Georgia Criminal Street Gang

/in , , , , , , , , , , , , /by

Being charged with criminal street gang activity in Georgia is a serious legal matter that involves allegations of participating in criminal activities while being employed by or associated with a criminal street gang. Under Georgia law, particularly the Georgia Street Gang Terrorism and Prevention Act, individuals can be charged with this offense if they are accused of commission, attempted commission, conspiracy to commit, solicitation, coercion or intimidation to commit certain crimes, such as any drug offense, acts of violence, firearm offenses, thefts, human trafficking, racketeering and many other offenses. The law is designed to target not just the criminal acts themselves, but also the organized nature of the activities, which the state often alleges coordination, planning, and recruitment of members to carry out illegal activities.  Our law firm is seeing an uptick in indictments in Fulton, Dekalb, Clayton, Cobb and Coweta Counties on gang charges.

In Georgia, prosecutors have increasingly used social media posts, rap lyrics, and other forms of online expression as evidence in criminal street gang cases. This practice is part of a broader tactic used by the state to demonstrate gang affiliation, establish intent, or link individuals to criminal activities.

Here are some ways in which prosecutors use these forms of evidence:

  1. Gang Affiliation: Social media posts or music lyrics that mention specific gangs, symbols, or slang can be used to show that a defendant is associated with a gang. This is often a critical piece of evidence in cases where proving gang membership is important to securing a conviction under Georgia’s Street Gang Terrorism and Prevention Act.
  2. Intent and Motivation: Lyrics and posts that reference violence, criminal behavior, or that describe specific incidents can be used to establish intent or motive for crimes. Prosecutors may argue that these expressions reflect a mindset or belief system aligned with criminal activities.
  3. Admissions of Criminal Activity: If a defendant boasts about or admits to committing crimes in their lyrics or social media posts, prosecutors will use this as direct evidence of their involvement in illegal activities. Such admissions may bolster other evidence in a case.
  4. Coordinating Criminal Activity: Social media can be used to show coordination or communication among gang members, which can help prosecutors prove conspiracy or organized criminal conduct. This is particularly relevant in demonstrating the collective action of a gang.

However, the use of these forms of expression in criminal cases can be controversial, particularly when it involves artistic forms like music. This is often artistic expression, particularly in genres like rap, often includes fictional or exaggerated elements that do not necessarily reflect the artist’s real-life actions or intentions. Despite these concerns, courts have allowed such evidence when it is deemed relevant to the case.

In Georgia, this approach has been employed in high-profile cases, where prosecutors aim to crack down on gang-related crime by demonstrating that individuals are part of a broader criminal enterprise.

Defending against charges of criminal street gang activity can be challenging, as it often involves complex legal arguments about the individual’s involvement with the gang and the nature of the alleged criminal activities. Defense strategies may include challenging the evidence of gang membership or arguing that the accused’s actions were not part of any organized criminal activity. Given the serious implications of such charges, including the potential for long-term imprisonment and a lasting criminal record, it is crucial for anyone facing this charge to seek experienced legal representation.

Atlanta criminal street gang criminal defense Attorney Scott Smith has the experience to combat these allegations with a proven record. If you or a loved one is facing a charge of violation of criminal street gang activity it is imperative that you contact our office at 404-581-0999 for a free consultation.

 

Trafficking in Georgia

/in , , , , , , , , , , , , , /by

There is good news if you are charged with trafficking Cocaine, Dilaudid, Demerol, OxyContin and Oxycodone, Vicodin, Fentanyl, Ritalin, Adderall or Methamphetamine in Georgia.  As it stands currently, the court has authority to probate a portion of your sentence.  In July 2024, the Court of Appeals announced new guidelines the trial court may follow in sentencing someone to trafficking in cocaine or methamphetamine.

 

Theodore  Roundtree waived trial and pleaded guilty to trafficking in methamphetamine (Count 1) and possession of a firearm by a convicted felon (Count 4). ​ The trial court sentenced  Theodore Roundtree to 25 years, to serve 15 in prison and 10 on probation on Count 1, and 10 years to serve concurrent on Count 4.  The State not happy with the sentence appealed, arguing the trial court deviated from the mandatory minimum term of imprisonment and failed to sentence Theodore Roundtree to the maximum sentence under the recidivist statute. ​

 

Theodore Roundtree had a prior conviction in 2009 for fourteen felony counts in Gwinnett County. ​ The State indicted  Theodore Roundtree for trafficking in methamphetamine, possession of a firearm during a felony, fleeing and attempting to elude a police officer, and possession of a firearm by a convicted felon for his actions on February 5, 2022. ​The State agreed to a cap of serving 25 years under OCGA § 16-13-31 (e) (3) for Count 1 and 10 years concurrent on Count 4.

 

Under OCGA § 16-13-31 (e) (3) any person who sells, delivers, or brings into this state or has possession of 28 grams or more of any person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows: …

 

If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 400 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million. This is the top tier trafficking.

 

The statute allows the State to seek a reduced or suspended sentence upon any person convicted of violating the Code section if the person “provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals.” OCGA § 16-13-31 (g) (1).

 

It also allows the trial court, in its discretion, to depart from the mandatory minimum sentence specified for an offender under the Code section if the judge concludes that: (i) The defendant was not a leader of the criminal conduct; (ii) The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime; (iii) The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime; (iv) The defendant has no prior felony conviction; and (v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence. OCGA § 16-13-31 (g) (2) (A).

 

The sentencing departure range applicable to a person convicted under OCGA § 16-13-31 (e) (3) is “12 years and six months to 25 years imprisonment and a fine of not less than $500,000.00 nor more than $1 million.” OCGA § 16-13-31 (g) (2) (B) (x).

