested or cited for Public Drunkenness in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999. A night out on the town should not have lasting consequences and our lawyers are on call to assist you.