First Offender Probation Revocation

If you are alleged to have violated your first offender probation, it is extremely important to have a knowledgeable attorney with you. The consequences can be severe. The judge has the right to bring you back, adjudicate you guilty and resentence you to the maximum punishment with credit for the time you were on probation.

Adjudicating you guilty means that it turns into a real conviction and it will no longer be taken off your record when you complete your sentence.  To give you an example, let’s say your sentence is 5 years, the max for the offense is 10 years and you violate your probation after 2 years. The judge can increase your sentence from 5 years to 10 years, but you would get credit for the 2 years. That would leave you with 8 years left and you would be a convicted felon.

It is important to remember that just because you violate your probation the judge will automatically do that. It really comes down to what the violation is. If it is a technical violation, i.e. not paying the probation fees, failure to report, it is unlikely that a judge will revoke your fist offender status and resentence. However, if you pick up new charges or violate a special condition, the chances are higher that your first offender status is in danger.

If you are alleged to have violated your first offender probation, give us a call for a free consultation.

Georgia’s Weed Laws: What’s Legal and What’s Not

 

In the recent past, marijuana laws have begun to enter a grey area in regards to legality. While it is still illegal Federally, many states have either relaxed or completely legalized marijuana use. Here is where Georgia stands:

  1. Medical Marijuana: Georgia’s stance on medical marijuana use is limited. Qualified patients with specific conditions like those suffering from severe seizures, certain forms of cancer, and terminal illness may possess cannabis oil with no more than 5% THC (the psychoactive ingredient in marijuana) if they have a valid registration card.
  2. Recreational Use: Recreational marijuana is still illegal in the state of Georgia.
  3. Cultivation and Distribution: cultivation, sale, and distribution of marijuana is all illegal for not only recreational purposes but also for medical purposes.
  4. CBD Products: CBD derived from hemp is actually legal at the federal level, and CBD products with very low THC content (less than 0.3%) are legal.
  5. Delta 8, etc: Delta-8 and Delta-9 are popular cannabinoids that do not contain THC, although many users report quasi-high effects similar to marijuana. As of now, these cannabinoids and their derivatives are legal under Georgia law.
  6. Penalties: Penalties for possession of marijuana vary based on the amount in possession as well as whether it is a first offense. Marijuana more than an ounce is considered a felony, whereas anything less than an ounce is a misdemeanor. Because of the variance, penalties can range from a simple citation to jail time and hefty fines.

If you’ve been arrested or cited for possession of marijuana, give our office a call TODAY.

Georgia’s 90 Day Bond Rule

If you or a loved one have been arrested in Georgia, you may have heard about the 90-day bond rule but be confused about what this rule means.

O.C.G.A. §17-7-50 says that a person who is arrested must have their case indicted (formally charged) within 90 days or they are legally entitled to a bond. If prosecutors fail to meet this deadline, an accused person may file a motion for bond and the Court MUST grant them a bond. This rule does not tell a judge that a bond must be set at a certain amount, only that a bond must be set. So, even though a bond must be set if your case is not indicted within 90 days, the bond may be more than you can afford.

The 90-day bond rule is not automatically enforced, however. You must have a lawyer file a motion for bond and show the Court that 90 days have elapsed without indictment. If you believe that your loved one has been in custody without being indicted for over 90 days and without a bond, call us at 404-581-0999 for a free consultation.

Georgia’s New Law on Bail Bonds

Governor Brian Kemp recently passed a new law that will go into effect on July 1, 2024 radically changing how Georgia courts grant bonds.

What are the types of bonds in Georgia?

  • Unsecured Judicial Release (formerly known as “signature bonds”)
    • Bonds that require no money in order to be released
  • Cash bonds
    • Bonds requiring that cash must be paid in full to be released without use of a bonding company
  • Surety Bonds
    • Bonds posted by bonding companies who then charge the defendant a percentage of the bail amount set by the Judge
  • Property bonds
    • Use of real estate as collateral instead of paying the bond in cash

Unsecured Judicial Release (UJR Bonds) are routinely used in minor offenses in Georgia.  However, under Georgia’s new law, there are 30 new crimes, including 18 that are typically misdemeanors, that can no longer be granted Unsecured Judicial Release. Instead, the new additions to what are considered “bail restricted offenses” shall only be eligible for release through cash, surety or property bonds. To be put simply, you will now need cash to get out on bond for the below charges.

Georgia’s 30 New Crimes Now Considered “Bail-Restricted Offenses”

  1. Reckless stunt driving, 2nd or subsequent offense
  2. Promoting or organizing an exhibition of drag races or laying drags.
  3. Laying drags.
  4. Reckless driving, 2nd or subsequent offense
  5. Fleeing or attempting to elude a police officer.
  6. Obstruction of a law enforcement officer.
  7. Criminal trespass, 2nd or subsequent offense
  8. Theft by taking, 2ndor subsequent offense
  9. Theft by deception.
  10. Theft by extortion.
  11. Destruction, removal, concealment, encumbrance, or transfer of property subject to security interest.
  12. Purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana.
  13. Exploitation and intimidation of disabled adults, elder persons, and residents or obstruction of an investigation.
  14. Voluntary manslaughter.
  15. Cruelty to animals.
  16. Violation of oath by a public officer.
  17. Financial transaction card fraud.
  18. Financial transaction card theft.
  19. Identity fraud.
  20. Racketeering and conspiracy.
  21. Trafficking of persons for labor or sexual servitude.
  22. Failure to appear, 2nd or subsequent offense.
  23. Domestic terrorism.
  24. Inciting to riot.
  25. Unlawful assembly.
  26. Possession of tools for commission of a crime.