 

OCGA § 16-13- 31 (h) provides that “[a]ny person who violates any provision of this Code section shall be punished as provided for in the applicable mandatory minimum punishment and for not more than 30 years of imprisonment and by a fine not to exceed $1 million.”

 

OCGA § 17-10-1 (a) (1) (A) provides: Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of [*7] the entire sentence under such rules and regulations as the judge deems proper …

 

Because the trafficking statute does not include the language “adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld prior to serving the mandatory minimum term of imprisonment prescribed by this Code section” as it used to then the court retains jurisdiction under 17-10-1 to probate a portion of the sentence.  In summation, a penal statute’s use of “shall be imprisoned” or “shall be punished by imprisonment,” standing alone, does not mean a court cannot probate a portion of the sentence.

 

If you have been accused of trafficking Cocaine, Dilaudid, Demerol, OxyContin and Oxycodone, Vicodin, Fentanyl, Ritalin, Adderall or Methamphetamine, it is important to hire an experienced criminal defense attorney that will review your case and search for all possible defenses. The lawyers at the Law Office of Scott Smith handle marijuana trafficking cases regularly and will work hard to protect your constitutional rights. Call us today at 404-581-0999 for a free consultation.

Georgia Criminal Street Gang

/in , , , , , , , , , , , /by

Being charged with criminal street gang activity in Georgia is a serious legal matter that involves allegations of participating in criminal activities while being employed by or associated with a criminal street gang. Under Georgia law, particularly the Georgia Street Gang Terrorism and Prevention Act, individuals can be charged with this offense if they are accused of commission, attempted commission, conspiracy to commit, solicitation, coercion or intimidation to commit certain crimes, such as any drug offense, acts of violence, firearm offenses, thefts, human trafficking, racketeering and many other offenses. The law is designed to target not just the criminal acts themselves, but also the organized nature of the activities, which the state often alleges coordination, planning, and recruitment of members to carry out illegal activities.

 

The consequences of being charged with criminal street gang activity in Georgia are severe. This charge can result in enhanced penalties, including extremely long prison sentences and higher fines, compared to the penalties for the underlying criminal acts alone. For instance, if an individual is convicted of a crime like armed robbery and it is proven that the crime was committed as part of gang activity, the person could face additional years in prison on top of the sentence for the robbery. The law is also designed to make it easier for prosecutors to hold individuals accountable for the actions of the gang, even if they were not directly involved in every criminal act committed by the gang.

 

The state must prove four elements in a criminal street gang case. First the state must establish that the alleged criminal street gang is a group of three or more individuals, whether formal or informal, that engage in criminal street gang activity. The state then must show that the alleged is employed by, or merely associated with, the criminal street gang. The third element shows that the criminal street gang activity was committed by the defendant. Lastly the prosecution must establish that a nexus was met from the criminal street gang activity.

 

Defending against charges of criminal street gang activity can be challenging, as it often involves complex legal arguments about the individual’s involvement with the gang and the nature of the alleged criminal activities. Defense strategies may include challenging the evidence of gang membership or arguing that the accused’s actions were not part of any organized criminal activity. Given the serious implications of such charges, including the potential for long-term imprisonment and a lasting criminal record, it is crucial for anyone facing this charge to seek experienced legal representation.

 

Atlanta criminal street gang activity attorney Scott Smith has the experience to combat these allegations with a proven record. If you or a loved one is facing a charge of violation of criminal street gang activity it is imperative that you contact our office at 404-581-0999 for a free consultation.

 

Family Violence Battery with an Uncooperative Alleged Victim

/in , , , , , , , , , , , /by

Family Violence Battery is defined in O.C.G.A. 16-5-23.1 as intentionally causing substantial physical harm or visible bodily harm to another person who are:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges. A family violence battery can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. A major consequence of a family violence battery conviction is that any future convictions of the same crime is an automatic felony. The first conviction of a family violence battery is sentenced as a misdemeanor, however, the second and subsequent convictions have a maximum penalty of 5 years in prison.

It is not uncommon for an alleged victim in a Family Violence Battery case to be reluctant to testify or even want the charges to be dismissed altogether. It is very difficult, although not impossible, for the State to prove its case without having an alleged victim testify.

Due to the severity of the penalties for a family violence charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such a serious charge. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations. Therefore, if you have been charged with Family Violence Battery and the alleged victim is reluctant or does not want to testify, please call our office today at 404-581-0999 for a free consultation.

Police Searches and Consent: Know Your Rights

/in , , , , , , , , , , /by

The State of Georgia takes individual rights and liberties very seriously. This helps act as a roadmap of what government officials and police can and cannot do. One of these rights is property rights. The Fourth Amendment of the US Constitution protects citizens against unreasonable searches and seizures. This means that police generally need a search warrant to search your property. It also means that they need probable cause to determine if a crime is being or has been committed. You can almost always decline is a police officer asks to search your property. There are, however, some exceptions:

  • You give permission. One helpful tool is that you can limit what the police officer can search. For example, if they ask to search your home, you can consent to a certain part of the home but not to other parts.
  • If there is an emergency situation that justifies an immediate search.
  • Evidence of a crime is in plain view.
  • If you’ve just been arrested, police can search you and your immediate surroundings if you are lawfully arrested.

If you’ve been asked by a police officer to consent to a search, they may have been doing so unconstitutionally. This is important because a case can be completely dismissed due to the unconstitutionality of the search and/or seizure. Give us a call today.

DUI Roadblocks

/in , , , , , , , , , , , , , , , , , , , /by

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

/in , , , , , , , , , , , , , /by

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?

/in , , , , , , , , , , , , , , /by

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?

/in , , , , , , , , , , , , , , , , , , /by

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

/in , , , , , , , , , /by

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.