DUI Roadblocks

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Believe it or not, roadblocks are not an end-all be-all scenario for impaired drivers. In fact, roadblocks must pass legal muster in order to be legally compliant.

Stopping All Vehicles: During a DUI roadblock, all vehicles passing through a checkpoint location must be stopped. This includes both cars and motorcycles.

Minimal Delay: The duration of each stop should be minimized to reduce inconvenience to motorists. Officers cannot unduly prolong the stop.

Identification of Law Enforcement: Officers must be clearly identifiable as law enforcement personnel, typically through uniforms and marked vehicles.

Reasonable Articulable Suspicion: Although DUI roadblocks involve stopping all vehicles, an officer can only detain a driver further if they have reasonable articulable suspicion that the driver is impaired or has committed another crime.

 

Defenses Against Unlawful Stops

Improper Planning or Authorization: If the roadblock was not authorized by supervisory personnel or was conducted in a manner that deviated from established guidelines, it could be challenged as unlawful.

Lack of Reasonable Suspicion: If an officer lacks reasonable suspicion to detain a driver beyond the initial stop, any evidence obtained thereafter may be suppressed.

If you’ve been charged with a DUI or other traffic offense in Georgia because of a roadblock, it’s important to know your rights. Give us a call TODAY.

Look Ma, No Hands- Georgia’s Hands-Free Law

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Beginning July 1, 2018, Georgia implemented its Hands-Free law which aims to reduce distracted driving incidents by restricting cellphone use while driving. Drivers are prohibited from holding a cellphone or any stand-alone electronic device (iPad, etc.) with any part of their body. However, drivers are permitted to use hands-free technology like Bluetooth and earpieces for phone calls and navigation. The law does allow for exceptions like if you’re calling an emergency service.

If you’re caught using your phone or texting while driving, the first offense is a $50 fine and one point on your record. If you attend a court-approved distracted deriving program, the judge can decide to waive the fine. Additionally, many municipalities will give you a warning for a first offense. A second offense would result in a fine of $100 and two points on your record. For your third offense and every offense thereafter, you can expect a fine of $150 and three points on your record. Keep in mind that if you accumulate 15 points within 24 months on your record, your license will be suspended. These penalties can be fairly straight forward, but violating the Hands-Free law can be deemed “distracted driving.” If you are violating the Hands-Free law and cause serious injury or death of another person, you will likely be facing felony charges with enhanced fines.

If you get pulled over for using your phone while driving, do not hesitate! Give us a call NOW.

I Got Caught Speeding. Now What?

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If you’ve spent any time driving in Atlanta, I’m sure you’ve either witnessed another driver speeding or sped yourself. Ramifications from a speeding ticket vary based on your speed:

  • 15-18 mph over: 2 points
  • 19-23 mph: 3 points
  • 24-33 mph: 4 points
  • 34+: 6 points

In Georgia, if you accumulate 15 points in a 24 month period, your license will be suspended. If you are looking to reduce the number of points on your license, we always recommend taking a DDS-approved Defensive Driving course. A certificate of completion from one of these driving courses can reduce the number of points on your license by seven within a five year period.

The fine amount will depend on your exact speed but can range anywhere between $25-$1,000 or more. It is important to note that if you are traveling 75 mph+ on a 2-lane highway or 85+ on a 4-lane highway, you will be subject to a super speeder fine. In Georgia, this means that there is an additional $200 fine. You must pay the super speeder fine within 120 days or you will face a license suspension.

If you’re caught speeding, give our office a call IMMEDIATELY. Know your rights!

DUI Less Safe: What is It?

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If you’ve been pulled over for a DUI you may have seen a charge on the citation saying “DUI Less Safe.” There’s a lot of confusion about what this actually means. What people most commonly think of is “DUI Per Se” meaning that the authorities have a numerical reading of your blood alcohol content through blood, breath, or urine. If you’re over 21 years old, that means your BAC was above a .08.

On the other hand, “DUI Less Safe” essentially means that the driver is considered less safe to operate a vehicle due to alcohol or drug impairment, regardless of whether they meet the specific BAC threshold for DUI Per Se. DUI Less Safe is common in two scenarios, the first being a refusal of tests that may indicate impairment due to a BAC reading. If a police officer sees certain driving and/or physical manifestations that could indicate alcohol impairment and the driver refuses to perform any sobriety tests, they will usually issue a citation with DUI Less Safe because they do not have the BAC reading to issue DUI Per Se. The second scenario when DUI Less Safe is used is when your blood, breath, or urine shows that there is alcohol in your system, but the BAC is less than .08. Although it may seem strange to receive a DUI when your BAC is under the legal threshold for DUI Per Se, it does happen because the officer has deemed the driver “less safe” to operate a vehicle due to impairment.

If you or a loved one has gotten pulled over for a DUI in Georgia don’t hesitate! Call our office TODAY.

Child Hearsay in Georgia

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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.

First Offender Probation Revocation

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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

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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

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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

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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.
  13. Purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana.
  15. Exploitation and intimidation of disabled adults, elder persons, and residents or obstruction of an investigation.
  17. Voluntary manslaughter.
  18. Cruelty to animals.
  19. Violation of oath by a public officer.
  20. Financial transaction card fraud.
  21. Financial transaction card theft.
  22. Identity fraud.
  23. Racketeering and conspiracy.
  24. Trafficking of persons for labor or sexual servitude.
  25. Failure to appear, 2nd or subsequent offense.
  26. Domestic terrorism.
  28. Inciting to riot.
  29. Unlawful assembly.
  30. 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?

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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.