These new crimes added to the list of “bail-restricted bonds” can no longer be granted an UJR bond and will require cash through a surety or a property bond in order to be released.

The new law will also require that no repeat offender, defined as someone who has been previously arrested for any felony within seven years, be granted an Unsecured Judicial Release, on any crime including very  minor offenses.

It also criminalize charities, nonprofits, and individuals who post more than three bonds a year. The law will require that these entities must submit to the same legal requirements of any professional bonding company.

This new law will take place July 1, 2024. Please call the Law Office of W. Scott Smith PC at 404-581-0999 if your loved one has been arrested and you have questions about obtaining a bond in Georgia.

I Violated Probation. What Now?

In Georgia, when someone violates probation for a misdemeanor offense, the consequences will vary depending on the circumstances of the alleged violation and the specific terms and conditions of the probation. The most common offenses for probation involve missing scheduled appointments with probation officers and testing positive for a substance that the probationer is to cease using per the original probation conditions (usually illegal drugs and alcohol). There are two main outcomes: 1) you can agree to the terms that probation recommends in the sentencing or 2) hold a hearing in front of a judge. Generally speaking, probation recommends revoking a certain amount of time on probation meaning if probation is recommending to revoke 30 days, then the probationer would spend 30 days in custody. The second option is to hold a hearing. During this hearing, the attorney generally argues for a less harsh sentence, minimizing additional jail time and other extra conditions that may be imposed. It’s important that if you violate probation, you contact our office IMMEDIATELY to handle your case.

Know Your Rights: What Police Can and Can’t Do in Searching an Automobile

Oftentimes, we get clients who have been pulled over by the police and ask to search their car. It’s important to know your rights and circumstances in which police can or cannot search your car.

  1. Probable Cause: Generally, police officers need probable cause to conduct a search of a vehicle without a warrant. Probable cause means that there is enough evidence to reasonably believe that a crime has been committed or that evidence of a crime can be found in the vehicle.
  2. Consent: If a police officer asks for consent to search a vehicle and the individual gives consent voluntarily, the officer can conduct the search without needing probable cause or a warrant. It’s important to note that you can not only refuse consent to the search, but you can also tell the officer which area(s) of the vehicle can and cannot be searched.
  3. Search Incident to Arrest: If a person is lawfully arrested, the police may search the area within the arrestee’s immediate control. In the case of a vehicle stop, this may include the passenger compartment of the vehicle, but not the trunk.
  4. Plain View: If a police officer sees evidence in the vehicle and it is immediately apparent that the evidence is something illegal, like narcotics, police can search and seize the evidence.
  5. Inventory Searches: If a vehicle is lawfully impounded, the police may conduct an inventory search of the vehicle’s contents.

If you’re pulled over call us immediately. Know your rights!

Failure to Maintain Lane: A Cop’s Most Used Weapon in DUI’s

In the State of Georgia, police officers can use the offense of “failure to maintain lane” as a tool to initiate a traffic stop and potentially investigate a driver for suspicion of driving under the influence (DUI). This offense occurs when a driver fails to stay within their lane while driving on the road.

When a police officer observes a vehicle crossing lane lines, or exhibiting other signs of erratic driving that may indicate impairment, they can use this as reasonable suspicion to pull the driver over. O.C.G.A. § 40-6-48 states that “a vehicle shall be driven as nearly as practicable entirely within a single lane.” It prohibits drivers from leaving their lane until they have determined that a lane change can be made safely. NOTE: weaving within your lane is NOT a failure to maintain lane- the vehicle must cross or touch lane lines. Once the vehicle is stopped, the officer may then proceed with further investigation, which could include administering field sobriety tests or breathalyzer tests to determine if the driver is under the influence of alcohol or drugs.

It’s important to note that while failure to maintain lane can be a legitimate reason for a traffic stop, officers must still follow proper procedures and have reasonable suspicion of DUI to detain and arrest a driver. This means they must observe additional signs of impairment beyond just the lane deviation. It is usually accompanied by “bloodshot eyes”, or “odor of alcohol.” If you get pulled over for a DUI, call us immediately.

 

What Does It Mean If I Have Been Charged With “DUI Less Safe”?

It is commonly known that driving with a BAC above 0.08 is considered driving under the influence in Georgia. But, the police may still charge you with DUI if your BAC is below 0.08 if they feel that you are less safe to drive than you would have been if you had not consumed alcohol.

O.C.G.A. § 40-6-391 (a)(1) states that “a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive”. This simply means that you may still be charged, and convicted of, DUI even if your BAC registers at a level below 0.08.

If you have been charged with DUI less safe, it is important that you hire an experienced DUI attorney to fight to protect your driver’s license and to prevent the long-term consequences that come with a DUI conviction. The lawyers at W. Scott Smith are experienced with the nuances associated with a DUI case and will work to protect you and resolve your case with the best possible outcome. Call our office at 404-581-0999 for a free consultation.

Henry County Sexual Battery Attorney

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.

Pre-trial Diversion: What Is It?

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.